In the Supreme Court of Georgia


                                           Decided: September 22, 2014


                    S14A0637. GEIGER v. THE STATE.


      MELTON, Justice.

      Following a jury trial, Tomorris Geiger was found guilty of murder, felony

murder, armed robbery, kidnapping, and various other offenses in connection

with the shooting deaths of cousins Dewayne and John Bacon.1 On appeal,

Geiger contends that the evidence was insufficient to support the verdict; that


      1
        On November 5, 2004, Geiger was indicted, along with Charles Mattox
and Terrance Smith, for two counts of malice murder, eight counts of felony
murder (with armed robbery, aggravated assault, kidnapping, and hijacking a
motor vehicle as the underlying felonies), two counts of armed robbery, two
counts of aggravated assault, two counts of kidnapping, and two counts of
hijacking a motor vehicle. Following a November 14-17, 2005 jury trial, Geiger
was found guilty on all counts. The trial court thereafter sentenced Geiger to
consecutive terms of life imprisonment for the malice murder of Dewayne, the
malice murder of John, and the armed robberies of both victims. Geiger also
received two twenty-year concurrent sentences for the kidnappings of John and
Dewayne as well as two twenty-year concurrent sentences for each count of
hijacking. The felony murder convictions were vacated by operation of law
(Malcolm v. State, 263 Ga. 369, 372 (1993)), and all other counts were merged
for sentencing purposes. Geiger filed a motion for a new trial on December 19,
2005, which he amended with new appellate counsel on August 16, 2013. The
trial court denied the motion on October 3, 2013. Geiger timely filed his appeal
on October 7, 2013 and submitted for decisions on the briefs.
the trial court erred by admitting similar transactions and improper character

evidence; that the trial court erred by denying Geiger’s second request for a

continuance; and that his trial counsel was ineffective. For the reasons that

follow, we affirm.

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

on May 6, 2003, Dewayne agreed to give Geiger a ride. The next day, Geiger

and co-defendant Charles Mattox held Dewayne hostage and robbed him. They

then lured John to where they were holding Dewayne by making Dewayne call

John under the pretense that Dewayne needed a ride. John drove from his home

in order to pick up Dewayne. When John encountered Geiger and Mattox,

however, Geiger forced Dewayne and John into a grave and shot both of them

in the head, killing them.

      Geiger was arrested on May 23, 2003 at his sister’s home for a matter

unrelated to the Bacon murders. A nine millimeter pistol was found in the room

where Geiger was hiding. Two years later, in August 2005, a shell casing

matching the pistol found at the time of Geiger’s arrest was discovered at the

scene of John and Dewayne’s murders.

      In July of 2003, only a few days after finding the Bacon cousins’ stolen

                                        2
vehicles, investigators discovered Dewayne and John’s bodies in a clandestine

grave in the woods behind an abandoned mobile home. Weeks earlier, in nearby

Bryan County, investigators had encountered debris along the highway,

including John’s tennis shoes, some duct tape, shovels, and old soda bottles.

DNA recovered from the bottles matched co-defendant Mattox, leading

investigators to believe that Mattox may have been connected to John and

Dewayne’s disappearances. Mattox and Geiger had also been linked to a number

of past crimes, including the car jackings and robberies of four victims. At trial,

the State presented these prior victims’ testimonies as similar transactions

evidence.

      Additionally, co-defendant Terrance Smith testified that he witnessed

Geiger force John and Dewayne into a grave and then fire his gun repeatedly.

Smith’s story was corroborated by Shakeya Brewton, who wrote a letter to her

boyfriend–an inmate– which stated Geiger admitted to shooting the Bacon

cousins.

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

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

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

                                         3
      2. Geiger contends the trial court erred by allowing the State to introduce

evidence of four similar transactions.2 We disagree.

      In general, evidence of independent offenses committed by a defendant

is irrelevant and inadmissible in a trial for a different crime. Stephens v. State,

261 Ga. 467 (6) (405 SE2d 483) (1991). In some cases, however, “[e]vidence

of similar crimes (or transactions) is admissible where its relevance to show

identity, motive, plan, scheme, bent of mind and course of conduct, outweighs

its prejudicial impact.” Guyton v. State, 206 Ga. App. 145, 145-146 (1) (424

S.E.2d 87) (1992). More specifically,

      [e]vidence of a similar transaction may be admitted if the State
      shows that: (1) it seeks to introduce the evidence not to raise an
      improper 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.

(Citation and punctuation omitted.) Matthews v. State, 294 Ga. 50, 52 (751


      2
       We note that, because this case was tried before January 1, 2013,
Georgia’s old Evidence Code applies here. Under our new Evidence Code, the
admissibility of this sort of evidence would be governed by OCGA § 24-4-404
(b).
                                        4
SE2d 78) (2013). Additionally, “‘a transaction does not have to mirror every

detail in order to authorize its admission; rather, the proper focus is upon the

similarities between the incidents and not upon the differences.’ [Cit.]” Daniels

v. State, 281 Ga. 226, 228 (1) (637 SE2d 403) (2006).

