BENHAM, Justice.
Appellant Tammy Poole was convicted of the April 2007 malice murder of her husband,
The medical examiner who performed an autopsy on the body of Robert Michael Poole testified Poole died as a result of a "near-contact" gunshot wound to the left side of his forehead, just above his left eye. A firearms examiner from the Georgia Bureau of Investigation testified the bullet removed from the victim's body during the autopsy was fired from the Remington 22 semi-automatic rifle that was found in the bedroom shared by appellant and the victim. Appellant told the first responders to the emergency call for assistance that the victim had shot himself accidentally. She later told authorities that the rifle had discharged when it caught on a broken laundry basket as the victim attempted to pick up the rifle and, later, that appellant had been shot while he and appellant struggled for possession of the rifle.
The victim's brother-in-law was one of several persons in the company of appellant and the victim several hours before the shooting, and he testified he heard the victim tell appellant he wanted a divorce and would seek a restraining order against appellant. The witness stated appellant then struck the victim with her hand and told him she would kill him before she let him leave her. Several other persons also testified to having seen appellant strike the victim and utter the threat. The victim's sister, who was also present about three hours before the victim was killed, testified appellant accused the victim of having an intimate relationship with another woman, and the victim began to pack his belongings in his truck and expressed his intent to seek a divorce from appellant. A woman who was incarcerated in the same facility as appellant testified that appellant told her she had gotten the victim "out of the picture" in order to be with a married man she recently had been seeing. The inmate/witness also testified that appellant offered to pay the witness to destroy the green
1. Appellant contends the evidence presented by the State was not sufficient to authorize the convictions because the only direct evidence, the testimony of appellant's fellow inmate, was impeached, and because the evidence was circumstantial and did not exclude every reasonable hypothesis of guilt. See OCGA § 24-4-6. However, questions concerning reasonableness are generally for the jury and where the jury is authorized to find that the evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis other than guilt, an appellate court will not disturb the finding unless the verdict of guilty is unsupportable as a matter of law. Brooks v. State, 281 Ga. 514(1), 640 S.E.2d 280 (2007). Furthermore, the credibility of a witness is a question for the jury, not the appellate court. Pridgett v. State, 290 Ga. 365, 366, 720 S.E.2d 639 (2012). The evidence, as summarized above, was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder, simple battery/family violence, possession of a firearm during the commission of a crime and while a convicted felon, and making a false statement. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Sampson v. State, 279 Ga. 8(1), 608 S.E.2d 621 (2005) (making a false statement); OCGA §§ 16-5-23(f) (simple battery of a spouse); 16-11-106 (possession of a weapon during the commission of a crime), and 16-11-131 (possession of a firearm by a convicted felon).
2. Appellant complains the trial court erred when it denied her motion to bifurcate the trial and try separately the count of the indictment charging appellant with being a felon in possession of a firearm. However, the trial court did not err. Bifurcation was not authorized because the charge of being a felon in possession served as the underlying felony of the count of the indictment charging felony murder (Finley v. State, 286 Ga. 47(2), 685 S.E.2d 258 (2009)), and a motion to bifurcate should be denied where the count charging possession of a firearm by a convicted felon might serve as the underlying felony supporting a felony murder conviction. Head v. State, 253 Ga. 429(3a), 322 S.E.2d 228 (1984), overruled on other grounds in Ross v. State, 279 Ga. 365, 368 n. 17, 614 S.E.2d 31 (2005).
3. Appellant complains the trial court erred when it denied appellant's motion to strike a juror for cause and when the trial court failed to conduct an inquiry of the juror after the juror disclosed she held a preconceived notion concerning one of the witnesses that was not beneficial to the defense.
