296 Ga. 388
FINAL COPY


                      S14A1371. WALLACE v. THE STATE.


       BLACKWELL, Justice.

       Edward Wallace was tried by a Fulton County jury and convicted of

murder and other crimes, all in connection with the fatal shooting of Kyle

Moore. Wallace appeals, contending that the evidence is legally insufficient to

sustain his convictions, that the trial court erred when it admitted certain

evidence at trial, and that he was denied the effective assistance of counsel.

Upon our review of the record and briefs, we see no error, and we affirm.1

       1
         The crimes were committed on May 3, 2007. Along with Maurice Aikens and
Ladasha Eison, Wallace was indicted on June 19, 2007, and each was charged with malice
murder, three counts of felony murder, one count of armed robbery, aggravated assault, and
unlawful possession of a firearm during the commission of a felony. In addition, Wallace and
Aikens were charged with unlawful possession of a firearm by a convicted felon. A redacted
indictment was later filed, omitting one of the felony murder counts. Wallace and Aikens
were tried together, beginning on February 2, 2009, and Eison was ordered to testify pursuant
to a grant of immunity. The jury returned its verdict four days later, finding both Wallace and
Aikens guilty on all counts. Wallace and Aikens each was sentenced to a term of
imprisonment for life for malice murder, a consecutive term of imprisonment for life for
armed robbery, and consecutive terms of imprisonment for five years each for unlawful
possession of a firearm during the commission of a felony and unlawful possession of a
firearm by a convicted felon. The verdict as to felony murder was vacated by operation of
law, Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993), and the aggravated
assault merged with the armed robbery. Eison pled guilty to aggravated assault and was
sentenced as a first offender to twelve years, with five years commuted to time served and
the balance to be served on probation. Wallace timely filed a motion for new trial on March
      1. Viewed in the light most favorable to the verdict, the evidence shows

that on the evening of May 3, 2007, Wallace, Maurice Aikens, and Ladasha

Eison made plans to rob someone at a bus stop near a MARTA station. When

Moore — an African-American high school student who was unknown to the

assailants — arrived at the bus stop, Wallace and Aikens ran up to him and took

his empty wallet and cell phone at gunpoint. Moore then was shot multiple

times, and he died from his wounds soon afterwards. Eison told her co-workers

about the robbery, identifying Wallace as the shooter. Two days after the

shooting, Wallace had the words “unknown killer” tattooed onto his arm and

confessed to his girlfriend that he had shot Moore. Ballistics testing confirmed

that a 9mm handgun found by police officers in Wallace’s bedroom was the gun

with which Moore was killed. During a custodial interview, Wallace admitted

that he had purchased that gun a few months earlier. Police also found rap lyrics

written recently by Wallace, in which he said that he targeted black people and




5, 2009, and he amended it on August 16, 2010. The trial court denied his motion on
September 29, 2011. Wallace timely filed a notice of appeal on October 12, 2011, and he
amended it on February 15, 2012 and again on June 1, 2012. The case was docketed in this
Court for the September 2014 term and submitted for decision on the briefs.

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that, if one would not act, Wallace would “lay ’em flat” and “put eight holes in

his back.”

      Wallace points to some conflicts in the evidence and questions the

credibility of several witnesses, including Eison. But when we consider the legal

sufficiency of the evidence,“we must view the evidence in the light most

favorable to the verdict and leave questions of credibility and the resolution of

conflicts in the evidence to the jury.” Bradley v. State, 292 Ga. 607, 609 (1) (a)

(740 SE2d 100) (2013). So viewed, we conclude that the evidence adduced at

trial was legally sufficient to authorize a rational trier of fact to find beyond a

reasonable doubt that Wallace was guilty of the crimes of which he was

convicted. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61

LE2d 560) (1979).

