Defendant was charged in an indictment with child molestation and burglary. The evidence adduced at his jury trial showed that Investigator Sergeant Richard O. McCann, Jr. of the Richmond County Sheriffs Office was dispatched to 1801 Harcourt Drive “in reference to a burglary, possible criminal attempt rape.” There, the 12-year-old victim “described the suspect as a white male, late twenties, fairly heavy, brownish blonde, or golden hair down to his shoulders.” This description was corroborated by 12-year-old Tabatha Grooms. Each girl examined a six-person photographic lineup and “identified the picture [of defendant].”
The victim testified that while she was spending the night with her friend, Tabatha Grooms, “Tabatha just happen [sic] to glance at the window and she calmly said, she said, ‘There’s a man at my window,’ and we didn’t panic or anything, we just went under the covers.” This man “was wearing glasses and he had sort of a light brown, brown colored hair. . . .” He “had his hands cupped towards the window [about a minute or two] . . . and then he went away, he just walked away. . . .” The girls “had the curtains opened and the street *17 light was shining in and it lit up the room pretty much.” The victim was hiding “under the covers but [she] could see through and [she] said, ‘Oh Tabatha, he’s here again.’ ” The girls “didn’t hear a [front] door open [. . . but] heard the noise of Tabatha’s sister’s door, . . . cause it makes a popping noise and then it creaks open. . . .” “And then he opened our door [but just. . .] a little bit and then he would wait a little bit and then open it more then he came in[.]” The victim “heard something jingling, a belt or something, and then he pulled the covers off of me and then he laid on top of me.” The perpetrator said to the victim, “ ‘If you scream, talk, or move, I’ll kill you.’ Tabatha heard this, too.” The victim “looked over at Tabatha real quick and then . . . looked back at him and then [she] just started screaming and . . . kicking and then he jumped up and . . . ran out.” The victim affirmed that “he was naked from the waist down,” when he got on top of her. She also affirmed that “the person that was laying on top of [her was] the same person that [she] saw in the window” and identified defendant in court as that person. Tabatha Grooms also testified to these events, adding that, after the perpetrator jumped up from her bed, she “heard a rustle like . . . when you put on clothes.” Tabatha Grooms was certain defendant was the perpetrator, “because when I saw him, . . . this had never happened to me before, and then I got his face, it was like burned in, . . . I’ll never forget it.”
The jury found defendant guilty of both charges. The judgment of conviction and sentences were entered on March 4, 1993. New counsel was appointed on behalf of defendant, and permission was granted to file an out-of-time motion for new trial. That motion was denied, and this appeal followed. Held:
1. Defendant’s first two enumerations raise the general grounds. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of
Jackson v. Virginia,
2. In his third enumeration, defendant contends the trial court erred in allowing the introduction of State’s Exhibit 2, the photographic lineup, arguing that, because his photograph contains the signatures of the victim and Tabatha Grooms on the back, they constitute “continuing witnesses.” This contention is controlled adversely to defendant and is consequently without merit.
Allison v. State,
3. In a similar vein, defendant contends that the photographic lineup that is State’s Exhibit 2 amounts to impermissible character evidence of extrinsic criminal acts, because defendant’s photograph is signed or initialed by two additional persons on the date “8/13/92,” i.e., two days after the victim and Tabatha Grooms selected defendant’s photograph. Although the better practice, by far, is for the State’s Attorney to redact such arguable indications of extrinsic crimes on its own initiative, we hold that the grounds urged in this enumeration have not been preserved for appellate review. This exhibit was admitted with “[n]o objection” at trial. “Where an objection to evidence ‘ “is raised (for the first time) in a motion for new trial or before this court, nothing is presented for review. . . . (Cits.)” (Cit.)’
Fitzgerald v. State,
4. The fifth enumeration contends the trial court erred in failing to grant a mistrial after an alleged comment on defendant’s right to remain silent. The transcript shows the following transpired: “[STATE’S ATTORNEY:] All right, what did you do after the girls identified the Defendant from the photo lineup? [SERGEANT INVESTIGATOR McCANN:] An arrest warrant was issued to [defendant]. [STATE’S ATTORNEY:] Do you have any further involvement with the case after this? [SERGEANT INVESTIGATOR McCANN:] None other than the fact that he was arrested and after being *19 Mirandized by myself and Investigator Hatfield, he requested an attorney. [STATE’S ATTORNEY:] Okay, thank you, I have no further questions at this time.” Thereafter, defense counsel began cross-examination of Sergeant Investigator McCann, without moving for a mistrial or requesting any curative instructions.
“ ‘Evidence as to silence on the part of the defendant at the time of his arrest should be excluded when objected to, for he is then entitled to remain silent, and the prosecution may not use against him the fact that he stood mute or claimed his privilege. (Cit.)’
Reid v. State,
5. Defendant next contends the trial court erred in failing to give his written request to charge on criminal trespass as a lesser offense included in the indicted offense of burglary. The State replies in its brief that no such instruction was necessary because, “ ‘[w]here the uncontradicted evidence shows completion of the greater offense, the charge on the lesser offense is not required.’
Lemon v. State,
“ ‘In
State v. Alvarado,
6. In the seventh enumeration, defendant contends the trial court erred in denying his pretrial motion to suppress identification testi *20 mony based upon the photographic lineup. He argues the photographic lineup was impermissibly suggestive because “the picture tone of his photograph in the six-person array was demonstrably lighter than the other five persons.” He further claims that the in-court identification process was “tainted because a police officer told the two [girls . . .] that they had chosen the Defendant and that he would be arrested.”
Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.
McCoy v. State,
7. Defendant’s final enumeration contends he was denied effective assistance of counsel, because trial counsel “failed to object to the admissibility of State’s Exhibit 2, the photograph of [defendant], which effectively implicated him in other crimes.”
“To succeed on an ineffective assistance of counsel claim, [defendant] must show that trial counsel’s performance was deficient and
*21
that it prejudiced [the defense] so as to deprive [the accused] of a fair trial. [Cit.] There is a strong presumption that trial counsel’s performance ‘falls within the wide range of reasonable professional assistance’ and that any challenged action ‘ “might be considered sound trial strategy.” ’ [Cit.]”
Earnest v. State,
There is no transcript of any evidentiary hearing on this special ground for new trial, and the trial court’s order denying the motions recites only that the “amended motion for new trial having been presented to the Court for consideration, the same is hereby DENIED.” In support of defendant’s amended motion for new trial, appellate counsel never summoned trial counsel to testify and explain or justify trial counsel’s failure to object to the extraneous signatures on the back of defendant’s photograph in the police photographic lineup.
“[T]he acknowledged constitutional right to assistance of counsel guarantees ‘not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and [actually] rendering reasonably effective assistance.’
MacKenna v. Ellis,
280 F2d 592, 599 (5th Cir. 1960);
Pitts v. Glass,
Judgment affirmed.