NAHMIAS, Justice.
Appellants Robert Walker and Tasha Flowers were tried together and convicted of felony murder and possession of a firearm during the commission of a felony following a drive-by shooting into a bar in Columbus, Georgia. On appeal, Walker contends only that the trial court erred in failing to give the complete pattern instruction on circumstantial evidence. Flowers contends that the trial court erred in failing to grant her motion for new trial because the jury's verdict was against the weight of evidence; in overruling her motion to exclude identification testimony; in failing to give a proper curative instruction regarding a detective's testimony; and in failing to grant her motion for mistrial because a witness violated the court's pretrial ruling limiting his testimony. We affirm the convictions of both Appellants.
Carlos's cousin, Robert Walker, and his sister, Latasha Flowers, were at the house. Shortly after Carlos came home, a neighbor, Nicolas Perry, saw two people get into a car parked by the house and drive down the street to the bar. The car stopped in front of the bar, and a patron heard a female voice yell that everyone inside the bar was going to die. The car then turned around, and as it passed the bar again, at least six shots were fired with a 9mm pistol out of the passenger window toward the open doorway of the bar. Stephens, who was sitting on a barstool, was struck under the eye by one of the bullets; he died on the way to the hospital. Perry then saw the car return to the Flowers house, saw Walker and Flowers standing by the car once it parked, and then heard Walker say something about family business.
Another witness from the neighborhood, Hanalei Kaililaau, had also seen the car drive out of the cul de sac where the Flowers home was located; Kaililaau then heard gunshots and saw the car stopped in front of the bar with smoke coming out of the passenger side. When the car returned to the Flowers house moments later, Kaililaau saw Flowers and Walker get out, with Walker holding a gun and saying "we took care of the family, we took care of business." After Walker was arrested, he bragged to another inmate, Charles Edge, while they were in a holding cell together at the Sheriff's Office, that he had killed a man during a drive-by shooting in revenge for a fight.
(b) Although only Flowers disputes the sufficiency of the evidence supporting her convictions, we address the issue as to both Appellants, in accordance with this Court's practice in murder cases.
Flowers argues that the family members and friends who testified on her behalf that she was at a friend's house at the time of the shooting were more believable than the witnesses who implicated her in the crimes.
2. During the charge conference, the trial court said that it would give the "definition of direct and circumstantial evidence" from the pattern jury instructions. The court then instructed the jury as follows:
The court did not give the remainder of the pattern charge on circumstantial evidence, which said: "To warrant a conviction on circumstantial evidence the proven facts should not only be consistent with the hypothesis of guilt, it [sic] shall exclude every other reasonable hypothesis as to the guilt of the accused."
However, as the trial court noted in its order denying Walker's motion for new trial, he never made a written request that the court give the entire pattern charge on circumstantial evidence; we also note that the court said at the charge conference only that it would instruct the jury on the definition of circumstantial evidence, not that it would give the entire pattern charge. Absent a written request, a trial court is required to charge on the law of circumstantial evidence as set forth in former OCGA § 24-4-6 and current OCGA § 24-14-6 only if the State's case against the defendant is wholly circumstantial. See Massey v. State, 270 Ga. 76, 77, 508 S.E.2d 149 (1998); Stubbs v. State, 265 Ga. 883, 884, 463 S.E.2d 686 (1995). In this case, the State presented both direct and circumstantial evidence against Walker. Indeed, Walker concedes that the State presented direct evidence of his guilt from two eyewitnesses and from the inmate to whom Walker admitted committing the drive-by murder. Walker contends that these witnesses were impeached, making the direct evidence less than overwhelming; that may be, but it is clear that this was not a wholly circumstantial case. Because the State presented direct evidence that Walker committed the crimes and he did not request the circumstantial evidence instruction in writing, the trial court did not commit reversible error in failing to give that charge, particularly where the court instructed the jury on the definition of circumstantial evidence and gave a full instruction on reasonable doubt. See Evans v. State, 288 Ga. 571, 576, 707 S.E.2d 353 (2011); Thompson v. State, 283 Ga. 581, 582, 662 S.E.2d 124 (2008).
3. Flowers argues first that the trial court erred in denying her motion to exclude identification testimony from Hanalei Kaililaau, because the police showed him only a single photograph of Flowers rather than her photo among photos of other women.
State v. Hattney, 279 Ga. 88, 89, 610 S.E.2d 44 (2005) (footnotes omitted).
Applying these standards in Gibson v. State, 283 Ga. 377, 659 S.E.2d 372 (2008), this Court held that where the witness knew the defendant's street and legal names and had known and had regular contact with him for seven years, the trial court did not err in refusing to suppress the witness's identification, because "showing [the witness] a single photograph of [the] defendant merely confirmed her previous identification of him" and thus created no substantial likelihood of misidentification. Id. at 378-379, 659 S.E.2d 372. Similarly, in Leeks v. State, 309 Ga.App. 724, 710 S.E.2d 908 (2011), the Court of Appeals held that even though the police used a single photograph for identification, there was no substantial likelihood of misidentification because, among other reasons, the witness knew the defendant from the neighborhood. See id. at 726-727, 710 S.E.2d 908. See also Pruitt v. State, 270 Ga. 745, 751-752, 514 S.E.2d 639 (1999) (holding that there was no substantial likelihood of misidentification even though the witness may have been subjected to an impermissibly suggestive photo lineup, since the witness testified that she recognized the defendant as a regular customer at her store).
