Tony Louis Miller, Jr v. State

T
                           FIFTH DIVISION
                          MCFADDEN, C. J.,
       RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               https://www.gaappeals.us/rules

                    DEADLINES ARE NO LONGER TOLLED IN THIS
                    COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                    THE TIMES SET BY OUR COURT RULES.


                                                                      April 27, 2021



In the Court of Appeals of Georgia
 A21A0643. MILLER v. THE STATE.

      PHIPPS, Senior Appellate Judge.

      A Harris County jury found Tony Louis Miller, Jr., guilty of rape, kidnapping,

five counts of child molestation, four counts of sexual battery against a child under

16 years of age, three counts of enticing a child for indecent purposes, three counts

of false imprisonment, and three counts of simple battery. Miller appeals following

the denial of his motion and amended motion for new trial. He asserts that the

evidence was insufficient to support his convictions, his trial counsel was ineffective

by failing to move for a mistrial following a spontaneous outburst by the victim’s

father during trial, and the trial court erred in allowing individuals to remain in the

courtroom after the rule of sequestration had been invoked. For the following reasons,

we affirm Miller’s convictions.
      1. We turn first to Miller’s assertion that the evidence was insufficient to

support his convictions.1 In so doing, we recognize well settled principles regarding

the sufficiency of the evidence standard:

      When a criminal conviction is appealed, the evidence must be viewed
      in the light most favorable to the verdict, and the appellant no longer
      enjoys a presumption of innocence. And, of course, in evaluating the
      sufficiency of the evidence, we do not weigh the evidence or determine
      witness credibility, but only determine whether a rational trier of fact
      could have found the defendant guilty of the charged offenses beyond
      a reasonable doubt. We will, then, uphold a jury’s verdict so long as
      there is some competent evidence, even though contradicted, to support
      each fact necessary to make out the State’s case.

Garner v. State, 346 Ga. App. 351, 353-354 (1) (816 SE2d 368) (2018) (citations and

punctuation omitted).

      So viewed, the record shows that at the 2019 trial, the victim testified that she

was 15 years old, and she knew Miller because he lived at both “Granny’s house”2

and his father’s house in her neighborhood. The victim identified Miller in court. One

of Miller’s friends testified at trial that Miller was 26 or 27 years old. The charges

here involved five separate incidents against the same victim.

      1
         “For convenience of discussion, we have taken the enumerated errors out of
the order in which [Miller] has listed them. . . .” Pugh v. State, 347 Ga. App. 710, 711
(1), n. 5 (820 SE2d 766) (2018) (citation omitted).
      2
          “Granny’s house” was a house where all the neighborhood kids hung out.

                                            2
      Counts 1-5 (simple battery, enticing a child for indecent purposes, sexual

battery against a child under the age of 16, child molestation, and false imprisonment)

occurred at a lake where the victim swam. The victim testified that in the summer of

2017, when she was between seventh and eighth grade, she went to the lake with

some friends. While she was in the lake, Miller swam behind her, grabbed her butt,

pushed her bathing suit bottom section to the side, and placed his penis on her vagina.

The victim tried to get away from Miller, but he would not let her leave. When people

started looking over at them, Miller stopped, and the victim was able to swim away.

      Counts 6-9 (false imprisonment, sexual battery against a child under the age

of 16, child molestation, and simple battery) occurred in August 2017 at “Granny’s

house” in the bathroom. According to the victim, the kids were playing hide and seek,

and she went to hide in the bathroom. Miller followed her to the bathroom, told her

to turn around, and pushed her over a pile of clothes. He then pulled down her shorts

and her underwear, and he put his penis on her vagina. The victim was crying and

kept trying to turn around, but Miller kept pushing her down. Miller stopped when

the individual who was the “seeker” came into the bathroom.

      Counts 10-15 (enticing a child for indecent purposes, simple battery, sexual

battery against a child under the age of 16, two counts of child molestation, and rape)

                                          3
occurred at “Granny’s house” in the living room and kitchen. The victim testified that

when she was in the eighth grade she spent the night on the living room floor at

Granny’s house. When she got up to go to the bathroom, Miller followed her from the

bathroom. Miller put her on a table in the kitchen, got between her legs, and began

kissing her. Miller then pulled the victim’s shorts and underwear to the side, and he

put his penis on her vagina. The victim told Miller “no” and tried to get off the table,

but Miller would not let her off. Eventually, he let her off the table and the victim

went back to the living room.

