FIFTH DIVISION
MCFADDEN, C. J.,
RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 17, 2021
In the Court of Appeals of Georgia
A21A0186. EVANS v. THE STATE.
MCFADDEN, Chief Judge.
After a jury trial with multiple co-defendants, Dana Evans was convicted of
conspiracy to violate the Georgia RICO (Racketeer Influenced and Corrupt
Organizations) Act, see OCGA § 16-14-1 et seq., and making false statements to a
Georgia Bureau of Investigation (“GBI”) agent, see OCGA § 16-10-20. She appeals,
challenging the denial of her motion for a directed verdict of acquittal; but there was
sufficient evidence supporting the jury’s verdict. Evans also challenges the denial of
her motion to dismiss the indictment, citing Garrity v. New Jersey, 385 U. S. 493 (87
SCt 616, 17 LE2d 562) (1967), which bars evidence obtained from public employees
by threatening their employment; but Garrity does not support her argument and the
trial court did not abuse its discretion in denying the motion to dismiss. Evans further
claims that the trial court erred in denying her severance motion; but she has not
shown a denial of due process. She also claims two errors with regard to the jury; but
her jury pool challenge fails because she did not meet her burden of providing
sufficient evidence of the racial composition of the relevant jury list, and her claim
that two jurors should have been excused for cause fails because she waived the claim
as to one of the jurors and did not show an abuse of discretion as to the other. Evans
has enumerated numerous other claims of error, including various evidentiary rulings;
but several of the claims were not properly preserved for appellate review1 and others
do not amount to harmful error. Because Evans has failed to show reversible error,
we affirm.
1. Facts and Procedural posture.
1
It appears from the briefs and cited parts of the record that the trial court
agreed to treat an objection by one defendant as an objection for all defendants unless
someone opted out of the objection. Although this is not the typical method for
preservation of error amongst co-defendants, since it appears that this procedure was
allowed by the trial court, we will accept it for purposes of review in this case.
Compare Whatley v. State, 342 Ga. App. 796, 798 (1) (805 SE2d 599) (2017)
(appellant waived alleged error by failing to raise own objection or join in co-
defendant’s objection); Maxwell v. State, 267 Ga. App. 227, 229 (3) (599 SE2d 228)
(2004) (“it is well established that an issue raised by a co-defendant at trial does not
preserve the issue for another co-defendant who does not join in the objection”).
2
The state indicted 35 Atlanta Public School (“APS”) employees, including
Evans, for conspiracy to violate the Georgia RICO Act and other offenses arising out
of alleged cheating on standardized testing of students.2 Evans and 11 other
defendants were jointly tried before a jury.3 After more than six months of trial, the
jury found Evans guilty of conspiracy to violate the RICO Act and making false
statements to a GBI agent, but found her not guilty of three other counts of making
false statements or writings.4 The trial court sentenced Evans as a first offender,
imposing a total sentence of five years, with one year to be served in confinement and
four years to be served on probation. Evans moved for new trial, the motion was
denied, and this appeal followed.
2. Directed verdict of acquittal.
Evans claims that the trial court erred in denying her motion for a directed
verdict of acquittal. The claim is without merit.
2
Additional facts are set forth in Cotman v. State, 342 Ga. App. 569 (804 SE2d
672) (2017).
3
Of those defendants who did not go to trial, 21 entered guilty pleas and two
passed away.
4
The jury found another defendant not guilty of any charges, found the other
ten defendants guilty of conspiracy to violate the RICO Act, and found some of those
defendants guilty of additional offenses.
3
The standard of review for the denial of a motion for a directed
verdict of acquittal is the same as for determining the sufficiency of the
evidence to support a conviction. When evaluating the sufficiency of
evidence to support a conviction, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the
crimes beyond a reasonable doubt. On appeal, this [c]ourt does not
re-weigh the evidence or resolve conflicts in testimony, but instead
defers to the jury’s assessment of the weight and credibility of the
evidence.
Doricien v. State, 310 Ga. 652, 653-654 (1) (853 SE2d 120) (2020) (citations and
punctuation omitted).
So viewed, the evidence showed that Evans was the principal of Dobbs
Elementary School and allowed cheating on standardized tests to take place at Dobbs
in order to meet certain testing targets.
As with most other schools within APS, the pressure to meet [these]
Targets at Dobbs was tremendous, and the principal would stress at
every staff meeting that Targets had to be met by any means necessary.
In fact, the principal was so adamant about meeting these goals that she
would tell Dobbs’s teachers that they should find new professions if they
were unable to make Targets.
Cotman v. State, 342 Ga. App. 569, 576 (804 SE2d 672) (2017). The evidence
showed that Evans failed to stop the cheating in order to meet the testing targets,
prevented others from discussing it, threatened teachers, and retaliated against at least
4
one person for speaking to the GBI about it. Evans herself falsely told GBI agents that
she was unaware of any cheating at Dobbs.
In challenging the denial of a directed verdict of acquittal as to the offenses of
which she was convicted, Evans has pointed to purported conflicts in the evidence
supporting her defense. But “[a]ny conflicts or inconsistencies in the evidence [were]
for the jury to resolve.” Walker v. State, 348 Ga. App. 273 (1) (821 SE2d 567) (2018)
(citation omitted). The trial court did not err in denying Evans’ motion for a directed
verdict of acquittal since the evidence did not demand a verdict of not guilty and “the
evidence was sufficient to support [her] convictions[.]” Cotman, supra at 586 (2). See
OCGA § 17-9-1 (a) (directed verdict of acquittal authorized where there is no conflict
in the evidence and the evidence demands a verdict of not guilty).
3. Motion to dismiss indictment.
Evans contends that the trial court erred in denying her motion to dismiss the
indictment because her statements to investigators were not voluntary and were
obtained in violation of Garrity v. New Jersey, supra. We disagree.
Garrity bars evidence obtained from public employees by threatening their
employment.