During voir dire, the venirewoman disclosed she knew a witness
Whether to strike a juror for cause lies within the sound discretion of the trial judge (Corza v. State, 273 Ga. 164(3), 539 S.E.2d 149 (2000)), and the trial court's exercise of that discretion will not be set aside absent a manifest abuse of discretion. Lewis v. State, 279 Ga. 756(3a), 620 S.E.2d 778 (2005). A juror's opinion of her qualification to serve is not determinative of the question (OCGA § 15-12-164(d); Jones v. State, 232 Ga. 324, 330, 206 S.E.2d 481 (1974)), and a juror's expression of belief in the credibility of a witness does not mandate that the juror be excused for cause. Merneigh v. State, 242 Ga.App. 735(6), 531 S.E.2d 152 (2000). Rather, for a juror in a criminal case to be excused for cause on the statutory ground that her ability to be fair and impartial is substantially impaired, it must be shown that she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will not be able to set it aside and decide the case on the evidence or the court's charge on the evidence. Higginbotham v. State, 287 Ga. 187(5a), 695 S.E.2d 210 (2010). A juror's knowledge of, or relationship with, a witness, attorney, or party is a basis for disqualification only if it has created in the juror a fixed opinion of guilt or innocence or a bias for or against the accused. Gibson v. State, 267 Ga.App. 473(4), 600 S.E.2d 417 (2004). The law presumes that potential jurors are impartial, and the burden of proving partiality is on the party seeking to have the juror disqualified. Kim v. Walls, 275 Ga. 177, 179, 563 S.E.2d 847 (2002). See also OCGA § 15-12-164(a)(3), (b) (juror who answers the first two statutory voir dire questions in the negative and the third in the affirmative "shall be adjudged and held to be a competent juror..." and either the State or the defendant has the right to introduce evidence to show that the juror's answers are untrue). In the absence of evidence that the juror held a fixed and definite opinion concerning the guilt or innocence of the defendant that she could not set aside and that she could not decide the case on the evidence or the court's instructions, the trial court did not abuse its discretion in failing to excuse her for cause. Torres v. State, 253 Ga.App. 318(2), 558 S.E.2d 850 (2002). See Elliott v. Home Depot USA, 275 Ga.App. 865, 868, 622 S.E.2d 77 (2005); Gibson v. State, supra, 267 Ga.App. at 479, 600 S.E.2d 417.
Appellant contends the trial court erred when it failed to conduct a judicial voir dire of the juror after learning the contents of the juror's note and after defense counsel and the ADA had declined to question the juror further. While appellant recognizes that the burden of proving a juror's partiality rests with the party seeking to have the juror disqualified (Kim v. Walls, supra, 275 Ga. at 179, 563 S.E.2d 847), she argues the trial court had a duty to conduct sua sponte an examination of the challenged juror, suggesting that the trial court was required to provide evidence on which to base its decision to retain or remove the juror. In Valentine v. State, 265 Ga.App. 139(2), 592 S.E.2d 918 (2004), the Court of Appeals reversed a conviction because "neither the trial court nor the prosecutor elicited sufficient information about the juror's relationship with the victim's mother `to allow the court to make an objective evaluation of her partiality.' [Cit.]." (emphasis in original).
