In the Supreme Court of Georgia



                                            Decided: July 5, 2016


                     S16A0066. GREEN v. THE STATE.


      HINES, Presiding Justice.

      Steven James Green appeals from the denial of his amended motion for

new trial following his convictions for malice murder, burglary, aggravated

assault, possession of a firearm during the commission of a felony, and

possession of a firearm by a convicted felon in connection with the fatal

shooting of Anthony Shane Augustus and the aggravated assault of Shyrome

Marshall, as well as the burglary of Marshall’s home. For the reasons that

follow, we affirm.

      This is the second appearance of this case in this Court. In Green v. State,

295 Ga. 108 (757 SE2d 856) (2014), we found the evidence against Green to be

sufficient to enable a rational trier of fact to find Green guilty beyond a

reasonable doubt of all of the crimes of which he was convicted, and rejected

Green’s claim that a new trial was warranted because a juror was not impartial;
we also remanded the case to the trial court to consider Green’s claim that trial

counsel had been ineffective, which claim could not have been practically raised

at an earlier time. Id. at 112 (3). Upon remand, the trial court conducted a

hearing to address Green’s claims of ineffective assistance of trial counsel, and

denied Green’s amended motion for new trial based thereon.

      As noted in our prior decision, evidence presented at trial showed that:

Marshall, accompanied by his friend Augustus, returned to his apartment one

evening to find that the front door had been forced open; Marshall entered the

apartment and Green struck him 15 or 16 times with a pistol; Green placed the

pistol to Marshall’s head and directed Marshall to give him money; Augustus

distracted Green; Marshall ran to a nearby apartment; Augustus was fatally shot;

and Green and another man ran from Marshall’s apartment. Id. at 109.

      1. In this appeal, all of Green’s enumerations of error relate to the trial

court’s denial of his amended motion for new trial based on the alleged

ineffective assistance of trial counsel. Generally, in order to prevail on a claim

of ineffective assistance of counsel, Green must show both that counsel’s

performance was deficient, and that the deficient performance was prejudicial

to his defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985),

                                        2
citing Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674)

(1984). To meet the first prong of the required test, he must overcome the

“strong presumption” that counsel’s performance fell within a “wide range of

reasonable professional conduct,” and that counsel’s decisions were “made in

the exercise of reasonable professional judgment.” Id. The reasonableness of

counsel’s conduct is examined from counsel’s perspective at the time of trial and

under the particular circumstances of the case. Id. at 784. To meet the second

prong of the test, he must show that there is a reasonable probability that, absent

any unprofessional errors on counsel’s part, the result of his trial would have

been different. Id. at 783. “‘We 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

SE2d 313) (2003).

      a) In its case-in-chief, the State presented the testimony of Rachael

Anderson, who was Green’s girlfriend at the time of the crimes. Before her

testimony, the State informed the court that another witness, John Manning, had

voluntarily come to trial that day, but had left, and that Manning had since been

located, had been served with a subpoena, and would be in court at 8:30 the next

                                        3
morning. The State further declared that it anticipated that Manning would

impeach Anderson’s testimony, and that it would ask Anderson questions, the

answers to which Manning would presumably impeach in the morning. And,

during its examination of Anderson, the State asked her several questions

regarding whether she had told Manning that Green had told her certain details

of the events in Marshall’s home, including whether she “recall[ed] telling John

Manning that Green shot one of the guys?” Anderson consistently answered

these questions to the effect that she had no recollection of any conversation

with Manning about Green’s case, did not have the type of relationship with

Manning that would have provided a basis for a discussion of the case, and had

he brought the subject up, she would have informed him that she did not wish

to discuss it. On cross-examination, she testified that as best she could recall,

she had met Manning when she worked at a bar or nightclub, “he developed

some kind of obsession with me and a friendship with [Green] of some kind,”

and that he had “tried very hard several times” to date her.

       Manning was never called to testify,1 and Green contends that it was


       1
        Green made no attempt to show that the State’s failure to produce Manning’s testimony was
done in bad faith.

                                               4
ineffective assistance for counsel to fail to move the court to declare a mistrial,

or to strike the questions and answers regarding Manning from the record based

upon that failure. However, Green fails to show prejudice arising from the

failure.

      When prejudicial matter is improperly placed before the jury, a
      mistrial is appropriate if it is essential to the preservation of the
      defendant’s right to a fair trial. Whether the statements are so
      prejudicial as to warrant a mistrial is within the trial court’s
      discretion.

