BENHAM, Justice.
Appellant Gregory Dwayne Miller appeals his convictions for the murder of Melissa Rushing and the concealment of her death.
Later in the evening, appellant was at the apartment with the victim, Meredith, Jermaine Williams, and Alphonso English. Appellant
Appellant forced Meredith to obtain bleach and pour it over appellant's hands, and appellant took a shower. Appellant then wrapped the victim up in a shower curtain and called his friend Tommy Zellner, who came over. Appellant told Williams, Meredith, and Zellner "what he had done," that "he had to get rid of her," and threatened them and their families if they did not help him dispose of the body. Williams helped appellant move the body downstairs and into the back seat of Zellner's car. Appellant sent Meredith off to fill appellant's car, along with a plastic jug, with gasoline, and the two cars were to meet up. After getting the gasoline, Meredith started driving away from the station but had to pull over and walk because the car broke down. Appellant obtained the jug of gasoline, himself. Using Zellner's car, Williams, Zellner, and appellant drove the body to a secluded location in Bibb County, pulled the body from the car, and then appellant poured gasoline over it and set it on fire. All three men then drove to Atlanta, and appellant did not return to Macon until the next day.
In response to a 911 call reporting a fire on the side of the road, the victim's body was discovered while it was still engulfed in flames. The authorities testified a cord had been wrapped around the victim's neck which then ran down her back to her feet, which were also bound together. Forensic evidence showed there were remnants of melted plastic on the body's head and neck held by what appeared to be an extension cord. Investigators observed blunt force trauma to the face that was inconsistent with damage due to the fire. They determined the body had been doused with a flammable liquid. Appellant's sister heard news on the television that a body with tattoos similar to the victim's had been found beside a road, and this prompted the sister to visit appellant's apartment. There she observed he had been cleaning and noticed the strong smell of bleach. She also noticed a piece of carpet had been cut out of the office floor, and when his sister questioned him, appellant told her he had spilled some ink on the carpet.
On August 11, 2008, investigators and crime scene technicians inspected appellant's apartment and noted that the victim's clothes had been stacked as if they were being packed away. They found cleaning items, including bleach, in the kitchen and a broken plate in the trash. The carpet in the office appeared to have been recently cut. Investigators found a utility knife in the office with a missing blade. They collected a number of samples they believed to be blood but none of the samples were a match for the victim's blood. The cause of death was deemed to be a combination of blunt force head trauma, smothering, and strangulation. The investigation led authorities to Meredith and Williams, but only after appellant was arrested did these witnesses disclose to the investigators all that had transpired.
1. Appellant asserts that, but for his statement to the police, the evidence was vague, ambiguous, and conflicting, at best, and that the only two other major witnesses, Meredith and Williams, admitted to at least participating in the concealing of a death, perjury in sworn statements to police, and obstruction of law enforcement. Consequently, appellant contends the evidence was
The trial court instructed the jury that the testimony of an accomplice, alone, is not sufficient to warrant a conviction, and also that whether a witness in the case was an accomplice is an issue for jury determination. From the evidence, the jury was entitled to find these witnesses were not accomplices in the concealment of the victim's death or any other criminal acts but were coerced by fear of harm or death to do appellant's bidding with respect to disposing of the body. See Kelly v. State, 270 Ga. 523, 525(2), 511 S.E.2d 169 (1999). Consequently, this is not a case in which the evidence of that crime consisted solely of the uncorroborated testimony of accomplices and was therefor insufficient to convict. Id. In any event, accomplices can corroborate each other. See Jones v. State, 235 Ga. 103(3), 218 S.E.2d 899 (1975); Skipper v. State, 314 Ga.App. 870, 872, 726 S.E.2d 127 (2012). Pursuant to the standard set forth in Jackson v. Virginia, supra, 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.
