Cuyler v. State

344 Ga.App. 532

811 S.E.2d 42

CUYLER

v.The STATE.

A17A1804

Court of Appeals of Georgia.

February 12, 2018

Victor C. Hawk, Augusta, for appellant.

Natalie S. Paine, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

Dillard, Chief Judge.

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 noncapital 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 in 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 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...