Defendant-Appellant Willie Smith was found guilty by a jury in the St. Joseph County Superior Court of the crime of murder, and he was also found to be an habitual offender. The trial court subsequently sentenced him to a term of seventy (70) years.
Five issues are presented for our consideration in this direct appeal as follows:
1. exclusion of testimony of victim's dee-laration shortly beforе she died;
2. sufficiency of the evidence; 8. the giving of State's Instruction No. 6;
4. permitting the habitual offender count to be amended; and
5. ineffective assistance of counsel.
The facts show that sometime prior to September 7, 1983, Defendant-Appellant Willie Smith lived with victim Judy Sanders and their small daughter. Shortly prior to the incident in question there had been an altercation between the two and Sanders had shot Smith in the right hand with a handgun. There was evidence that this came about when Smith was holding Sanders' small daughter at knife point and threatening to harm her. Smith denies that he held a knife to the daughter's throat. Smith got treatment for his injured hand at the hospital and then returned to the residence. Sanders had left to go to her grandmother's home.
Smith's account of what happened on September 7, 1988, at trial was that he returned from the hospital and was resting on the couch. He stated that since he was concerned about Sanders' previous attack on him, he had a gun under the pillow on the couch and had another gun concealed in the room. At one point the testimony seemed to be the second gun was hidden in the bookcases and at another time it appeared it was lying on the table in front of the davenport. While Smith was resting on the couch he heard a noise and then saw Sanders standing over him with a butcher knife. She kicked over the table in front of the couch and started to walk around it toward him. There was testimony that she had called and said she was going to get pain pills for him. At this point when Sanders approaсhed Smith with the knife, she said, "Here are the pills but I ought to kill you." He stated he got off the couch and walked around the table with the gun concealed under the pillow and moved about the house trying to evade Sanders. He backed into the dining room at which time she stated, "One of us got to die." She then lunged at him with the knife. He said at this point he shot her the first time but she kept coming so hе kept firing at her while he was backing away. She then dropped the knife; which hit him in the chest, and ran out the door. She was found on a neighbor's property, dead from several gunshot wounds.
Testimony of several witnesses varied from Smith's account of the facts. After Sanders shot Smith in the hand, Smith, in discussing the matter with a police officer, told her that he did not have a gun but was going to get one and kill Sanders. The police officer stated that at the time Smith was in pain and excited and she did not really take his statement seriously. She said it was not unusual for people to make such statements under such cireumstances. Barbara Olmstead testified that Smith told her that Sanders "snuck into the house and he shot her five times." Officer William Coar was at the scene of the сrime and was told by Smith that Sanders had shot him in the right hand earlier in the morning. He had returned home from the hospital and was sleeping on the couch when he received a call from Sanders stating that she was coming back to their residence to bring him some medicine. He then put the gun beneath the pillow that was under his head because he feared for his life. When Smith awoke, Sanders was standing over him with a butcher knife and saying "Here are the pain pills but I ought to kill you." She then went to the bar in another room and sat at a stool. Smith then saw Sanders *302 open her purse and thought she was getting a gun so he stood up and fired several shots. Sanders did not have a knife at that point. Sanders ran out of the house. Offi cer Timothy Corbett said that Smith told him that he was lying on the сouch drunk when Sanders came up to him with a knife and he shot her five times. Transportation Officer Narvel Williams testified Smith related to Williams that when Sanders came in she kicked over a table and told Smith she was going to kill him. Smith said he then got up off the couch with the pistol concealed under the pillow. When Sanders slung her purse over her shoulder, he reacted to the movе by dropping the pillow and firing at her. Smith did tell Williams there was a knife involved and someone should go back and find the knife. A large knife was found on the dining room floor and admitted into evidence.
I
At trial defendant Willie Smith testified on his own behalf and presented a defense of self-defense. He described in detail the incident leading to the shooting of Sanders and attempted to rеlate the conversation between them in his testimony. The trial court permitted Smith to testify as to what he said to Sanders but sustained objections by the State on statements made by Judy Sanders to Smith. Smith particularly claims he was precluded from effectively presenting his self-defense when the court . would not permit him to testify that when Sanders first came at him with the knife she said to him, "I should havе gotten you before-I should have killed you before." The court did allow the threat made by Sanders to Defendant in the dining room that, "One of us got to die," to be presented to the jury. Smith was permitted to testify at length about his repeated pleadings with Sanders as he backed away from her that she must put down the weapon and they must settle the issue between them. He stated he told her he was willing to leave and never bother her or her daughter again if that was what she wanted. He now claims it was reversible error for the court not to allow into evidence some of the statements made by the decedent while holding the knife since it clearly was relevant to his claim of self-defense and ex- . plained his subsequent shooting the victim.