      Miller, however, followed the victim to the living room and told the victim that

when she was 18 he was “going to have [her,]” that someone would get hurt if she

told anyone, and that he always got what he wanted. Miller then left, but he later

came back, got on top of the victim, pulled her shorts and underwear to the side, and

put his penis in her vagina. When he was finished, Miller pulled his shorts back up

and the victim noticed that white “sperm was coming through his shorts[.]” Miller

then left to go change at his father’s house. The victim went to the bathroom and

cleaned herself off because she didn’t want Miller’s sperm to make her pregnant.

Then she cried herself to sleep.



                                           4
        A few days later, the victim told Miller that she was worried about getting

pregnant and she was going to tell her father what Miller had done, but Miller

convinced her to pee in a cup and let him take it to be tested. Miller then sent the

victim a picture of a negative pregnancy test. The victim told one of her friends who

lived at Granny’s house that Miller was touching her, but asked her not to tell anyone

else.

        Count 16 (false imprisonment) occurred at Miller’s father’s house. The victim

testified that she went with Miller to his father’s house to get a cat feeder. Miller told

her his father was home, so the victim did not think anything would happen.

However, when they arrived at the house, Miller’s father was not home. At some

point, Miller asked the victim for a hug and then asked her what color underwear she

was wearing. The victim told Miller she wanted to leave and tried to leave the house,

but Miller turned her around and pulled down her leggings so he could see the color

of her underwear. The two then left the house.

        Counts 17-20 (kidnapping, enticing a child for indecent purposes, sexual

battery against a child under the age of 16, and child molestation) occurred in the

woods. The victim testified that while a group of kids was gathering firewood, Miller

told them he was taking the victim back to the house, but instead he pulled her into

                                            5
the woods and told her to get on the ground. The victim was scared that Miller would

hurt her, so she got on the ground. She was on her back, and Miller got on top of her,

pulled her shorts and underwear to the side, and placed his penis on her vagina. Miller

also put his hand under the victim’s shirt and grabbed her boob. Miller stopped when

he heard the other kids coming toward them. He ran a different direction, caught up

with the other kids, and then, when they reached the victim, he asked her what she

was doing in the woods. This happened when the victim was in the eighth grade.

       A number of witnesses testified that they did not observe anything suspicious

between Miller and the victim. In fact, one witness testified that he never saw Miller

and the victim alone when swimming. However, one of the victim’s friends testified

that the victim told her that “whenever she would be laying down, that [Miller] would

touch on her, and she would tell him to stop but he wouldn’t.” Another friend testified

that the victim told her that Miller “did stuff to [her].” Specifically, the victim told her

that Miller raped her on more than one occasion. In addition, the father of one of the

victim’s friends testified that he heard rumors of something going on between the

victim and Miller, and he asked the victim if someone did “something creepy” to her.

The victim responded, “yes, sir.” At that point, the friend’s father contacted the

victim’s father and the sheriff’s department. The victim’s father testified that the

                                             6
victim told him that Miller had “touched her and – . . . done a lot more things to

her[.]”

      The sheriff’s corporal who responded to “a possible sexual battery or a child

molestation” call testified that he only asked the victim two questions: whether an

incident took place between her and Miller and whether it was sexual in nature. When

the victim responded yes to both questions, he stopped questioning the victim because

he did not want to taint her interview with individuals who specialized in child victim

interviews.

      The victim was taken to a child advocacy center and interviewed by an expert

in child forensic interviewing. The expert testified that she had conducted 428

forensic interviews of children. According to the expert, delayed disclosure by a

sexually abused victim is not unusual, nor is it unusual for a child to return to a

location where an alleged perpetrator is located. The victim’s recorded interview was

played for the jury.

      At the conclusion of the trial, the jury found Miller guilty of all counts, and this

appeal followed.

      Miller asserts that the evidence was insufficient to find him guilty of the

charged offenses because it was “largely circumstantial.” According to Miller, “while

                                           7
there was direct testimony from the alleged victim, it was, at best, contradictory.”

Miller also argues that not a single witness observed anything inappropriate between

Miller and the victim. Essentially, he challenges the victim’s credibility as a witness

and the lack of evidence to corroborate her testimony. We find that the evidence was

sufficient to support Miller’s convictions.

