Aрpellant James Mitchell and co-defendant Jarnard Williams were indicted for the felony murder of Wymberly Baker, the aggravated assault of Donald Robinson, and two counts of possession of a firearm during the commission of a felony. Williams was separately indicted for theft by receiving a Toyota Highlander. After a joint jury trial, Appellant and Williams were found guilty on all counts. Finding no merit to Appellant’s contentions on appeal, we affirm.
1. The evidence presеnted at trial, viewed in the light most favorable to the verdict, showed the following. About 5:00 p.m. on October 25, 2007, Baker, Robinson, Isaac Fitzgerald, and Tereen Graham wеre talking in front of Baker’s house in Savannah, Georgia, when a stolen black Toyota Highlander with three or four people in it pulled up. Two men got out and said they were there to rob the victims, who began running. The two men then began shooting. Baker was fatally shot in the chest, and Robinson was shot in the arm. After Appellant went through Baker’s pockets, the two shooters jumped back in the SUV and fled the scene.
Shortly after the shootings, the Highlander was found abandoned some distance away, with the doors open and the engine running. The Tech 9 and Ruger 9mm handguns used in the shootings were found near the parked SUV Three eyewitnesses identified Aрpellant as one of the shooters. There was also evidence that Appellant and Williams were driving a black SUV earlier on the day of the crimes and that Appellant had a Tech 9 handgun and Williams had a 9mm handgun that day.
When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above and in more detail in Williams,
2. Appellant contends that the pre-printed verdict form conflicted with the presumption of innocence because the first сhoice for each charge was a finding of guilty, while the second choice was a finding of not guilty. However, this Court has held that “merely listing the possible guilty verdict оption(s) before the ‘Not Guilty’ option” on a pre-printed verdict form would not by itself mislead the jury as to the presumption of innocence. Rucker v. State,
3. Appellant contends that the trial court erred in permitting the State’s lead detective to remain in the courtroom throughout the trial, even though Appellant invoked the rule of sequestration. However, “it is well within the trial court’s discretion to permit [the State’s lead investigator] to remain in the courtroom despite invocation of the rule of sequestration where the State shows his presence is necessary for the orderly presentation of evidence.” Dockery v. State,
4. Appellant claims that his trial counsel was constitutionally ineffective for severаl reasons. To prevail on these claims, Appellant
“must show that his trial counsel provided deficient performance and that, but for that unprofessiоnal performance, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v.*492 Washington,466 U. S. 668 , 687, 694 (104 SC 2052, 80 LE2d 674) (1984).”
Watkins v. State,
(a) Aрpellant claims that trial counsel provided deficient performance by failing to object when several witnesses identified Appellant as onе of the gunmen based on hearsay and in failing to object to numerous leading questions posed by the prosecutor. As for the first claim, Appellant, who waived a hearing on his motion for new trial, asserted in his motion only that trial counsel was ineffective “by not objecting to an in-court identification of” Appellаnt, never explaining the alleged basis for such an objection. Because Appellant did not argue below the hearsay issue he now argues on appeal, this claim is waived. See Collier v. State,
Moreover, as to both these ineffectiveness claims, because Appellant waived a hearing, there is no tеstimony of trial counsel regarding the decisions he made at trial. In “the absence of evidence to the contrary, counsel’s decisions are presumed to be strategic and thus insufficient to support an ineffective assistance of counsel claim.” Washington v. State,
Finally, neither in his motion for new trial nor on appeal has Appellant named a witness whose identification was supposedly based on hearsay, much less explained why any identification evidence constituted inadmissible hearsay. Appellant’s contention rеgarding trial counsel’s failure to object to leading questions is similarly vague. Appellant thus has failed to carry his burden to show deficient performance оr prejudice on these two claims.
(b) Appellant also contends that trial counsel provided deficient performance in not insisting that the trial court demand more information from the prosecutor to substantiate her claim that she needed to have the lead detective present throughout thе trial. This claim is waived because it was not raised in the motion for new trial. See Collier,
Judgment affirmed.
Notes
The crimes occurred on October 25, 2007, and Appellant and Williams were indicted on April 2, 2008. A jury found them guilty on April 17, 2009. On April 22, 2009, the trial court sentenced Appellant to life in prison on the murder conviction, ten consecutive years on the aggravated assault conviction, аnd two five-year consecutive terms on the firearm convictions. Appellant filed a motion for new trial on May 5, 2009, and an amended motion on January 31, 2011. The trial court denied the motion on February 7, 2011. On March 15, 2011, Appellant filed a notice of appeal, which this Court dismissed as untimely. On June 23, 2011, the trial court granted Apрellant’s motion for out-of-time appeal, and on June 30, Appellant filed a notice of appeal. The case was docketed for the September 2011 term of this Court and submitted for decision on the briefs. We also decide Williams’s appeal today. See Williams v. State,