Wilkins v. State, 291 Ga. 483, 486 (4) (731 SE2d 346) (2012) (Citations

omitted.) And, the trial court properly instructed the jury that questions by the

attorneys were not evidence, Anderson’s responses to the State’s questions did

not agree that the premises of the questions were true, and therefore they were

not evidence that the premises of the questions had any basis in fact. In such

circumstances, there is no reasonable probability that striking the questions and

answers, or giving a further instruction to the jury that the State’s questions were

not evidence, would have produced different verdicts. Jones v. State, 290 Ga.

576, 580 (4) (722 SE2d 853) (2012). Nor is it reasonably probable that the trial

court would have declared a mistrial rather than give a curative instruction, as

a mistrial would not have been essential to preserve Green’s right to a fair trial.

                                         5
Id.

      b) After the testimony of State’s witness Marshall, the jury was excused

and, while Marshall was still on the witness stand, the court questioned the

veracity of Marshall’s testimony that he was not a drug dealer; after questioning

Marshall itself, the court found him in criminal contempt of court for not

testifying truthfully, and ordered that he serve 20 days in jail for the contempt.

After two other witnesses testified, trial counsel asked the court whether the

court’s finding of criminal contempt could be used to impeach Marshall’s

testimony; the court responded that it would not be appropriate to inform the

jury that the court had concluded that a witness had lied in his testimony, and

that to do so would potentially interfere with the jury’s independent

determination of Marshall’s credibility.

      Green asserts trial counsel was ineffective when he failed to object to the

court’s ruling and therefore preserve appellate review of this issue, contending

that impeachment of Marshall by the contempt finding would have been

appropriate. At the time of Green’s 2012 trial, the impeachment of a witness




                                        6
was governed by former OCGA § 24-9-84.1 (a),2 and Green contends that, as

former OCGA § 24-9-84.1 (a) (3) states that a witness can be impeached by

evidence that he “has been convicted of a crime . . . if it involved dishonesty or

making a false statement,” a witness can thus properly be impeached with a

finding that the witness had been held in criminal contempt for falsely testifying.

The State, however, notes that in Hawes v. State, 266 Ga. 731, 734 (3) (470

SE2d 664) (1996), this Court observed that the Court of Appeals had then

recently held “that convictions for both criminal and civil contempt are neither

felonies nor misdemeanors,” citing Flanagan v. State, 212 Ga. App. 468, 469 (1)

(442 SE2d 16) (1994), and the State asserts that criminal contempt thus cannot

      2
          Former OCGA § 24–9–84.1 read, in relevant part:

      (a) General rule. For the purpose of attacking the credibility of a witness, or of the defendant,
      if the defendant testifies:

               (1) Evidence that a witness has been convicted of a crime shall be admitted if the
               crime was punishable by death or imprisonment of one year or more under the law
               under which the witness was convicted if the court determines that the probative
               value of admitting the evidence outweighs its prejudicial effect to the witness;
               (2) Evidence that the defendant has been convicted of a crime shall be admitted if the
               crime was punishable by death or imprisonment of one year or more under the law
               under which the defendant was convicted if the court determines that the probative
               value of admitting the evidence substantially outweighs its prejudicial effect to the
               defendant; and
               (3) Evidence that any witness or the defendant has been convicted of a crime shall be
               admitted if it involved dishonesty or making a false statement, regardless of the
               punishment that could be imposed for such offense.


                                                 7
serve as a basis for impeachment under former OCGA § 24-9-84.1 (a) (3).

However, in doing so, the State ignores the fact that, in Hawes, this Court

specifically “[a]ssum[ed] without deciding that a criminal contempt citation

based upon the false swearing out of a warrant is not a crime malum in se, and

therefore does not involve moral turpitude for purposes of witness

impeachment,” supra, and consequently Hawes does not stand for the

proposition that a finding of criminal contempt cannot serve as a basis for

impeachment under former OCGA § 24-9-84.1 (a) (3). But, just as determining

whether the contempt finding in Hawes could serve as a basis for impeachment

under that statute was not necessary to a resolution of the issue presented in that

case, so too is such a determination unnecessary here.