      First and foremost, it is well settled that “[t]he testimony of a single witness is

generally sufficient to establish a fact.” OCGA § 24-14-8. Here, the victim testified

in detail about all of the occurrences alleged in the indictment. Her testimony, alone,

was sufficient to support Miller’s convictions. See Stodghill v. State, 351 Ga. App.

744, 745 (1) (832 SE2d 891) (2019) (victims’ testimony alone was sufficient to

support convictions for offenses including enticing a child for indecent purposes);

Reinhard v. State, 331 Ga. App. 235, 238 (1) (c) (770 SE2d 314) (2015) (victims’

testimony alone was sufficient to support convictions for rape, aggravated sexual

battery, child molestation, and enticing a child for indecent purposes); Knight v. State,

311 Ga. App. 367, 368 (1) (715 SE2d 771) (2011) (victim’s testimony alone was

sufficient to establish the elements of child molestation); Clark v. State, 282 Ga. App.

248, 250-251 (1) (b, c) (638 SE2d 397) (2006) (victim’s testimony was sufficient to



                                           8
support convictions for kidnapping, child molestation, and enticing a child for

indecent purposes).

       Moreover, contrary to Miller’s assertions and although not required, the

victim’s testimony was corroborated in this case. Although none of the witnesses

testified that they observed any inappropriate conduct between the victim and Miller,

a number of the witnesses corroborated the victim’s testimony as to the time and

location of the incidents. In addition, two of the victim’s friends testified at trial about

the victim’s disclosures to them, and one of them testified that the victim told her

Miller had raped the victim. These prior outcry statements corroborated the victim’s

testimony. See Daniel v. State, 296 Ga. App. 513, 519 (4) (675 SE2d 472) (2009)

(“[C]orroboration is not required but if the jurors had concerns they could look to the

victim’s outcry statements for corroboration.”); Sewell v. State, 244 Ga. App. 449,

451-452 (1) (c) (536 SE2d 173) (2000) (victim’s testimony was corroborated by her

outcry to her mother and another witness). Additionally, the jury viewed a videotaped

forensic interview of the victim, in which she reiterated her allegations of sexual

abuse, also corroborating the victim’s testimony. See Bufford v. State, 320 Ga. App.

123, 123 (1) (739 SE2d 421) (2013) (forensic interviews corroborated children’s trial



                                             9
testimony); Pendleton v. State, 317 Ga. App. 396, 399-400 (2) (731 SE2d 75) (2012)

(victim’s testimony was corroborated by forensic interview).

      While Miller summarily argues in his appellate brief that the victim’s testimony

was “contradictory” and “at odds with her prior statements in a number of important

respects[,]” he does not identify any specifics to support his argument. “[I]t is not the

function of this Court to cull the record on behalf of a party in search of instances of

error.” Serdula v. State, 356 Ga. App. 94, 110 (3) (a) (845 SE2d 362) (2020) (citation

and punctuation omitted). In any event, to the extent that there were any

contradictions or inconsistencies between the victim’s testimony and her prior

statements, this Court repeatedly has stated that assessing witness credibility,

resolving conflicts and inconsistencies in the testimony, weighing the evidence, and

drawing reasonable inferences from the evidence are the province of the factfinder,

not this Court. See Garner, 346 Ga. App. at 355 (1); Knight v. State, 311 Ga. App.

at 368 (1). “In so doing, a jury is authorized to believe or disbelieve all or any part of

the testimony of witnesses.” Knight, 311 Ga. App. at 368 (1) (citations and

punctuation omitted). And, any alleged lack of corroboration “goes to the weight of

the evidence and the credibility of the testifying witness, which is solely within the



                                           10
purview of the jury.” Reinhard v. State, 331 Ga. App. at 238 (1) (c) (citation and

punctuation omitted).

      In this case, the jury clearly resolved any conflicts or discrepancies in the

victim’s testimony against Miller, which it was permitted to do. Stodghill v. State, 351

Ga. App. at 745 (1). The evidence was sufficient for a rational trier of fact to find

Miller guilty of the crimes charged beyond a reasonable doubt under Jackson v.

Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). See OCGA

§ 16-6-1 (a) (rape); OCGA § 16-5-40 (a) (kidnapping); OCGA § 16-6-4 (a) (child

molestation); OCGA § 16-6-22.1 (b, d) (sexual battery against a child under 16 years

of age); OCGA § 16-6-5 (a) (enticing a child for indecent purposes); OCGA §

16-5-41 (a) (false imprisonment); and OCGA § 16-5-23 (a) (simple battery).