5
In Garrity, New Jersey police officers were investigated for
allegedly fixing traffic tickets. The officers were informed that they
could exercise their Fifth Amendment privilege against
self-incrimination if they wished, but doing so would cost them their
jobs under a New Jersey statute which required all public employees to
cooperate with investigations or forfeit their positions. The officers
cooperated with the investigation but were prosecuted. They moved to
suppress their statements as involuntary and coerced. The Supreme
Court held that statements obtained under threat of removal from office
cannot be used in subsequent criminal proceedings and reversed the
New Jersey Supreme Court’s decision allowing the officers’ statements
into evidence.
State v. Stinson, 244 Ga. App. 622, 624 (536 SE2d 293) (2000) (citation and
punctuation omitted). Our state Supreme Court has “held that trial courts should apply
a ‘totality of the circumstances’ analysis to the question whether [such] statements
made under threat of termination should be excluded in a criminal proceeding.”
Georgia Peace Officers Standards & Training Council v. Anderson, 290 Ga. App. 91,
93 (1) (658 SE2d 840) (2008). See State v. Thompson, 288 Ga. 165, 167-169 (702
SE2d 198) (2010) (affirming grant of defendant’s motion to suppress statements due
to Garrity violation); Zeigler v. State, 350 Ga. App. 716, 719-723 (1) (830 SE2d 256)
(2019) (reversing trial court’s denial of motion to suppress statements obtained in
violation of Garrity); State v. Stanfield, 290 Ga. App. 62, 66 (2) (658 SE2d 837)
(2008) (under Garrity, coerced statements could not be used at trial).
6
Here, Evans claims protection under Garrity that the case does not afford.
Rather than claiming that her statements should have been suppressed at trial, Evans
argues that the indictment should have been dismissed. But “[d]ismissal of an
indictment is an extreme sanction, used only sparingly as a remedy for unlawful
government conduct.” Olsen v. State, 302 Ga. 288, 294 (2) (806 SE2d 556) (2017)
(citation and punctuation omitted). See Wilcox v. State, 250 Ga. 745, 755-756 (4)
(301 SE2d 251) (1983) (dismissal of indictment is generally disfavored as the remedy
for government misconduct should be tailored to the injury suffered); Robinson v.
State, 200 Ga. App. 515, 517 (1) (408 SE2d 820) (1991) (dismissal is an extreme
sanction which should be infrequently utilized). Evans has failed to show that the
extreme sanction of dismissal of the indictment was an appropriate remedy tailored
to the alleged injury of a Garrity violation.
In arguing for dismissal as an appropriate remedy, Evans has conflated
involuntary statements under Garrity with immunized testimony. Garrity does not
hold, as Evans suggests, that coerced statements by public employees are treated as
formal immunized statements for use and derivative use immunity. Garrity makes no
mention of use or derivative use immunity and holds only that statements obtained
from public officers under threat of removal from office are involuntary and
7
inadmissible. See Garrity, supra at 500; State v. Aiken, 282 Ga. 132, 134 (1) (646
SE2d 222) (2007) (Supreme Court in Garrity concluded that the threat of a job loss
was sufficient to render the statement involuntary and inadmissible at subsequent
criminal proceeding). Indeed, the Court in Garrity expressly stated that “[n]o
immunity was granted, as there is no immunity statute applicable in these
circumstances.” Garrity, supra at 495.
Evans also cites other federal cases as support for her assertion that the
indictment in this case is subject to dismissal for the purported Garrity violation. But
her reliance on those cases is misplaced since they did not involve involuntary
statements under Garrity and instead involved immunized testimony before grand
juries that had been compelled by the grant of immunity. See Kastigar v. United
States, 406 U. S. 441 (92 SCt 1653, 32 LE2d 212) (1972) (government could compel
grand jury testimony from witnesses who had invoked privilege against self-
incrimination by giving them immunity from use and derivative use of the compelled
testimony); United States v. Semkiw, 712 F2d 891 (3d Cir. 1983) (government
compelled grand jury testimony by granting use immunity); United States v.
McDaniel, 482 F2d 305 (8th Cir. 1973) (involving immunized grand jury testimony).
And contrary to Evans’ argument equating involuntary statements with immunized
8
grand jury testimony, the cases upon which she relies actually recognize the
distinction between the two and explain that involuntary statements obtained in
violation of the privilege against self-incrimination, while inadmissible at trial, do not
bar prosecution. See Kastigar, supra at 461 (IV) (“A coerced confession . . . is
inadmissible in a criminal trial, but it does not bar prosecution.”); United States v.
North, 920 F2d 940, 947 (II) (D. C. Cir. 1990) (recognizing citations to long line of
Supreme Court cases deciding “that a defendant who has been compelled to
incriminate himself is entitled only to have that evidence suppressed at trial and not
to have it excluded from consideration by the grand jury”) (punctuation omitted).
Moreover, with regard to involuntary statements under Garrity, it has been expressly
held that
neither Garrity nor the Fifth Amendment prohibits prosecution and
punishment for false statements or other crimes committed during the
making of Garrity-protected statements. Giving a false statement is an
independent criminal act that occurs when the individual makes the false
statement; it is separate from the events to which the statement relates,
the matter being investigated.
United States v. Brown, 492 Fed. Appx. 57, 60 (11th Cir. 2012) (citation, punctuation,
and emphasis omitted).
9
Unlike the cases upon which she relies, Evans has not claimed that she was
compelled to give immunized testimony before the grand jury and that the indictment
was improperly based upon such testimony; rather, she relies solely on her allegedly
involuntary statements under Garrity. In fact, she has made no showing by the record
as to any of the evidence upon which the indictment was returned. “Generally, with
regard to the efficacy of an indictment, no inquiry into the sufficiency or legality of
the evidence is indulged.” Thomas v. State, 331 Ga. App. 641, 656 (5) (771 SE2d
255) (2015) (citation and punctuation omitted). “A defendant seeking to quash an
indictment has the burden to overcome the presumption that it was returned on legal
evidence by showing there was no competent evidence upon which it could lawfully
have been returned.” State v. Scott, 344 Ga. App. 744, 746 (811 SE2d 457) (2018)
(citation and punctuation omitted). In this case, Evans “has not carried [her] burden
of showing that the evidence on which the indictment was returned was . . . wholly
incompetent evidence.” Id. at 747 (citations and punctuation omitted). See also
Williams v. State, 244 Ga. App. 26, 27 (1) (535 SE2d 8) (2000) (rejecting argument
that indictment should have been dismissed because the defendant “provided . . . no
proof whatsoever that the indictment against her was based on wholly illegal
evidence”).
