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Cuyler v. State

Court of Appeals of Georgia, Fourth Division

February 12, 2018


          DILLARD, C. J., RAY and SELF, JJ.


         Willie Cuyler appeals his convictions for attempted armed robbery, aggravated assault, first-degree burglary, and related weapons charges, arguing that the trial court erred by denying his motion to sever his trial from that of a co-defendant, failing to grant a mistrial or to give an adequate curative instruction when the victim improperly commented on Cuyler's character, and failing to merge his attempted armed-robbery and aggravated-assault convictions for sentencing purposes. He also contends that his trial counsel was ineffective for failing to move for a mistrial when the State presented improper character evidence and failing to call certain witnesses to testify in his defense. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [1] the record shows that on August 21, 2013, at approximately 11:40 p.m., a patrol officer with the Richmond County Sheriff's Department responded to a residence where shots had reportedly been fired and one person was "down." When the officer arrived, he noticed that the front door of the apartment had been kicked in, and there was blood on the ground. The officer walked into the apartment, where he found Marco Gilbert lying on a sofa "holding some gunshot wounds." But Gilbert was "fully alert and conscious" and able to tell the officer what happened. The officer observed that Gilbert had been shot a couple of times in his abdomen and once in his leg. Shortly thereafter, Gilbert was taken to a hospital for treatment and additional officers arrived on the scene to investigate. In the few minutes before the ambulance arrived, Gilbert told the officer that Andre Brown was one of his attackers and the other perpetrator (later identified as Cuyler) went by the nickname "Main-Main."[2]

         According to Gilbert, he had recently moved into the apartment with a friend, who was also Cuyler's cousin. Gilbert knew Cuyler because they played pool and had drinks together a few times, but Gilbert did not know him well. Gilbert had, however, known Brown and his family since childhood. And on the night in question, Gilbert was home alone watching a movie when he "heard a loud kick at [his] door[, ]" which caused the door to begin coming off of its hinges. Gilbert looked toward the door and saw Cuyler standing in the doorway. When Cuyler kicked the door a second time, it flew open, and Gilbert, who attempted to run away, heard gunshots being fired inside the home. Then, after the gunshots stopped, Gilbert saw that Cuyler was still standing in the doorway, and he asked Cuyler, "this how y'all gonna play it, brother?" Cuyler then told Gilbert to "give it up" and began shooting at him again.[3] Cuyler ran toward Gilbert and attempted to grab him, but Gilbert was able to escape through the front door.

          Then Brown, who was waiting just outside the door, tripped Gilbert, causing him to fall on the ground. Brown jumped on top of Gilbert, pointed a gun at him, and repeatedly attempted to pull his pants down. Although Gilbert was eventually able to stand and start running away, he stumbled and fell again. Brown followed Gilbert, stood over him, shot him twice in the stomach, and then ran from the scene. By this time, Cuyler had also fled. In total, Gilbert was shot five times during the home invasion.

         Following the attack, Cuyler and Brown were charged, via indictment, with attempted armed robbery, aggravated assault, first-degree burglary, and related weapons charges. Prior to trial, Cuyler moved to sever his trial from that of Brown's, but after a hearing on the matter, the motion was denied. Subsequently, Cuyler and Brown proceeded to a joint jury trial and were both convicted of all charged offenses. Cuyler then filed a motion for a new trial, which was denied following a hearing. This appeal by Cuyler follows.[4]

         1. Cuyler first argues that the trial court erred in denying his motion for a severance because there was confusion as to the evidence and the law applicable to each defendant and he and Brown had antagonistic defenses.[5] We disagree.

         OCGA § 17-8-4 (a) provides that when two or more defendants are jointly indicted for a non-capital offense, "such defendants may be tried jointly or separately in the discretion of the trial court." And a trial court's decision to deny a motion to sever "will be affirmed absent an abuse of discretion."[6] Nevertheless, a trial court should sever the trials of co-defendants whenever it is "necessary to achieve a fair determination of the guilt or innocence of a defendant."[7] But in order to show entitlement to a severance, "the burden is on the defendant to do more than raise the possibility that a separate trial would give him a better chance of acquittal."[8] Indeed, to satisfy this burden, a defendant "must make a clear showing of prejudice and a consequent denial of due process."[9] Finally, as our Supreme Court has explained, in determining whether to grant a motion to sever, a trial court should consider:

(1) whether the number of defendants will confuse the jury as to the evidence and the law applicable to each defendant; (2) whether, despite cautionary instructions from the court, there is a danger that evidence admissible against one defendant will be improperly considered against another defendant; and (3) whether the defenses of the defendants are antagonistic to each other or to each other's rights of due process.[10]

         Bearing these guiding principles in mind, we turn now to Cuyler's specific claim.