      The trial court was correct to be concerned that its finding that Marshall

was in criminal contempt could invade the jury’s role. Indeed, as this Court has

observed,

      OCGA § 17–8–57 says that “[i]t is error for any judge in any
      criminal case, during its progress or in his charge to the jury, to
      express or intimate his opinion as to what has or has not been
      proved or as to the guilt of the accused . . . .” One of the purposes
      of OCGA § 17–8–57 “is to prevent the jury from being influenced
      by any disclosure of the trial court’s opinion regarding the
      credibility of a witness.” [Cit.]

                                         8
Smith v. State, 297 Ga. 268, 270 (2) (773 SE2d 269)( 2015). For the trial court

to allow the jury to be informed that it had found Marshall to have testified

falsely would have directly violated this principle. Indeed, it has been observed

that if the trial court wishes to inquire into the behavior of a witness, “the

recommended practice is to remove the jury from the courtroom before the trial

court holds a witness or party in contempt or otherwise comments on the

conduct of a person before the court,” Roberts v. State, 208 Ga. App. 628, 629

(1) (431 SE2d 434) (1993), and such precaution would have no value if, as

Green proposes, the jury could then be informed that the court has held a

witness in contempt for testifying falsely.

      The trial court did not err in informing trial counsel that he could not

impeach Marshall’s testimony by informing the jury that the court had found

Marshall in contempt for falsely testifying, and thus it was not ineffective

assistance to fail to make any objection on this ground. Nations v. State, 290

Ga. 39, 44 (4) (d) (717 SE2d 634) (2011).

      2. Green also contends that trial counsel was ineffective by virtue of a

conflict of interest in that, at the time of trial, counsel not only represented

Green, but also represented Anderson, who was facing felony drug charges

                                        9
arising from the search of her car after law enforcement investigators who were

questioning her about Green’s use of her car, and his whereabouts on the night

Augustus was killed, came to believe that Anderson had illegal drugs in her car;

it is uncontroverted that the found drugs were not Green’s and were not

connected to any actions on his part that underlay the State’s prosecution of

Green.

        Green first notes that, although counsel’s potential conflict of interest was

called to the trial court’s attention, and the trial court made extensive inquiry of

Green about the matter, Green’s declarations that he wanted counsel to represent

him despite any potential conflict of interest on counsel’s part were merely

verbal, and thus, assuming that any informed consent to the continued

representation was permissible under the Rules of Professional Conduct,

Green’s consent to continued representation by counsel did not comply with

Rule 1.7 of those Rules.3 Although Green urges that the asserted violation of

        3
            Rule 1.7 states:

(a) A lawyer shall not represent or continue to represent a client if there is a significant risk that the
lawyer's own interests or the lawyer's duties to another client, a former client, or a third person will
materially and adversely affect the representation of the client, except as permitted in (b).

(b) If client informed consent is permissible a lawyer may represent a client notwithstanding a
significant risk of material and adverse effect if each affected client or former client gives informed

                                                   10
Rule 1.7 establishes ineffective assistance of counsel, as this Court has noted,

“[a]n ethics violation, however, does not necessarily establish a claim of

ineffectiveness of counsel.” Blackshear v. State, 274 Ga. 842, 843 (2) (560

SE2d 688) (2002).            While we take this opportunity to emphasize that

compliance with the Rules of Professional Conduct should always be

maintained, attorney discipline for a violation of those Rules is not before us,

but only the issue of whether Green has established ineffective assistance of trial

counsel in regard to counsel’s simultaneous representation of him and

Anderson.

       In order

       [t]o prevail on a claim that a conflict of interest worked a denial of


consent confirmed in writing to the representation after:

       (1) consultation with the lawyer pursuant to Rule 1.0(c);
       (2) having received in writing reasonable and adequate information about the material risks
       of and reasonable available alternatives to the representation; and
       (3) having been given the opportunity to consult with independent counsel.

(c) Client informed consent is not permissible if the representation:

       (1) is prohibited by law or these Rules;
       (2) includes the assertion of a claim by one client against another client represented by the
       lawyer in the same or a substantially related proceeding; or
       (3) involves circumstances rendering it reasonably unlikely that the lawyer will be able to
       provide adequate representation to one or more of the affected clients. The maximum penalty
       for a violation of this Rule is disbarment.