The State objected to the statements of Sanders, claiming they were inadmissible hearsay. Although the trial court sustained the objections and did not admit Sanders' statements, no reasons for the exelusions by the trial court were given. We therefore can only surmise that the trial court considered Sanders statements to be inadmissible hearsay. Hearsay evi denee is testimony in court оr written evidence of a statement made out of court being offered in court as an assertion to show the truth of the matters asserted therein. Wagner v. State (1985), Ind.,
Therefore the statements were not put into evidence to show the truth of the matters asserted therein but to show the circumstances presented to Defendant which resulted in his acts that led to her death. Carter v. State (1982), Ind.,
II
Defendant further claims there was insufficient evidence to support the verdict of the jury since there was not substantial evidence of probative value to support every element of the crime charged. Defendant's sufficiency argument goes solely to the issue of self-defense. From the facts recounted in Issue I above it is apparent that although there was conflict in the evidence, there was more than ample evidencе from which the jury could find beyond a reasonable doubt that Defendant did not act in self-defense. Pursuant to our standard of review we find no grounds to disturb this finding by the jury. Loyd v. State (1980),
IH
In its final instructions the trial court gave Instruction No. 6 as follows:
"'The credibility of a witness may be attacked by introducing evidence that on some former occasion the witness made a statement inconsistent with his testimony in this case. It is inconsistent if the witness denied making the prior statement or if the witness could not remember making the prior statement. Evidence of this kind may be considered by you in deciding the weight to be given to the testimony of that witness as well as substantive evidence of the guilt of the defendant."
Appellant claims this instruction is confusing and misleading since it indicates that evidence of merеly making inconsistent statements could be considered substantive evidence of guilt. We see no merit to this argument. The instruction clearly states that evidence of such prior statement can be used to attack the credibility of the witness and further tells the jury that this evidence may be considered by them in deciding the weight to be given the testimony of the witness. Defendant concеdes that this same construction was approved by this Court in Limp v. State (1982) Ind.,
IV
Defendant claims the trial court committed reversible error by permitting the State to amend the habitual offender count during trial. The amendment substituted for a prior underlying conviction, a prior felony conviction Defendant admitted during his testimony in the guilt phase of thе trial. Defendant concedes this but claims he was prejudiced because of a lack of opportunity to show that the amending prior conviction might be in some way constitutionally infirm. He makes no argument showing any evidence or probability of such infirmity nor did he do so at trial. In Howard v. State (1978)
V
Finally, Appellant claims reversible error in that he received ineffective assistance of counsel at trial. Appellant concedes the proper standard to be applied on this issue is that of reasonably effective assistаnce looking at the reasonable probability that but for counsel's unprofessional error the result of the proceeding would have been different. Stricklond v. Washington (1984),
Smith first claims his counsel should have moved to suppress statements made by him to police officers since it is his claim he was so intoxicated his statements were not reliable and therefore not admissible. In support of this argument, Smith points to the testimony of three police officers. This testimony does not support his contentions. The three officers, Terry Miller, Alma Alvarez, and Cullen Walton, testified about Appellant's condition at the time of or immediately after his arrest and did not say he was so intoxiсated he could not give a statement. Officer Miller testified it was apparent Appellant had been drinking as he smelled of liquor and mumbled at times. Alvarez and Walton said he was very upset and in an emotional state at the time of his arrest but did not say he was intoxicated. Alvarez stated that he was in a condition that showed he was upset and emotional which she attributеd to the oc
*305
currences between Smith and Sanders including the fact that he had been drinking in the evening prior to that time. All of the officers who testified as to statements made by Appellant on that evening and at later times indicated he was able to converse with them and understood what he was doing. In fact, some of the officers' testimony confirmed cireumstances he testified about in an attempt to establish self-defensé, including his version that the vie-tim attacked him first with a large knife. It could easily be viewed as trial counsel's appraisal that this would be testimony beneficial to Defendant so that suppression ' would not be good strategy. It at least was a choice of strategy made by counsel which at this point does not indicatе ineffectiveness. Appellant claims his counsel was ineffective in not having the victim's threats made to Defendant before he shot her admitted into evidence. These are the same statements referred to in Issue I above that we found to be admissible but ° harmless error in their exclusion. Nonetheless, it appears trial counsel did everything he could to have the statements admitted but was overruled by the trial court. Trial counsel cannot be found ineffective when he properly raises an issue at trial and is overruled. The issue was preserved and presented on appeal. Defendant claims his counsel showed poor judgment in calling certain witnesses, including the victim's grandmother, but points to no real prejudice caused by these witnesses. It is apparent the victim's grandmother was called to confirm testimony by Defendant and others that the victim went to her grandmother's between the two altercations had by Defendant and the victim. Since Defendant can point to no fact indicating prejudice by his counsel's choice of witnesses, we find them to be judgment calls of strategy lacking a shоwing of ineffectiveness. Defendant next makes a general statement that his counsel did not object during the trial a sufficient number of times. He fails to point out any specific time or grounds for objections overlooked by his counsel, thereby waiving this issue. The same can be said of Defendant's charge that his counsel's cross-examination of certain witnesses buttressed thе State's case. Finally, Appellant claims trial counsel concurred and participated in selecting and sending back some of the exhibits to the jury room while the jury was deliberating which he now says allowed prejudicial emphasis to be placed on one segment of the evidence over the other. Appellant fails, however, to point out what materials were permitted to be taken to the jury room and the prejudice resulting from that particular selection. There is no way we can therefore determine claimed error on the selection. Shaffer v. State (1983), Ind.,
Finding no error, we affirm the trial court.