Taron Maurice Williams was tried by a Chatham County jury and convicted of the murder of Aljene Flannings and other crimes related to the unlawful possession of a firearm. Following the denial of his motion for new trial, Williams appeals, contending that the trial court erred when it limited his cross-examination of a prosecution witness about another case in which the witness had been charged with armed robbery but had been allowed to plead guilty to a lesser included offense. Williams also claims that he was denied the effective assistance of counsel. Having reviewed the briefs and record, we find no error, and we affirm.
1. Viewed in the light most favorable to the verdict, the evidence shows that on the afternoon of November 27,2009, Flannings repeatedly contacted Williams about a debt that Williams owed to Flan-nings, and Flannings asked Marcus Black to drive Flannings to a public housing project. When they arrived, Flannings exited the vehicle, spotted Williams, and walked up to meet him. After a short conversation, Williams handed Flannings some money and then shot him, once in the neck and twice in the head. Flannings died as a result of his wounds. Williams fled, and Black drove away and called 911. Within minutes, Williams called Elton Cheru and told Cheru that he and Flannings had gotten into an altercation. And in another phone call later that evening, Williams told Cheru that he shot Flannings because Flannings “came towards him with aggression.” The police interviewed Black and searched his person and his vehicle but found nothing that incriminated him. When police interviewed Williams, he admitted that he had talked with, and given money to, Flannings just before Flannings was shot, but Williams said that the shooter was an unknown third party. Although Williams does not dispute that the evidence is sufficient to sustain his convictions, we have independently reviewed the record, and we conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Williams was guilty of the crimes of which he was convicted. Jackson v. Virginia,
2. We next consider whether the trial court erred when it limited the cross-examination of Cheru as to a case in which Cheru originally had been charged with armed robbery and had faced a mandatory sentence of life without parole, but in which Cheru ultimately was allowed to plead guilty to aggravated assault instead. The trial court admitted the conviction for aggravated assault but would not allow Williams to cross-examine Cheru about the sentence he might have received for armed robbery. “[D]efense counsel is entitled to a reasonable cross-examination on the relevant issue of whether a witness entertained any belief of
Moreover, even if no charges were pending against a witness when he was interviewed or testified, a defendant must be allowed to cross-examine a witness about punishment that the witness may have avoided as a result of a deal with the State for his testimony in the prosecution of the defendant. See State v. Vogleson,
The trial court did not cut off all inquiry into the potential bias of Cheru, but rather allowed the cross-examination to proceed unfettered with the exception of an inquiry into the penalty that Cheru might have received for armed robbery. See Bosnak,
3. Last, we consider the contention that Williams was denied the effective assistance of counsel at trial. To prevail on a claim of ineffective assistance, Williams must prove both that the performance of his lawyers was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington,
(a) Williams claims that his.lawyers were ineffective because they failed to object to hearsay testimony about the contents of certain cell phone records and a 911 call log. According to Williams, his lawyers should have challenged this testimony because it corroborated testimony given by Black and Cheru, contradicted a statement that Williams had given, and was consistent with the prosecution theory of the case. But at the hearing on the motion for new trial, one of the lawyers explained that the phone records were not altogether bad for Williams. Those records, the lawyer said, tied Cheru to the murder scene and to Mannings and supported the defense theory that Cheru knew where Flannings was going. Moreover, the lawyer explained, the very short length of the calls was inconsistent with the prosecution theory of a verbal altercation between Mannings and Williams, and the records tended to show that Cheru or Black had the motive and opportunity to shoot Flannings and pin the murder on Williams. As for the 911 call log, the lawyers decided not to object to the testimony about it because they desired to impress upon the jury that they were not hiding evidence, especially the evidence that Black called 911 within a very few minutes of the shooting and did not wait half an hour as one of the lawyers inadvertently misrepresented in her opening statement.
