Appellant Paul Mathis was convicted of malice murder and related offenses in connection with the 2006 shooting death of Jurell Williams. Appellant appeals the denial of his motion for new trial, asserting evidentiary errors and ineffectiveness of trial counsel. Finding no error, we affirm.
Witness Sonja White, a resident of the apartment complex, heard the gunshots on the night of the crime. White testified that, immediately after the shots were fired, she looked out her window and saw a black male get into a red car and quickly leave the parking lot. Witness Patricia Dukes, who was acquainted with Williams, testified that she heard the gunshots from her apartment and ran outside to assist, and that, as she was tending to Williams, he mumbled the words “Ray-Ray” and “Payday.” Dukes also testified that Bryant and his wife at the time, who happened to be Dukes’ granddaughter, owned a red car. Witness Typurs Mitchell, another apartment resident, testified that he heard the shots, looked out the window, and realized the victim was Williams, a close friend of his with whom he had just spent several hours. Mitchell also testified that Williams had told him, a few days prior to the night of the shooting, that “two dudes named Ray-Ray and Payday” had been threatening to kill him for selling marijuana in the Park at Greenbriar parking lot. Witness Tameka James, a former girlfriend of Williams, testified that she had been with Williams earlier on the evening of the shooting and that
The evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of the crimes of which he was convicted. Jackson v. Virginia,
2. Appellant alleges error in the trial court’s refusal to grant a mistrial after it became clear that certain testimony given by Foster was based not on his personal knowledge but rather on hearsay. Specifically, Foster testified that Appellant and Bryant were in a dispute with Williams because he was selling marijuana in what they considered to be their territory. On cross-examination, however, Foster admitted that he had not personally witnessed any such dispute and knew of it only because of “something that someone said.” At that point, though declining to declare a mistrial, the trial court gave curative instructions directing the jury to disregard any testimony based on hearsay.
Appellant contends that the trial court’s curative instructions were insufficient. Even if we were to accept this premise, however, reversal would not be warranted unless Appellant suffered harm from the admission of the hearsay. Heard v. State,
3. Appellant next contends that the trial court erred in allowing Mitchell to testify about the victim’s statement regarding threats he had received from “Ray-Ray” and “Payday” a few days before the shooting. The trial court held that the statement was admissible under the necessity exception to the rule against hearsay. See Brown v. State,
As an initial matter, Appellant has failed to preserve this argument for review because, while Bryant’s defense counsel vigorously opposed the State’s request to elicit the hearsay statements, Appellant’s counsel failed to object, join in Bryant’s objection, or argue in any way regarding this issue. Further, even had the issue been properly preserved, the requirements of the necessity exception were met, and thus the trial court did not abuse its discretion in admitting the testimony. It is undisputed that, because Williams was deceased and thus unavailable to testify, the first prong of the necessity exception was met. See Brown, supra,
4. Appellant next contends that his trial counsel was ineffective for failing to challenge Bryant’s counsel’s decision to call Mitchell as a witness. To establish ineffective assistance of trial counsel, Appellant must show both that his counsel performed in a professionally deficient manner and that there is a reasonable probability that, but for such deficiency, the result of his trial would have been different. Sanders v. State,
Mitchell was called by Bryant in an apparent attempt to rebut witness Dukes’ testimony that she had ministered to Williams in the aftermath of the shooting and heard him implicate “Ray-Ray” and “Payday” in his dying breaths. Indeed, on direct examination, Mitchell testified that he alone was at Williams’ side after the shooting, that Dukes was not present, and that Williams was unable to speak. Unfortunately for the co-defendants, Mitchell also opened the door to the admission of Williams’ hearsay statement, see Division 3, supra,
At the motion for new trial hearing, Appellant’s counsel testified that he had not felt strongly either way about calling Mitchell as a witness, believing his testimony would be neither very helpful nor harmful. Specifically, he testified that nothing in Mitchell’s pretrial interviews suggested either that he would claim to be a confidante of Williams or, more importantly, that Williams ever had identified Appellant and Bryant as the individuals who were threatening him. In other words, trial counsel made a strategic decision, based on his pretrial investigation, not to challenge Bryant’s counsel’s decision to call Mitchell as a witness. The fact that Mitchell gave unforeseen damaging testimony does not justify an after the fact adjudication of deficient performance, and Appellant’s ineffectiveness claim in this regard must fail.
5. Appellant also claims that trial counsel was ineffective for failing to challenge the admission of Dukes’ testimony regarding the victim’s dying declaration. The record reveals that Dukes’ testimony in this regard was a surprise to the defense, as she had previously lied to police and prosecutors regarding her knowledge about the crime and did not reveal Williams’ statement to prosecutors until the eve of trial. Based on trial counsel’s pretrial investigation, including his review of Dukes’ pretrial statements to police, he reasonably expected Dukes to testify that she had no personal knowledge regarding the shooting, and thus he cannot be faulted for failing to anticipate the radical change in Dukes’ testimony.
Further, though Appellant decries trial counsel’s failure to object once Dukes had given her surprising testimony, he identifies no valid basis for objection. Because the record reflects that Dukes’ last-minute revelation to prosecutors was not recorded in any written form, Appellant can show no violation of the State’s reciprocal discovery obligations. Hunt v. State,
Judgment affirmed.
Notes
Appellant and his co-defendant, Ray Bryant, were indicted in February 2007 by a Fulton County grand jury on charges of malice murder, felony murder, aggravated assault with a deadly weapon, aggravated assault, attempted armed robbery, and firearm possession during the commission of a felony. Following a jury trial held in January 2009, Appellant was convicted on all six counts and was sentenced to life imprisonment for murder, plus 20 years concurrent for aggravated assault and five years concurrent for firearm possession; the remaining charges merged or were vacated for sentencing purposes. Appellant filed a timely motion for new trial on February 12, 2009, which was amended in June 2011. Following a hearing, the motion for