10
We review the trial court’s ruling for an abuse of discretion. See Smith v. State,
323 Ga. App. 668, 671 (2) (747 SE2d 859) (2013); State v. Brooks, 301 Ga. App. 355,
359 (687 SE2d 631) (2009). “While trial courts are authorized to dismiss
[indictments], this authority is not unlimited, and a trial court abuses its discretion
when it interferes with the [s]tate’s right to prosecute by dismissing an [indictment]
without a legal basis to do so.” State v. Banks, 348 Ga. App. 876, 880 (825 SE2d 399)
(2019) (citation and punctuation omitted). Since Evans has not shown any legal basis
upon which the trial court could have dismissed the indictment, we find no abuse of
discretion.
4. Severance.
Evans argues that the trial court erred in denying her motion to sever her trial
from that of the other defendants. But she “has not borne [her] burden to show
reversible error by denial of due process.” Sims v. State, 195 Ga. App. 631, 632 (1)
(394 SE2d 422) (1990).
“OCGA § 17-8-4 provides that when two or more defendants are jointly
indicted for a felony less than capital[, such] defendants may be tried jointly or
separately in the discretion of the trial court.” Majors v. State, 203 Ga. App. 139, 140
(1) (416 SE2d 156) (1992) (citation and punctuation omitted).
11
It is well-settled that a trial court has broad discretion to grant or deny
a motion for severance. In ruling on a severance motion, the trial court
should consider: (1) the likelihood of confusion of the evidence and law;
(2) the possibility that evidence against one defendant may be
considered against the other defendant; and (3) the presence or absence
of antagonistic defenses. The burden is on the defendant requesting the
severance to do more than raise the possibility that a separate trial would
give him a better chance of acquittal. He must make a clear showing that
a joint trial would lead to prejudice and a consequent denial of due
process.
Davis v. State, 304 Ga. 547, 552 (3) (820 SE2d 10) (2018) (citation and punctuation
omitted).
Although Evans has pointed to the length of the trial and the number of
defendants, she has not identified evidence against another defendant that possibly
was considered against her. See Martin v. State, 189 Ga. App. 483, 488 (3) (c) (376
SE2d 888) (1988) (affirming denial of motion for severance in RICO case where
appellant did not establish that his conviction was based on “spillover” from other
defendants). And while she has cited an evidentiary dispute with her co-defendants,
she has not articulated specific defenses antagonistic to hers at trial. Indeed, mere
“[a]ntagonism between co-defendants . . . is not enough in itself to require severance,
rather appellant must also demonstrate that he was harmed by the failure to sever.”
Dennard v. State, 263 Ga. 453, 455 (5) (435 SE2d 26) (1993), overruled in part on
12
other grounds in Sanders v. State, 281 Ga. 36, 37 (1) (635 SE2d 772) (2006). Evans
“has failed to carry [her] burden of making a clear showing that the joint trial was
prejudicial and a denial of due process[, so] we conclude that the trial court did not
abuse its discretion in denying [her] motion to sever.” Dorsey v. State, 331 Ga. App.
486, 491 (3) (771 SE2d 167) (2015) (citations and punctuation omitted). See Majors,
supra at 140 (1) (affirming denial of severance where appellant failed to show actual
prejudice or denial of due process); Sims, supra at 631-632 (1) (insufficient showing
of antagonistic defenses or spillover of evidence); Beal v. State, 175 Ga. App. 234,
237 (2) (333 SE2d 103) (1985) (no error in denying severance in conspiracy case).
5. Jury pool.
Evans claims that the jury pool was not a fair cross-section of the community
due to underrepresentation of African-Americans. To prevail on such a jury pool
composition challenge, Evan must show:
(1) that the group alleged to be excluded is a distinctive group in the
community; (2) that the representation of this group in jury pools is not
fair and reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury selection process.
Morrow v. State, 272 Ga. 691, 692 (1) (532 SE2d 78) (2000) (punctuation omitted).
13
Evans refers to evidence of potential jurors who answered a questionnaire, but
she has not cited any evidence on the racial composition of the relevant county master
jury list. Evans therefore “has failed to carry [her] burden because [she has]
present[ed] insufficient evidence to determine the racial composition of the [relevant]
jury master list. . . . Accordingly, [Evans] is unable to meet [her] burden to make even
a prima facie case for a fair cross-section claim [of underrepresentation].” Shubert v.
State, 306 Ga. 490, 492 (2) (831 SE2d 826) (2019). See also Bryant v. State, 288 Ga.
876, 879 (2) (708 SE2d 362) (2011) (to prove a prima facie jury pool composition
violation, defendant is required to show that the allegedly excluded group was
actually underrepresented); Morrow, supra at 695 (1) (composition of jury pool did
not violate constitution where defendant presented unreliable evidence that group was
underrepresented on county jury lists). Under these circumstances, Evans has “failed
in producing [enough] evidence to establish a statistical or factual basis of lack of
proportional[ity] to warrant a grant of a challenge to the array or to the composition
of the [jury pool].” Johnson v. State, 179 Ga. App. 467, 468 (5) (346 SE2d 903)
(1986) (insufficient evidence of systematic exclusion based on race).
6. Jurors 89 and 111.
14
Evans complains that the trial court erred in failing to strike jurors 89 and 111
for cause. As to juror 89, Evans concedes that she did not seek to remove the juror for
cause. “Because [Evans] did not make a request to strike the juror for cause, the issue
was waived for ordinary appellate review. And plain error review is not available for
this issue[.]” Hill v. State, 310 Ga. 180, 186 (3) (a) (850 SE2d 110) (2020) (citations
omitted).
With regard to juror 111, the defense moved to excuse her because “she stated
that she doesn’t feel that some people should be defended by attorneys[.]” When the
juror made that statement, she was explaining her answer on a questionnaire that if
a defendant and an attorney know that the defendant is guilty, “they shouldn’t waste
their time.” After giving her explanation, the juror affirmed that as a member of the
jury she nevertheless would be able to evaluate the case and give a fair verdict to both
sides. And she had previously testified that as a juror she would base her decision on
the evidence and the law, and she would be fair to both the state and the defendants.
