This appeal is from Darwin Leroy Pye’s conviction for felony murder arising from the death of Carlton Matthews. 1 The evidence at trial showed that Pye’s co-defendant Joshua Boston quаrreled with Matthews at a party and they continued it outside, where both men armed themselves with beer bottles. Pye came upon the men in a parking lot and eventually joined the аltercation on Boston’s side. Seeking to withdraw, Matthews backed up the stairs of an apartment building to the third floor, where the argument came to blows. Boston and Pye each hit Matthews several times and Matthews also sustained cuts consistent with wounds that a broken beer bottle would inflict, and bruising around his neck consistent with strangulation. At some point in the conflict, Matthews either jumped or was pushed over a railing and fell, sustaining fatal head injuries.
1. Appellate counsel filed a motion to withdraw this appeal and withdraw from representation of Pye so that Pye could seek a hear
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ing before the trial court on allegations of ineffective assistance of trial counsel. Because appellatе counsel was appointed prior to the completion of post-conviction proceedings in the trial court and filed an amended motion for new trial, but did not raise ineffective assistance of counsel, Pye’s claim of ineffective assistance is deemed waived. “Any ineffective counsel challenge will be deemed waived if the nеw attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest praсticable moment, i.e., during the hearing on the amended motion.”
Thompson v. State,
2. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find Pye guilty beyond a reasonable doubt of the crimes of which he was conviсted.
Jackson v. Virginia,
3. An eyewitness to part of the interaction between Pye, Boston, and Matthews was cаlled to testify by the State. During that testimony, the prosecuting attorney used a prior statement by the witness to refresh his recollection and to impeach his testimony. The State alsо produced a certified copy of the witness’s conviction for forgery to impeach the implication in the witness’s testimony, when he was questioned by the defense, that he сould not read or write. The defendants objected to the use of the statement and to the impeachment of the witness, and moved for a mistrial, which the trial court denied. On appeal, Pye’s complaints are that the statement was insufficiently authenticated to permit its use and that use of the conviction for impeachment was improper bеcause whether the witness could read and write was only a collateral issue. Neither complaint is meritorious.
To lay a foundation for the use of an inconsistent statement, the time, place, person, and circumstances of the former statement must be called to the witness’s attention and, if the statement is in writing, it must be shown or read to the witness.
Ward v. State,
When, in an effort to authenticate the statement, the witness was questioned about his signature on the statement, his equivocal
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responses suggested that he could not sign his own name. The State’s use of the witness’s conviction for forgery to disprove the suggestion that he could not sign his name was similar to the use of a conviction in
Newton v. State,
4. The aggravated assault count of the indictment alleged that Pye and Boston assaulted Matthews “by striking him with a bottle and by striking him with the accused’s hand, a means likely to cause serious bodily injury when used offensively against a person.” Citing this Court’s decision in
Smith v. Hardrick,
5. The felоny murder count of the indictment in this case alleged that Pye caused the death of Matthews during the commission of aggravated assault. Pye’s contention that the felony murder count of the indictment was insufficient because it did not set out specifically the elements of aggravated assault is controlled adversely to him by our recent holding in
State v. Grant,
6. Finally, Pye complains of the trial court’s failure to sevеr his trial from Boston’s. There is no written motion to sever in the record, but Boston’s trial counsel argued the issue of severance of Boston’s trial from Pye’s at the beginning of the trial. The record does not reflect any adoption of Boston’s motion by Pye or any request by Pye to be tried separately. That being so, he may not raise the issue on appeal.
Smith v. State,
Judgment affirmed.
Notes
Mаtthews died on February 18, 1996, and Pye was indicted on August 27, 1996, for two counts of malice murder, felony murder (aggravated assault; terroristic threats), aggravated assault, and terroristic threats. A jury trial сonducted on September 18-26, 1996, resulted in acquittal on the malice murder counts, a directed verdicj; of acquittal on the terroristic threat count, and convictions for felony murder and aggravated assault. Pye was sentenced on October 18, 1996, to life imprisonment for felony murder, and the aggravated assault conviction was vacated by operаtion of law as the underlying felony of felony murder. Trial counsel filed a motion for new trial on November 22, 1996, Pye filed a motion for new trial on November 26, 1996, and appellate cоunsel, who was appointed in December 1996, filed two motions for permission to file out-of-time motions for new trial and, on November 20, 1998, an amended motion for new trial. That motion wаs denied on June 20, 2001; a notice of appeal was filed on July 2, 2001; and the case was docketed in this Court on August 22, 2001, and submitted for decision on the briefs.
Aggravated assault.
(a) A person commits the offense of aggravated assault when he or she assaults: ... (2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. . . .
OCGA § 16-5-21.