In March 2006, a Lowndes County jury found Jamaal Boykins-White guilty beyond a reasonable doubt of two counts of armed robbery, OCGA § 16-8-41, and two counts of possession of a firearm during the commission of a crime, OCGA § 16-11-106. He appeals from the denial of his motion for new trial, contending that he received ineffective assistance of counsel. For the following reasons, we affirm.
Viewed in the light most favorable to the jury’s verdict, 1 the record shows the following. Between 11:00 p.m. and midnight on August 2, 2004, two armed robberies occurred at separate Valdosta-area Sonic restaurants. The first robbery was committed at approxi *828 mately 11:15 p.m. by three black males, at least two of whom were armed. The second robbery was committed close to midnight by two i armed males. Within minutes, an officer responding to the second: armed robbery report observed a black male in a ditch near the scene i of the second robbery. The man was crawling on the ground and removing his pants. At 12:22 a.m., the officer arrested the man, who i was later identified as the appellant, Boykins-White, and patted him i down for safety. A search incident to the arrest produced both loose i and paper-clipped cash totaling $1,165. Similar to the cash stolen: from the Sonic locations, the paper-clipped cash was joined by; denomination. The officer also found pants consistent with those: worn by one of the robbers lying near where he first observed: Boykins-White. Officers subsequently searched the area near thei second robbery location, in the direction that the robbers had rum following the robbery, and they found discarded clothing, coins, a: cash register, and a gun.
Boykins-White was subsequently transported to the Lowndes County jail. After being incarcerated, he made at least two phone: calls that were automatically recorded by the jail’s phone call monitoring system. At the beginning of each phone call, as well as during each phone call, a recorded message notified the caller that, the call may be recorded or monitored. During the phone calls, Boykins-White made a series of incriminating statements, including admissions that he was involved in the robberies. At trial, the State played the recorded phone conversations for the jury.
In addition to this evidence, the State tendered into evidence the cash found in Boykins-White’s possession. Also, one of Boykins-White’s co-defendants pleaded guilty to armed robbery and testified against him at trial. During the presentation of the defense, despite the trial court’s admonitions, Boykins-White fired his trial counsel’ after counsel failed to object to the relevancy of certain evidence elicited by the State during the cross-examination of a defense witness. 2 The appellant then represented himself for the remainder: of the trial.
Boykins-White appeals his conviction and the denial of his motion for new trial, contending that he received ineffective assistance of counsel and that the trial court erred in finding otherwise.
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s *829 performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.
(Citations and punctuation omitted.)
Robinson v. State,
1. Boykins-White asserts that his trial counsel was ineffective for failing to interview potential witnesses and to subpoena them prior to trial. However, Boykins-White failed to call the potential witnesses to testify at the motion for new trial hearing or otherwise make a proffer as to the substance of their testimony in order to show that the witnesses’ testimony would have been relevant, admissible and favorable to his defense. See
Strong v. State,
In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), [an appellant] is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of the case. The failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of a showing that such evidence would have been relevant and favorable to the [appellant]. Because appellant failed to make any proffer of the uncalled witnesses’ testimony, it is impossible for appellant to show there is a reasonable probability the results of the proceedings would have been different. It cannot possibly be said that the *830 additional witnesses would have testified favorably to appellant. . ' •
(Citations, punctuation and footnote omitted.) Id. Therefore, Boykins-White’s claim for ineffective assistance on the basis of counsel’s failure to call witnesses must fail. Id.. •
2. Boykins-White contends that his trial counsel wás deficient for failing to conduct an adequate pre-trial investigation. Boykins-White acknowledges that trial counsel reviewed 262 pages of discovery provided by the State. However, he contends that counsel should have also requested additional DNA testing, as well as conducted further investigation of his case generally.
(a) With regard to the DNA testing, trial counsel testified at the motion for new trial hearing that,- after the State disclosed that the results of DNA testing of certain items recovered from the scene were favorable to Boykins-White, he was concerned that testing of other items of clothing might implicate his client. “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.)
Grier v. State,
(b) Further, during the motion for new trial hearing, Boykins-White failed to produce any evidence to show that there was a reasonable probability that the outcome of his trial would have been different if counsel had conducted additional investigation. As a result, the appellant’s ineffective assistance claim based on the failure to conduct a more thorough investigation must also fail.