In denying the motion to excuse juror 111, the court found that “overall she is a
diligent person” who would follow instructions and decide the case fairly.
Whether to strike a juror for cause lies within the sound discretion
of the trial judge, and the trial court’s exercise of that discretion will not
be set aside absent a manifest abuse of discretion. For a juror to be
15
excused for cause, it must be shown that he or she holds an opinion of
the guilt or innocence of the defendant that is so fixed and definite that
the juror will be unable to set the opinion aside and decide the case
based upon the evidence or the court’s charge upon the evidence. A
prospective juror’s doubt as to his or her own impartiality does not
demand as a matter of law that he or she be excused for cause. Nor is
excusal required when a potential juror expresses reservations about his
or her ability to put aside personal experiences. A conclusion on an issue
of bias is based on findings of demeanor and credibility which are
peculiarly in the trial court’s province, and those findings are to be given
deference.
Collins v. State, 308 Ga. 608, 612-613 (3) (842 SE2d 811) (2020) (citations and
punctuation omitted). Here, the trial court did not abuse its discretion in refusing to
strike the juror for cause since nothing in the record shows that the juror had
expressed an opinion of guilt or innocence of Evans that was so fixed that she would
be unable to decide the case based on the evidence presented and the law charged by
the court. See Clarke v. State, 292 Ga. 305, 307-308 (2) (737 SE2d 575) (2013) (no
abuse of discretion in not excusing juror where defendant failed to carry burden of
proving that juror was not impartial).
7. Denial of motion for mistrial.
Evans enumerates that the trial court erred in denying her motion for a mistrial
on the ground that a witness purportedly testified to the ultimate issue in the case. But
pretermitting the question of whether the testimony actually concerned an ultimate
16
issue, Evans never moved for a mistrial and the motion that had been made by a co-
defendant was withdrawn.
The transcript shows that the witness, who had taught at multiple APS schools
over many years, testified: “I believe it was the culture at Atlanta Public School
System, and it — in certain areas, it was data driven. It was — there was pressure to
get scores by any means necessary.” Counsel for one of the defendants then told the
judge that he had a motion at the appropriate time, although he did not identify the
type of motion or basis for it. After the witness’ testimony had concluded, the court
asked counsel about his unexplained motion. Counsel responded that he was
withdrawing his motion for a mistrial because he did not think the testimony rose to
the level of a mistrial, and no other defendant moved for a mistrial.
Because Evans made no motion for a mistrial on the ground that the witness
had improperly testified to the ultimate issue in the case or on any other ground, her
enumeration of error claiming that the trial court improperly denied such a motion
presents nothing for review. See Howie v. State, 218 Ga. App. 45, 47 (6) (459 SE2d
179) (1995) (nothing preserved for appellate review of claim that trial court erred in
failing to grant motion for a mistrial where defendant’s attorney never moved for a
mistrial). To the extent Evans attempts to challenge other trial court rulings, she “may
17
not use [her] brief to expand [her] enumeration of errors by arguing the incorrectness
of a trial court ruling not mentioned in the enumeration of errors.” Wallace v. State,
303 Ga. 34, 37-38 (2) (810 SE2d 93) (2018) (citation and punctuation omitted).
Accord Mims v. State, 310 Ga. 853, 854 n. 2 (854 SE2d 742) (2021).
8. Exhibits.
Evans enumerates that the trial court erred in overruling defense objections to
certain state exhibits. But she has failed to carry her burden of showing reversible
error by the record.
(a) Erasure analysis.
Evans first argues that three exhibits showing erasure analysis for certain
testing in Georgia were improperly admitted under the business records exception to
the hearsay rule because they were not made in the regular course of business. See
OCGA § 24-8-803 (6). But Evans has not pointed to any evidence in the record
showing that the documents were not made in the regular course of business or
indicated where in the voluminous record the actual exhibits are located. See
Monterey Community Council v. DeKalb County Planning Commission, 281 Ga.
App. 873, 875 (1) (637 SE2d 488) (2006) (“We have repeatedly held that it is not our
job to cull the record on behalf of a party. The responsibility to locate and cite
18
evidence in the record rests with counsel, not this [c]ourt.”) (citations and punctuation
omitted). Instead, Evans has cited only to pages in the transcript where a defense
attorney made such an objection at trial. So while Evans has shown where the issue
was preserved for appellate review, she has not supported the factual premise of her
appellate argument with any evidence of error in the record. See Roberson v. State,
300 Ga. 632, 636 (III) (797 SE2d 104) (2017) (“It is well established that the burden
is on the party alleging error to show it by the record[.]”) (citation and punctuation
omitted). As a result, her claim of error amounts to a mere conclusory assertion that
the exhibits were inadmissible. See Cousins v. Tubbs, 353 Ga. App. 873, 876 (1), n.
10 (840 SE2d 85) (2020) (“We also decline to address [appellant’s] conclusory
assertions . . . given his failure to identify any record evidence supporting these broad
claims[.] ). See also Thompson v. State, 332 Ga. App. 204, 208-210 (1) (770 SE2d
364) (2015) (holding that report prepared by non-party store was not made in
anticipation of prosecution and was thus admissible under OCGA § 24-8-803 (6)).
Moreover, even if Evans had made an adequate showing of error by the record,
she has not argued, let alone shown, how she was harmed by the admission of the
documents. “It is axiomatic . . . that harm as well as error must be shown to authorize
a reversal by this court.” White v. State, 315 Ga. App. 54, 60 (3) (a) (726 SE2d 548)
19
(2012) (citation and punctuation omitted). Accord Rutledge v. State, 245 Ga. 768, 771
(3) (267 SE2d 199) (1980) (“Harm as well as error must be established by an
appellant in order to secure a reversal of [her] conviction.”). Since Evans has “failed
to show harm or prejudice, we [have no basis to] find . . . reversible error.” White,
supra (citation and punctuation omitted).
(b) Failure to grant mistrial.