      2. Miller asserts his trial counsel rendered ineffective assistance of counsel by

failing to move for a mistrial after the victim’s father made a spontaneous outburst

while the victim was testifying. The trial court concluded that trial counsel’s

performance was not unreasonable or deficient. We agree with the trial court.

             [I]n order to establish ineffectiveness of trial counsel, appellant
      must show both that counsel’s performance was deficient and that the
      deficient performance prejudiced the defense. There is a strong
      presumption that the performance of trial counsel falls within the wide
      range of reasonable professional assistance. The reasonableness of the

                                          11
      conduct is viewed at the time of trial and under the circumstances of the
      case. In reviewing a lower court’s determination of a claim of ineffective
      assistance of counsel, we give deference to the trial court’s factual
      findings, which are upheld on appeal unless clearly erroneous; however,
      we review the lower court’s legal conclusions de novo.

Thompson v. State, 327 Ga. App. 893, 896 (2) (761 SE2d 413) (2014) (citation

omitted). “In order to succeed on this ineffectiveness claim, [Miller] must show that

if his counsel had moved for a mistrial, it would have been an abuse of discretion for

the trial court to deny it.” Paige v. State, 277 Ga. App. 687, 691 (4) (a) (627 SE2d

370) (2006).

      Here, after the victim described the events that occurred at the lake, including

Miller grabbing the victim, placing his penis on her vagina, and not letting her leave,

the victim’s father spontaneously shouted, “I’m going to get this mother f***er. I

can’t do it, please.” The trial judge immediately asked that the jury be removed from

the courtroom for a moment, but before the jury left, the victim’s father stated again,

“I’m going to get you. I’m going to get you. I’m going to get you, mother f***er.”

The trial court had the father removed from the courtroom for the remainder of the

trial, and, when the jury was brought back in, the trial judge apologized for the delay

and instructed the jury:



                                          12
      I would ask – this is a difficult trial – that you put that aside, what has
      just happened, and remember your oath as jurors to simply make your
      decision based on the testimony that comes from the witness stand and
      the testimony that -- or the exhibits that are admitted during the trial.

The trial then continued. Defense counsel made no objection or motion regarding the

trial court’s instruction to the jury when they were brought back into the courtroom

or the continuation of the trial.

      At the conclusion of the trial, the court reiterated in its final instructions to the

jury the jurors’ obligation to base their decision on the evidence and not sympathy to

any party:

      Your verdict should be a true verdict based upon your opinion of the
      evidence according to the laws given you in this charge. You are not to
      show favor or sympathy to one party or the other. It is your duty to
      consider the facts objectively without favor, affection, or sympathy to
      either party.



       It is well settled that “[m]any, if not most, trials by jury involve some degree

of emotion by at least one party or the other. It would be unreasonable to expect that

all emotions be completely frozen during a trial by jury when such effective bridle on

emotions cannot be sustained elsewhere.” Thompson v. State, 327 Ga. App. at 899 (2)

(b) (citation and punctuation omitted). Such “[d]emonstrations and outbursts which


                                           13
occur during the course of a trial are matters within the trial court’s discretion unless

a new trial is necessary to ensure a fair trial.” Id. at 898 (2) (b) (citation and

punctuation omitted). “Where the trial court fails to act to stop the disturbance, or

fails to instruct the jury to disregard it, and the demonstration could prevent the

defendant from receiving a fair trial, this court must grant a new trial.” Sheppard v.

State, 235 Ga. 89, 91 (2) (218 SE2d 830) (1975).

      Here, the trial judge immediately removed the victim’s father from the

courtroom and took prompt, thorough, and curative action to handle the outburst,

reminding the jury to evaluate the case based only upon the evidence and testimony.

“Contrary to appellant’s argument, this curative instruction was sufficient to alleviate

the potential for prejudice and to ensure a fair trial.” Christian v. State, 277 Ga. 775,

777 (2) (596 SE2d 6) (2004). See also Butler v. State, 284 Ga. 620, 623 (3) (669 SE2d

118) (2008) (outburst did not deny the defendant a fair and impartial trial in light of

trial court’s prompt, thorough, and curative action); Sheppard, 235 Ga. at 91 (2) (no

error when trial court overruled defense counsel’s motion for mistrial and instead

instructed jury to disregard outburst by victim’s mother).