       With these principles in mind, the record shows that, in the summer of

2001, Anthony Sally agreed to meet Geiger and Mattox, who then forced him

at gunpoint to drive his car to the woods, where they stole $200 and marijuana

from him. Next, in December of 2002, Geiger held a gun to Kevin McCoy’s

head and forced him to drive to Mattox’s house, where the defendants took his

cell phone, shoes, wallet, and car. In April 2003, Hope Alvarez followed Geiger

out of a lounge before multiple men jumped him. Mattox threatened Alvarez

with a gun before the men robbed him and ran. Finally, in April 2003, Geiger

and Mattox asked Lorenzo Walker for a ride to a gas station. Once in the car,

Geiger produced a pistol, forced Walker onto the street, and stole his car. All of

these independent offenses are sufficiently similar to the charged crimes in this

case in that they involved the use of a handgun to subdue the victims,

cooperation between co-defendants Mattox and Geiger, the common motive of

robbery, and luring the victims to the crime scenes where they were assaulted

                                        5
and robbed. We find no error in the trial court’s decision to admit this evidence

at trial. See, e.g., Collum v. State, 281 Ga. 719 (4) (642 SE2d 640) (2007).

      3. Geiger argues that the trial court erred by denying his second request

for a continuance in order to have the shell casing found at the murder scene

independently tested and to secure an additional witness. We disagree.

      This Court will not reverse a trial court’s decision to deny a motion for a

continuance absent a showing of a clear abuse of discretion. Columbus v. State,

270 Ga. 658, 665 (4) (513 SE2d 498) (1999). Furthermore, “to be entitled to a

new trial based upon the denial of [a] motion for a continuance, [a defendant

has] the burden to show that he was harmed by that denial.” (Footnote omitted.)

Id. The record reveals that Geiger received the State’s ballistics report on

September 2, 2005, which confirmed that the shell casing found at the crime

scene in 2005 matched the gun discovered at Geiger’s sister’s home during his

arrest in 2003. The trial court granted Geiger’s first request for a continuance on

September 26, 2005 in order to give Geiger additional time to have the shell

casing independently tested. However, he failed to have the casing tested at any

time prior to the rescheduled November 14, 2005 trial date. Nor did he have the

shell casing tested at any time prior to the motion for a new trial hearing in order

                                         6
to show at the hearing that any independent testing results would have been

favorable to him at his trial.3 Because of this, Geiger cannot show harm from

the trial court’s denial of his second motion for a continuance on the basis that

he was allegedly improperly denied the opportunity to independently test the

shell casing. See Williams v. State, 317 Ga. App. 248, 256 (3) (730 SE2d 726)

(2012) (defendant failed to show prejudice from denial of his motion for a

continuance where he presented no evidence at motion for new trial hearing to

indicate that his defense would have benefitted from further questioning a

witness regarding the location of material evidence).

      With respect to Geiger’s claim that the second continuance was warranted

because he needed time to secure an additional witness, this claim is also

without merit. Geiger contends that Latoya Brewton’s testimony allegedly

would have contradicted the anticipated testimony of Shakeya Brewton at trial.

However, during trial, Geiger’s counsel informed the court that Latoya

Brewton’s testimony was no longer needed and that she would not be called.


      3
      Indeed, to this day, there is no evidence of record that Geiger has ever
had the shell casing independently tested, despite the fact that he had secured
funding for independent testing more than two weeks before his November 14,
2005 trial.
                                       7
Because Geiger admitted at trial that he no longer needed this witness, which

obviated the need for a continuance in order to bring this witness to the trial, he

cannot now be heard to complain that the trial court somehow erred by denying

his request for a continuance. Carnett’s, Inc. v. Hammond, 279 Ga. 125, 130 (6)

(610 SE2d 529) (2005) (“A party cannot complain of a judgment, order, or

ruling that his own conduct produced or aided in causing”).

      4. Geiger further contends that the trial court erred by allowing improper

character evidence to be admitted at trial. Specifically, Geiger claims that the

trial court erred by (a) allowing him to enter the courtroom while wearing

shackles, and (b) allowing references to his prior incarceration and his attempts

to evade police custody to be made at trial.

      (a) Although, “[a]bsent justifying circumstances, the defendant normally

should not be seen by the jury handcuffed in the courtroom or courthouse”

(Gates v. State, 244 Ga. 587, 593 (2) (261 SE2d 349) (1979)), “[t]he failure,

through an oversight, to remove shackles from a prisoner for a short time after

proceedings have commenced, or any technical violation of the rule prohibiting

shackling, not prejudicial to him, is not ground for a new trial . . . .” Starr v.

