A jury found Otis Sanford guilty of malice murder, felony murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony in connection with the fatal shooting of Veronica Corbett. Following the denial of a new trial, Sanford appeals his convictions, claiming that the trial court еrred in admitting into evidence certain out-of-court statements and in failing to properly ascertain whether he wished to exercise his right to testify, and that his trial counsel rendered ineffective *352 assistance. For the reasons that follow, we affirm. 1
The facts construed in favor of the verdicts showed the following. On October 1, 2004, Corbett was at the home of Marhna Smith, who was the father of one of her children. Corbett lived with Sanford from time to time. That day Sanford went to Smith’s home to talk to Corbett and to get his cell phone and keys from her. Smith took Sanford’s things outside where Sanford could retrieve them. Corbett did not want to talk to Sanford, but he would not leave. After waiting for about ten minutes, Sanford entered the house and ran past Smith, chasing Corbett through the house and down some stairs. Sanford then fired two shots at Corbett, striking her. Smith ran from the house after he heard the gunshots, and returned when he saw Sanford leave. Officer Geijets arrived on the scene and found Corbett with a gunshot wound to the chest, but still alive and conscious. She held a pillow to her abdomen and was in obvious pain. She told the officer that Sanford had gone down into the basement and shot her. Subsequently, Smith identified Sanford from a photographic lineup as the man at his house when Corbett was shot. Corbett died at the hospital several hours after the shooting as a result of the gunshоt wound.
At trial, Officer Gerjets testified that at the crime scene Corbett told him that Sanford had shot her because they had been in a relationship and had broken up and she was “transitioning in a relationship with Smith.” Sanford did not testify at the trial.
1. The evidence was sufficient to enable a rational trier of fact to find Sanford guilty beyоnd a reasonable doubt of the crimes of which he was convicted.
Jackson v. Virginia,
2. Prior to the start of trial, the trial court held a hearing on Sanford’s motion to exclude statements made by Corbett to Officer Gerjets that Sanford had shot her. The statements were made as Corbett was waiting for help from emergency responders, and the trial court ruled that the statements were admissible into evidence
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as dying declarations and as part of the res gestae. Sanford contends that such ruling was error because the statements inculpating him did not qualify as dying declarations in that Corbett was not in the “article of death” when she made the statements, and, in fact, did not die until several hours later; he further argues that Corbett’s statements were not admissible under the rationale of res gestae because they were made in response to police questioning, and that even if the statements qualify as either dying declarations or part of the res gestae, the аnalysis in
Crawford v. Washington,
One of the requirements for a statement to be admissible as a dying declaration is that the deceased must have been conscious of his condition.. .. OCGA § 24-3-6. 2 It need only appear to the court from the circumstances of the case that there was a probability that the deceased was conscious of his condition at the time he made the statement... . The testimony introduced as dying declarations need not contain any statement by the deceased to the effect that he was conscious of impending death at the time the declarations were made, since this may be inferred from the nature of the wounds and other circumstances.
Morgan v. State,
As to Sanford’s urging that this Court should apply the analysis in
Crawford v. Washington,
supra, to find the statements inadmissible, this Court previously has acknowledged with approval that the Supreme Court of the United States has expressly declined to extend its analysis to dying declarations.
Walton v. State,
3. Sanford also contends that the trial court erred in overruling his objection to Officer Gerjets tеstifying that Corbett said that she thought that Sanford had shot her because they had been in a relationship that ended and she was going back to Smith. He argues that a dying declaration is limited to the cause of the person’s death and the identity of the killer, and that testimony about the motive for the killing is not permitted. On the contrary, “dying dеclarations are admissible to prove any relevant fact embraced in the res gestae of the killing. . .. Conversations and conduct which are a part of the res gestae may be admitted as part of a dying declaration.”
Strickland v. State,
4. Sanford maintains that the trial court erred in failing to *355 properly ascertain whether he wanted to exercise his right to testify. He acknowledges that the trial court explained to him, outside the presence of the jury, that it was his decision whether to testify, but he claims that the trial court never got an on-the-record answer as to his wishes. But, the complaint is unavailing.
First, there is no requirement that the trial court have an on-the-record colloquy with a non-testifying defendant in order to inform the defendant of the right to testify and to obtain a knowing and intelligent waiver of that right.
State v. Nejad,
THE COURT: Mr. Sanford, in every case to every defendant I say exactly the same thing on the record. It has — I’m not singling you out in any way. You have the right to decide for yourself in this case whether you’re going to take the witness stand.
SANFORD: Yes, ma’am.
THE COURT: You can get advice from your attorneys, but only you make that decision.
SANFORD: Yes, ma’am.
THE COURT: If you do testify, you can be cross-examined like any other witness, under Georgia law. If you choose not to testify, you’ll get a charge from the court that says that no defendant is not — no defendant is required to testify, and if a defendant elects not to, as you would do in this case, if that’s what you decide, and they can’t hold that against you. Have you made a decision whether or not you want to take the stand or you are in the process of making that decision?
SANFORD: No.
THE COURT: Ms. Berry? Has your client decided? He doesn’t have to answer me. He can answer through —
COUNSEL: Yes, he has decided, your honor, and no, he will not be testifying.