Evans also argues the trial court should have granted a mistrial after the state
attempted to tender a witness’ settlement agreement with APS. The trial court
sustained the defense objection to the exhibit, but denied its motion for a mistrial and
instead gave a curative instruction to the jury. The defense did not renew its motion
for a mistrial after the curative instruction, so denial of the motion was not preserved
for appellate review. “[B]ecause [Evans] failed to renew [the] motion for mistrial after
the trial court denied it and then took other corrective action, this argument is
waived.” Smith v. State, 302 Ga. 699, 702 (3) (808 SE2d 692) (2017).
9. Leading questions.
Evans argues that the trial court erred in allowing the state to treat two
witnesses as hostile and ask them leading questions. But
20
the trial court has the discretion to allow leading questions on direct
examination, when a witness is nervous, or reluctant, or hostile. When
a witness demonstrate[s] a reluctance to tell what she [knows] about the
[matter,] the trial court [has] great latitude to permit the assistant district
attorney to treat the witness as a hostile witness and propound leading
questions. It would be a rare case in which the trial court’s exercise of
discretion on this issue would warrant reversal.
Mitchell v. State, 303 Ga. 491, 494 (2) (813 SE2d 367) (2018) (citations, punctuation,
and emphasis omitted). This is not such a rare case as Evans has failed to show that
the trial court abused its discretion in allowing the state to ask leading questions of
reluctant or hostile witnesses. See Issa v. State, 340 Ga. App. 327, 341 (6) (796 SE2d
725) (2017) (trial court did not abuse its discretion in allowing state to ask leading
questions of reluctant and nervous witness).
10. Apology letters.
Evans contends that the trial court allowed improper bolstering of state
witnesses by permitting them, on direct examination and before their credibility had
been attacked, to read apology letters to the jury that they had written as part of their
guilty pleas. Evans has not identified these witnesses or specified the number of
witnesses whose testimony she is challenging. Instead, she cites to pages in four
different volumes of the trial transcript as examples of the alleged improper bolstering
of witnesses.
21
But a review of the first two cited volumes of the transcript shows that after the
trial court initially allowed a witness on direct examination to read her apology letter
to the jury, the court changed its ruling during the cross-examination of that witness.
The judge announced that he had reconsidered the defense objection, that he believed
his prior ruling had been a mistake, and that he would not allow any further reading
of such letters unless it became appropriate as a prior consistent statement after
impeachment of a witness. The court declined a suggestion to charge the jury about
the letter that had already been admitted, finding that the witness’ credibility had
subsequently been attacked so the letter was admissible. There was no objection to
this ruling and Evans has not challenged it on appeal. Evans has thus failed to show
that the trial court erred in ruling that letter was properly admitted due to the
subsequent attack on the witness’ credibility. See Sterling v. State, 267 Ga. 209, 213
(9) (477 SE2d 807) (1996) (rejecting claim of improper bolstering based on the
introduction of a witness’ taped statement before the witness testified at trial because
the witness’ credibility was eventually attacked and the tape was therefore properly
admitted as a prior consistent statement); Walters v. State, 335 Ga. App. 12, 17 n. 4
(780 SE2d 720) (2015) (“Although some of these credibility attacks occurred after
[the] prior consistent statement [had already been] introduced through [other]
22
testimony, a prior consistent statement may be admissible if the testifying witness’s
credibility was eventually attacked at a later point in the trial.”) (citations and
punctuation omitted).
The other transcript volumes cited by Evans show that two other state
witnesses were extensively cross-examined by the defense; that on redirect
examination of each witness the state introduced their respective apology letters; and
that there were no objections to those letters. Despite the lack of objections, “with
regard to rulings on evidence, [this] court is allowed to consider plain errors affecting
substantial rights although such errors were not brought to the attention of the [trial]
court.” Keller v. State, 308 Ga. 492, 497 (2) (a) (842 SE2d 22) (2020) (citations and
punctuation omitted). Evans has not made any argument or showing that there was
plain error affecting her substantial rights. See Gates v. State, 298 Ga. 324, 327 (3)
(781 SE2d 772) (2016) (“beyond showing a clear or obvious error, plain-error
analysis requires the appellant to make an affirmative showing that the error probably
did affect the outcome below”) (citation and punctuation omitted).
11. Discovery.
23
Evans contends that the trial court erred in failing to grant a continuance,
exclude evidence, or grant a mistrial after the state committed seven discovery
violations. The contention is without merit.
(a) Updated statement.
The only purported discovery violation identified by Evans involved a witness
who had initially said that the cheating had begun in a particular year, but then
testified that he later told the prosecutor he believed it had actually begun in a
different year. Outside the presence of the jury and the witness, the defense objected
on the ground that the state had committed a discovery violation by failing to provide
them with an updated witness statement and the defense suggested that the court
could declare a mistrial or exclude the evidence. The judge directed that the witness
be returned to the courtroom to be questioned about the matter. Upon questioning by
the judge and defense counsel, the witness explained that the previous week he had
told the prosecutor that the cheating started in 2005 instead of 2006. The judge then
announced that the trial would resume and the witness was allowed to continue
testifying before the jury.
As an initial matter, we note that while Evans makes the conclusory claim that
the state committed a discovery violation, she has not cited any particular discovery
24
rule that was violated. It is not this court’s role to speculate about the legal basis for
an appellant’s argument and “mere conclusory statements are not the type of
meaningful argument contemplated by our rules.” Brittain v. State, 329 Ga. App. 689,
704 (4) (a) (766 SE2d 106) (2014) (citations and punctuation omitted). We further
note that Evans has not indicated where in the record she moved for a continuance
and our review of the transcript does not reveal such a contemporaneous motion;
rather, as noted above, the transcript shows only a defense attorney’s statement of his
understanding that the court could declare a mistrial or exclude the evidence. So any
claim that the court erred in denying a continuance presents nothing for review. See
Howie, supra.
Nevertheless, for purposes of review we will presume that there was a
discovery violation and that the defense requested a mistrial or exclusion of the
evidence.
OCGA § 17-16-6 provides:
If at any time during the course of the proceedings it is brought to the
attention of the court that the state has failed to comply with the
[discovery] requirements of this article, the court may order the state to
permit the discovery or inspection, interview of the witness, grant a
continuance, or, upon a showing of prejudice and bad faith, prohibit the
state from introducing the evidence not disclosed or presenting the
25
witness not disclosed, or may enter such other order as it deems just
under the circumstances.