Here, Kaililaau testified that, before identifying Flowers's photo, he had lived down the street from her for 11 years and had spent a lot of time with the Flowers family; he went to school with Flowers's sister and knew what Flowers looked like. Kaililaau went to the Flowers house right after the shooting, and she walked past him as she got out of the car used in the drive-by shooting. Kaililaau gave Flowers's first and last name to the police, who only then showed him her photo to confirm that he was in fact referring to Flowers. Under these circumstances, the presentation to the witness of a single photograph of the defendant created no substantial likelihood of misidentification, and the trial court correctly denied the motion to exclude the witness's identification testimony. See Gibson, 283 Ga. at 378-379, 659 S.E.2d 372.
4. Flowers argues next that the trial court erred in failing to give a proper curative instruction regarding a detective's improper testimony. At trial, the detective was asked if he "ever [made] an arrest in the case involving Carlos, the beating?" He replied, "Because once I established that Mr. Robert Walker and Latasha Flowers were the persons that conducted this drive-by shooting of the Interlude Club —." Flowers interrupted with an objection, arguing that the answer was an improper conclusion and asking the court to strike the answer and give a limiting instruction to the jury. The court sustained the objection and instructed the jury, "You may disregard, jury, please, the conclusion made by the officer about what he established." Flowers did not take exception to the court's curative action, and her acquiescence in it waives any claim of error on appeal. See Jeffers v. State, 290 Ga. 311, 315, 721 S.E.2d 86 (2012). In any event, given the sustaining of Flowers's objection, the prompt curative instruction for the jury to disregard the detective's non-responsive and conclusory statement, and the testimony the jury heard from other witnesses establishing Flowers's role in the drive-by shooting,
5. Before trial, Flowers moved to exclude as hearsay any testimony by Charles Edge, the inmate who had been locked up with co-defendant Walker, implicating her based on what Walker had told him. The trial court ruled that Edge would be limited to testifying that Walker said that he had done the drive-by shooting as a passenger in a moving vehicle, and the prosecutor notified Edge of the court's ruling before he testified at trial.
Flowers then moved for a mistrial based on violation of the pretrial ruling and objected on the ground of hearsay. The trial court denied the motion for mistrial but instructed the jury to disregard Edge's statement, saying:
Flowers made clear that she was preserving her motion for mistrial, and on appeal she argues that the trial court erred in failing to grant it.
"`Whether to grant a motion for mistrial is within the trial court's sound discretion, and the trial court's exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant's right to a fair trial.'" Watson v. State, 289 Ga. 39, 42, 709 S.E.2d 2 (2011) (citation omitted). Here, there is no indication that the prosecutor intended to elicit the fleeting testimony at issue; the witness never identified the "lady" and never mentioned Flowers at all; the court immediately gave the jury a strong curative instruction; and there was substantial other evidence that Flowers was driving the car during the drive-by shooting. Under these circumstances, a mistrial was not essential to preserve Flowers's right to a fair trial, and the trial court did not abuse its discretion in denying her motion. See Jones v. State, 277 Ga. 36, 40, 586 S.E.2d 224 (2003) (holding that the trial court did not abuse its discretion in denying a motion for mistrial where a curative instruction was given to the jury to disregard the testimony of a police officer who used the term "barricade" in violation of a pretrial ruling).
Judgment affirmed.
All the Justices concur.
The trial court sentenced Walker to life in prison without the possibility of parole for felony murder and five consecutive years for the firearm offense. On October 26, 2004, the court granted Walker's motion for an out-of-time appeal, and two days later, he filed a motion for new trial, which was amended more than five years later on July 29, 2009, and again on December 6, 2012. The trial court held an evidentiary hearing on March 29, 2013, and on May 6, 2013, the court re-sentenced Walker on the murder count to life with the possibility of parole because the relevant statute in effect at the time of sentencing excepted capital felonies from mandatory no-parole punishment. On January 9, 2014, the court denied Walker's motion for new trial, and he filed a timely notice of appeal.
The trial court sentenced Flowers to life in prison with the possibility of parole for felony murder and five consecutive years for the firearm offense. She filed her first motion for new trial through trial counsel on October 15, 2003; a pro se motion for new trial (after her trial counsel withdrew) on October 17, 2007; another motion for new trial through new counsel on December 9, 2008; and an amended motion for new trial through her trial counsel, who had been retained again, on January 5, 2010. The trial court held evidentiary hearings on March 29, 2010, and December 11, 2012, and denied the motion for new trial on January 22, 2013. Flowers then timely filed a notice of appeal.
The two appeals were docketed to the April 2014 Term of this Court, consolidated for decision, and submitted for decision on the briefs. Given that we received these direct appeals more than a decade after this murder case was tried, it is appropriate to reiterate, once again, that
Arnold v. State, 292 Ga. 268, 273 & n. 5, 737 S.E.2d 98 (2013) (citation omitted). "Nevertheless, any failure to discharge that duty in this case `does not affect the outcome of this appeal... because [Appellants have] enumerated no error associated with the delay.'" Id. (citation omitted).
Batten v. State, 295 Ga. 442, 761 S.E.2d 70 (2014) (citation omitted).