BENHAM, Justice.
Appellant Tony Lamar Thompson appeals his convictions for felony murder and related crimes regarding the death of Reynaldo
Upon returning home mid-morning on April 4, Williams testified she contacted the police in order to provide information about the victim's murder. Detectives picked her up at her home and took her to the police station where she made a statement and identified appellant out of a photo line-up as the person who killed the victim. Williams then rode with police to show them where to find the murder weapon and the bloody shirt, both of which police were able to recover as evidence. Investigators also found three 9mm Luger Blazer shell casings near the passenger side of the victim's truck, recovered a bullet fragment from the interior of the victim's truck, and recovered two bullets from the victim's body. At trial, the ballistics expert testified that the shell casings and projectiles had all been fired from the gun, which was a 9mm Luger, recovered with Williams' assistance. DNA experts testified that the bloody shirt contained the victim's blood DNA, as well trace amounts of appellant's DNA on the shirt's collar. Buttons found at the scene were consistent with the remaining buttons on the bloody shirt. A fingerprint analyst testified that appellant's fingerprints matched fingerprints found on the exterior passenger door of victim's truck. The medical examiner testified the victim was shot four times and that two of the gunshots were fatal: a gunshot to the face and a gunshot to the chest which damaged the victim's lungs, heart and liver.
Taking the stand in his own defense, appellant testified he did not commit the crime. He stated on the evening of April 3, the victim came by his apartment with Williams and another person. Appellant said the three people left after he gave the victim some of his clothes to wear to a club the three were going to that night. In the early morning hours of April 4, appellant stated
1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant alleged counsel was ineffective for failing to object to a question propounded by the prosecutor in which he contends the prosecutor stated his opinion of appellant's guilt. In order to prevail on a claim of ineffective assistance of counsel, appellant
(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34(4), 644 S.E.2d 837 (2007). If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by the Court. Wright v. State, 291 Ga. 869, 870(2), 734 S.E.2d 876 (2012).
A witness who was Williams' friend and who also knew appellant testified that at about 7 a.m. on April 4
It is at this point, appellant argues that trial counsel should have objected. At the motion for new trial hearing, trial counsel testified that she did not believe the prosecutor's question was objectionable because the witness had come to the conclusion herself that appellant was involved in the incident.
3. Appellant complains the prosecutor engaged in misconduct for the reasons stated in Division 2 of this opinion. However, appellant waived appellate review of any challenge regarding the prosecutor's conduct because he failed to make a contemporaneous objection at trial. Sanders v. State, 289 Ga. 655(2), 715 S.E.2d 124 (2011).
4. Appellant contends the trial court abused its discretion when it allowed two witnesses to testify about prior difficulties between the victim and appellant. Specifically, the record shows that after a proffer was made by the State, the trial court allowed the jury to hear testimony from the victim's cousin and the cousin's girlfriend concerning prior difficulties between appellant and the victim. The cousin testified that about a month and a half prior to the murder, the victim told him about a dispute appellant and the victim had over money from a check-cashing scheme in which they were both allegedly involved. The victim's cousin explained he was privy to the scheme and the dispute because he was considering joining the scheme at the victim's invitation. The
Appellant alleges the trial court abused its discretion when it admitted this testimony because his Sixth Amendment right to confrontation was violated when the witnesses effectively testified on the deceased victim's behalf. Appellant's Sixth Amendment argument is solely focused on the trial court's finding that the proffered testimony had an indicia of trustworthiness, one of the prerequisites for applying the necessity exception to the rule excluding hearsay (see former OCGA § 24-3-1(b)
"Whether testimony was accompanied by particular guarantees of trustworthiness is a matter for the trial court's discretion." Belmar v. State, 279 Ga. 795(2), 621 S.E.2d 441 (2005). We have held that a statement is trustworthy where there is a showing that the deceased enjoyed a close personal relationship to the person who is testifying as to the statement. See Davis v. State, 294 Ga. 486(2), 754 S.E.2d 67 (2014). Here, the trial court concluded the proffered testimony was reliable because it found the victim was like a brother to both the cousin and the cousin's girlfriend; it found this close relationship was underscored by the fact that the victim invited the cousin to participate in the check-cashing scheme; and it found the victim spent a significant amount of time with the cousin and the cousin's girlfriend, noting in particular that the three spent time together on the day before the victim's death. On this record, we cannot say the trial court abused its discretion in determining the trustworthiness of the statements. We note that any alleged harm from the admission of this testimony was mitigated by the fact that both witnesses testified the victim and appellant continued to be friends in spite of their prior difficulties. The trial court did not err when it allowed these two witnesses to testify at trial.
5. Appellant contends the trial court erred when it did not grant appellant's motion for mistrial concerning certain testimony elicited by the prosecutor. The record shows the apartment resident who discovered the body knew appellant and the victim and she testified that when she called appellant to tell him his "home boy" was dead, appellant came to the scene while police were investigating and then left. The following colloquy transpired between the prosecution and the resident:
At that point, appellant objected on the grounds the prosecutor was leading the witness and the trial court sustained the objection. The prosecutor's examination continued as follows:
Whether to grant a mistrial is a matter of the trial court's discretion. Jackson v. State, 292 Ga. 685(4), 740 S.E.2d 609 (2013). The trial court's ruling on a motion for mistrial will not be disturbed unless there is a showing that a "a mistrial is essential to the preservation of the right to a fair trial." Id. at 689, 740 S.E.2d 609. Here, the trial court's sustaining appellant's objection caused the prosecution to cease the questioning at issue, sufficiently preserving appellant's right to a fair trial. See id. Appellant has failed to show an abuse of the trial court's discretion.
