A Gwinnett County jury convicted Jerry Dwayne Adams of hijacking a motor vehicle, OCGA § 16-5-44.1 (b), battery, OCGA § 16-5-23, and two counts of kidnapping with bodily injury, OCGA § 16-5-40 (b). 1 Adams appeals from the trial court’s denial of his motion for new trial. We find no error and affirm.
1. Adams claims that the evidence was insufficient to support his convictions. On appeal, this Court reviews the evidence presented in the light most favorable to the jury’s verdict, and the defendant no longer enjoys a presumption of innocence.
Jackson v. Virginia,
So viewed, the evidence shows that on the evening of October 22, 2002, the victim visited her boyfriend at his Gwinnett County apartment. Later that night, she drove to the exit of the apartment *320 complex. Her infant daughter was in a car seat in the hack seat of the car. As the victim was leaving the complex, she heard someone yell, and she slowed down and stopped. A man she did not know approached her car and asked if he could use the car’s lighter. The victim told the man the lighter was not working, but he said he would “show [her] how to do it,” and got in the car. The man then pointed a handgun at the victim and told her to drive.
As the victim drove around the area at gunpoint, the man told the victim that if she did “anything stupid, I’ll hurt your baby.” The man directed the victim to drive to a dark, secluded, wooded area, where he insisted that the victim perform oral sex on him, which she did while he held the gun. The man then took the victim’s shirt off and told her to remove her pants. She refused to take off her pants, pushed the gun away, and began honking the car’s horn and screaming.
The man struck the victim on her head several times with the gun and climbed into the driver’s seat. The victim got out of the car, opened the rear door, unbuckled her child’s seat belt, and grabbed the baby’s arm. The man began to drive off, causing both the victim and the child to fall to the pavement. The victim screamed for help, and a woman came to her assistance, took her into a house, and called 911. As a result of the incident, the victim suffered scratches and a gash to her head, and her child’s forehead was bruised.
The Gwinnett County police found the victim’s car in the parking lot of the same apartment complex where the initial hijacking had occurred, and a wrecker took the car to police headquarters. There, a crime scene technician retrieved a wallet which was in an open container of Chinese food on the floor near the passenger’s seat. Adams’s identification card was in the wallet.
Using a photograph of Adams which they had on file, police prepared a six-person photographic lineup, which they showed to the victim the morning after the crime. The victim identified Adams as her attacker. Based on the victim’s identification, the police obtained an arrest warrant for Adams at the address listed on his identification card. Police officers went to the address, and Adams’s mother told them he was not home, but suggested he might be at his sister’s house.
Police officers went to the house, which was across the street from the lot where the car had been found. Adams was asleep in a bedroom. The officers woke Adams up, informed him of his Miranda rights, and placed him under arrest. Adams appeared tired and lethargic, but agreed to answer the officers’ questions. The officers informed Adams that a young woman had been assaulted and her car taken at gunpoint, and Adams initially denied any involvement. However, when the officer accused Adams of throwing the victim’s baby out of the car, Adams replied that he allowed the victim to get her *321 baby out of the car. When the officer accused Adams of pointing the gun at the victim’s head, Adams denied it and said that he had placed the gun at her side. Adams then admitted that he had been with the victim and that he had wanted the car and money. He also admitted that he had fondled her breasts, but denied forcing her to perform oral sex. At trial, the victim identified Adams as the man who hijacked her car.
Based on the foregoing, we find that the evidence was sufficient for any rational trier of fact to find Adams guilty beyond a reasonable doubt of the crimes for which he was convicted.
Cook v. State, 252
Ga. App. 86, 86-87 (1) (
2. Adams claims the trial court erred by denying his motion for a mistrial when a prosecution witness referred to Adams’s prior arrest. “We review a trial court’s denial of a motion for a mistrial based on the injection of improper character evidence for manifest abuse of the court’s discretion.” (Footnote omitted.)
Torres v. State,
The prosecutor asked a police witness what the police did with the information provided by Adams’s identification card, and the witness responded that the police checked their records, and “we determined that there had been a prior arrest in Gwinnett County.” Defense counsel moved for a mistrial based on the introduction of impermissible character evidence. The trial court denied the motion, but offered to give curative instructions to the jury. Defense counsel refused the trial court’s offer to give a curative instruction and did not renew the motion for a mistrial. The issue was therefore waived for purposes of appeal. “Since defense counsel declined the trial court’s offer to give curative instructions to the jury, [Adams] will not now be heard to complain.” (Citations and punctuation omitted.)
Pickren v. State,
3. Adams claims the trial court erred in admitting his custodial statements to police. “In determining the admissibility of a statement, a trial court must find by a preponderance of evidence that the statement was made knowingly and voluntarily. Unless clearly erroneous, factual and credibility determinations made at a
Jackson-Denno
hearing must be accepted by appellate courts.” (Citations omitted.)
