Rivers v. State

296 Ga. 396
FINAL COPY

S14A1411. RIVERS v. THE STATE.

THOMPSON, Chief Justice.

Appellant Michael Rivers was convicted of felony murder in connection

with the death of Donald Tanks III and possession of cocaine with intent to

distribute and sentenced to life imprisonment.1 He appeals on several grounds

from the trial court’s denial of his motion for new trial, and for the reasons that

follow, we affirm.

1. Viewed in the light most favorable to the verdict, the jury was

authorized to find that on June 10, 2008, the victim and his friends, Marcus

Clark, Dina Canada, Joseph Moore, and George Sullivan were returning to

Moore’s house after an evening out. Clark arrived first, so he parked his vehicle

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The crimes were committed on June 10, 2008. Appellant was indicted on April 7,
2009, and charged with malice murder, felony murder, aggravated assault, aggravated
battery, and possession of cocaine with the intent to distribute. His trial commenced on
March 2, 2010, and the jury returned its verdict on March 11, 2010, finding appellant guilty
of all charges except malice murder. Appellant was sentenced on March 22, 2010, to
imprisonment for life for felony murder and a consecutive term of imprisonment for 30 years
for the possession count. The remaining counts merged with the felony murder count.
Appellant filed a motion for new trial on March 18, 2010, which was amended on July 18,
2011, and denied by the trial court on July 31, 2013. A notice of appeal was filed on August
19, 2013. The case was docketed in this Court for the September 2014 term and submitted
for decision on the briefs.
in a driveway across the street to wait for his friends. Appellant, who was

selling cocaine on the street corner with several other individuals, asked his

cousin, Gerry Perrymond, to see who was in Clark’s vehicle. Perrymond walked

up to and around Clark’s vehicle, causing Clark to become concerned for his

safety. Clark called his friends to see where they were, and when they arrived,

Clark pointed out Perrymond.

Sullivan and Perrymond then exchanged words in the street. As their

verbal altercation turned physical, Canada, who lived with Moore, asked them

to stop and went to talk to the man in the group on the street whom she knew to

be their leader. She asked that individual not to involve others in the fight and

not to escalate the situation. By that time, the altercation between Perrymond

and Sullivan had ended, and Sullivan was walking back toward Moore’s house.

Appellant, who had been standing some distance from the scene, approached

Tanks, who was standing behind Canada, and punched him in the face, causing

Tanks to fall and hit his head on a concrete step. Tanks remained in a coma for

several weeks, emerging from the coma only a few days before his death. The

medical examiner determined the cause of death was delayed effects of blunt

force trauma to the head, and more specifically, a blood clot that developed in

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Tanks’ legs that ultimately traveled to his lungs, cutting off oxygen to his brain.

Appellant admitted under oath at a preliminary hearing that he was selling

cocaine on the night of the crimes and that he hit Tanks. At trial, his defense

was that Tanks struck him first and he hit Tanks in self-defense. Perrymond

testified at trial that he and appellant were on the street selling crack cocaine the

night of the crimes.

This evidence was sufficient to enable a rational trier of fact to find

appellant guilty beyond a reasonable doubt of the crimes of which he was

convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)

(1979). Although appellant argues the trial court should have dismissed the

count of the indictment charging him with possession of cocaine with the intent

to distribute, we find the evidence presented at trial, including appellant’s sworn

admissions at a pre-trial hearing and Perrymond’s corroborating testimony, was

sufficient to establish beyond a reasonable doubt that appellant was selling

cocaine on the night of June 10, 2008.2 See Burg v. State, 298 Ga. App. 214,

2
We find no merit in appellant’s argument that the absence of a transcript of the preliminary
hearing during which he admitted that he was selling cocaine on the night of June 10, 2008, renders
evidence of his statement inadmissible under the Confrontation Clause. The constitutional right to
confront witnesses has no application where what is offered against a criminal defendant is the
defendant’s own statement and he has the opportunity to confront and cross-examine the witness
through whom this statement is presented. See U. S. Const. Amend. VI (giving accused the right

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216-217 (679 SE2d 780) (2009). See also Chancey v. State, 256 Ga. 415, 421-

422 (349 SE2d 717) (1986) (State may rely on circumstantial evidence to prove

a substance is an illegal drug). Moreover, because appellant’s pre-trial

admissions were direct evidence of his guilt of the possession charge, the State’s

case was not based solely on circumstantial evidence. See Rodriguez-Nova v.

State, 295 Ga. 868 (763 SE2d 698) (2014); Brown v. State, 291 Ga. 750, 752

(733 SE2d 300) (2012) (accused’s own testimony may be used to corroborate

an accomplice’s testimony against him).