“In enacting [OCGA § 17-16-6], the legislature did not impose a rigid formulation or
grant an exclusive remedy for a defendant or a fatal consequence to the [s]tate for
failure to comply with the discovery mandates. Instead, it cloaked the trial court with
the discretion to use its own judgment to ensure a fair trial.” Childs v. State, 287 Ga.
488, 493 (5) (696 SE2d 670) (2010) (citation and punctuation omitted).
In this case, we find no abuse of discretion by the trial court in allowing the
defense to question the witness outside the presence of the jury, rather than declaring
a mistrial or excluding the evidence. See Davis v. State, 307 Ga. 746, 754 (3) (838
SE2d 263) (2020) (denial of mistrial reviewed for an abuse of discretion and will not
be disturbed unless it is essential to the preservation of the right to a fair trial); Acey
v. State, 281 Ga. App. 197, 200 (2) (635 SE2d 814) (2006) (court not required to
consider any particular course of action in any particular order, but has discretion to
take corrective action it deems appropriate). “Indeed, under § 17-16-6, the severe
sanction of exclusion of evidence applies only where there has been a showing of bad
faith by the [s]tate and prejudice to the defense.” Childs, supra (citation and
punctuation omitted). Evans has failed to show bad faith or prejudice, and we
26
conclude that “the trial court did not abuse its discretion in allowing [the witness] to
testify.” Id.
(b) Other discovery violations.
In addition to the alleged discovery violation discussed above, Evans claims
that the state continued to violate the rules of discovery throughout the trial. But she
has not identified any other specific violations or cited the discovery rules supporting
such claims. Instead, she simply refers to parts of the record where the defense
allegedly raised discovery arguments at trial. This attempt to incorporate by reference
the arguments made before the trial court is a “practice [that] is not approved by this
[c]ourt and we decline to look in the record for matters which should have been set
forth in the brief. Moreover, if we were to permit this practice a party could evade
entirely the [word] limitations on briefs established in our [r]ules.” Dixon v. State,
320 Ga. App. 257, 261 (1) (739 SE2d 737) (2013) (citation and punctuation omitted).
Accord Williams v. State, 356 Ga. App. 19, 35 (5) (846 SE2d 190) (2020) (appellant
cannot incorporate by reference arguments made in the lower court).
12. Expression of opinion.
27
Evans claims that the trial court improperly expressed opinions on the
credibility of multiple witnesses in violation of OCGA § 17-8-57. But she has not
shown any such violations.
“It is error for any judge, during any phase of any criminal case, to express or
intimate to the jury the judge’s opinion as to whether a fact at issue has or has not
been proved or as to the guilt of the accused.” OCGA § 17-8-57 (a) (1). “The purpose
of OCGA § 17-8-57, at least in part, is to prevent the jury from being influenced by
any disclosure of the trial court’s opinion regarding the credibility of a witness.”
Murphy v. State, 290 Ga. 459, 460 (2) (722 SE2d 51) (2012).
(a) Attempt to incorporate argument by reference.
Evans cites to a page in the transcript where she claims the defense “raised an
issue” regarding an exchange the court had in relation to a witness. But beyond this
reference to the record, Evans has made no argument in her appellate brief regarding
a specific violation of OCGA § 17-8-57 and has not identified either a particular
witness or any particular comment made by the court in front of the jury. As
explained above, this sort of attempt to incorporate by reference an argument
allegedly made in the trial court is not appropriate and provides nothing for review.
Dixon, supra. Accord Ellison v. Burger King Corp., 294 Ga. App. 814, 815 (1) (670
28
SE2d 469) (2008) (our review is limited to arguments actually made in appellate
briefs).
(b) Handshake.
Evans argues that the trial judge violated OCGA § 17-8-57 by shaking a
witness’ hand. Evans raised the issue outside the presence of the jury and asked the
judge to instruct the jury that he knows the witness. The judge subsequently gave the
requested instruction, telling the jury that he knows the witness; that when the witness
reached up to shake his hand, he reflexively shook it; that the jurors should not give
any weight to his testimony because of it; and that the credibility of all witnesses is
solely a matter for their determination.
Assuming without deciding that the handshake could be considered an
expression of opinion as contemplated by OCGA § 17-8-57, we find that the brief
interaction in this case did not amount to an improper comment on the credibility of
the witness. “Both this court and our Supreme Court have held that such brief,
friendly exchanges between courts and witnesses do not impermissibly comment on
a witness’s credibility.” Griffin v. State, 331 Ga. App. 550, 558 (3) (769 SE2d 514)
(2015). Evans has not shown a violation of OCGA § 17-8-57 since the brief
interaction here cannot be said to have “undermined the integrity of the process or
29
improperly enhanced the credibility of this witness[.]” Holland v. State, 310 Ga. App.
623, 627 (2) (714 SE2d 126) (2011) (citation and punctuation omitted). See Smith v.
State, 292 Ga. 588, 589-590 (2) (740 SE2d 129) (2013) (trial judge’s comment that
witness was a “very thorough investigator” did not express an opinion that bolstered
the witness’ credibility in violation of OCGA § 17-8-57).
(c) Comments during testimony of defense witness.
While defense counsel was questioning a witness about a school curriculum,
the judge asked how many more witnesses counsel planned to call to testify about the
curriculum. When counsel responded that there would be a full day of such testimony,
the judge said he thought there would be a point of diminishing returns. Evans did not
object to the judge’s comments as being improper expressions of opinion on the
evidence, so we review only for plain error. See OCGA § 17-8-57 (b). “To establish
plain error under OCGA § 17-8-57 (b), [Evans] must point to a legal error that . . .
was clear and obvious beyond reasonable dispute, affected [her] substantial rights,
and seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Barboza v. State, 309 Ga. 319, 325 (2) (a) (845 SE2d 673) (2020)
(citation and punctuation omitted). Evans has made none of these showings and
30
“[s]he therefore has failed to demonstrate plain error.” Bamberg v. State, 308 Ga. 340,
353 (5) (839 SE2d 640) (2020).