      2. Wallace contends that the trial court improperly allowed Eison to testify

about his character. When asked why she and Aikens did not want Wallace to

know where they went after the murder, she testified that they “don’t trust

[Wallace].” Wallace’s lawyer asked to approach the bench, the jury was

excused, and the lawyer moved for a mistrial. Finding that Eison’s answer only

incidentally placed Wallace’s character into evidence, the trial court denied his

                                        3
motion for mistrial but cautioned the prosecutor to “steer clear of that area.”

Wallace’s lawyer neither renewed the motion for mistrial nor asked for any

additional corrective action. To the contrary, he told the trial court that he was

“not requesting any type of curative instructions or anything like that.” The trial

court agreed not to highlight the issue any further, the jury returned, and the

prosecutor resumed her examination of Eison without revisiting the issue.

“Where a defendant objects and moves for a mistrial during the examination of

a witness, and the trial court denies the motion but takes some corrective action,

if the defendant is dissatisfied with that action, he must renew the objection or

motion; otherwise, the issue is waived.” Wilkins v. State, 261 Ga. App. 856, 858

(2) (583 SE2d 905) (2003) (citation and punctuation omitted). Because Wallace

failed to renew his motion for mistrial following the trial court’s cautionary

direction to the prosecutor and instead announced his decision not to request any

further corrective action, Wallace has waived this issue on appeal. See id.;

Frazier v. State, 247 Ga. App. 500, 501-502 (544 SE2d 198) (2001). See also

Phillips v. State, 269 Ga. App. 619, 628 (6) (a) (604 SE2d 520) (2004).

      Even if the trial court’s warning to the prosecutor did not amount to

corrective action that triggered an obligation on Wallace’s part to renew his

                                        4
motion for mistrial, we find no error. The trial court did not abuse its discretion

when it denied Wallace’s motion for mistrial, as the testimony about not trusting

Wallace was ambiguous and did not indicate that he had committed a crime. See

McIlwain v. State, 287 Ga. 115, 117 (4) (694 SE2d 657) (2010). Moreover, that

testimony was relevant to explain the actions of Eison and Aikens after

witnessing Wallace shoot Moore, and it was not inadmissible because it

incidentally put Wallace’s character in issue. See Cannon v. State, 288 Ga. 225,

228 (4) (702 SE2d 845) (2010).

      3. Wallace also asserts that the trial court erred when it failed to suppress

Wallace’s custodial statement as involuntary. “When a court considers whether

a statement was voluntary, it must look to the totality of the circumstances, and

at trial, the State bears the burden of proving by a preponderance of the evidence

that a statement was, in fact, voluntary.” Edenfield v. State, 293 Ga. 370, 374 (2)

(744 SE2d 738) (2013). Wallace’s statement was involuntary, he claims,

because he was under the influence of cocaine that he had ingested, was fidgety,




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was seen breaking items in the interrogation room, and did not waive his

Miranda2 rights in writing.

      Wallace did tell a detective at the time of his interview that he had

ingested cocaine a few hours before he provided the statement. But the detective

testified that Wallace did not appear to be under the influence of cocaine or any

other drugs, alcohol, or medication, that he appeared to understand his rights

and waived them orally, and that he was coherent and answered questions

appropriately. See Krause v. State, 286 Ga. 745, 751 (7) (691 SE2d 211) (2010);

Philmore v. State, 263 Ga. 67, 68 (2) (428 SE2d 329) (1993). “The mere fact

that [Wallace] may have been somewhat intoxicated at the time of the interview

does not automatically render evidence thereof inadmissible.” Norton v. State,

293 Ga. 332, 335 (2) (745 SE2d 630) (2013) (citations omitted). See also Jones

v. State, 285 Ga. 328, 329-330 (2) (676 SE2d 225) (2009). Although Wallace

at times showed some agitation that the detective indicated was normal for such

an interview, there was no evidence that he broke items in the interrogation

room. And Wallace “was not required to waive his Miranda rights in writing.”



