Aрpellant Antwan Rivers was acquitted of a malice murder charge in connection with the death of Torre Wiley, but was found guilty of the felony murder of the victim, aggravated assault, and possession of a firearm during the commission of a félony. 1 He contends the judgment of conviction should be reversed because he was deprived of effective assistance of counsel at trial and because the evidence presented against him was not sufficient to authorize the judgment of conviction. We disagree, аnd affirm his convictions.
A specially-trained dog found the victim’s body partially buried in a shallow grave in Chatham County. He had been shot four times in the right arm and chest and had died from the massive internal hemorrhaging which had resulted. Witnesses testified to having heard shots being fired and a person screaming between 5:00 and 5:30 p.m. the day before the victim was found. Two shovels and a *116 post-hole digger which were later determined to have been purchased the same day as the shooting were found near the victim’s grave. A car found in the аrea contained stains and smears of the victim’s blood in the driver’s seat, the entire backseat, and on the backseat’s door frame. Latent fingerprints on the post-hole digger found near the victim and on the magazine clip of a 9mm semi-automatic pistol found in the car’s trunk matched appellant’s fingerprints, as did a fingerprint imprinted in bloоd on the car’s steering wheel. Spent bullet casings found on the car’s floorboard were determined by an expert to have been fired from the 9mm pistol.
Appellant tеstified that he worked for the car’s owner and had driven the car in the past. On the day the victim was killed, appellant said he had been given a ride in the car at 4:30 p.m. and had moved a post-hole digger which was in the backseat in order to get in the car. He stated that he had fired the car owner’s 9mm pistol on New Year’s Day, a week before the victim was killed, and that the pistol found in the car trunk looked like the weapon he had fired.
1. “To warrant a conviction on circumstantial evidence, the prоved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. Questions of reasonableness are generally for the fact-finder and where the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, the appellate court will not disturb the fact-finder’s guilty verdict unless it is unsupportable as a matter of law.
Roper v. State,
2. Appellant cites two examples of trial counsel’s conduct which, appellant contends, resulted in counsel rendering ineffective assistance: (A) trial counsel did not request a jury instruction which stated that a convictiоn based solely on fingerprint evidence could be sustained only if the prints were found under such circumstances that they could only have been impressed at the time of thе crime; and (B) trial counsel failed to object to testimony from a witness for the State that placed appellant’s character in issue.
Trial counsel did not testify аt the hearing on the motion for new trial, but the trial court found him to have been “experienced, energetic and highly competent,” an attorney who delivered “outstanding” representation and whose “alleged mistakes at trial may have been attributed to trial tactics, if they were mistakes at all.”
To establish a claim of ineffective assistance of counsel, a defendant must show that the attorney’s performance was deficient and that the deficient performance prejudiced the defense. In evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Where trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome this presumption.
Russell v. State,
(a) The jury instruction at issue is appropriate when the only evidence against a defendant is fingerprint evidence. See
Ross v. State,
(b) When the State asked one оf its witnesses how she knew appellant and the owner of the car, the witness responded that “they [were] in a drug deal with my daughter.” When trial counsel objected that the witness hаd no personal knowledge of the fact, the witness testified that she had seen it. Trial counsel did not object to the testimony on the ground that it impermissibly injected charaсter into the case. An attorney’s failure to object to such testimony may be seen as trial strategy, i.e., avoiding an objection that would draw the jury’s attention to the statеment. See
Smith v. State,
Inasmuch as appellant failed to establish that any aspect of trial counsel’s performance was deficient and that the deficiency was prejudiсial, the trial court did not err in concluding that appellant was not deprived of the effective assistance of counsel at trial.
Judgment affirmed.
Notes
The crimes took placе on January 7, 1995, and appellant was arrested pursuant to a warrant a week later. He was charged in an indictment returned by the Chatham County grand jury on April 12, and his trial commеnced on June 16, 1997. The jury returned its verdicts on June 17 and, on July 24, the trial court filed its sentence of life imprisonment for felony murder (the aggravated assault having merged therein) and a fivе-year term of imprisonment, to be served consecutively, for the possession conviction. A motion for new trial, filed July 31, 1997, and amended April 24, 1998, was denied on August 31. The notice of appeal was filed on September 17,1998, and the case was docketed in this Court on December 31, 1998. The appeal was submitted for decision on briefs.