13. Mistrial for improper contact with jury.
Evans claims that the court erred in failing to grant her motion for a mistrial
after having improper contact with the jury on three occasions: when jurors told the
judge in the hallway that they did not know who the prosecutors were, when jurors
asked the judge in the hallway about holiday breaks, and when one of the alternate
jurors informed the court that she was sick. But pretermitting the issue of whether
these communications involved substantive matters that prejudiced Evans, see Fuller
v. State, 277 Ga. 505, 506 (2) (591 SE2d 782) (2004) (court should have no
communication with a juror that would prejudice the accused and such
communication should be restricted to matters relating to the comfort and
convenience of the jury), is the fact that Evans never moved for a mistrial.
Evans claims in her brief that she moved for a mistrial and that the motion was
denied. But the pages of the transcript which she cites in support of these claims show
that each time the court informed the parties of the communications with jurors,
Evans did not object and did not move for a mistrial. The transcript does show that
later in the trial, counsel for another defendant noted that some weeks previously
31
there had been concern about the judge having contact with jurors in the hallway due
to the layout of the building and counsel said that he wanted to place on the record
his objection to such contact. But he did not move for a mistrial or request any other
relief, nor did counsel for Evans or any other defendant request a mistrial.
“Upon being told of [communication between the court and jury], a motion for
a mistrial is a proper manner for objecting.” Hanifa v. State, 269 Ga. 797, 808 (6)
(505 SE2d 731) (1998). But a “motion for mistrial must be promptly made as soon
as the party is aware of the matter giving rise to the motion. If the defendant did not
make a contemporaneous motion for a mistrial at the time the defendant became
aware of the matter giving rise to the motion, then the defendant has waived review
of this issue on appeal.” Thomas v. State, 310 Ga. 579, 581 (2) (853 SE2d 111)
(2020) (citations and punctuation omitted). In this case, “[w]hen the judge explained
the encounter[s] to the parties . . . , no [motion for mistrial] was [made]. As a result,
[Evans] waived any [review of a mistrial for the] ex parte communication[s].”
Anthony v. State, 303 Ga. 399, 407 (5) (811 SE2d 399) (2018).
14. Bias against the defense.
Evans claims that the trial judge showed bias against the defense. As an initial
matter, we note that Evans has not indicated that she sought recusal of the judge or
32
any other specific relief as a result of such purported bias. Regardless, we further note
that the examples of alleged bias that she cites merely involved the court’s attempts
to reduce repetitive questioning of witnesses and control the orderly process of the
trial. A “trial judge [may take] such measures as necessary to ensure the orderly
administration of the trial[.]” Moore v. State, 301 Ga. App. 220, 223 (1) (687 SE2d
259) (2009). See also Smith v. State, 297 Ga. 268, 270 (2) (773 SE2d 269) (2015)
(trial court has considerable discretion to control the trial to ensure the orderly
administration of justice). Indeed, “[i]t is the duty of the trial court to control the trial
of the case and to ensure a fair trial to both sides on the disputed issues in the case.
Sometimes this requires interference by the court with the conduct of counsel.”
Thompson v. State, 349 Ga. App. 1, 6 (2) (a) (825 SE2d 413) (2019) (citation and
punctuation omitted). Here, Evans “has not shown that the trial court abused its
considerable discretion in the manner in which it dealt with [her defense] during the
[trial].” Bonner v. State, 295 Ga. 10, 15 (3) (757 SE2d 118) (2014).
15. Refusal to instruct jury.
Evans complains that the trial court erred in refusing to give two requested
instructions during the trial about evidentiary matters. But these issues were not
preserved for appellate review.
33
(a) Stricken testimony.
First, Evans claims that after certain testimony was struck, the judge
erroneously refused a defense request that he tell the jurors not to consider that
evidence. But Evans misrepresents what actually occurred at trial. At the time of the
testimony, defense counsel asked the court to instruct the jury “to strike that.” The
court gave the requested instruction and defense counsel thanked the court. The next
day, counsel noted that some testimony had been stricken the prior day and asked that
“going forward if there is testimony going to be struck,” if the court would tell the
jury not to consider such evidence. Counsel clarified that he was not asking the judge
“to go backwards and do it since I don’t remember what it was, but moving forward.”
So the trial court did not refuse a timely request to give the instruction for the
cited testimony that had been stricken, as there was no such request,
contemporaneous or otherwise. Instead, there was only a request the day after the
testimony in question for a future instruction in the event of other testimony being
stricken later in the trial. Evans has not identified any such other stricken testimony
and has not cited any instance when the trial court subsequently refused to give a
properly requested instruction. This claim of error presents nothing for review. See
Brookfield Country Club v. St. James-Brookfield, LLC, 287 Ga. 408, 413 (3) (696
34
SE2d 663) (2010) (“Issues which have not been ruled on by the trial court may not
be raised on appeal.”) (citation and punctuation omitted).
(b) Character witnesses.
Evans contends that the trial court erred in refusing her request to instruct the
jury that the court had limited each defendant to three character witnesses. The
transcript shows that when counsel for Evans made the request, he stated that the
witness limitation was fine, that the court had discretion to impose such a limitation,
and that he did not have a problem with it. See Mayo v. State, 261 Ga. App. 314, 316-
317 (2) (582 SE2d 482) (2003) (defendant acquiesced in court’s curtailment of the
number of character witnesses). The judge indicated that he might give such an
instruction, but twice asked counsel to provide legal authority for it. Counsel replied,
“Okay.” And then, without citing any authority, counsel concluded, “I think that’s all
I have.”
Evans has not indicated if counsel ever provided the requested legal authority
to the court or ever elicited a final ruling from the court regarding such an instruction.
So it is unclear if this enumeration presents a reviewable ruling. Davis v. State, 244
Ga. App. 345, 348 (5) (535 SE2d 528) (2000) (enumeration of error presents nothing
for review where defendant failed to elicit final ruling by trial court). Nonetheless,
35
since it appears from the parties’ briefs that the trial court never gave the instruction,
we will assume for purposes of review that there was a reviewable denial of the
requested instruction.