         As to whether the number of defendants is potentially confusing to the jury as to the evidence and the law, our Supreme Court has held that "[m]erely because three defendants are tried together is not cause for a severance."[11] And here, there were only two defendants tried together, and Cuyler fails to explain how trying him and Brown together could have confused the jury, especially given that the jury heard testimony regarding a relatively brief and straightforward attempted robbery and the assault of a single victim.[12] Indeed, as the co-defendants were alleged to have acted in concert to commit the same crimes on a single occasion, and the evidence and law applicable to each defendant was essentially the same, it is unlikely that trying them together confused the jury.[13]

         As to whether evidence against one defendant is admissible against the other, Cuyler maintains that he was entitled to a severance because the State presented evidence that Brown committed another robbery two months prior to the attempted robbery of Gilbert. Specifically, Cuyler contends that there was a danger that the jury would improperly consider evidence of that recent, similar robbery against him. But the mere fact that the case against Brown was stronger than the case against Cuyler did not necessitate a separate trial.[14] Moreover, the trial court gave limiting instructions to the jury that mitigated any chance it would convict either defendant based on evidence against or association with the other. Indeed, just prior to the State presenting similar-transaction evidence against Brown, the court instructed that "[s]ometimes the evidence is admitted for a limited purpose or against some parties and not others. Such evidence may be considered by you, the jury, for the sole issue or purpose against that party for which the evidence is limited and not for other purposes." The court went on to explain that the State would be presenting evidence of other acts allegedly committed by Brown, and such evidence could be considered solely as to the issues of Brown's motive, intent, and plan.

         Additionally, after each witness who testified regarding Brown's prior criminal acts, Cuyler's attorney cross-examined the witness briefly only to confirm that Cuyler had no involvement in those prior incidents or that the witness did not know Cuyler. Following the presentation of these witnesses, the court asked the State and the defendants whether it should give the limiting instruction again, and all parties agreed that the court should wait to repeat the instruction during the jury charges at the end of trial, which it did.[15] Given that qualified jurors under oath are presumed to follow a trial court's instructions, [16] there was very little, if any, danger that the jury considered the evidence solely related to Brown's prior acts against Cuyler.[17]

         Lastly, Cuyler has not shown that his and Brown's defenses were antagonistic, as they both presented alibi witnesses and testified in their own defense that they did not participate in the robbery at all. Such defenses are not mutually exclusive.[18] Furthermore, Brown never made any incriminating statements implicating Cuyler that were presented at trial.[19] Under these particular circumstances, the trial court did not abuse its discretion in denying Cuyler's request for a severance because he did not meet his burden of showing the requisite prejudice sufficient to warrant a severance of the joint prosecution.[20]

         2. Cuyler next argues that the trial court erred when it failed to grant a mistrial or give an adequate curative instruction to the jury after the victim improperly testified as to his character. This claim is likewise without merit.

         Whether to grant a mistrial based on improper character evidence is within the discretion of the trial judge.[21] As a general matter, the character of the defendant should not come into evidence "unless he chooses to put his character in issue and when prejudicial matter is improperly placed before the jury, [and] a mistrial is appropriate if it is essential to the preservation of the defendant's right to a fair trial."[22] Moreover, in reviewing the trial court's decision, an appellate court "may consider the nature of the statement, the other evidence in the case, and the court's and counsel's action in dealing with the impropriety."[23] Furthermore, we also consider additional facts like whether "the reference to the improper character evidence is isolated and brief, whether the jury's exposure was repeated or extensive, and whether the introduction of the objectionable evidence was inadvertent or whether it was deliberately elicited by the State."[24]

         Here, Cuyler complains that two statements made by Gilbert during his testimony improperly commented on his character, but he concedes that the State did not intentionally solicit either statement. The first statement was Gilbert's response when the State asked him to identify Cuyler in the courtroom and describe his clothes. Specifically, Gilbert testified,

Cuyler[ ] is the guy that's on defense with . . . the orange and blue shirt, the different colored shirt on with the low haircut now. He used to have . . . like a Fro, an Afro and stuff before. I guess he went through the system-been in the system for doing his chain[-]gang time or whatever.

