A jury convicted Victor Biggs of two counts of malice murder, aggravated assault, and possession of a firearm by a convicted felon arising out of the shooting deaths of Ebony Cameron and her unborn *628 child. 1 Biggs appeals from the denial of his motion for new trial. Finding no error, we affirm.
1. The evidence authorized the jury to find that on the night of the crimes Biggs and two other men were standing in the stairwell near Cameron’s apartment. Biggs knocked on the door, and when Cameron answered, he pushed his way into the apartment and fatally shot her. As he fled, Biggs fired a shot at Lester Parker, one of the men standing in the stairwell. Cameron’s unborn child, delivered following emergency surgery, died shortly after birth.
Construed most strongly in support of the verdicts, the evidence was sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt that Biggs was guilty of the crimes for which he was convicted.
Jackson v. Virginia,
2. Biggs contends the trial court erred by admitting evidence of a similar transaction without making a sufficient showing of similarity or connection to the crimes charged. See
Williams v. State,
The trial court admitted evidence of a 1989 shooting in which Biggs and two other men knocked on the victim’s door, entered the apartment, and shot the victim. Biggs pled guilty to the offense of aggravated assault, and the State sought to introduce evidence of the prior offense in this case. Despite Biggs’ argument to the trial court that his defense of alibi limited the purposes for which the State could offer evidence of the similar offense, the court admitted the evidence to establish Biggs’ identity, state of mind, common design and scheme, course of conduct, motive, and intent, all of which are proper purposes
*629
under
Williams.
“When similar transaction evidence is admitted for these purposes, a lesser degree of similarity is required than when such evidence is introduced to prove [only] identity. [Cits.]”
Smith v. State,
3. Relying on
Drope v. Missouri,
While his motion for new trial was pending, Biggs twice regained competence as a result of medication. Each time, however, his condition deteriorated after he was transferred back to jail andbefore the hearing on his motion could proceed. He was again rendered competent, and in December 2004, the trial court conducted an evidentiary hearing at which Biggs presented the testimony of medical experts and his trial attorneys seeking to establish that he had been incompetent at the time of trial. In January 2006, the trial court denied the motion for new trial on all grounds.
An accused who lacks the mental capacity to understand the nature and object of the proceedings around him, to consult with counsel, and to assist in preparing his defense, may not constitutionally be subjected to trial.
Drope,
supra,
It is undisputed in this case that Biggs did not raise the issue of his competency to stand trial either prior to or during trial and that the first signs of his psychological problems manifested in 1997. Although not raised as an enumeration on appeal, we note that under these circumstances the trial court had no obligation to make inquiry into Biggs’ competence during trial and Biggs’ procedural due process rights were not violated. See id.
We similarly find that there was no violation of Biggs’ substantive due process rights. As an initial matter, we reject Biggs’ argument that the trial court did not make a competency determination. Biggs’ motion for new trial and the transcript of the hearing on that motion make clear that Biggs presented his case so as to obtain a ruling on his substantive claim of incompetency, specifically requesting during closing argument that the court make a post-conviction determination that Biggs was incompetent at the time of trial. The record further makes clear that the trial court understood it would make a competency determination in ruling on the motion for new trial. Thus, unlike the court in Traylor, by denying the motion for new trial the court in this case necessarily determined the substantive issue of Biggs’ competence.
When, as in this case, the factfinder has made a determination of competency, “the appropriate standard of appellate review is whether after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was incompetent to stand trial.”
Sims v. State,
4. Biggs contends trial counsel’s performance was deficient in three ways. To prevail on a claim of ineffective assistance, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.
Strickland v. Washington,
(a) Biggs asserts trial counsel was ineffective by failing to show him, prior to trial, telephone records used to establish his alibi defense. Trial counsel testified at the motion for new trial hearing that he could not recall whether he showed the records to Biggs during trial preparation but explained that the records belonged to Biggs’ mother, who identified them at trial and was questioned at length about their relevance to the defense. The record also shows that while testifying Biggs was able to answer questions about the records and articulate his position that he could not have been at Cameron’s apartment at the time of the crimes. Accordingly, even assuming counsel erred by not reviewing the records with Biggs prior to trial, Biggs has failed to demonstrate how such deficiency prejudiced his defense. See
Strickland,
supra,
(b) Biggs also contends counsel was deficient for failing to move to suppress two pretrial photographic lineups. “When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.”
Richardson v. State,
As to the second array, Biggs’ challenge goes not to the admissibility of the array itself but to the credibility of the witness’ identification, which became an issue only after the witness testified that he reviewed a three-photo array, not the five-photo array introduced by the State. Included in the record, however, is an affidavit of the same witness signed immediately after he identified Biggs as the perpetrator, stating that he had reviewed a five-photo array. Thus, while the witness’ trial testimony created a discrepancy in the evidence which could be used to challenge his credibility, it was not error to admit the array and counsel was not deficient for failing to move to suppress the array on this ground.
(c) Nor was counsel ineffective based on his decision to waive arraignment in this case. Waiver of arraignment provides a basis for a claim of ineffective assistance of counsel only if the defendant can show he was unaware of the charges against him.
McArthur v. State,
Judgment affirmed.
Notes
The crimes occurred on January 26,1994. Biggs was indicted by a DeKalb County grand jury for the malice murder of Ebony Cameron, malice murder of baby boy Cameron, felony murder of Ebony Cameron based on the underlying offense of possession of a firearm by a convicted felon, felony murder of baby boy Cameron based on the underlying offense of possession of a firearm by a convicted felon, aggravated assault with a deadly weapon against Lester Parker, and possession of a firearm by a convicted felon. Following a jury trial conducted on June 26-28, 1995, Biggs was found guilty of all charges. The felony murder charges were vacated by operation of law. See
Malcolm v. State,