Evans, however, has not cited any legal authority showing that the instruction
was required and that the failure to give it constituted error. Moreover, her claim that
she was harmed because the jury was left to infer that she was not able to present such
character witnesses is unsupported by any evidence as she has not identified any
witness whose testimony she was unable to introduce because of the trial court’s
ruling. “Under these circumstances, we find it highly probable that the failure to issue
the requested limiting instruction, even if in error, was harmless and did not
contribute to the jury verdict.” Martinez v. State, 315 Ga. App. 727, 730 (3) (738
SE2d 255) (2012).
16. Cross-examination.
Evans contends that the trial court violated her constitutionally protected right
of cross-examination by preventing her from exploring a witness’ credibility. There
was no such constitutional violation.
One of the state’s witnesses was a former APS human resources director who
testified, among other things, that she had been indicted in the case for a RICO charge
36
and giving false statements, that she had pled guilty to a lesser offense of malfeasance
in office, and that she had been given a 12-month probated sentence with various
conditions. The defense conducted a lengthy cross-examination of the witness, which
included thorough questioning about her guilty plea, her plea negotiations with the
state, and her agreement to testify in exchange for the reduced misdemeanor sentence
of probation that was significantly less than a possible 25-year felony sentence. When
a defense attorney began to ask the witness about statements made by the judge
concerning severe consequences after trial, the state objected. The judge noted that
punishment was not a matter for the jury to consider and instructed counsel not to
interject statements he had made about sentencing The court clarified that the witness
could be questioned about the misdemeanor sentence she had received since that went
to her credibility.
Although the Sixth Amendment right to confrontation secures the
right of cross-examination, the right of cross-examination is not an
absolute right that mandates unlimited questioning by the defense. To
the contrary, trial courts retain wide latitude to impose reasonable limits
on cross-examination based on concerns about, among other things
interrogation that is only marginally relevant. The permissible scope of
cross-examination is committed to the sound discretion of the trial court,
and we review a limitation of the scope of cross-examination only for
abuse of discretion.
37
Smith v. State, 300 Ga. 538, 541-542 (3) (796 SE2d 666) (2017) (citation and
punctuation omitted).
Here, the trial court did not, as Evans contends, abuse its discretion by
improperly limiting her ability to explore the witness’ credibility with regard to her
guilty plea. On the contrary, the court expressly allowed defense questioning of the
witness about her guilty plea since it went to her credibility. See Castleberry v. State,
274 Ga. 290, 293 (2) (553 SE2d 606) (2001) (on cross-examination, accomplice’s
guilty plea may be used “to reflect on the witness’ credibility”). Indeed, as recounted
above, “the record reveals that [defense] counsel engaged in extensive
cross-examination of [the witness] as to [her] motives for testifying [in exchange for
her plea to a reduced charge and sentence]. Thus, the jury was aware that [she] had
turned state’s evidence and was in a position to determine whether or not [her]
testimony was credible.” McCoy v. State, 159 Ga. App. 648 (284 SE2d 664) (1981).
Under these circumstances, there was no infringement of the constitutional right of
confrontation “as alleged by [Evans since the defense] was allowed a thorough and
sifting cross-examination of [the witness] and the issue of [her] credibility was
squarely before the jury.” Id. at 649.
17. Declaring mistrial sua sponte.
38
Evans argues that the trial court should have acted sua sponte and granted her
a mistrial at various points based on comments made by the judge himself, comments
made by the prosecutor, and inquiries from the jury. As an initial matter, we note
again that “[w]here a defendant fails to move for a mistrial, [she] waives any appellate
argument that the trial court erred by not granting one.” Robinson v. State, 336 Ga.
App. 627, 630 (2) (785 SE2d 304) (2016). See also Thomas, supra at 581 (2).
As for the court acting sua sponte, Evans has not shown a manifest necessity
for such action.
A trial court is required to act sua sponte only if there is a manifest
necessity for a mistrial. And manifest necessity requires urgent
circumstances. Moreover, a trial court’s decision whether to grant a
mistrial based upon manifest necessity is entitled to great deference.
This deference to the judge’s sound discretion also precludes a
reviewing court from assuming, in the absence of record evidence, that
the trial judge deprived a defendant of constitutional rights.
Moore v. State, 301 Ga. App. 220, 224 (2) (687 SE2d 259) (2009) (citations and
punctuation omitted). Since there has been no showing of the urgent circumstances
required for manifest necessity, “we conclude that the trial court did not deprive
[Evans] of a fair trial by not declaring a mistrial sua sponte.” Fleming v. State, 306
Ga. 240, 244 (2) (830 SE2d 129) (2019).
18. Jury charge.
39
Evans claims that a specific intent to violate the law is an element of a RICO
conspiracy and that the trial court erred in failing to charge the jury on this specific
intent requirement. Evans has not provided any legal authority for her premise that
a RICO conspiracy is a specific intent crime other than citing OCGA § 16-14-4.
While that code section sets forth prohibited activities under the RICO Act, it does
not contain plain language providing that specific intent to violate the law is an
element of a RICO conspiracy. See generally White v. State, 305 Ga. 111, 114-115
(1) (823 SE2d 794) (2019) (we afford statutory language its plain and ordinary
meaning); Patterson v. State, 299 Ga. 491, 495 (789 SE2d 175) (2016) (holding that
the crime of simple assault as set forth in OCGA § 16-5-20 (a) (2) does not include
plain language requiring proof of a specific intent, and noting that it was a matter for
the General Assembly to phrase a statute to include such a specific intent
requirement).
Moreover, even assuming for the sake of argument that such a specific intent
charge might have been appropriate, Evans has shown no reversible error. “We have
previously held . . . that a trial court does not err in giving a charge on general intent
where the charge as a whole adequately informs the jury about the elements of the
specific-intent crime and further informs them of the [s]tate’s burden to prove such
40
elements beyond a reasonable doubt.” Aaron v. State, 275 Ga. App. 269, 270 (3) (620
SE2d 499) (2005). Here, the jury charge as a whole adequately informed the jury
about the elements of the RICO conspiracy and of the state’s burden of proof, so there
was no reversible error.
Judgment affirmed. Rickman, P. J., and Senior Appellate Judge Herbert E.
Phipps concur.
41