2. Appellant asserts his appointed trial counsel provided constitutionally ineffective assistance of counsel for several reasons and that he is thus entitled to a new trial. For the reasons discussed below, we find that appellant's assertions of error cannot be sustained because they do not meet both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
(a) (i) With respect to trial preparation and the calling of witnesses, appellant complains that his trial counsel failed to use any of the witnesses he identified to counsel, that counsel rarely met with him, and would not listen to his concerns about his defense. At the motion for new trial hearing, however, appellant's trial counsel testified that he met with appellant a number of times, provided appellant with information gathered during discovery, and that he investigated witnesses identified by appellant but concluded none of them would be helpful to the case and one would have been harmful to call. "A strong presumption exists that counsel's conduct falls within the broad range of professional conduct.... [T]he trial court was entitled to believe counsel's testimony he consulted with his client over appellant's testimony that he did not[.]" Coggins v. State, 275 Ga. 479, 481-482(3), 569 S.E.2d 505 (2002).
Further, appellant presented no evidence whatsoever regarding the identity of the witnesses he claims should have been called or what their testimony would have been. Deciding which witnesses to call is a matter of trial strategy and tactics, and because appellant failed to show that the strategic decisions made by his counsel with respect to witnesses were so patently unreasonable that no competent attorney would have chosen them, the trial court did not err in finding trial counsel's performance in this regard was not constitutionally deficient. See Washington v. State, 294 Ga. 560, 565-566(3), 755 S.E.2d 160 (2014).
(ii) One of appellant's complaints regarding counsel's failure to call witnesses relates to his assertion that counsel wrongly failed to present the testimony of a DNA expert. Appellant, however, has failed to demonstrate how trial counsel's failure to present the testimony of a DNA expert created prejudice pursuant to the two-pronged test set forth in Strickland because the State's witnesses established the absence of
(b) Appellant also asserts his counsel provided ineffective assistance when he failed to withdraw from representing him, so that new counsel could be appointed, when an ethical conflict of interest arose which caused counsel to present appellant's testimony in a narrative format as opposed to questioning him. When appellant elected to take the stand, trial counsel informed the court outside the presence of the jury that an ethical issue prevented him from questioning appellant. An ex parte hearing was conducted, and when asked, trial counsel disclosed that the ethical issue was the potential violation of Rule 3.3 of the Georgia Rules of Professional Conduct. That rule prohibits a lawyer from offering evidence the lawyer knows to be false.
Appellant now asserts that when the trial court permitted him to testify in the narrative, this effectively permitted his trial counsel to withdraw from representing him, leaving him without counsel, thus establishing constitutionally ineffective assistance of counsel. He further asserts that pursuant to Rule 1.7 of the Georgia Rules of Professional Conduct, when an attorney determines that his duty to a third party, such as the court, is in conflict with his duty to represent the client, the attorney shall not continue to represent the client.
Because counsel is precluded from assisting the client in presenting false evidence, ineffective assistance of counsel is not shown by trial counsel's taking steps to avoid violating this ethical duty. See Nix v. Whiteside, 475 U.S. 157, 168-171(II)(C), 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). Although other options for avoiding violating this duty exist, courts that have examined the issue have overwhelmingly endorsed the option of permitting a criminal defendant to testify in the narrative, after counsel has attempted to dissuade the defendant from perjury. See Foster v. Smith, 2014 WL 1230551, *14 (W.D.Mich.) (March 25, 2014) and cases cited therein.
Id. at *15.
Trial counsel testified at the motion for new trial hearing that he believed the only
Further, with respect to the assertion that trial counsel was faced with a conflict of interest that required him to withdraw, we note that "[i]n every case, an attorney's loyalty to the client is tempered by the rules of professional responsibility. That divided loyalty, however, is not the type of conflict of interest that rises to the level of a presumption of prejudice." State v. McDowell, 272 Wis.2d 488, ¶ 61, 681 N.W.2d 500 (2004). Even assuming, without deciding, that trial counsel should have sought leave to withdraw and a mistrial prior to presenting his testimony in a narrative format, appellant failed to establish prejudice by that failure. "[A]t a minimum the attorney's first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct." Nix, supra, 475 U.S. at 169, 106 S.Ct. 988.
