FINAL COPY
294 Ga, 521


                    S13A1428. HANES v. THE STATE.


      MELTON, Justice.

      Following a jury trial, Mario Antwan Hanes was found guilty of malice

murder and aggravated assault in connection with the shooting death of

Monterrance Thomas and the shooting injury of Michael Stewart, respectively.1

On appeal, Hanes contends that the trial court erroneously permitted the



      1
       On September 8, 2010, Hanes was indicted for malice murder, theft by
receiving stolen property, two counts of felony murder (predicated on
possession of a firearm by a convicted felon), two counts of aggravated assault,
and possession of a firearm by a convicted felon. The charges for theft by
receiving stolen property and both counts of possession of a firearm by a
convicted felon were nolle prossed. Following a March 21-25, 2011 jury trial,
Hanes was found guilty on all charges and sentenced to life imprisonment for
malice murder and twenty consecutive years for aggravated assault. The
convictions for felony murder were vacated by operation of law, Malcolm v.
State, 263 Ga. 369 (4) (434 SE2d 479) (1993), and the convictions for
aggravated assault were merged for purposes of sentencing. Hanes filed a timely
motion for new trial on April 19, 2011. On April 25, 2012, new appellate
counsel filed an amended motion including ineffective assistance of counsel
claims. That motion was further amended on May 4, June 15, and October 12,
2012. Following a hearing on October 12, 2012, the trial court denied the
motion for new trial on January 29, 2013. Hanes filed a timely notice of appeal
on February 25, 2013. The appeal was docketed in this Court for the September
2013 Term and submitted for decision on the briefs.
admission of similar transaction evidence from a 2009 traffic stop and

improperly denied his motion to suppress evidence of a handgun recovered

during Hanes’s 2010 arrest for the crimes related to this matter. Hanes further

contends that his trial counsel rendered ineffective assistance by failing to object

to the admission of the 2009 similar transaction evidence and by failing to

request a limiting instruction or jury charge concerning his convicted felon

status. For the reasons set forth below, we affirm.

      1. Viewed in the light most favorable to the verdict, the evidence reveals

that, on April 1, 2010, Thomas and Stewart pulled into the parking lot of an

AutoZone store, where Hanes was shopping. Testimony indicated that Thomas

and Hanes had a prior dispute because Thomas believed that Hanes had stolen

a notebook computer from him that contained software for recording rap music.

After parking, Stewart approached the store window, looked inside, then

returned to Thomas’s car to retrieve a baseball bat. Hanes exited the store as

Thomas and Stewart approached. Hanes pulled a gun from under his shirt and

shot Thomas in the chest at close range. As Stewart ran away, Hanes shot him

in the arm, and the bullet ultimately lodged in Stewart’s side. Hanes

immediately fled, Thomas died at the scene, and Stewart, who survived, refused

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to cooperate with authorities. The shooting was captured by the store’s

surveillance camera, and a store clerk identified Hanes as the shooter. The fatal

bullet recovered from Thomas’s chest was determined to have been shot from

a .45 caliber Taurus pistol.

       Hanes was arrested on June 16, 2010. During the arrest, a .45 caliber

Taurus pistol was recovered within his reach; however, this gun was later ruled

out as the possible murder weapon. In addition to this evidence, the State

introduced a 2009 similar transaction in which Hanes fled on foot from a traffic

stop after a Taurus .9mm pistol was found in the car that he was driving.

       This evidence was sufficient to enable a rational trier of fact to find Hanes

guilty of all of the crimes of which he was convicted beyond a reasonable doubt.

Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       2. Hanes contends that the trial court erroneously denied his motion to

suppress similar transaction evidence regarding the 2009 traffic stop in which

a Taurus .9mm pistol was found in his car. We disagree.