2. Appellant contends the trial court erred by refusing to strike

prospective Juror Number 20 for cause after Juror 20 indicated he had strong

opinions about illegal narcotics. “The decision to strike a potential juror for

cause lies within the sound discretion of the trial court and will not be set aside

absent some manifest abuse of that discretion.” Abdullah v. State, 284 Ga. 399,

400 (2) (667 SE2d 584) (2008). There is no manifest abuse of discretion

“unless it is shown that the juror’s opinion ‘is so fixed and definite that (he or

she) will be unable to set the opinion aside and decide the case based upon the

evidence’ and the trial court’s instructions.” (Footnote omitted.) Miller v. State,

to be confronted with the witnesses against him).

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275 Ga. 730, 736 (5) (571 SE2d 788) (2002).

The record in this case demonstrates that although Juror 20 indicated his

strong dislike for illegal narcotics, he also stated he would be able to reach a

verdict based on the evidence presented at trial and the law on which the trial

court instructed him, that he could return a not guilty verdict if the State did not

carry its burden at trial, and that he could try to set his emotions aside and

decide the case on its merits. Under these circumstances, we cannot say the trial

court abused its discretion by finding that Juror Number 20's opinion was so

fixed and definite that he could not decide the case based on the evidence

introduced at trial. Accordingly, the trial court did not err by refusing to excuse

this juror for cause. See Head v. State, 276 Ga. 131, 133 (2) (575 SE2d 883)

(2003).

3. The State presented evidence at trial of two statements made by

appellant to police. In the first, made a few weeks after the assault on Tanks,

appellant told a police officer who was canvassing the streets for possible

witnesses that he was not present at the time Tanks was assaulted and he did not

know who hit him. The second statement was made after appellant learned that

detectives wanted to talk to him and that a detective told Perrymond that

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appellant should contact police or he could be charged with murder. On his own

initiative, appellant then went to the police station, where he admitted he was

present at the time of the assault but continued to assert that he did not know

who hit Tanks. Appellant was not placed under arrest at any point during the

giving of either statement, and at the end of the interview at the police station,

he was allowed to go home. The trial court admitted appellant’s statements over

a defense objection, finding they were made voluntarily. Appellant contends the

detective’s comment to Perrymond suggested that appellant would be charged

with murder unless he talked with police, thereby rendering his statements

inadmissible at trial because they were given out of fear and with the hope of

leniency.3

Under former OCGA § 24-3-50,4 for a confession to be admissible, it must

have been made voluntarily, without being induced by another by the slightest

hope of benefit or remotest fear of injury.

Under Georgia law, only voluntary incriminating statements are

3
Appellant did not contend in the trial court and does not contend on appeal that his
statements were made in violation of Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16
LE2d 694) (1966).
4
Under the new Evidence Code, effective January 1, 2013, this language is codified at
OCGA § 24-8-824.

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 admissible against the accused at trial, and the State has the burden
of proving the voluntariness of a confession by a preponderance of
the evidence. State v. Ritter, 268 Ga. 108 (1) (485 SE2d 492)
(1997). . . .“The promise of a benefit that will render a confession
involuntary under OCGA § 24-3-50 must relate to the charge or
sentence facing the suspect.” White v. State, 266 Ga. 134 (3) (465
SE2d 277) (1996). Generally, the “hope of benefit” to which the
statute refers has been construed as a hope of lighter punishment.
[Cits.]

Foster v. State, 283 Ga. 484, 485 (660 SE2d 521) (2008). Whether a statement

was made voluntarily is determined by assessing the totality of the

circumstances. Vergara v. State, 283 Ga. 175 (1) (657 SE2d 863) (2008).

Contrary to appellant’s assertion, we find no evidence in the record that

detectives threatened appellant with injury if he did not make a statement or that

he was given any promise of leniency if he did. Appellant’s personal belief that

talking to detectives would gain him favor from the State does not render his

statements involuntary under former OCGA § 24-3-50, see Evans v. State, 277

Ga. 51, 52-53 (2) (586 SE2d 326) (2003), and the detective’s statement to

Perrymond about a potential murder charge was not a threat of injury in the

event appellant chose not to speak to police but was an accurate description of

the seriousness of the crimes and the situation appellant faced. See Johnson v.

State, 295 Ga. 421 (2) (761 SE2d 13) (2014) (detective’s statement that

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defendant could be charged with murder was a true statement emphasizing

gravity of the situation the defendant faced); Preston v. State, 282 Ga. 210 (2)

(647 SE2d 260) (2007) (officer’s discussion about punishment was no more

than explanation of the seriousness of defendant’s situation). Under these

circumstances, the trial court’s ruling that appellant’s statements were

voluntarily made was not erroneous.