6. Appellant alleges the trial court abused its discretion when it failed to strike a prospective juror for cause. In response to a general question posed to the entire venire, Juror 9 indicated she might have some issue with appellant's status as a previously convicted felon. When asked during her individual voir dire to explain, Juror 9 stated, "I think opportunities for rehabilitation in our society are slim. And I think history has a tendency to repeat itself." Juror 9 stated, however, that she could be objective and keep an open mind at trial. The following colloquy then transpired when appellant's counsel further questioned Juror 9:
The defense asked no further questions and there is no indication in the transcript excerpt provided that appellant ever moved the trial court to strike the juror for cause pursuant to OCGA § 15-12-164(d), which requires the trial court to excuse for cause any juror it determines to be substantially impaired in her ability to be fair and impartial. Ultimately, appellant, struck Juror 9 by using one of his peremptory strikes. Appellant argued at the motion for new trial hearing, and now argues on appeal, that Juror 9's reference to "objective data" indicated that the juror was biased and would need "extrinsic proof," or "statistics that rehabilitation does work," before she would change her "fixed" opinion and that the trial court should have dismissed the juror for cause sua sponte. At the motion for new trial hearing, the trial court indicated it did not agree with appellant's interpretation of the juror's testimony, it noted that the juror had stated she could be fair and impartial, and it denied appellant's motion for new trial.
An appellate court pays deference to the trial court's resolution of any equivocations or conflicts in a prospective juror's responses. Lewis v. State, 279 Ga. 756(3)(a), 620 S.E.2d 778 (2005). The determination of a potential juror's impartiality is within the trial court's sound discretion and the trial court will only be reversed on such matter upon finding a manifest abuse of discretion. See Kim v. Walls, 275 Ga. 177, 178, 563 S.E.2d 847 (2002). See also Poole v. State, 291 Ga. 848(3), 734 S.E.2d 1 (2012). Upon our review of the transcript excerpt of the voir dire of Juror 9, we cannot say the trial court manifestly abused its discretion when it did not excuse this prospective juror for cause sua sponte.
Judgment affirmed.
NAHMIAS, Justice, concurring specially.
I concur fully in the majority opinion except for Division 6, which concludes that "we cannot say the trial court manifestly abused its discretion when it did not excuse this prospective juror for cause sua sponte." I agree that the trial court did not abuse its discretion in not excusing Juror 9 for cause. That would be true even if appellant had moved to excuse that juror for cause. But the record does not show that appellant asked the trial court to excuse the juror, or that the court ruled on the issue during the trial. In the absence of a contemporaneous objection and ruling at trial, this issue was not properly preserved for appeal. Accordingly, even if we proceed to address the issue on the merits as an alternative holding, it should first be deemed waived — as this Court and the Court of Appeals have done in similar situations many times before. See, e.g., Passmore v. State, 274 Ga. 200, 201, 552 S.E.2d 816 (2001); Ashford v. State, 271 Ga. 148, 148, 518 S.E.2d 420 (1999); Sewell v. State, 302 Ga.App. 151, 154, 690 S.E.2d 634 (2010).
But instead of holding that the issue was waived for appeal, in a number of other cases this Court has resolved similar claims with a formulation like the one used in the majority opinion today, saying that the trial court did not err or abuse its discretion in failing to excuse a juror for cause "sua sponte." Despite these repeated suggestions that trial courts have an obligation to excuse jurors for cause without any request from a party, as best I can tell, the Court has never explained the source of that duty, nor have we ever held that a trial court violated that duty. Indeed, in concluding that the trial court did not err, the Court typically has not even indicated what the alleged basis was for excusing the juror in question, much less analyzed the merits of the issue. See, e.g., Cade v. State, 289 Ga. 805, 807, 716 S.E.2d 196 (2011); Lewis v. State, 279 Ga. 756, 759-62, 620 S.E.2d 778 (2005); Lawler v. State, 276 Ga. 229, 235, 576 S.E.2d 841 (2003).
It appears that this "sua sponte" concept crept into our general criminal case law from its original use in death penalty cases, see Childs v. State, 257 Ga. 243, 249, 357 S.E.2d 48 (1987), where this Court may review issues not properly objected to at trial pursuant to our statutory duty to determine whether a death sentence has been imposed as the result of passion, prejudice, or any other arbitrary factor, see OCGA § 17-10-35(c)(1); Hicks v. State, 256 Ga. 715, 730, 352 S.E.2d 762 (1987). It is also worth noting that in Poole v. State, 291 Ga. 848, 734 S.E.2d 1 (2012), a case cited in the majority opinion, we recently clarified that the trial court has no duty "to conduct sua sponte an examination of the challenged juror" or "to provide evidence on which to base its decision to retain or remove the juror," overruling a Court of Appeals' decision that had held otherwise. See id. at 852-854, 734 S.E.2d 1.
Before simply repeating the formulation used by the majority in deciding Division 6, we should justify its assertion that a trial court has a duty to excuse jurors for cause sua sponte in non-death penalty criminal cases — a duty that, if it exists, must be possible to violate, even though we have not once found that to have occurred. If there is no solid justification for imposing that obligation, we should stop using the "sua sponte" language and instead apply the ordinary rule that an issue must be raised and ruled on at trial to preserve it for appellate review — the rule the majority opinion applies in Division 3. And if we decide, notwithstanding such waiver, to address the merits of the issue, we should do so as if the issue was properly presented, applying the usual abuse of discretion standard of review.
For these reasons, I would conclude that appellant waived review of his challenge to Juror 9, and in any event the trial court did not abuse its discretion in not excusing that juror for cause. I therefore agree with the result of Division 6 of the majority opinion, but I do not agree with all of its reasoning. I am authorized to state that Justice Blackwell joins this special concurrence.