       For the admission of similar transaction evidence, the State must show

that

       (1) it seeks to introduce the evidence not to raise an improper

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      inference as to the accused’s character, but for some appropriate
      purpose which has been deemed to be an exception to the general
      rule of inadmissibility; (2) there is sufficient evidence to establish
      that the accused committed the independent offense or act; and (3)
      there is a sufficient connection or similarity between the
      independent offense or act and the crime charged so that proof of
      the former tends to prove the latter.

(Punctuation omitted.) Moore v. State, 290 Ga. 805, 807 (2) (725 SE2d 290)

(2012) (quoting Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991)).

      When reviewing the trial court’s factual findings regarding whether
      the state satisfied the [Williams] three-prong test . . . we apply the
      “clearly erroneous” standard [of review]. The decision to admit
      similar transaction evidence which satisfies the three-prong test is
      within the trial court’s discretion and will not be disturbed absent
      an abuse of that discretion. [Cit.]

Matthews v. State, 294 Ga. 50, 52 (3) (a) (1) (751 SE2d 78) (2013).

      The trial court did not abuse its discretion in concluding that the similar

transaction evidence satisfied the Williams test in this case. First, the evidence

was offered to prove course of conduct or bent of mind. “[P]ermitting evidence

of a similar prior incident involving the defendant in order to show the

defendant’s course of conduct or bent of mind is a legitimate and proper




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purpose.” Holloman v. State, 291 Ga. 338, 342 (6) (729 SE2d 344) (2012).2

Second, Hanes stipulated to the fact that he was a convicted felon at the time of

the 2009 crime of possession of a firearm, and, in any event, the State properly

showed that Hanes committed the act. Finally, there was sufficient similarity to

admit the evidence. In 2009, Hanes was found to be in possession of a firearm

similar to the type used to commit the murder in this case. As such, the 2009

crime was relevant to prove course of conduct relative to the 2010 crime of

felony murder which was predicated on a count of possession of a firearm by a

convicted felon. See Duprel v. State, 301 Ga. App. 469 (1) (687 SE2d 863)

(2009).

      Hanes also contends that he received insufficient notice of the State’s

intent to use the similar transaction. The record shows that the State indicted

Hanes, discovered errors in the indictment, and then re-indicted Hanes a second



      2
        This analysis is applicable because Georgia’s old Evidence Code is
applicable to this case. Georgia’s new Evidence Code, which applies to trials
conducted after January 1, 2013, see Ga. L. 2011, p. 99, § 101, allows admission
of “evidence of other crimes, wrongs, or acts” for purposes “including, but not
limited to, proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” OCGA § 24-4-404 (b).


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time. Under the original indictment, the State filed notice of its intent to use the

similar transaction pursuant to Uniform Superior Court Rule (USCR) 31.1, and

a hearing was conducted pursuant to USCR 31.3. At that time, the trial court

entered a ruling that the similar transaction evidence was admissible.

Subsequently, the original indictment was dismissed, and Hanes was re-indicted.

Under the new indictment, the trial court, sua sponte, adopted its rulings based

on the hearings associated with the original indictment. Hanes now contends

that this was error. Specifically, he contends that, under the new indictment, the

State was required to re-file its notice of intent and that the trial court was

required to hold another hearing. Hanes argues that, in the absence of these

procedural steps, he was deprived of sufficient notice pursuant to USCR 31.1.

Hanes is incorrect.

      The record is clear that Hanes was on notice of the similar transaction

evidence. In addition to the testimony of Hanes’s trial counsel that she fully

expected that the State would be eliciting evidence regarding the similar

transaction, Hanes had actively participated in the prior similar transaction

hearings and was fully aware of the similar transaction evidence the State

intended to use against him at trial. Even if there were procedural error, there

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was no harm, as it is clear that the notice given to Hanes was sufficient to satisfy

the purpose of the rule. See James v. State, 209 Ga. App. 182 (1) (433 SE2d

132) (1993).