4. Appellant contends the trial court erred by allowing the State to present

as similar transaction evidence the testimony of Sina Polk, appellant’s former

girlfriend, regarding a prior incident in which appellant was selling drugs and

hit her in the face during an argument. Under Georgia law applicable at the time

of appellant’s trial,5 evidence of a similar transaction may be admitted if the

State shows that

(1) it seeks to introduce the evidence not to raise an improper
inference as to the accused’s character, but for some appropriate
purpose which has been deemed to be an exception to the general
rule of inadmissibility; (2) there is sufficient evidence to establish
that the accused committed the independent offense or act; and (3)
there is a sufficient connection or similarity between the
independent offense or act and the crime charged so that proof of

5
Because appellant was tried before January 1, 2013, Georgia’s old Evidence Code applies
in his appeal. Under the new Evidence Code, admissibility of this category of evidence is governed
by OCGA § 24-4-404 (b).

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 the former tends to prove the latter.

(Citation and punctuation omitted.) Matthews v. State, 294 Ga. 50, 52 (751

SE2d 78) (2013). In evaluating the trial court’s ruling, we accept its factual

findings unless clearly erroneous and review its decision to admit the similar

transaction evidence under the abuse of discretion standard. Reed v. State, 291

Ga. 10 (3) (727 SE2d 112) (2012).

The State offered evidence of appellant’s assault on Polk and his prior sale

of drugs for the purpose of showing appellant’s course of conduct and bent of

mind and offered Polk’s identification of appellant as evidence that he

committed the prior offenses. The trial court found the prior incident

sufficiently similar because in both instances appellant was involved with and

selling drugs and used his fists to resolve a dispute. Although the victim of the

prior assault was known to appellant and in this case the victim was a stranger,

when determining whether evidence of a similar transaction is admissible “‘the

proper focus is upon the similarities between the incidents and not upon the

differences.’ [Cit.]” Daniels v. State, 281 Ga. 226, 228 (637 SE2d 403) (2006).

Viewed in this manner, we find no abuse of discretion in the trial court’s

decision to admit Polk’s testimony at trial.

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 5. During trial, George Sullivan testified that he was not the aggressor in

his altercation with Perrymond. Appellant sought on cross-examination to

impeach Sullivan by offering evidence of Sullivan’s 1995 first offender plea to

a charge of aggravated assault. The trial court ruled the first offender plea could

not be used as impeachment evidence, and appellant challenges this ruling.

We find no abuse of the trial court’s discretion in prohibiting appellant

from impeaching Sullivan with the first offender plea. Because first offender

status is not considered an adjudication of guilt, a first offender plea cannot be

used to impeach a witness on general credibility grounds. See Sanders v. State,

290 Ga. 445 (2) (721 SE2d 834) (2012); Matthews v. State, 268 Ga. 798 (4)

(493 SE2d 136) (1997). A first offender plea may be used to demonstrate a

witness’ bias or motive to testify in favor of the State while the offender remains

under that sentence, see id.; however, appellant made no argument that

Sullivan’s plea was being offered for that purpose, and his sentence had long

ago expired. And, even assuming, as appellant argues, that a first offender plea

may be used against a witness in a criminal case to disprove or contradict facts

to which the witness testifies, see Matthews, supra at 802, n. 2, inasmuch as

Sullivan was not the victim of the charged crimes and Perrymond was not the

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defendant, evidence of Sullivan’s prior act of violence against a third party was

not admissible under Chandler v. State, 261 Ga. 402, 407 (3) (b) (405 SE2d 669)

(1991), and, quite simply, was not pertinent to the critical fact in question in

appellant’s justification defense, whether appellant’s action in striking Tanks

was justified.

6. During cross-examination of defense witness Vicky Larkin, appellant’s

girlfriend, the prosecutor asked whether Larkin had “put money on” appellant’s

prison account while he was awaiting trial and whether on the night of the

crimes she had two black eyes. Defense counsel objected and made multiple

motions for a mistrial, arguing that the State’s questions impermissibly placed

appellant’s character into evidence. Counsel also asked the trial court to poll the

jury for possible prejudice. Appellant enumerates as error the denial of these

motions.