State, 209 Ga. 258, 260 (5) (a) (71 SE2d 654) (1952). Here, before the jury was

                                        8
selected, Geiger entered the courtroom in civilian clothes that obscured the view

that any of the prospective jurors may have had of his leg irons, and the leg irons

were removed outside of the view of the prospective jurors. Although Geiger’s

counsel moved for a new jury panel to be appointed, he did not inquire during

voir dire about whether any of the prospective jurors had seen Geiger’s shackles,

and he “made no effort to determine on voir dire whether[, if they had seen the

defendant’s shackles,] the momentary ‘technical violation of the rule prohibiting

shackling may have had any prejudicial effect on the [prospective] jurors.

[Cit.]’” Rhodes v. State, 264 Ga. 123 (441 SE2d 748) (1994) Furthermore,

despite the fact that the trial court offered to give a curative instruction, which

would have been the appropriate remedy here (see Starr, supra, 209 Ga. at 260

(5) (b)), Geiger declined the trial court’s offer to give curative instructions.

Under these circumstances, we find no error in the trial court’s denial of

Geiger’s motion have a new jury panel appointed. See Rhodes, supra.

      (b) The record reveals that Geiger did not object to any of the testimony

regarding his prior incarceration and attempts to evade police custody. He has

therefore waived review of this issue on appeal. See Earnest v. State, 262 Ga.

494 (1) (422 SE2d 188) (1992).

                                        9
      5. Finally, Geiger contends that his trial counsel was ineffective for (a)

failing to locate Latoya Brewton, (b) neglecting to have the shell casing

independently tested, and (c) failing to object to the admission of improper

character evidence.

      In order to succeed on his claim of ineffective assistance, [Geiger]
      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 SCt 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).

      (a) The record shows that counsel made a reasonable strategic decision not

to call Latoya Brewton as a witness to refute Shakeya Brewton’s testimony.

Specifically, because Shakeya Brewton denied at trial that Geiger had ever told

her details of the crime, this obviated the need for Latoya Brewton to refute her

testimony. Geiger’s claim of ineffective assistance therefore fails in this

instance. See, e.g., Washington v. State, 294 Ga. 560, 566 (3) (755 SE2d 160)

                                       10
(2014) (Counsel’s strategic decisions, such as which witnesses to present, “do

not amount to deficient performance unless they are so unreasonable that no

competent attorney would have made them under similar circumstances”)

(citations omitted).

      (b) As shown in Division 3, supra, Geiger did not present any evidence at

the motion for new trial hearing that additional testing of the shell casing would

have produced evidence that would have been favorable to him at his trial.

Accordingly, he cannot show prejudice from his counsel’s failure to have the

shell casing independently tested. Sutton v. State, – Ga. – (6) (e) (Case No.

S14A0941; decided June 16, 2014).

      (c) As an initial matter, the testimony relating to Geiger’s 2003 arrest was

properly admitted, as “[e]vidence that is relevant and material to an issue in a

case is not rendered inadmissible because the defendant’s character is

incidentally put in issue.” (Citation omitted.) Ross v. State, 255 Ga. 1, 6 (2) (a)

(334 SE2d 300) (1985). Geiger was arrested in May 2003 while on the run from

police regarding a matter that was unrelated to the crimes at issue in this case.

However, the gun that was found at the time of Geiger’s 2003 arrest was

connected to the Bacon murders after a shell casing was found at the scene of

                                        11
that crime in 2005. Geiger admitted to police that the gun was his, and the

statements that were admitted at trial regarding the manner in which Geiger had

acquired the gun were based on Geiger’s own admissions to police. Despite the

fact that Geiger was being arrested for a different crime at the time that the gun

was found in 2003, which incidentally placed his character in issue, the

statements relating to that arrest and the gun found in connection with it were

relevant to the crimes presently at issue, as they explained Geiger’s connection

to the gun that was used in the murders of the Bacon cousins. Accordingly,

Geiger’s counsel’s failure to object to this admissible evidence did not amount

to ineffective assistance. Hayes v. State, 262 Ga. 881, 884 (3) (c) (426 SE2d

886)(1993) (“Failure to make a meritless objection cannot be evidence of

ineffective assistance”).

      Further, with respect to the few remaining statements regarding Geiger’s

previous incarceration that may have incidentally placed his character in issue,

Geiger cannot show prejudice from the admission of these statements in light of

the overwhelming evidence of his guilt. Kitchens v. State, 289 Ga. 242 (2) (b)

(710 SE2d 551) (2011).

      Judgement affirmed. All of the Justices concur.

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