In Kim v. Walls, 275 Ga. at 177, 563 S.E.2d 847, we held that an abuse of discretion occurred when the trial court curtailed voir dire questioning of a venireperson who expressed partiality in favor of a party because of her professional relationship with the party, thereby preventing the process from ferreting out bias. Earlier in the opinion, we stated that when a prospective juror has a close relationship with a party or a relationship that suggests bias, the trial court must do more than "rehabilitate" the juror through the use of a "talismanic question." Id. at 178, 563 S.E.2d 847. We stated that the trial court "is statutorily bound to conduct voir dire adequate to the situation, whether by questions of its own or through those asked by counsel." Id. In criminal trials, a trial court has a statutory duty set out in OCGA § 15-12-163(c) to hear such evidence as is submitted in relation to the truth of the challenges for cause set forth in OCGA § 15-12-163(b) (citizenship, residence, age, mental fitness, kinship to prosecutor, accused, or victim, prior felony conviction, ability to communicate in the English language); and, in a felony trial, the trial court is statutorily required by OCGA § 15-12-164(b) to hear the evidence introduced by the State or the accused to show the lack of truthfulness of the juror's answers to the statutory voir dire examination found in OCGA § 15-12-163(a). These statutes require a trial court to conduct further voir dire at which counsel for the parties attempt to elicit information that supports their position concerning the retention or dismissal of the challenged juror. While the trial court is authorized to pose questions during the voir dire of the venireperson who is the subject of a challenge for cause, our statement in Kim v. Walls should not be read as imposing on a trial court the duty and responsibility to independently question a member of the venire when counsel for both parties do not wish to question the person further. As we stated in Kim v. Walls, "the burden of proving partiality still rests with the party seeking to have the juror disqualified." Id. at 179, 563 S.E.2d 847. Thus, when a party rebuts the presumption of juror impartiality through the juror's admission that the juror's partiality would be affected by the juror's relationship with a party, attorney, or witness or the juror's extra-judicial knowledge of the case, and the trial court does not dismiss the juror for cause, that decision is not a manifest abuse of discretion so long as there is evidence brought out by questioning by the trial court or counsel that re-establishes the juror's impartiality without resort to talismanic questions cursorily asked after the inappropriate curtailment of counsel's voir dire examination of the juror. See Pitts v. State, 260 Ga.App. 553(5b), 580 S.E.2d 618 (2003) (reliance on Kim v. Walls is misplaced when the case is not one in which the trial court curtailed the parties' voir dire of a prospective juror who had expressed well-founded doubts about being able to serve impartially due to a close relationship with a party or witness and trial court relied on its own insufficient rehabilitative questioning of the veniremember to qualify the juror). Inasmuch as the trial court was not required to make further inquiry of the juror after defense counsel "rested his case" for excusal for cause, the trial court did not err when it did not independently question the juror. To the extent Valentine v. State, supra, 265 Ga.App. 139, 592 S.E.2d 918, can be read a holding that a trial judge has an independent duty to question a veniremember, it is disapproved.
4. The State began its presentation of evidence by tendering certified copies of
5. Contending her right to compulsory process was circumvented, appellant takes issue with the trial court's grant of the State's motion to quash subpoenas issued to the defense and served on three persons: a judge in the drug court run by the Superior Court of Pickens County, a pre-trial probation officer assigned to the drug court, and the drug-court coordinator. Appellant contends she was wrongfully required to establish the materiality of the testimony of her subpoenaed witnesses before they were permitted to testify. However, the right to compulsory process relates to the issuance of the process, not to the actual attendance of the witnesses. Mafnas v. State, 149 Ga.App. 286(1), 254 S.E.2d 409 (1979) (disapproved on other grounds in Davenport v. State, 289 Ga. 399, 402, 711 S.E.2d 699 (2011)). Appellant's right to compulsory process was not abridged since the subpoenas were issued by the court and served on the witnesses who, in fact, appeared and whose testimony was proffered to the trial court outside the presence of the jury. After the subpoenas were issued and served, the trial court was statutorily authorized, upon written motion, to modify or quash "unreasonable or oppressive" subpoenas. OCGA § 24-10-22(b)(1). It was only at this point that the inquiry turned to the expected content of the witnesses's testimony. The motion to quash the subpoenas averred, and defense counsel acknowledged, that the subpoenaed witnesses were to be called to impeach the testimony of the jailed prisoner who testified against appellant and who had failed the drug-court program in which the three subpoenaed witnesses worked. Appellant wished to inquire of the witnesses their impression of the veracity of the jailed prisoner, using the series of statutory questions set out in OCGA § 24-9-84(4). The trial court quashed the subpoenas, ruling that the "drug-court community" was not one by which the standard for truthfulness was set and was not large enough to encompass the person's reputation. In implicitly ruling that the subpoenas that had been issued and served were unreasonable or oppressive, the trial court did not violate appellant's right to compulsory process.
6. The judge who presided over appellant's 2008 murder trial served as counsel for appellant in 1991 when appellant pled guilty to burglary charges in Fannin County, and his signature appeared as defense counsel on the certified copy of the 1991 indictment admitted into evidence in the 2008 trial.