      The cases cited by Miller do not require a different result because in those

cases the trial court failed to take steps to mitigate the impact on the jury of any

                                           14
outburst. See Glenn v. State, 205 Ga. 32, 34-35 (52 SE2d 319) (1949) (trial court did

not take prompt action to give curative instruction when widow audibly and visibly

wept in front of jury); Patton v. State, 117 Ga. 230, 238-239 (43 SE 533) (1903) (trial

court did not take prompt action to give curative instruction or otherwise lessen

impact when the jury was influenced by a mother who was in tears and sobbing with

grief). We note that in both of those cases, the Supreme Court of Georgia indicated

that prompt action by the trial court, such as removing the sympathetic individual

from the courtroom, generally will obviate the necessity of declaring a mistrial.

Glenn, 205 Ga. at 35; Patton, 117 Ga. at 238-239.

      Based on the record before us, we cannot say that the trial court would have

abused its discretion by denying a requested motion for mistrial. Because Miller “has

failed to show that he would have been entitled to a mistrial under the circumstances

presented, . . . trial counsel’s failure to pursue a meritless motion does not constitute

ineffective assistance of counsel.” Gipson v. State, 332 Ga. App. 309, 323 (8) (f) (772

SE2d 402) (2015) (citation and punctuation omitted).

      Moreover, when questioned at the motion for new trial hearing, Miller’s trial

counsel testified that he did not move for a mistrial following the victim’s father’s

outburst because (1) he felt it was unnecessary given that the trial court took

                                           15
immediate, curative action, and (2) he strategically chose not to move for a mistrial

in front of the jury because he felt it would be more prejudicial to Miller after the

steps taken by the trial court. “[A] tactical decision will not form the basis for an

ineffective assistance of counsel claim unless it was so patently unreasonable that no

competent attorney would have chosen it[,]” State v. Goff, 308 Ga. 330, 334 (1) (840

SE2d 359) (2020), and, here, “we cannot say that trial counsel’s assessment was

objectively unreasonable.” Id. at 335 (2).

      Miller has not met his burden to establish ineffective assistance of counsel on

this ground. See Thompson, 327 Ga. App. at 899 (2) (b).

      3. Following opening statements and after the first witness was called to the

stand, Miller invoked the rule of sequestration. The State requested that the victim,

the victim’s father, and the lead investigator from the sheriff’s office be allowed to

remain in the courtroom. Miller did not object to the victim and her father remaining

in the courtroom; however, he did object to the lead investigator remaining in the

courtroom. After hearing argument from both sides, the trial court permitted all three

individuals to remain in the courtroom.




                                          16
      On appeal, Miller contends that the trial court erred by allowing the victim’s

father and the lead investigator to remain in the courtroom after the rule of

sequestration had been invoked. We find no error.

      Known as the rule of sequestration, OCGA § 24-6-615 provides that, at the

request of any party to a trial, “the court shall order witnesses excluded so that each

witness cannot hear the testimony of other witnesses[.]” “[T]he purpose of the

sequestration rule is to prevent the shaping of testimony by one witness to match that

of another, and to discourage fabrication and collusion.” Davis v. State, 299 Ga. 180,

185 (2) (a) (2) (787 SE2d 221) (2016) (citation and punctuation omitted). “[I]ts

violation generally does not affect the admissibility of the testimony, but may impact

the offending witness’ credibility.” Rakestrau v. State, 278 Ga. 872, 876 (4) (608

SE2d 216) (2005).

      There are, however, exceptions to the sequestration rule. As relevant here,

OCGA § 24-6-615 (3) precludes trial courts from excluding a witness “whose

presence is shown by a party to be essential to the presentation of the party’s cause.”

In addition, OCGA § 24-6-616 precludes the trial court from excluding the victim of

a criminal offense. And, a “victim” is defined to include “[a] parent, guardian, or

custodian of a crime victim who is a minor or a legally incapacitated person except

                                          17
if such parent, guardian, or custodian is in custody for an offense or is the defendant.”

OCGA § 17-17-3 (11) (C). The trial court has broad discretion in deciding whether

a witness comes within an exception. Davis, 299 Ga. at 186 (2) (a) (2).

      (a) The father. We first turn to Miller’s argument that allowing the father to

remain in the courtroom violated the rule of sequestration. We find no merit to this

argument.