As to deficient performance, the first element of ineffective assistance, the United States Supreme Court has explained that we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland,
(b) Williams separately complains that one of his lawyers misstated in opening statement that Black waited “half an hour” before calling 911. But it is undisputed that there was no intention to mislead the jury, and the misstatement was corrected when a detective testified about the 911 call log. See Morey v. State,
(c) Williams also asserts that his trial lawyers were ineffective because they failed to object to Black’s out-of-court statement, which concerned Flannings’s phone calls, Black giving Flannings a ride, and Black witnessing the shooting, among other things. According to Williams, that statement was not admissible as a prior consistent statement, and it served only to bolster Black’s damaging trial testimony. Under our old Evidence Code, “[a] witness’s prior consistent statement is admissible if the veracity of the witness’s trial testimony has been placed in issue at trial, the witness is present at trial, and the witness is available for cross-examination.”
Williams argues that the cross-examination of Black did not include any charge of an improper motive, improper influence, or recent fabrication that the out-of-court statement predated. One of Williams’s lawyers, however, elicited testimony from Black that he was parked right next to the curb but had told the detective that he parked about six to eight car lengths away. Black was then asked, “So which is it? Is it right next to the curb or is it six to eight car lengths away?” And he answered, “I was right next to the curb.” Although Black was not directly accused of lying, his veracity was affirmatively attacked by these questions eliciting inconsistencies between his testimony at trial and his previous statement. See Hall v. State,
(d) Williams further contends that his trial lawyers were ineffective because they failed to object when the prosecutor began questioning the lead detective, “So once you found out that Mr. Black had not fired a gun____” A crime lab report on a gunshot residue test of swabs of Black’s hands had just been admitted into evidence by stipulation of the parties. The report stated that the test results were negative but did “not eliminate the possibility that [Black had] discharged a firearm____” One of Williams’s lawyers testified that her strategy was to follow up on the State’s question to make clear during cross-examination that the test results did not show conclusively whether Black had fired a gun. On cross-examination, she did read the statement from the report that the test results did “not eliminate the possibility that [Black had] discharged a firearm,” although she also agreed to let the evidence speak for itself and not to read the entire report. The tactical decision of Williams’s lawyers “not to object, but instead to comment on the misrepresented statement when given the next opportunity, was not [so] patently unreasonable” that no competent lawyer would have made the same decision. Lopez-Jimenez v. State,
(e) Williams claims that his trial lawyers were ineffective because they failed to make the right arguments to convince the trial court to permit them to impeach Cheru with his prior felony convictions for entering an auto and possession of marijuana.
The probative value of a prior conviction for its impeachment use is based on the principle that a person who has committed a serious crime in the past is less likely than the average citizen to respect the legal obligation to testify truthfully and is more likely to ignore the oath and succumb to any temptation to lie on the witness stand. ... A non-party witness typically suffers little or no prejudice from impeachment by prior conviction (other than embarrassment) because a non-party typicallyhas no financial or liberty stake in the outcome of the trial.