Sanford complains that the trial court accepted his attorney’s assertion of Sanford’s intentions, without asking him if that assertion was correct, even though Sanford’s answer “no” could easily be interpreted to mean he had not yet made the decision about testifying. He argues that, consequently, his decision regarding his
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right to testify was not made by him but by his attorney. Howevеr, the record supports the conclusion that Sanford’s “no” response was in fact a negative response to taking the stand and not a response that he had instead reached no decision. Sanford was present and an active participant in the exchange regarding the decision about whеther to testify, and had he not made a definitive decision to forego taking the stand, he could have spoken up and demanded his right to testify, but he remained silent in the face of his counsel’s unequivocal statement that Sanford decided not to testify.
Blue v. State, 275
Ga. App. 671, 676 (4) (
5. Finally, Sanford contends that trial counsel rendered ineffective аssistance in various respects. However, in order to prevail on his claim of ineffective assistance, Sanford has to demonstrate that his attorney’s performance was deficient and that the deficiency prejudiced him so that there is a reasonable likelihood that, but for the attorney’s errors, thе outcome of his trial would have been different; in so doing, he must overcome the strong presumption that counsel’s conduct fell within the broad range of reasonable professional conduct.
Smith v. State,
(a) Sanford first states that trial counsel was ineffective because she announced that she was ready for trial when she had not “discussed the evidence and trial strategy” with him nor “obtained crucial information” from him prior to trial; his complaint in this regard is that counsel did not present him, her “key defense witness” even though he “had told her that he wanted to testify but she refused to let him do so.” 4
At the motion for new trial hearing, trial counsel testified that she went to the jail to visit Sanford perhaps two or three times and then ceased to do so because Sanford refused to answer mоst of her questions, would not give her his version of events, would not help with his defense, and told her that he did not want to talk to her. The trial court was authorized to give credence to the attorney’s testimony.
Lockheart v. State,
(b) Sanford next contends there was ineffectiveness on the part of his trial counsel because counsel “overrode” his “stated desire to testify.” However, here again, he has failed to show a deficiency on the part of trial counsel. Trial counsel testified that she did not recall Sanford telling her that he wanted to testify, that the only time they talked about his testifying was when she was attempting to get his story about the shooting, and that Sanford responded along the lines of “you will find out what my story is when I get on the stand.” Because of such statement, counsel commentеd to Sanford that she would not be putting him on the stand. Under these circumstances of Sanford’s complete lack of cooperation with counsel and reckless disregard of his perilous situation, counsel cannot be adjudged deficient for determining as a matter of trial strategy that it was ill-advised for Sanford to testify at trial, and for counseling him not to do so. See
Head v. Ferrell,
(c) Sanford urges that trial counsel was ineffective for failing to present certain of the victim’s medical records obtained in discovery, which he сontends would have bolstered his case by showing that the victim did not think that she was dying, and therefore, militating against admission of the victim’s statements to Officer Gerjets as dying declarations. However, even assuming arguendo, that trial counsel was remiss for failure to use the cited medical records in the attempt to block admissiоn of the victim’s statements as dying declarations, Sanford cannot show any prejudice thereby. Smith v. State, supra. There was ample evidence to support the finding that the victim believed that she was in the article of death; moreover, the statements were also admissible under the res gestae exception to the hearsay rule. See Division 2, supra.
(d) Sanford’s final assertion of ineffectiveness is that trial counsel failed to object and/or move for a mistrial when the assistant district attorney “opined” in closing argument that Sanford shot Corbett as she was running down the stairs even though the statement was factually insupportable as Corbеtt was shot in the chest. But, Sanford has far from demonstrated that any such statement by the prosecution was not a reasonable inference from the evidence, especially from Smith’s trial testimony. Moreover, Sanford has not shown that but for such a lack of objection or moving for a mistrial, there is the reasonаble probability that the outcome of his trial would have been different. Smith v. State, supra.
Simply, Sanford has failed to make a case for the ineffective assistance of trial counsel.
Judgments affirmed.
Notes
The crimes oсcurred on October 1, 2004. On July 1, 2005, a Fulton County grand jury indicted Sanford for malice murder, felony murder while in the commission of aggravated assault with a deadly weapon, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted fеlon. The possession of a firearm by a convicted felon count was dead docketed. Sanford was tried before a jury February 22-28, 2006, and found guilty of the remaining charges. On March 1, 2006, he was sentenced to life in prison for malice murder and a consecutive five years in prison for possession of a firearm during the commission of a felony. The trial court found the aggravated assault with a deadly weapon merged for the purpose of sentencing and the felony murder stood vacated by operation of law. A motion for new trial was filed on March 24,2006, amended on March 20, 2009, and denied on July 17, 2009. A notice of appeal wаs filed on August 12, 2009, and the case was docketed in this Court on September 25, 2009. The appeal was submitted for decision on November 16, 2009.
OCGA § 24-3-6 provides:
Declarations by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in evidence in a рrosecution for the homicide.
OCGA § 24-3-3 provides:
Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall he admissible in evidence as part of the res gestae.
At trial, Sanford was represented by two deputy public defenders; however, his complaints appear to address only the attorney who testified at the motion for new trial hearing.