Following a jury trial, Malcom Reed was found guilty of felony murder. 1 On appeal, Reed contends that the evidence was insufficient to sustain his conviction, that the trial court erred with respect to its jury charge on felony murder and with respect to certain evidentiary matters, and that his trial counsel was ineffective. We affirm.
1. Viewed in the light most favorable to the verdict, the evidence reveals that, on April 20, 2007, while Reed was sitting in the passenger seat of a Lincoln Navigator, he shot and killed Marcus Eiland. An eyewitness, Virginia Brown Sears, saw that the shots that killed Eiland came from inside the Navigator as Eiland was riding away on a bicycle. Brian Copeland was later identified as the driver of the Navigator, and Copeland led police to the .45 caliber pistol used to shoot Eiland. Copeland gave a statement to police implicating Reed as the shooter. Reed was arrested, and he gave a videotaped statement to police admitting to shooting Eiland. At trial, Reed’s statement was admitted into evidence. The evidence was sufficient to enable a rational trier of fact to find Reed guilty of felony murder beyond a reasonable doubt.
Jackson v. Virginia,
2. Reed argues that the trial court erred in allowing Copeland to selectively invoke his Fifth Amendment right against self-incrimination during direct and cross-examination. However, the record reveals that Reed never objected to Copeland asserting his Fifth Amendment privilege during his testimony. He has therefore waived review of this issue on appeal.
Hoerner v. State,
3. Reed contends that the trial court erred in admitting into evidence his videotaped statement to police. Specifically, Reed claims that, because he initially only wanted to speak to police off camera, he did not knowingly and intelligently waive his rights before making his videotaped statement. However, the question whether a
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defendant made a knowing, voluntary, and intelligent waiver of constitutional rights depends on the totality of the circumstances surrounding a police interrogation.
Norris v. State,
4. Reed asserts that the trial court erred in its jury charge on felony murder, because the trial court gave an instruction on aggravated assault by use of a deadly weapon instead of an instruction on the underlying felony actually charged in the indictment — aggravated assault by firing a weapon from within a vehicle. However, as part of its charge, the trial court also read the aggravated assault count exactly as it appeared in the indictment, and further instructed the jury that the State must prove “each element of the crime as charged . . . beyond a reasonable doubt.” See
Tesfaye v. State,
5. Reed contends that the trial court erred in denying his motion for new trial because the State did not use its peremptory strikes in a racially neutral manner. See
Batson v. Kentucky,
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6. Reed submits that his trial counsel was ineffective because he was not prepared for trial. In order to succeed on a claim of ineffective assistance, Reed must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.
Strickland v. Washington,
Reed’s counsel testified at the motion for new trial hearing that he met with Reed on two occasions, interviewed witnesses, conducted discovery, reviewed the statements of the State’s key witnesses, made strategic decisions about the witnesses that he chose to call and those that he chose not to call, that he made a strategic decision about his refusal to object to Copeland’s assertion of his Fifth Amendment privilege during portions of his testimony, that he did not object to the State’s use of its peremptory strikes because he believed that the State had race-neutral reasons for its use of the strikes, that he had adequate time to prepare for trial (and was in fact “totally prepared”), and that he could not think of anything in the case that he should have done that he did not do. 2 Despite this testimony, Reed’s appellate counsel argues several ways in which, in retrospect, he believes that trial counsel should have pursued the case, all in an effort to show that counsel was unprepared. Such after the fact disagreements about trial counsel’s approach to the case, however, do not amount to a showing of ineffective assistance of trial counsel. Indeed,
[w]hile other counsel, had they represented appellant, may have exercised different judgment, the fact that trial counsel chose to try the case in the manner in which it was tried, and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the *67 representation below was so inadequate as to amount to a denial of effective assistance of counsel.
(Citation omitted.)
Lewis v. State,
Judgment affirmed.
Notes
On July 11, 2007, Reed was indicted for malice murder and felony murder (aggravated assault). Following a November 5-9, 2007 jury trial, the jury found Reed guilty of felony murder, but not guilty of malice murder. On November 9, 2007, Reed was sentenced to life imprisonment for felony murder. Reed filed a motion for new trial on November 14, 2007, which he amended on May 29, 2008. The motion was denied on June 17, 2008. Reed’s timely appeal was docketed in this Court on August 12, 2008, and submitted for decision on the briefs.
To the extent that Reed has based his ineffectiveness claims on counsel’s strategic decisions not to object to the State’s use of its peremptory strikes, to object to Copeland’s sporadic assertion of his Fifth Amendment privilege, or to call additional witnesses, such arguments are without merit. See, e.g.,
Smith v. State,