                                                11
      the effective assistance of counsel, a defendant like [Green]—one
      who failed to object to the conflict at trial—must show that “an
      actual conflict of interest adversely affected his lawyer's
      performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (IV) (B) (100
      SCt 1708, 64 LE2d 333) (1980) (footnote omitted). See also Barrett
      v. State, 292 Ga. 160 (174) (3) (C) (2) (733 SE2d 304) (2012). As
      we consider whether [Green] has made such a showing, we do not,
      however, inquire “into actual conflict as something separate and
      apart from adverse effect.” Mickens v. Taylor, 535 U.S. 162, 172
      (II) n. 5 (122 SCt 1237, 152 LE2d 291) (2002). Rather, as the
      United States Supreme Court has explained, an “actual conflict of
      interest” means “a conflict that affected counsel's performance —
      as opposed to a mere theoretical division of loyalties.” Id. at 171(II)
      (emphasis in original). See also Tolbert v. State, 298 Ga. 147, 149
      (2) (a) (780 SE2d 298) (2015). [Green] “first asserted a conflict of
      interest on the part of his trial lawyer in a motion for new trial, and
      on that motion, he had the burden of proving that his trial lawyer
      had an actual conflict of interest, that is, one that significantly and
      adversely affected the adequacy of the representation.” Id. at 150
      (2) (a).

White v. State, 298 Ga. 416, 418 (2) (782 SE2d 280) (2016).

      Green contends that he established that counsel had a conflict of interest

that significantly and adversely affected his representation by demonstrating that

counsel did not impeach Anderson’s testimony by showing that she was under

prosecution at the time of trial, or by use of her prior video recorded interview

with law enforcement investigators. But, counsel testified at the hearing on the

amended motion for new trial that he chose not to call Anderson as a defense


                                        12
witness4 because he did not want to rely upon her statements to attempt to

establish that Green was at the home Anderson shared with Green during the

period of time Augustus was killed as cell phone data showed that he was not

at their home, and details of that cell phone data as to time and locations allowed

counsel to argue that Green could not have been at the crime scene when

Augustus was killed.5             Similarly, counsel testified that cross-examining

Anderson regarding her prior statement to investigators would be of no help to

Green.6 Accordingly, Green has failed to establish that counsel’s decision not

to impeach Anderson “was the result of a conflict of interest, as opposed to a

reasonable strategic decision.” Id. at 419 (Punctuation and citation omitted.)


       4
         Counsel also stated this at the beginning of the trial, when his representation of Anderson
was first raised to the court.
       5
          During closing argument, counsel reviewed with the jury not only the cell phone data, but
video surveillance evidence from a grocery store, to support his argument that Green could not have
been at the crime scene between 9:45 p.m. and 10:05 p.m., the time frame in which law enforcement
investigators had determined the crimes occurred.
       6
          The State notes that any conflict between Anderson’s trial testimony and the uncertain
information she gave investigators is at most minor. At trial, Anderson testified that, as to the 9:15
p.m. to 10:15 p.m. time period about which she was asked, she could not “remember between the
exact minute,” but that Green would have been home “nearing that ending time” because she and
Green would have “had a really big fight . . . if he hadn’t have been home early.” Anderson told the
investigators that she had been home all the day and evening that the crimes were committed, that
Green was home in the afternoon, until 5:00 p.m. or 6:00 p.m. – although she could not “guarantee”
that time – and left for two or three hours, with a “maximum” of three hours. When questioned
further, she stated that Green “had to have been home” by about 10:00 p.m.; she also admitted that
she, in fact, had left their home around 4:00 p.m. or 5:00 p.m., gone to a café, and saw Green there.

                                                 13
Simply put, regardless of who represented Anderson, Green’s trial counsel

would not want to introduce her interview with law enforcement investigators,

through impeachment or otherwise, and Green fails to establish that counsel

“would have acted differently absent the alleged conflict of interest. [Cit.]”

Barrett v. State, 292 Ga. 160, 174-175 (3) (C) (2) (733 SE2d 304) (2012).7

       Judgments affirmed. All the Justices concur.




       7
         Although during the hearing on the amended motion for new trial, Green did not develop
testimony about counsel’s decision not to impeach Anderson with the fact of her drug prosecution
to the same degree as he did regarding counsel’s choice not to impeach her with her interview with
investigators, counsel’s decision would have been based upon the same consideration; as Anderson’s
testimony did not particularly aid or harm Green’s defense, it would not aid Green to impeach it by
showing that Anderson was under prosecution for drug crimes.

                                                14