7. Appellant argues the trial court erred when it permitted the assistant district attorney to present new evidence during his closing argument when he attempted to demonstrate the difficulty of killing oneself with the rifle from which the bullet that killed the victim was fired. See Williams v. State, 254 Ga. 508(3), 330 S.E.2d 353 (1985) (a prosecutor may not inject into the final argument matters which have not been proven in evidence). Appellant's failure to make this objection at trial precludes appellate review of the issue. Sumlin v. State, 283 Ga. 264(2), 658 S.E.2d 596 (2008). See also Perry v. State, 274 Ga. 236(3), 552 S.E.2d 798 (2001).
8. Appellant asserts she was the recipient of ineffective assistance of trial counsel.
Pruitt v. State, 282 Ga. 30(4), 644 S.E.2d 837 (2007). "A claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight." Hooks v. State, 280 Ga. 164(3), 626 S.E.2d 114 (2006).
Appellant contends trial counsel performed deficiently when he did not object to portions of the State's opening statement setting forth appellant's criminal history or to the introduction of certified copies of her convictions,
Appellant also sees deficient performance in trial counsel's failure to object to the assistant district attorney's demonstration during closing argument of the difficulty one would have in committing suicide by shooting oneself with a Remington rifle just above one's left eye. Inasmuch as the State has broad latitude to demonstrate and illustrate that which is authorized by the evidence (Perry v. State, 274 Ga. 236(3), 552 S.E.2d 798 (2001); see also Bryant v. State, 282 Ga. 631(7), 651 S.E.2d 718 (2007)), we cannot say trial counsel performed deficiently when he did not object to the closing-argument demonstration that was authorized by the evidence.
Appellant contends trial counsel rendered ineffective assistance of counsel because he purportedly failed to investigate the case adequately. Appellant bases her assertion on the affidavit of a firearms expert presented at the hearing on appellant's motion for new trial. The expert's affidavit stated that a design defect in the Remington rifle model 552 allowed the rifle to fire without activating the trigger. Trial counsel testified that his two investigators, both familiar with firearms due to past law-enforcement and military experience, had examined the rifle and neither had found such a defect. On cross-examination, trial counsel acknowledged that the expert's affidavit did not state the date on which the design defect was discovered and counsel had not heard of such a defect until informed by appellant's post-trial counsel in June 2011. Trial counsel also testified that he was not aware of whether the Georgia Bureau of Investigation had reported any problems with the model of the Remington rifle at issue. Trial counsel's decision that his experts' examinations of the rifle was sufficient, even though they did not uncover the design defect reported by another expert after trial, does not constitute the failure to make a reasonable investigation that constitutes ineffective assistance of counsel.
(Citations and punctuation omitted.) Wiggins v. Smith, 539 U.S. 510, 521-522(II)(A), 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). See also Martin v. Barrett, 279 Ga. 593, 619 S.E.2d 656 (2005). Trial counsel's decision to rely on his investigators' inspections of the rifle was not a dereliction of his duty to conduct a reasonable investigation since his decision was the result of reasoned strategic judgment and not the result of inattention. See Wiggins v. Smith, supra, 539 U.S. at 526(II)(B)(1), 534(II)(B)(3), 123 S.Ct. 2527; Terry v. Jenkins, 280 Ga. 341(2c), 627 S.E.2d 7 (2006).
Lastly, appellant contends trial counsel performed deficiently when, after stipulating to the admissibility of letters written by appellant during her pre-trial incarceration, he did not seek redaction of those portions of the letters that "intimated or suggested" that appellant had engaged in intimate relations with the recipient of the letters prior to the death of her husband. The State used the letters to establish a reason why appellant may have wanted her husband dead. Inasmuch as the intimations or suggestions contained in the letters written by appellant were admissible (Thomas v. State, 263 Ga. 85(2), 428 S.E.2d 564 (1993)), trial counsel did not perform deficiently when he failed to seek redaction of portions of the letters.
9. Appellant contends her conviction and sentence for possession of a firearm by a convicted felon should be vacated because that crime served as the predicate felony for the felony murder charge for
Judgment affirmed.
All the Justices concur.