Following a jury trial, Theron Darnell was convicted of armed robbery, possession of a firearm during the commission of a felony, and false imprisonment. On appeal he asserts 15 enumerations of error, all of which are without merit.
Viewed in the light most favоrable to the verdict, the record reveals that a man entered a pawnshop and pulled out a gun. The man forced two employees to the back room of the shop, where he restrained one of the employee’s hands with duсt tape. The man then stole cash and jewelry from the shop. The entire incident was recorded by the store’s video surveillance cameras.
The surveillance video was played on a local news program, and a viewer of the video identified Darnell to the police as the man who robbed the store. A detective later showed a photographic lineup to the store employee who had been restrained with duct tape, and the employee identified Darnell as the man who robbed the pawnshop.
Prior to trial, Darnell moved for several jurors to be dismissed for cause, but his motions were denied. Darnell also made a motion under
Batson v. Kentucky,
Prior to trial, Darnell also stipulated that he would allow a poliсe officer to testify at trial that an unnamed person identified Darnell on the surveillance video after the video was played on the local news.
At trial one of the victims identified Darnell as the robber. In addition, the court allowed the State to present the photographic lineups that were used to identify Darnell as the robber. Although the State did not formally tender the lineups into evidence, the defense raised no objection to their admission. The court also allowed the lineups to go back with the jury during deliberations, again with no objection from defense counsel.
The court instructed the jury that, in evaluating the reliability of *556 an eyewitness identification, they could consider, as one of several factors, the witness’s level оf certainty in the identification. The jury found Darnell guilty of armed robbery, possession of a firearm during the commission of a felony, and false imprisonment, and Darnell now appeals.
1. Darnell contends in his first three enumerations of error that the evidence at trial was insufficient to sustain his convictions for armed robbery, possession of a firearm during the commission of a felony, and false imprisonment. We disagree.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.
Short v. State,
Here, Darnell was identified to police by a person who saw the video as well as one of the victims, who identified Darnell at trial and also in a photographic lineup. The victim testified that Darnell was the man who robbed the pawnshop while carrying a gun, held him at gunpoint, and bound his hands with duct tape in the back room of the store. Ample evidence sustained the convictions. See OCGA §§ 16-5-41 (a); 16-8-41 (a); 16-11-106 (b).
2. Darnell argues in his fourth enumerаtion that the trial court erred in allowing a police officer to testify to hearsay that an unnamed declarant contacted the officer and identified Darnell as the robber after seeing the surveillance video. However, the record reveals that Darnell’s trial counsel agreed that the officer would be allowed to testify on this very point. Thus, any alleged error from the admission of this testimony was of Darnell’s own making, and he will not be heard to complain of the results here. Seе
Hathaway v. State,
3. In three enumerations, Darnell argues that the trial court erred in failing to excuse three prospective jurors for cause. The court askеd the statutory questions of OCGA § 15-12-164 (a), and none of the jurors responded that he or she had any bias or partiality. The record also reveals that in every instance where a juror expressed discomfort with sitting on the jury based on their personal expеr
*557
iences, each of the jurors agreed (after being questioned by the court) that he or she would do his or her best to be fair and impartial. We find no merit to Darnell’s argument that the trial court abused its discretion by failing to remove these prospective jurors for cause. See
Holmes v. State,
4. Darnell asserts in his tenth enumeration that the State improperly used, its peremptory strikes to remove five African-American venirepersons from the jury. We disagree.
The United States Supreme Court in Purkett v. Elem[,514 U. S. 765 , 767-769 (115 SC 1769, 131 LE2d 834) (1995),] established a three-step test for evaluating challenges to peremptory strikes on Batson grounds. First, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. Second, the burden of production then shifts to the proponent of the strike to give a race-neutral reason for the strike. Third, after hearing from the opponent of the strike and considering the totality of the circumstances, the trial court then decides whether the opponent of the strike carried his burden of proving discriminatory intent in fact motivated the strike.
(Footnotes omitted.)
Freeman v. State,
Here, the issue of whether Darnell established a prima facie case of discrimination is moot because the State offered purportedly race-neutral explanations for striking each of the potential jurors, and the trial court ruled on the ultimate question of intentional discrimination.
Jackson v. State,
We hold that the trial court did not clearly err in concluding that Darnell did not carry his burden of showing that the State’s race-neutral reasons for dismissing the jurors were pretextual. Darnell’s attempt to show that the white juror whо had misidentified a person
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in the past was somehow similarly situated to the African-American jurors who had themselves been misidentified, or knew someone close to them who had been misidentified, is without merit. Being personally misidentified or falsely accused of a crime is not the same thing as being a person who has simply misidentified someone else. See
Freeman v. State,
5. Darnell contends in his eleventh enumeration that the trial court erred in instructing the jury that, in evaluating the reliability of an eyewitness identification, the jury could considеr, as one of several factors, the witness’s level of certainty in the identification. This Court, however, has already rejected Darnell’s argument in
Armstead v. State, 255
Ga. App. 385, 386-389 (2) (
6. In his twelfth and thirteenth enumerations, Darnell argues that the trial court erred in (a) failing to exclude at trial the victim’s pre-trial identification of Darnell in the photographic lineup, because the photographic lineup was marked as an exhibit but never formally tendered into evidence, and (b) submitting these documents that were not formally tendered into evidence to the jury during deliberations. However, Darnell raised no objection at trial and has therefore presented nothing for this Court to review. See, e.g.,
Kelly v. State,
7. In his remaining enumerations, Darnell contends that his counsel was ineffective for (a) agreeing to allow the policе officer to testify regarding the witness who identified Darnell on the surveillance tape after the tape was played on the local news, (b) failing to call an expert witness on the problems inherent to eyewitness identification, (c) allowing thе photographic lineups to go out with the jury during deliberations, and (d) failing to make a continuing witness objection to the photographic lineups going out with the jury during deliberations. We disagree.
To prove ineffective assistance, Darnell was required to show that counsel's performance was deficient and that this deficient performance prejudiced his defense.
Ellison v. State,
(a) Darnell’s counsel testified at the motiоn for new trial hearing that he was concerned about the State calling Darnell’s stepfather as the actual witness who identified Darnell from the surveillance videotape if counsel did not agree to allow the police officer tо testify instead that an unnamed person had identified Darnell from the videotape. As counsel made a strategic decision in this regard, evidence supported the trial court’s finding that Darnell failed to meet his burden of showing ineffective assistance. See
Adkinson v. State, 245
Ga. App. 178, 179-180 (1)-(3) (
(b) Darnell cites to
Johnson v. State,
(c) Darnell’s arguments that trial counsel was ineffective for allowing the jury to view photographic lineups that were not admitted into evidence and fаiling to raise a continuing witness objection to the unadmitted lineups are without merit. Even though Darnell’s trial counsel did not object to the photographic lineups, the photographic lineup evidence would have been merely cumulative оf the victim’s eyewitness identification of Darnell at trial and the further identification of him on the surveillance videotape. We hold that the trial court did not clearly err in concluding that Darnell failed to carry his burden of showing that counsel’s performance prejudiced his defense. Cf.
Smart v. State,
Judgment affirmed.