Leon Cummings was indicted by a Chatham County grand jury for burglary, armed robbery, three counts of aggravated assault, and possession of a firearm during the commission of a felony, all in connection with a home invasion robbery. A jury found him guilty on all counts, his amended motion for new trial was denied, and he appeals. Finding no error, we affirm.
1. Cummings first complains of the trial court’s denial of his motion in limine seeking to bar introduction of his videotaped statement to police, as well as his later motion for mistrial after the videotape was played for the jury. He contends that no legitimate purpose existed for introducing the statement because it was entirely exculpatory and that the only purpose for its introduction by the State was to place his character in evidence through his references to a murder with which he previously had been charged. We disagree.
Cummings’s statement was not, as he contends, entirely exculpatory, nor was it irrelevant to the charges against him. One of the victims, a fourteen-year-old boy, positively identified Cummings by name as the perpetrator during a 911 call to police. During Cummings’s statement, he first denied and then admitted knowing the victim; he also gave an account of the victim’s family and his knowledge of the victim that coincided almost exactly with the victim’s testimony.
“While appellant’s statement may not have been a confession, it was nonetheless an incriminatory statement.”
Colquitt v. State,
2. Cummings contends the trial court erred in allowing an audiotape to be played at trial. This tape contained the statement of a witness who did not testify. Cummings not only failed to object at trial, as he acknowledges; his own counsel introduced the audiotape at Cummings’s insistence and after a sidebar conference in which the issue was discussed and the trial court asked Cummings if he insisted on the tape being played. “It is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing. [Cit.]"
Maxwell v. State,
3. Cummings also contends the trial court erred by charging the jury on motive as requested by the State. The State, however, did not submit a proposed charge, simply requesting that the trial court give “the pattern motive, whatever is customary.” The trial court gave an abbreviated version of a pattern charge on motive, instructing the jury: “Ladies and gentlemen, evidence of motive, if any, is admitted for your determination as to whether or not it establishes the state of mind of any one at the time of the alleged incident or incidents.” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed. 1991), p. 70.
Cummings makes a somewhat convoluted argument that the instruction was error because it was inconsistent with the indictment charging him with burglary “with the intent to commit a theft.” He contends that the State’s argument that he may also have been motivated by a desire to revenge himself on or intimidate the victims was inconsistent with the terms of the indictment and also “for all intents and purposes cancelled” the trial court’s limiting instruction regarding his videotaped statement.
With respect to the indictment, evidence was presented that Cummings took money from one of the victims during the home invasion. Whether Cummings had an additional motive in committing that theft, to intimidate the victims, is a separate issue from his intent to commit the theft, and it is not an element of the crime charged in the indictment. The instruction itself draws this distinction. Moreover, after the videotape was played during the State’s case-in-chief and before the State made its closing argument, Cummings, at his own insistence and against the recommendation of counsel, introduced substantial evidence supporting his own favored *283 theory of defense — that the victims were attempting to “frame” him because they believed he had murdered one of their relatives. This defense introduced the issue of Cummings’s motive to the case, and he cannot complain that his own trial tactics necessitated a brief and neutral jury instruction on the issue or that the State saw fit to address it in closing argument. Under these circumstances, the charge was adjusted to the evidence and was not error.
4. Cummings asserts that the trial court erred “by failing sua sponte to rebuke the prosecutor” for a remark during closing argument: “So who do you believe, Mr. Booger Red
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on the videotape with his elaborate conspiracy theory or the people who came in here and got cross examined by the Defense Attorney and told you what they saw under oath?” Once again, Cummings acknowledges that he failed to object at trial.
Waldrip v. State,
5. Cummings contends the trial court erred in considering other criminal offenses at sentencing when the State had not given notice under OCGA § 17-10-2. Yet again, Cummings acknowledges that this issue was waived. Moreover, in its order denying the motion for new trial, the trial court observed that no evidence of other crimes was introduced at sentencing, no objection was made by Cummings, and the sentence was within the range permitted by statute. See generally
Millwood v. State,
6. Finally, Cummings asserts that he was denied effective assistance of counsel in numerous respects. He complains of the introduction of the audiotape of a witness, failure to object to a comment by the prosecutor during closing argument, failure to modify a *284 requested-pattern charge, and failure to object to evidence at sentencing.
To prevail on a claim of ineffective assistance of counsel, it must be shown both that counsel’s performance was deficient and that but for this deficiency, the outcome of the trial would have been different.
Strickland v. Washington,
(a) As to the audiotaped witness statement, trial counsel testified that Cummings himself insisted on the tape’s admission, though counsel advised against it. Similarly, Cummings insisted that this witness be examined at trial and then changed his mind at the last moment, after she took the witness stand and was sworn. While trial counsel favored a misidentification defense, Cummings wanted to present the theory that the accusations against him were the result of a vendetta by the family of the murder victim in the unrelated case. Trial counsel testified, “If it was up strictly to me I would have not gone into Mr. Cummings’s other theory, but he was very demanding about having that other theory presented through the video tape.”
“After having been informed, the defendant, and not his' attorney, makes the ultimate decision about what line of defense to pursue. Thus, trial counsel is not ineffective when, contrary to his recommendation, the client elects to abandon one defense and to assert another.” (Citations and punctuation omitted.)
Wright v. State,
(b) As to trial counsel’s failure to object to the prosecutor’s closing argument, Cummings contends the prosecutor improperly commented on his failure to testify. But on the motion for new trial, trial counsel testified and the trial court found that the prosecutor was commenting not upon Cummings’s failure to testify but his statements in the videotaped police interview, which was admitted into evidence. As noted in Division 4, while the prosecutor’s comment might have been interpreted as an oblique reference to Cummings’s failure to testify, the trial court’s decision was supported by some evidence and was not clearly erroneous.
Williams v. State,
(c) Cummings also complains that trial counsel was ineffective in failing to request that the phrase “the level of certainty demonstrated by the witness as to his or her identification” be stricken from
*285
the pattern charge on identification. But the argument that this phrase is improper was recently rejected by this court in
Armstead v. State,
“Decisions regarding which witnesses to call and all other trial strategies are the exclusive province of the attorney after consultation with his client. [Cit.]”
Parrish v. State,
Judgment affirmed.
Notes
Cummings’s “street name” was “Booger Red” or “B Red.’