Mаrcus Leshae Newsome was charged with murder and felony murder in the shooting death of Lawrence Chambliss as well as four *648 counts of armed robbery and six counts of aggravated assault. He was convicted of all counts and now appeals, challenging the sufficiency of the evidence, the admissiоn of an alleged hearsay statement from an unavailable co-indictee, the failure to exclude alleged similar transaction evidence and the effectiveness of his counsel. 1 Finding no error, we affirm. However, because Newsome received two life sentences for the murder of a single victim, his sentence for felony murder must be vacated and the case remanded for the reasons that follow.
1. The jury was authorized to find that appellant was the driver of a silver two-door Honda Accord that pulled into the driveway leading to an apartment on Pebble Street in Macоn. The apartment had been rented two weeks earlier by LaShonda Williams; its former residents were drug dealers. At least two men exited the Accord and threatened the three men sitting near the apartment’s entrance. 2 When Williams, holding her infant in her arms, stepped outside, shots were fired at the five victims. Williams recognized co-indictee Haynes, 3 whom she had known for several years, as one of her assailants and at trial identified appellant as the driver of the Accord.
Within minutes after the assailants left the Pebble Street apartment, a silver two-door Honda Accord pulled into the driveway of an apartment on Fletcher Street, approximately two miles from Pebble Street. Two men from the Accord, including one with a rifle who was identified as co-indictee Haynes by persons who knew him, entered the apartment, firing shots at the 17 or more men who had gathered in the apartment to watсh college basketball and play cards. Lawrence Chambliss was shot in the back of his arm and chest as he fled the room; he bled to death from his wounds. His nephew, Cory Pounds, was shot in the back as he fled. Pounds survived his injury and testified about seeing a third assailant armed with a *649 handgun coming around the back of the aрartment. Victims Faulks, Grayer and Milford, who were in the front bedroom, and McClinton, who was near the front door, were robbed at gunpoint by Haynes and the other assailant.
Witness Bentley testified that, a few days before these crimes, Bentley borrowed a silver two-door Honda Accord 4 and gave appellant and another man a ride to appellant’s home, where appellant retrieved a handgun; appellant later drove off with the Accord without Bentley’s permission; and Bentley saw that Accord in the vicinity of Fletcher and Pebble Streets on the night the crimes were committed. Bentley also testified that he had previously seen appellant in the company of both co-indictee Haynes and co-defendant Carter.
Appellant testified at trial that he was at home with his girlfriend, Kenyana Carswell, and another woman at the time the attacks occurred; that he was a drug dealer who sold powder cocaine; that he did not own a gun; and that he was not on good terms with either Bentley or Haynes because they both owed him money for drugs.
Appellant asserts that the jury could not have found witnesses Bentley and Williams to be credible because Bentley had a grudge against apрellant and Williams did not have sufficient time to observe him so as to accurately identify him. However, it was for the jury to determine the credibility of the witnesses, see
Vega v. State,
2. Macon Police Detective Vamper testified that, during his investigation into the crimes, he spoke with appellant’s co-indictee, Haynes, and then answered affirmatively when the prosecutor asked if Vamper “at some point” obtained an arrest warrant for appellant. Appellant contends that this testimony was hearsay and its admission was reversible error, speculating that the jury may have inferred from Vamper’s testimony that Haynеs, who was called as a State witness but refused to answer any questions, had provided the information for the warrant. We disagree. Testimony is considered hearsay if the witness is testifying to another party’s statement in
*650
order to prove or demonstrate the truth of the matter asserted in that statement. See OCGA § 24-3-1;
Fugitt v. State,
3. Appellant contends the trial court erred by admitting the testimony of Bentley that appellant, while riding with Bentley in the Accord a few days before the crimes in issue, told Bentley he wanted to go to a “shot house”
6
so that appellant could rob it. The sole argument made in support of this enumeration is appellant’s assertion that Bentley’s testimony set forth a similar transaction for which the State failed to provide the appropriate notice and follow the procedure in Uniform Superior Court Rule 31.3. See аlso
Williams v. State,
We recognize that words uttered by a defendant may be admissible as a similar transaction in those instances where the utterance itself constituted a crime. See
Boynton v. State,
supra,
Appellant argues that his statement qualified as a similar transaction because of the holding in
Smith v. State,
supra,
As reflected in our opinion in
Williams v. State,
supra, 261 Ga. at
*652
641 (2), “what is at issue is the admission of evidence of ‘independent offenses or acts.’ [Cit.]”
Young v. State,
4. Appellant claims he received ineffective assistance of counsel regarding (a) counsel’s failure to investigate or call to testify at trial an alibi witness, namely, appellant’s girlfriend Carswell and (b) counsel’s failure to object to the in-court identification of appellant by aggravated assault victim LaShonda Williams. To prevail on his claim, appellant was required to prove both that counsel’s pеrformance was deficient and that the deficiency prejudiced his defense.
Strickland v. Washington,
5. Because appellant was sentenced to life sentences for both malice and felony murder in the death of one victim, the conviction for felony murder was simply surplusage that should properly have been disposed of by the trial court’s sentence of only one life sentence for the two murder counts.
Malcolm v. State,
Judgment affirmed in part and vacated and remanded in part.
Notes
The crimes occurred on or about March 26, 2008. Newsome was indicted together with Erik Haynes and Jerrod Carter on August 19,2008 in Bibb County. Newsome was charged with murder, felony murder, four counts of armed robbery, six counts of aggravated assault and possession of a firearm by a convicted felon. He was tried together with Carter and found guilty of all charges on March 6, 2009. In a sentence signed March 9, 2009 and filed ten days later, Newsome was given life imprisonment for the murder, a concurrent life sentence for the felony murder, life without parole for one count of armed robbery to run consecutive to the felony murder sentence, concurrent life sentences for each of the remaining three armed robberies and one consecutive plus five сoncurrent twenty-year sentences on the aggravated assaults. The possession charge was nolle prossed. Newsome’s motion for new trial, filed March 11,2009 and amended March 17, 2009 and February 17, 2010, was denied May 27, 2010. A notice of appeal was filed June 21, 2010. The appeal was docketed for the September 2010 term in this Court and was submitted for decision on the briefs.
The men were Williams’ uncle and the father and uncle of Williams’ infant daughter, Markita.
Haynes was tried separately and convicted. We affirmed his conviction in
Haynes v. State,
The owner of the Accord testified that the car was stolen and that she reported the theft to police three days before the crimes at issue.
Thus, even assuming that appellant’s Confrontation Clause arguments were properly raised, they are without merit.
A “shot house” is a location where liquor can be purchased illegally at any hour.
The Court of Appeals uphеld the trial court’s determination that the utterances were admissible for impeachment purposes.
Specifically, the cases cited by the Court of Appeals were:
Campbell v. State,
Although not raised by appellant, we note that this character evidence was subsequently rendered admissible for impeachment purposes when appellant took the stand and denied that the conversation and drive with Bentley ever occurred. See generally
Peterson v. State,
The transcript reveals that police investigators had not sought before trial to have Williams identify appellant so that her spontaneous identification of appellant in court as the driver of the two-door silver Honda Accord could not have been anticipated by appellant’s trial counsel.