      2
          See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

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Davis v. State, 292 Ga. App. 782, 785 (2) (a) (666 SE2d 56) (2008) (citation

omitted). See also Sosniak v. State, 287 Ga. 279, 282 (1) (A) (2) (695 SE2d 604)

(2010). The detective’s testimony was sufficient to show that Wallace

knowingly and voluntarily waived his Miranda rights and gave his statement,

and the trial court did not err when it admitted the statement.

      4. Wallace further contends that he was denied the effective assistance of

counsel at trial. To prevail on a claim of ineffective assistance, Wallace must

prove both that the performance of his lawyer was deficient and that he was

prejudiced by this deficient performance. Strickland v. Washington, 466 U. S.

668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To prove that the

performance of his lawyer was deficient, Wallace must show that the lawyer

performed his duties at trial in an objectively unreasonable way, considering all

the circumstances, and in the light of prevailing professional norms. Id. at 687-

688 (III) (A). See also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106

SCt 2574, 91 LE2d 305) (1986). And to prove that he was prejudiced by the

performance of his lawyer, Wallace must show “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine

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confidence in the outcome.” Strickland, 466 U. S. at 694 (III) (B). See also

Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SCt 1495, 146 LE2d 389)

(2000). This burden is a heavy one, see Kimmelman, 477 U. S. at 382 (II) (C),

and Wallace falls far short of carrying it.3

       (a) Wallace claims that his lawyer should have filed a motion to sever his

trial from that of his co-defendant, Maurice Aikens. Wallace, however, “has not

shown either that a motion should or would have been granted.” Dulcio v. State,

292 Ga. 645, 654 (3) (h) (740 SE2d 574) (2013). His case was prejudiced,

Wallace says, because the evidence against Aikens was overwhelming while the

evidence against Wallace was circumstantial. But the evidence of Wallace’s

guilt is not merely circumstantial, nor is it weaker than the evidence of Aikens’s


       3
         “Figuratively speaking, the hill that must be climbed to make out a claim of
ineffective assistance is almost always high and steep. In this case, however, it is especially
high and steep because [Wallace] failed to put on any evidence in support of his claim —
including any testimony from his trial lawyer — at the hearing on his motion for new trial.”
Butler v. State, 292 Ga. 400, 405 (3), n. 8 (738 SE2d 74) (2013). As we have observed
before, “[i]t is extremely difficult to overcome the presumption of reasonable professional
assistance where counsel does not testify.” Maxwell v. State, 290 Ga. 574, 575 (2) (722 SE2d
763) (2012) (citations and punctuation omitted). See also Morgan v. State, 275 Ga. 222, 227
(10) (564 SE2d 192) (2002). Moreover, Wallace has presented his assertions of ineffective
assistance — both in the trial court and on appeal — in a cursory manner. Even so, to the
extent possible, we will briefly review each instance in which Wallace contends that his trial
lawyer was ineffective to determine whether the record reveals deficient performance and
prejudice. See Maxwell, 290 Ga. at 575 (2).

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guilt. And even if the evidence against Aikens were more substantial than the

evidence against Wallace, that fact would not itself require severance. See id.

“What is more, [Wallace] fails to demonstrate antagonistic defenses, that

evidence admissible only against [Aikens] was improperly used against

[Wallace], or that the joint trial created any confusion.” Id. Accordingly,

Wallace cannot establish either a deficiency of his lawyer or prejudice in the

failure to request severance. See id.

      (b) Wallace also claims that his lawyer should have filed a motion to

suppress identification evidence. Although Wallace refers generally to a lack of

descriptions by witnesses, he does not specify which witnesses gave

objectionable testimony or why it was inadmissible. “It is not this Court’s job

to cull the record on behalf of the [appellant] to find alleged errors.” Maxwell

v. State, 290 Ga. 574, 575 (2) (722 SE2d 763) (2012) (citation omitted). Wallace

has failed to carry his burden to show deficient performance or prejudice as to

this claim. See Mitchell v. State, 290 Ga. 490, 492 (4) (a) (722 SE2d 705)

(2012).

