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Brewer v. State

Supreme Court of Georgia

August 28, 2017

BREWER
v.
THE STATE

          MELTON, PRESIDING JUSTICE.

         Following a jury trial, Erwin Trevor Brewer appeals his conviction for the murder of Larry Strickland and related crimes, contending that the trial court erred by denying a motion for mistrial and that he received ineffective assistance of counsel.[1] For the reasons set forth below, we affirm.

         1. In the light most favorable to the verdict, the record shows that, on December 11, 2013, Brewer borrowed $100 from Jessica Gates with the promise that he would repay the money on the following day. On December 12, 2013, Brewer borrowed $100 from Strickland, his cousin, in order to repay Gates. Brewer also promised Strickland that he would repay the debt on the following day. On December 13, 2013, Brewer was socializing at the home of Stefanie James and Jovan Edmondson with James, Edmondson, Thomas Person, and Robert Hatcher. That afternoon, Strickland arrived at the residence. At one point, Strickland asked Brewer about the money that he had loaned to him. Brewer became angry and started arguing with Strickland. Edmondson intervened, separating the two. Strickland walked outside. Brewer then grabbed Edmondson's handgun that was sitting on a nearby table and pursued Strickland in a rage. Person was also outside at that time, and he witnessed Brewer confront and shoot Strickland, fatally wounding him. Hearing the gunshots, James, Edmondson, and Hatcher ran outside to find Brewer standing over Strickland with a gun in his hand. Brewer then cursed at and disparaged Strickland, reached into Strickland's pocket, and stole money. Brewer then fled in Person's car. Ten days later, Brewer was found by police and arrested. Brewer testified at trial that, in his initial confrontation with Strickland, he felt a gun hidden beneath Strickland's shirt, and he shot Strickland in self-defense. The witnesses to the shooting, however, testified that Strickland was unarmed.

         This evidence was sufficient to enable the jury to find Brewer guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Brewer contends that the trial court erred by denying his motion for mistrial after testimony from a State witness allegedly placed his character into evidence. We disagree.

         The record shows that, prior to trial, the trial court prohibited the State from eliciting testimony regarding the reason Brewer needed the $100 loan, namely to pay for bond associated with an unrelated misdemeanor charge. During trial, the State asked Officer Roy Ham if he was involved in the search for Brewer after Strickland's murder. Ham testified that he was involved in the search and that he had been contacted by others who "wanted to know if we could possibly utilize in-house records and jail booking information to locate" Brewer. At that point, Brewer made a motion for mistrial, arguing that the testimony regarding "booking information" had placed Brewer's character in evidence. The trial court denied the motion for a mistrial, but offered to give a curative instruction. Trial counsel, however, declined the curative instruction.

         As a general rule,

[a] trial court's denial of a motion for mistrial based on the improper admission of bad character evidence is reviewed for abuse of discretion by examining factors and circumstances, including the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.

(Citation and punctuation omitted.) Rucker v. State, 293 Ga. 116, 118 (2) (744 S.E.2d 36) (2013). Furthermore, "[w]e have held that curative instructions are an adequate remedy when a witness inadvertently refers to a defendant's prior convictions or criminal acts. [Cit.]" Bunnell v. State, 292 Ga. 253, 257 (4) (735 S.E.2d 281) (2013). Given that Brewer declined the court's offer to give a curative instruction with regard to the statement, he cannot now complain about its refusal to declare a mistrial. Pickren v. State, 272 Ga. 421 (9) (530 S.E.2d 464) (2000). Accordingly, Brewer has waived his right to complain about the trial court's decision. Id. Even if this right had been preserved, the trial court did not abuse its discretion in denying the motion for a mistrial. Walker v. State, 282 Ga. 703, 705 (2) (653 S.E.2d 468) (2007).

         3. Brewer contends that trial counsel rendered ineffective assistance by declining the trial court's offer to give a curative instruction regarding Officer Ham's mention of booking information.

In order to succeed on his claim of ineffective assistance, [Brewer] must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV); Fuller v. State, 277 Ga. 505 (3) (591 S.E.2d 782) (2004). In reviewing the trial court's decision, "'[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.' [Cit.]" Robinson v. State, 277 Ga. 75, 76 (586 S.E.2d 313) (2003).

Wright v. State, 291 Ga. 869, 870 (2) (734 S.E.2d 876) (2012). Furthermore, "[t]rial tactics and strategy . . . are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them." (Citation and punctuation omitted.) McNair v. State, 296 Ga. 181, 184 (2) (b) (766 S.E.2d 45) (2014).

         As discussed in the preceding division, the trial court acted within its broad discretion in denying Brewer's motion for a mistrial. In addition, Brewer's trial counsel testified at the hearing on the motion for new trial that he declined the trial court's curative instruction because it "would bring [the booking reference] to the forefront of the jury's mind, and it may have been that it got by without the jury even hearing it." Trial counsel believed that, "without the curative instruction that maybe [the jury] wouldn't remember [the jail reference], and it wouldn't be fresh on their memory." This strategic decision not to draw the jury's attention to the booking reference by declining a curative instruction was "within the wide latitude of presumptively reasonable professional conduct engaged in by a trial attorneys." Kitchens v. State, 289 Ga. 242, 245 (2) (e) (710 S.E.2d 551) (2011). There was no ineffective assistance.

         4. Brewer contends that the trial court committed reversible error by disallowing evidence that Strickland, the victim, had committed an alleged previous act of ...


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