      As stated above, OCGA § 24-6-616 carves out an exception to the general rule

of sequestration, specifically providing that “the victim of a criminal offense shall be

entitled to be present in any court exercising jurisdiction over such offense[,]” and

OCGA § 17-17-3 (11) (C) specifically defines “victim” to include “[a] parent,

guardian, or custodian of a crime victim who is a minor[.]” OCGA § 24-6-616’s

exception to the rule of sequestration, however, is subject to OCGA § 17-17-9, which

provides in pertinent part:

      A victim or member of the immediate family of a victim shall not be
      excluded from . . . trial . . . based solely on the fact that such person is
      subpoenaed to testify unless [(1)] it is established that such victim or
      family member is a material and necessary witness . . . and [(2)] the
      court finds that there is a substantial probability that such person’s
      presence would impair the conduct of a fair trial. . . . A motion to
      exclude a victim or family members from the courtroom for any reason
      other than misconduct shall be made and determined prior to jeopardy
      attaching.

                                           18
       Pretermitting whether Miller is precluded from raising this argument because

jeopardy had already attached when he invoked the rule3 or because he waived the

argument by failing to raise it below, it is clear that the victim’s father in this case is

considered both a “victim” of a criminal offense and a “member of the immediate

family of the victim” for purposes of the statutory exemption excluding these

individuals from the rule of sequestration. See Nicely v. State, 291 Ga. 788, 791 (2)

(733 SE2d 715) (2012) (discussing the exclusion of the victim’s mother from

sequestration). “Since its enactment, Georgia courts have applied OCGA § 17-17-9

to allow the trial court to except both testifying victims and members of the victim’s

immediate family from the rule of sequestration.” Thompson v. State, 308 Ga. 854,

861 (3) (843 SE2d 794) (2020).

       Miller does not contest that the father of the victim fell within the statutory

exemption for the rule of sequestration; he simply argues that if the father had been

excluded from the courtroom, Miller would not have been prejudiced by the father’s

outburst, as discussed in Division 2, during the victim’s testimony. However, Miller

did not argue at trial that the father should be sequestered because his presence would


       3
       Jeopardy attaches in a jury trial when a “jury is impaneled and sworn.”
Alexander v. State, 279 Ga. 683, 685 (2) (b) (620 SE2d 792) (2005).

                                            19
impair the conduct of a fair trial. In fact, neither the parties nor the trial court could

have expected the father’s outburst. We find no abuse of discretion in the trial court’s

decision to allow the father to remain in the courtroom after the rule of sequestration

had been invoked.

      (b) The investigator. Miller asserts that the trial court erred by not applying the

rule of sequestration to the lead investigator. We disagree because

      [s]ettled law authorizes such an exception to sequestration. The trial
      court may allow an investigative officer to remain in the courtroom to
      assist the prosecutor in the orderly presentation of evidence. A trial court
      is vested with the discretion to make an exception to the sequestration
      rule for the chief investigating officer and the discretion will not be
      reversed on appeal unless abused.

Hudson v. State, 325 Ga. App. 657, 660 (3) (754 SE2d 626) (2014) (citation omitted).

      Here, the record shows that the State requested that the lead investigator remain

in the courtroom to assist “with regard to matters that might come up during the

course of the trial with regard to things that occurred during the investigation[.]”

After listening to argument, the trial court exercised its discretion to permit the lead

investigator to remain in the courtroom.

      On appeal, Miller generally argues that two assistant district attorneys and at

least one investigator from the district attorney’s office were present at the trial to


                                           20
assist with the presentation of evidence, and it “seems excessive to ask for an

additional investigator to remain in the courtroom to assist with the presentation of

the witnesses or evidence.” However, Miller acknowledges that the Georgia Supreme

Court has held that “[i]t is within a trial court’s discretion to exempt the government’s

chief investigative agent from sequestration, and it is well settled that such an

exemption is proper[.]” Anderson v. State, 307 Ga. 79, 88 (5) (834 SE2d 830) (2019);

accord Upshaw v. State, 300 Ga. 442, 445 (4) (796 SE2d 287) (2017). Moreover, the

lead investigator “was never called to testify, and contributed neither evidence nor

testimony to the jury[,]” so the purpose behind the rule – to insulate witnesses from

the testimony of others – was not violated or called into question. The trial court did

not abuse its discretion by allowing the lead investigator to remain in the courtroom

after the rule of sequestration had been invoked.

      Judgment affirmed. McFadden, C. J., and Rickman, P. J., concur.




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