      (c) Wallace complains that his lawyer placed Wallace’s character in issue

during opening statement when the lawyer invoked a racial stereotype about his

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own client. The lawyer said that Wallace “likened himself to be a rapper. It

seems to be very popular now. Young black men want to become rappers, and

so they get all these tattoos.” Although lawyers ought not unnecessarily inject

the race of any party into the proceedings, Wallace has failed to show how this

particular statement was unreasonable or prejudicial. See Stephens v. State, 208

Ga. App. 620, 622 (2) (e) (431 SE2d 422) (1993) (although racial distinctions

are offensive and will be closely scrutinized, “we cannot say that every such

reference is prejudicial as a matter of law; to call it a deficiency of counsel as a

matter of law might deprive a defendant of an important defense in some

cases”). At trial, his lawyer had to deal with expected evidence of the “unknown

killer” tattoo and the rap lyrics written after the murder. The apparent strategy

of the lawyer was to attempt to portray these things as commonplace for an

aspiring rap artist, not admissions of guilt. “It is reasonable strategy for defense

counsel to place disagreeable information before the jury in a manner which he

can control rather than allow the subject matter to be presented in a more

damaging fashion.” Terry v. State, 284 Ga. 119, 122 (2) (d) (663 SE2d 704)

(2008) (citations omitted). The fact that Wallace now disagrees with his

lawyer’s tactical choices during opening statement does not require a finding of

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ineffective assistance of counsel. See Mize v. State, 269 Ga. 646, 655 (11) (501

SE2d 219) (1998).

      (d) Last, Wallace argues that his lawyer failed to object to the admission

of Moore’s phone records during the testimony of an assistant store manager for

a cell phone company. The State did not lay a proper foundation, Wallace

claims, to establish that the records admitted into evidence were admissible

business records. But the witness testified that, as part of her duties, she kept,

maintained, interpreted, and itemized phone records for her employer, that the

document accurately shows the call details for Moore’s phone number on the

date of the murder, and that those records are ordinarily kept in the course of the

company’s business. Although Wallace does not make clear what he believes

this foundation was lacking, he does say that the witness should testify from

personal knowledge. It appears, however, that an objection based on the asserted

lack of a foundation would not have been meritorious. See Santana v. State, 283

Ga. App. 696, 698 (1) (642 SE2d 390) (2007) (“The witness’s lack of personal

knowledge regarding how the records were created does not render them

inadmissible, but merely affects the weight given to the evidence.”) (citations

omitted). In any event, Wallace has made no showing that a proper foundation

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could not have been laid if any additional foundation was necessary. See

Jackson v. State, 288 Ga. App. 432, 434 (1) (b) (654 SE2d 232) (2007).

Wallace’s lawyer likely made a tactical decision not to object because the State

would have asked the witness any additional questions that were necessary to

establish the foundation. See Cupe v. State, 253 Ga. App. 851, 855 (3) (a) (560

SE2d 700) (2002). See also Brown v. State, 307 Ga. App. 797, 807 (5) (d) (706

SE2d 170) (2011) (when and how to raise foundation objections is generally a

matter of trial strategy). Accordingly, Wallace has failed to show either that his

lawyer’s actions were not in the course of trial strategy or that there is a

reasonable probability that the result of trial would have been different if the

lawyer had objected. See Woodall v. State, 261 Ga. App. 213, 216 (4) (582

SE2d 466) (2003).

      Judgment affirmed. All the Justices concur.



                          Decided January 20, 2015.

      Murder. Fulton Superior Court. Before Judge Brasher.

      Brandon Lewis, for appellant.



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      Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Lyndsey H.

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

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

Assistant Attorney General, Andrew G. Sims, Assistant Attorney General, for

appellee.




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