Strickland v. Washington,
3. Boykins-White argues that his trial counsel was ineffective for failing to present his primary defense of alibi. During the motion for new trial hearing, however, trial counsel testified that the appellant had admitted to him that he had committed the armed robberies. Trial counsel also testified that Boykins-White “intended to take the stand and lie [and] to put up witnesses [who] were going to lie” regarding his whereabouts at the time of the robberies. As a result of these revelations, trial counsel sought the advice of the State Bar of Georgia. The State Bar instructed trial counsel that he must make *831 sure that he did nothing in furtherance of the lie. 3 Counsel also discussed the issue with the trial judge outside the presence of the jurors. Counsel then attempted to question the defense witnesses in a way that was consistent with the instructions provided by the State Bar and by the trial judge.
Under Georgia law,
[t]he decision not to call an alibi witness who may perjure herself [or himself] is a reasonable trial strategy, as well as an ethical obligation. As trial counsel is precluded from assisting his client in presenting perjured testimony, we reject [his] claim that his attorney was ineffective on that basis.
(Punctuation and footnotes omitted.)
Hill v. State,
4. Boykins-White contends that his counsel provided ineffective assistance by failing to file a motion to suppress the cash seized during the officer’s search of his clothing. Boykins-White argues that the evidence required a finding that he had not been arrested before he was searched, and, therefore, the search was not authorized as a search incident to arrest. According to Boykins-White, trial counsel should have moved to suppress the evidence on that basis.
The mere failure to file a suppression motion does not constitute per se ineffective assistance of counsel.
Mayes v. State,
When addressing the legality of a search incident to arrest, “the appropriate inquiry is whether, at the time of the allegedly improper search, the officer had probable cause to arrest the suspect.” (Footnote omitted.)
In the Interest of J. D. G.,
A warrantless arrest is constitutionally valid if at the time of the arrest the arresting officer has probable cause to believe the accused has committed or is committing an offense. Probable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense. The test of *832 probable cause requires merely a probability — less than a certainty but more than a mere suspicion or possibility.
(Punctuation and footnotes omitted.)
Burgess v. State,
In this case, the arresting officer was alerted of an armed: robbery, and he immediately proceeded to drive toward the scene. ¡ The alert notified the officer that two black males were suspected of > the robbery and that the suspects were running toward a nearby ¡ pond. Upon reaching an area near the pond, the officer got out of his: vehicle and scanned the area. The officer then observed a black male, ¡ who later identified himself as Boykins-White, crawling in a ditch! and removing his pants. The officer ran toward Boykins-White with t his gun drawn and ordered him to show his hands. The officer handcuffed Boykins-White and conducted a pat-down for his safety, i When the officer touched Boykins-White’s groin area, he felt what he believed to be money stuffed into Boykins-White’s underwear, and: Boykins-White spontaneously stated, “it’s my money.”
The information that police officers receive via a radioed alert1 regarding a suspect’s appearance and location may serve as part ofi the- basis for establishing probable' cause.
Morgan v. State,
5. Boykins-White argues that his trial counsel was ineffective for failing to file a motion to suppress recordings of conversations he had while using the jail’s phone. We disagree.
(a) The record shows that trial counsel’s failure to file a motion to suppress was a conscious decision that was based on the advice of a number of other attorneys with whom he consulted, as well as his own investigation into the matter. As previously stated, counsel’s reasonable trial tactics and strategy do not amount to ineffective assistance of counsel.
Grier v. State,
(b) Further, Boykins-White has failed to show that there is a reasonable likelihood that the trial court would have granted the motion to suppress if trial counsel had filed the motion to suppress. OCGA § 16-11-62 (4) prohibits any person from intentionally and secretly intercepting a telephone call by use of any device, instrument or apparatus.
Smith v. State,
6. Finally, to the extent that Boykins-White attempts to challenge on appeal the constitutionality of the statute that authorizes the telephone monitoring and recording, the record shows that Boykins-White failed to raise the challenge in the court below and, as a result, failed to elicit a ruling by the trial court on the issue. Therefore, he has waived his right to appellate review of this issue. See
Williams v. State,
Judgment affirmed.
Notes
Jackson v.
Virginia,
Notably, trial counsel was appointed to represent the appellant after the appellant told I his prior appointed counsel that he no longer wanted his representation; that attorney was allowed to withdraw.
Rule 3.3 (a) (4) of the Georgia Rules of Professional Conduct clearly states that a lawyer shall not knowingly offer evidence that the lawyer knows to be false.
See also OCGA § 16-11-62 (2) (A) (“[I]t shall not be unlawful. . . [t]o use any device to observe, photograph, or record the activities of persons incarcerated in any jail, . . . provided that such equipment shall not be used while the prisoner is discussing his or her case with his or her attorney!.]”).