It is proper for the State when cross-examining a defense witness to bring

out the relationship between the witness and the accused for the purpose of

showing bias or to show the probability that the witness is testifying out of fear

or under duress. See Burrell v. State, 293 Ga. App. 540, 541-542 (1) (667 SE2d

394) (2008). The State’s questions were properly intended to establish the

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close, personal relationship between Larkin and appellant and to show that she

may have been testifying out of fear or intimidation. In conducting such a cross-

examination, the State did not place appellant’s character in issue in the sense

that the evidence must be proscribed, even though the evidence may have

incidentally done so. Id. at 541. Similarly, evidence that an accused has been

confined in jail in connection with the case at issue does not place his character

in evidence. Williams v. State, 242 Ga. 757, 758 (2) (251 SE2d 254) (1978);

Walker v. State, 259 Ga. App. 83, 84-85 (1) (576 SE2d 62) (2003).

Accordingly, the challenged questions did not improperly place appellant’s

character in issue, and appellant was not entitled to a mistrial. See Stanley v.

State, 250 Ga. 3 (2) (295 SE2d 315) (1982) (applying abuse of discretion

standard of review to trial court’s denial of motion for mistrial). It follows that

the trial court did not abuse its discretion by refusing to poll the jury to

determine whether admission of this evidence may have prejudiced appellant.

7. Nor do we find the trial court erred by allowing two witnesses to testify

or suggest through their testimony that appellant was a drug dealer. The first

witness, Canada, mentioned generally that she knew the people standing on the

street corner were drug dealers. This comment occurred as part of her

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explanation for why she felt it was important to keep the argument on the street

from escalating. The second witness, Perrymond, was allowed to testify that the

victim had “brought himself onto the dealer side of the [neighborhood]” where

he (Perrymond), appellant, and other individuals were standing. This evidence,

admissible to prove the circumstances surrounding the assault on Tanks and to

counter appellant’s claim that he acted in self-defense, was admissible even

though it may have incidentally placed appellant’s character into issue. See

Speed v. State, 270 Ga. 688, 691 (8) (512 SE2d 896) (1999) (relevant evidence

that defendant was a drug dealer did not become inadmissible simply because

it incidentally placed defendant’s character into evidence). Moreover, even

assuming admission of this testimony was error, it was harmless. Evidence that

appellant was a drug dealer was merely cumulative of other admissible evidence,

including appellant’s admission that he was selling drugs on the night of the

crimes and the testimony of Isralah Rivers, appellant’s sister, that appellant

regularly sold drugs on the corner where Tanks was attacked. See Vaughns v.

State, 274 Ga. 13, 15 (3) (549 SE2d 86) (2001) (admission of improper

testimony is harmless error where testimony is cumulative of other admissible

evidence).

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 8. Because the State provided the required notice of its intent to use

appellant’s prior convictions in the event he testified at trial and the trial court

found the value of this evidence substantially outweighed its potential

prejudicial effect, the trial court did not err by finding appellant’s prior

convictions would be admissible at trial. See former OCGA § 24-9-84.1 (a) (1).

9. Appellant argues the trial court erred by allowing the State to present

his sister Isralah’s videotaped statement as a prior inconsistent statement.

Specifically, he maintains that the videotape was admitted without a proper

foundation having been laid and in violation of his right to confront witnesses.

We find no error.

In Georgia, the prior inconsistent statement of a witness who takes the

stand and is subject to cross-examination is admissible both to impeach the

witness and as substantive evidence. Gibbons v. State, 248 Ga. 858, 862 (286

SE2d 717) (1982). See also former OCGA § 24-9-83.6 Here, Isralah’s

videotaped statement was admitted at trial after she denied having made certain

of the statements and claimed she could not remember the details of what she

6
OCGA § 24-9-83, in effect at the time of appellant’s trial, was repealed effective
January 1, 2013. The use of prior inconsistent statements for the purpose of impeachment
is now codified at OCGA § 24-6-613 (b).

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told detectives regarding appellant’s comments after the crimes. A proper

foundation was laid for admission of Isralah’s statement through her testimony

that the video recording was a fair and accurate representation of her statement

that had not been altered in any way.7 Moreover, it is clear from the record that

appellant had, and took advantage of, the opportunity to cross-examine Isralah

about her statement, her memory loss, and reasons for her possible bias against

appellant. Accordingly, it was not error to admit this evidence at trial. See

United States v. Owens, 484 U. S. 554, 559 (108 SCt 838, 98 LE2d 951) (1988)

(Sixth Amendment right to confrontation is satisfied if a defendant is given

opportunity to cross-examine a forgetful witness about “[her] bias, [her] lack of

care and attentiveness, [her] poor eyesight, and even . . . the very fact that [s]he

has a bad memory”); Holiday v. State, 272 Ga. 779 (2) (534 SE2d 411) (2000)

(trial court did not err by admitting prior inconsistent statements of witnesses

who were available for cross-examination and denied or could not remember

giving details to police of what they saw). See also Brown v. State, 266 Ga. 723

7
The prosecutor asked Isralah on direct examination whether the State’s videotape
fairly and accurately represented what she told detectives. She stated, “Well, some of it,
yes.” She admitted, however, that the videotape fairly and accurately represented her
statement to police and had not been altered in any way, but she explained that she “left
something out of her statement.”