3. (a) Both Williams and Meredith referred in their testimony to appellant's incarceration in the context of explaining why they initially failed to make truthful statements to investigators, stating that they felt safer speaking to the authorities once they knew appellant was in jail. Even though no objection was raised to this testimony, appellant asserts this testimony improperly placed his character into evidence and the trial court erred by failing to act sua sponte to give curative instructions. In support of his assertion that curative instructions were required, appellant cites to cases in which this Court has found no error in the trial court's failure to grant a motion for mistrial where the trial court otherwise gave curative instructions. See Culler v. State, 277 Ga. 717(3), 594 S.E.2d 631 (2004); Carruthers v. State, 272 Ga. 306(8), 528 S.E.2d 217 (2000), rev'd on other grounds, Vergara v. State, 283 Ga. 175, 177(1), 657 S.E.2d 863 (2008). In those cases, however, the court's remedial instructions were given in response to an objection raised by the defendant. When no objection to testimony is raised at trial, the issue is waived, and the error, if any, is not preserved for appeal. See Martin v. State, 281 Ga. 778, 779-780(2), 642 S.E.2d 837 (2007). Further, no reversible error was created by the trial court's failure, sua sponte, to give a curative instruction to this testimony. Failure to give an unrequested curative instruction does not create reversible error. See Hamilton v. State, 274 Ga. 582, 584(4), 555 S.E.2d 701 (2001) (holding that even where an objection is raised, no reversible error is created by the trial court's
(b) In the course of describing the events of the night in question and the appellant's words and actions, Williams testified about how appellant revealed to him and Meredith what had happened and what he demanded they do to assist him. Williams stated that appellant declared "this wasn't his first...." Before he could finish the sentence, appellant's counsel objected. Pursuant to a discussion outside the presence of the jury, appellant's counsel moved for mistrial, which was denied. Instead, the trial court instructed the jury to disregard the witness's last sentence, which was incomplete, and instructed them not to speculate as to what the witness was about to say or what he meant. Appellant's renewed motion for mistrial was denied. We reject appellant's assertion that the trial court erred by denying his motion for mistrial as a result of this testimony because the testimony improperly referenced prior bad acts by the appellant and thus improperly placed his character into evidence. We agree with the trial court's conclusion that even if the jury assumed the witness was about to testify that appellant said "this was not his first rodeo," the jury had no way to know what was intended by such a statement as they had no knowledge of the appellant's prior criminal record.
"Whether to grant a mistrial based on improper character evidence is within the discretion of the trial court. [Cit.] We have held that curative instructions are an adequate remedy when a witness inadvertently refers to a defendant's prior convictions or criminal acts." Bunnell v. State, 292 Ga. 253, 257(4), 735 S.E.2d 281 (2013). In this case, the incomplete sentence uttered by the witness was not in response to an improper question about prior acts. Further, the witness did not actually testify to any prior criminal acts by the appellant or to any admission of such acts by the appellant. Curative instructions were given. Consequently, the trial court did not commit reversible error by denying appellant's motion for mistrial.
4. Whether the trial court erred in denying appellant's motion to exclude his custodial statement to police on the ground that it was not voluntarily made under the totality of the circumstances is moot since the statement was never entered into evidence. Accord Lawler v. State, 276 Ga. 229, 233(4)(d), 576 S.E.2d 841 (2003) (holding the argument that the police improperly seized legally privileged documents was moot when no such documents were admitted at trial). The record reflects that appellant even withdrew his request to charge on the voluntariness of the custodial statement, acknowledging the charge was unnecessary since counsel did not recall the State asking about that statement.
Judgment affirmed.
All the Justices concur.