Wallace v. State,
Adams contends that he did not knowingly and voluntarily waive his rights because police awoke him and questioned him while he was lethargic and intoxicated. At the
Jackson-Denno
hearing, the interrogating officer testified that police woke Adams up around 9:30 a.m.,
*322
and that, although Adams was lethargic and mumbling at first, his speech became clearer as he woke up. The officer also testified that Adams agreed to answer questions after being informed of his
Miranda
rights, and that Adams answered without promise of benefit or fear of injury. Although Adams smelled of marijuana, the interrogating officer testified that if Adams was under the influence of marijuana, it did not appear to interfere with Adams’s ability to understand. According to the officer, Adams “told me he understood [his rights]. I asked if he understood and he said he understood.” The trial court concluded that Adams made a voluntary statement to police. “Under the circumstances of this case, we find that the trial court was authorized to conclude that, despite [Adams’s possible intoxication], he gave a voluntary statement and made a knowing and intelligent waiver of his
Miranda
rights.” (Citations omitted.)
Cunningham v. State,
4. Adams contends the trial court erred in failing to grant a mistrial when the prosecutor made the following statement during opening arguments: “When [Adams] got close enough [to the victim’s car], ... he grabbed the passenger door, opened it up, jumped inside and showed [the victim] a 9 millimeter Jennings handgun. At that point, she was trapped.” Adams argues that the prosecutor’s argument violated a prior ruling by the trial court and referred to inadmissible evidence.
The record shows that police officers searched Adams’s sister’s house at the time of his arrest and found a handgun. Adams filed a motion to suppress the handgun, arguing that the search was illegal. The trial court reserved a ruling on the motion before trial, but it instructed the State not to mention during opening arguments that a handgun had been found. Notably, the trial court did not prohibit the State from mentioning during opening arguments that Adams had a handgun during the hijacking and that he hit the victim with the gun. The trial court later granted Adams’s motion to suppress the handgun. Although the victim testified about seeing Adams’s gun while he held her at gunpoint, she did not identify the specific model and caliber of handgun Adams used during the hijacking. Therefore, there was no evidence presented during trial to support the prosecutor’s reference to the gun as a “9 millimeter Jennings handgun.” Under these circumstances, Adams contends the trial court was required to order a mistrial.
See Alexander v. State,
Pretermitting whether the prosecutor’s statement in this case actually violated the trial court’s ruling,
2
the record shows that defense counsel did not object to the statement and did not move for a mistrial on that basis. Accordingly, the issue was waived. See
Todd v. State,
5. Adams also contends that during voir dire the State improperly struck two African-American jurors based on their race. See
Batson
v.
Kentucky,
6. Adams claims that he received ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of counsel, an appellant must show deficient performance on the part of counsel and prejudice to his defense resulting from that deficient performance.
Strickland v. Washington,
(a) Adams claims his trial counsel was deficient in failing to preserve his motion for a mistrial after the State elicited testimony that Adams had been previously arrested in Gwinnett County. We disagree.
*324
Pretermitting whether the officer’s passing reference to Adams’s previous arrest impermissibly placed his character at issue,
3
the record shows that defense counsel declined the trial court’s offer of a curative instruction. See Division 2, supra. Defense counsel testified at the hearing on the motion for new trial that one of the reasons for doing so was his reluctance to reinforce the matter in the jurors’ minds. “Deliberate choices of trial strategy and tactics are within the province of trial counsel after consultation with his client.” (Citation omitted.)
Hudson v. State,
Adams argues, however, that trial counsel’s testimony at the motion for new trial hearing showed that counsel believed he would waive his motion for a mistrial by agreeing to a curative instruction. Even if we were to accept Adams’s argument that his trial counsel was deficient in mistakenly waiving a motion for mistrial he intended to preserve, Adams must also show that he was prejudiced by the mistake in order to prevail on his ineffective assistance claim. In view of the overwhelming evidence supporting the verdict, we find that Adams has failed to show that “but for the deficiency, there was a reasonable probability that the outcome of the trial would have been different.” (Citation omitted.)
Fulton v. State,
(b) Adams also contends trial counsel was ineffective for failing to object or move for a mistrial after the prosecutor referred to the specific caliber and model of a handgun during opening argument. At the hearing on the motion for new trial, defense counsel admitted that his failure to object during the opening argument was a mistake. The trial transcript shows, however, that the victim testified that Adams showed her a gun when he climbed into her car, forced her at gunpoint to drive to a secluded area, and repeatedly hit her on the head with the gun before stealing her car. Further, Adams confessed to pointing a gun at the victim. Given such overwhelming testimony regarding the fact that Adams had a gun during the hijacking, Adams has failed to show that it was reasonably probable that the outcome of the trial
*325
would have differed but for his trial counsel’s mistake. See
Shahid v. State,
(c) Finally, Adams contends he received ineffective assistance because his trial counsel failed to make a
Batson
challenge. Adams is African-American, and the State used peremptory strikes against two of the three African-Americans in the jury pool. The record shows, however, that defense counsel decided not to raise a
Batson
challenge because he believed the challenge would not be successful. This was not an unreasonable decision given that the State gave racially neutral reasons for its strikes. See, e.g.,
Wolfe v. State,
Judgment affirmed.
Notes
Adams was acquitted of aggravated sodomy, OCGA § 16-6-2, sexual battery, OCGA § 16-6-22.1 (b), and possession with intent to distribute marijuana, OCGA § 16-13-30 (j).
At the motion for new trial hearing, the trial court found that the prosecutor’s reference to the handgun did not violate its pre-trial ruling prohibiting the State from mentioning that the gun had been found by police.
See
Taylor v. State,