      3. Hanes contends that the trial court also erroneously denied his motion

to suppress a .45 caliber Taurus pistol and ammunition found within Hanes’s

reach at the time of his arrest for Thomas’s murder. In general, a “trial court

abuses its discretion in admitting evidence of the circumstances surrounding the

defendant's arrest if ‘the evidence is wholly unrelated to the charged crime, the

arrest is remote in time from the charged crime, and the evidence is not

otherwise shown to be relevant.’ ” (Citation omitted.) Manuel v. State, 315 Ga.

App. 632, 633 (1) (727 SE2d 246) (2012). Otherwise, admission of such

evidence is within the trial court’s discretion. Id. at 633-634. We accept the

factual findings of the trial court unless they are clearly erroneous, and review

the trial court’s decision to admit the evidence recovered from Hanes’s arrest

only for abuse of discretion. Reed v. State, 291 Ga. 10 (3) (727 SE2d 112)

(2012). The .45 caliber pistol seized at the time of Hanes’s arrest was largely

identical to the murder weapon in size, style, and brand. This evidence is both

probative of the general circumstances of Hanes’s arrest and highly relevant to

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the murder and aggravated assault, which were committed with a similar

weapon. Here, the trial court’s ruling was not clearly erroneous, and there was

no apparent abuse of discretion in denying the defense’s motion to suppress. Id.

      4. Hanes contends that his trial counsel rendered ineffective assistance by

(a) failing to object to the admission of the similar transaction evidence on the

basis that the State and trial court failed to follow the procedural requirements,

thereby causing Hanes to receive insufficient notice; and (b) failing to request

a limiting instruction regarding the jury’s consideration of the fact that Hanes

was a convicted felon.

             In order to succeed on his claim of ineffective assistance,
      [Hanes] 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 SC
      2052, 80 LE2d 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 SE2d 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 SE2d 313)
      (2003).

Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). When applying


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the Strickland test, “[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Strickland, supra, 466 U. S. at 689 (III) (A).

      (a) As discussed in Division 3, supra, the trial court did not err by

admitting the similar transaction evidence, and Hanes did not suffer the harm he

now claims — namely that he had insufficent notice of the similar transaction

evidence. Therefore, had Hanes’s counsel made the objection based on notice

he contends that she should have, the objection would lack merit, as there was

sufficient notice. Wesley v. State, 286 Ga. 355 (3) (a) (689 SE2d 280) (2010)

(failing to raise a meritless objection does not constitute ineffective assistance

of counsel).

      (b) Hanes contends that his trial counsel rendered ineffective assistance

by failing to request a limiting instruction or jury charge concerning his

convicted felon status, both at the time of his 2009 crime and the time of the

crimes which are the subject of the current appeal. Specifically, Hanes argues

that the jury was possibly influenced to find him guilty based upon evidence of

his prior felony conviction and general bad character. The record, however,

shows that Hanes stipulated to his status as a convicted felon for the specific

purpose of keeping the nature of his prior conviction from the jury. In this way,

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the stipulation benefitted Hanes, because the jury did not know the nature of the

prior conviction, and, as a result, could not consider it for the purposes which

Hanes now complains. This stipulation method is actually advocated in Ross v.

State, 279 Ga. 365, 368 (2) (614 SE2d 31) (2005), to protect the defendant. In

addition, Hanes has not identified any case law supporting the instruction he

espouses, and he has failed to show how, under the circumstances of his

stipulation, he has been harmed. As a result, his contention fails. See Strickland,

supra.

      Judgment affirmed. All the Justices concur, except Hunstein, J., who

concurs in judgment only as to Division 2.

                          Decided February 24, 2014.

      Murder. DeKalb Superior Court. Before Judge Adams.

      David D. Marshall, for appellant.

      Robert D. James, Jr., District Attorney, Leonora Grant, Zina B. Gumbs,

Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B.

Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant

Attorney Gneral, Rochelle W. Gordon, Assistant Attorney General, for appellee.



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