Paul S. Milich, Ga. Rules of Evidence § 14:4. But as the trial court found, essentially the same argument had been made by a prosecuting attorney in an earlier attempt to admit certain prior convictions of a defense witness in this case, but the court rejected the argument. And even if Williams’s trial lawyers had made further argument as to why the probative value of the two convictions outweighed their prejudicial effect, our review of the record shows that the trial court would not have abused its discretion by excluding those convictions. See Smith v. State,
Moreover, the trial court did admit Cheru’s more serious convictions for aggravated assault and forgery, the latter of which directly called into question his truthfulness and veracity. See Damerow v. State,
(f) Williams further asserts that his trial lawyers were ineffective in that they failed to request a charge on self-defense even though Cheru’s testimony was sufficient to support such a charge. But one of Williams’s lawyers testified that she did not request a self-defense instruction because it was inconsistent with the defense theory that Williams approved — that Cheru or Black killed Flannings — as discussed above in Division 3 (a). A self-defense theory also was inconsistent with Williams’s own statement to police. “[R]eliance on that defense would have required [Williams’s] attorneys to argue that the victim was the initial aggressor and to risk alienating the jury if it had become sympathetic towards the victim.” Muller v. State,
(g) Williams also contends that his trial lawyers were ineffective when they failed to recall Cheru to impeach him as to an alleged deal with the State in his armed robbery case. Williams argues that, after the trial court limited his cross-examination of Cheru as discussed above in Division 2, the court did allow Williams to call the detective who had investigated Cheru’s armed robbery case, and the testimony of this detective laid a foundation, Williams claims, to impeach Cheru as to an alleged deal. The detective testified that a few days before the murder, the alleged armed robbery occurred and Cheru left him a voice mail claiming to be a victim, but the detective did not provide evidence of any deal. So even after the detective testified, there was still no evidence of any pending charges against Cheru at the time of his interview or at the time of trial or of any deal between him and the State in exchange for his statement or testimony. In addition, one of Williams’s trial lawyers testified that he made the strategic decision not to recall Cheru, who was a problem witness for both sides, for fear that he would give unexpected, inconsistent, and harmful testimony. In light of the risk of recalling Cheru, it cannot be said that no competent lawyer would have made the same strategic decision. See Jarvis,
(h) Williams claims that his trial lawyers were ineffective because they called an alibi witness who was impeached by prior convictions and by his friendship with Williams and whose testimony was not consistent with Williams’s statement to police. The decision to call a defense witness is a matter of trial strategy and tactics within the province of the lawyer after consultation with the client. Reid v. State,
(i) Finally, Williams complains that, once his lawyers believed that he intended to testify at the sentencing hearing in an inappropriate manner notwithstanding their advice to the contrary, they failed to seek the trial court’s assistance to explain to Williams the limited purpose of that hearing and the options available to the court at that time. But decisions with respect to testifying in one’s own defense are tactical ones “to be made by the defendant himself after consultation with his trial counsel[,] and there is no general requirement that a trial court interject itself into that decision-making process.” Burton v. State,
(j) To the extent that Williams has shown, or that we have assumed, that his lawyers’ assistance was deficient for any reason discussed in Division 3, we also find that the cumulative effect of any such deficiencies did not create a reasonable likelihood that the outcome of the trial would have been different but for any deficient performance. Sears v. State,
Judgments affirmed.
Notes
The events that form the basis for the convictions occurred on November 27, 2009. Williams was indicted on May 5, 2010 and charged with malice murder, two counts each of felony murder and aggravated assault, three counts of possession of a firearm during the commission of a crime, and one count of possession of a firearm while on probation as a first offender for a forcible felony. Trial commenced on April 26, 2011, and the jury returned its verdict on April 29, 2011, finding Williams guilty on all counts. Williams was sentenced to imprisonment for life without parole for malice murder, a consecutive term of imprisonment for five years for possession of a firearm during the commission of a crime, and a concurrent term of imprisonment for five years for possession of a firearm while on probation as a first offender for a forcible felony. The verdicts as to felony murder were vacated by operation of law, Malcolm v. State,
Although the crime with which Cheru was charged occurred a few days before the murder of Plannings, Cheru was interviewed about the murder a month before he was charged with armed robbery, and Cheru was not questioned during that interview about the alleged armed robbery. He pled guilty to aggravated assault several months before the trial in this case.
Indeed, the transcript of the proceeding in which Cheru entered a negotiated guilty plea shows that the prosecutor entered a plea agreement with Cheru based on his inability to locate one victim and his conversations with the other victim.
Because this case was tried before January 1, 2013, our new Evidence Code does not apply. See Ga. L. 2011, pp. 99, 214, § 101. As to the admissibility of prior consistent statements under the new Evidence Code, see OCGA §§ 24-6-613 (c) and 24-8-801 (d) (1) (A).
Former OCGA § 24-9-84.1 (a) (1) provided that
[f]or the purpose of attacking the credibility of a witness, . . . [e]videnee that a witness has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the witness was convicted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the witness ....
As to impeachment by prior convictions under the new Evidence Code, see OCGA § 24-6-609 (a) (1).