         Cuyler's trial counsel immediately objected, arguing that this testimony placed his client's character into evidence. But following a bench conference, the court merely instructed Gilbert to continue testifying without commenting on the reason why Cuyler's hairstyle may have changed. The bench conference was not transcribed, however, and it is unclear whether Cuyler's counsel moved for a mistrial at this time or instead requested a curative instruction.[25] And in the absence of any request for a mistrial, the trial court was "required to act sua sponte only if there was a manifest necessity for a mistrial, "[26] which "requires urgent circumstances."[27] Moreover, to the extent Cuyler argues that the trial court erred in failing to grant a mistrial sua sponte based solely on the victim's vague and unsolicited suggestion that Cuyler may have been incarcerated for some unspecified reason prior to trial, we disagree that such testimony necessitates a mistrial.[28]

         The second statement Cuyler claims warranted a mistrial was made by Gilbert in response to a question about whether he was familiar with a particular car driven by Brown's girlfriend. Specifically, Gilbert testified,

Yeah, I seen the car. I used the car all the time. Like I say, they stayed-we all stayed in the same neighborhoods and stuff like that together, and pretty much the same car that other crimes were committed in, you know. Like I said Willie Cuyler is my homeboy's best friend. Everything Willie Cuyler used to tell my homeboy about the things that [Brown] and Willie Cuyler used to do together, like other robberies and stuff like that . . . .

         Immediately following this testimony, both Brown and Cuyler objected, and Cuyler's counsel specifically argued that this statement, coupled with the earlier "chain gang" comment, improperly placed Cuyler's character in evidence. But neither defendant moved for a mistrial at this time. In response, the court stated twice that it would overrule the objections, but that it would instruct the jury to disregard the objectionable testimony. And while Cuyler claims that the trial court did not directly address the jury in making this ruling or otherwise ensure that the jury "observed" the instruction, the court stated more than once in the jury's presence that the testimony just given by Gilbert should be disregarded. Cuyler's argument as to how the court phrased the instruction appears to be based purely on semantics, rather than any substantive legal authority.

         Then, at the close of the State's case, Cuyler's counsel moved for a mistrial based solely on Gilbert's "chain gang" comment, which suggested that Cuyler had been incarcerated, arguing again that it improperly placed Cuyler's character into evidence. The trial court denied the motion, and as previously explained, did not abuse its discretion in doing so because a passing reference to a defendant's previous incarceration does not necessitate a mistrial.[29] Furthermore, although the State requested that the court give a cautionary instruction to the jury about the statement, Cuyler's counsel objected on the basis that giving such an instruction at that time would place undue emphasis on it.[30] And when, as here, counsel strategically refuses a trial court's proffer of a curative instruction, the court's failure to grant a mistrial is not an abuse of discretion.[31] In sum, the trial court did not abuse its discretion in failing to grant a mistrial based on the witness statements detailed supra because, in each case, Gilbert merely provided brief, isolated, and unsolicited testimony that may have negatively impacted Cuyler's character.[32]

         3. Cuyler also argues that his counsel was ineffective for failing to move for a mistrial based on certain testimony of the victim and for failing to investigate and subpoena additional witnesses for trial. Again, we disagree.

         In evaluating claims of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington, [33] "which requires [a defendant] to show that his trial counsel's performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different."[34] Additionally, there is a strong presumption that trial counsel's conduct "falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption."[35] And when, as here, trial counsel does not testify at the motion for new trial hearing, "it is extremely difficult to overcome this presumption."[36] Lastly, unless clearly erroneous, this Court will "uphold a trial court's factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court's legal conclusions in this regard are reviewed de novo."[37]

         (a) Failure to Move for a Mistrial.

         In a claim related to the previous enumeration of error, Cuyler argues that he received ineffective assistance of counsel because his counsel failed to move for a mistrial based on Gilbert's testimony that Cuyler had been "in the system" or doing "chain[-]gang time." This claim is belied by the record. As previously explained, Cuyler's counsel objected when this testimony was initially given, indicating that she would make a motion in a sidebar, but the sidebar was not transcribed. Nevertheless, at the close of the State's case, Cuyler's trial counsel moved for mistrial based solely on the complained of testimony. Thus, Cuyler is simply incorrect that his counsel failed to move for a mistrial on that basis. And to the extent Cuyler argues that his counsel should have moved for mistrial on the record immediately after the "chain gang" comment was made, any such motion would have been denied for the ...

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