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(2) (470 SE2d 652) (1996).

10. Appellant contends the trial court erred by denying his motion for a

directed verdict because the State failed to meet its burden of proving that

appellant’s act of hitting Tanks was the proximate cause of his death. “In a

criminal case, proximate cause exists when the accused’s ‘act or omission

played a substantial part in bringing about or actually causing the (victim’s)

injury or damage and . . . the injury or damage was either a direct result or a

reasonably probable consequence of the act or omission.’ [Cits.]” (Punctuation

omitted.) Skaggs v. State, 278 Ga. 19, 19-20 (596 SE2d 159) (2004). The

record evidence demonstrates that appellant hit Tanks in the head, causing

Tanks to fall and strike his head on a concrete step. The fall inflicted upon

Tanks severe blunt force trauma to his brain and head and caused him to remain

in a coma for several weeks before his ultimate death from a blood clot which

was caused by his prolonged immobility after the fall. Therefore, appellant was

not entitled to a directed verdict because there was evidence authorizing a jury

to find beyond a reasonable doubt that Tanks’ fall and resulting injuries were

either the direct result or reasonably probable consequence of appellant’s act of

striking the victim. See Stansell v. State, 270 Ga. 147, 148 (1) (510 SE2d 292)

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(1998) (applying Jackson v. Virginia standard of review to denial of motion for

directed verdict of acquittal).

11. On motion for new trial, appellant asserted a claim of ineffective

assistance of counsel. To prevail on a claim of ineffectiveness, appellant must

show both that counsel’s performance was deficient and that the deficient

performance was prejudicial to his defense. Strickland v. Washington, 466 U.

S. 668 (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783

(325 SE2d 362) (1985). “[W]e accept the trial court’s factual findings and

credibility determinations unless clearly erroneous, but we independently apply

the legal principles to the facts.” Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d

347) (2000).

(a) Appellant asserts his counsel performed deficiently by advising him

not to testify at trial. The record shows that although appellant’s counsel, Emily

Gilbert, advised appellant not to testify, he elected to take the stand. Appellant

changed his mind, however, before giving any testimony, after consultation with

another attorney who told appellant he agreed it would not be in appellant’s best

interest to take the stand. The trial court then advised appellant of his right to

testify at trial and confirmed on the record that appellant understood the decision

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was his to make and that appellant personally decided not to testify. See Harris

v. State, 279 Ga. 304 (3) (e) (612 SE2d 789) (2005). Having been informed that

he, and not his attorney, makes the ultimate decision whether to testify on his

own behalf, appellant cannot complain about his election to follow his counsel’s

tactical advice. See Davenport v. State, 283 Ga. 171, 174-175 (5) (656 SE2d

844) (2008); Doctor v. State, 275 Ga. 612 (5) (d) (571 SE2d 347) (2002),

overruled on other grounds, Jones v. State, 279 Ga. 854, 858 (3) (622 SE2d 1)

(2005). Accordingly, we find no error in the denial of appellant’s claim of

ineffective assistance on this ground.

(b) Appellant’s claim that counsel was ineffective by failing to request a

speedy trial was not raised in his motion for new trial, and therefore, has not

been preserved for appeal. Jones v. State, 294 Ga. 501, 503 (2) (755 SE2d 131)

(2014). Even if it had been raised, appellant cannot prevail on this claim

because he failed to prove both that counsel’s decision not to request a speedy

trial was anything other than reasonable trial strategy and that he was prejudiced

by counsel’s decision not to seek a speedy trial. See Watson v. State, 275 Ga.

App. 174, 177 (620 SE2d 176) (2005).

12. To the extent appellant argues he was entitled to a new trial because

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of an accumulation of alleged errors, Georgia does not recognize the cumulative

error rule. Bridges v. State, 268 Ga. 700 (9) (492 SE2d 877) (1997).

Judgment affirmed. All the Justices concur.

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 Decided January 20, 2015.

Murder. Fulton Superior Court. Before Judge Campbell.

John D. Rasnick, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Marc A.

Mallon, Assistant District Attorneys, Samuel S. Olens, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General,

for appellee.

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