Dоnald Wright, Ronald Wright and Cedric Bell were convicted by a jury of aggravated assault on David Keith Salters. OCGA § 16-5-21. A motion for new trial was made and denied as to all three defendants and they appeal.
1. All three defendants enumerate as error the general grounds, either on the overruling of their motions for new trial or on the basis that the State failed to prove all the elements of the crime of aggravated assault. On aрpeal, the standard of
Jackson v. Virginia,
Viewed in the light most favorable to the verdict,
Gazaway v. State,
Donald and Bell complain that the elements of aggravated assault were not proved because of the victim’s failure to identify positively the person who struck him or the object he was struck with after being hit with a fist. Ronald and Bell complain that the evidence failed to support a verdict as against them. Bell also contends that newly discovered evidence required a new trial.
Aggravated аssault may be committed “with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). Hands and fists may be deadly weapons depending upon the сircumstances, including the extent of the victim’s injuries.
Harper v. State,
While mere presence at the scene of a crime does not support a conviction, “ ‘ “presence, companionship, and conduсt before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” ’ [Cit.]”
Kimbro v. State,
The newly discovered evidence alleged by Bell consists of an affidavit from an individual who stated that the victim’s aunts (including the aunt who testified at triаl) told him that the victim had identified “the twins and Bo Bo” as his assailants, and that the aunts believed that a different set of twins named Shelby and Spencer “could be” the victim’s assailants. The evidence offered constitutes inadmissible hearsay, consisting as it does of an assertion of what the affiant says the victim’s aunts speculated about what the victim told them. We
2. Bell and Donald contend that the trial court erred in denying their motion for a mistrial on the basis of the State’s failure to disclose the victim’s alleged mental retardation. Bell and Donald filed general motions under
Brady v. Maryland,
The State “is under no requirement to conduct an investigation on behalf of a defendant. . . .”
Dalton v. State,
Moreover, appellants have not shown how any alleged failure by the prosecution to provide this informatiоn materially affected their case. See
Bacon v. State,
3. Donald also enumerates as error the trial court’s denial of his motion to suppress the pre-trial identification made by the victim from a police photographic line-up. Given the repeated and consistent identification of the appellants by the victim in the hospital, to the policе
before
viewing the photographic array, and at trial, “any suggestiveness in the pretrial identification procedures employed by the police did not give rise to a substantial likelihood of irreparable
4. Bell enumerates as error the trial court’s failure to give four charges which he requested.
The failure to give requested instructions in the exаct language requested is not a ground for new trial where the charge given substantially covers the same principles.
Burris v. State,
Bell’s requested charge number 8 is based in part upon a pattern charge. See Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II, p. 17. However, Bell does not point to anything in the record to show that the trial court expressed any opinion upon the facts of the case, the witnesses, the evidence, or the guilt or innocencе of appellants. The requested charge was not adjusted to the evidence, and the trial court did not err in refusing to give it.
Bell did not offer any citation of authority to the trial court for his requested charge numbеr 5, which consists of one sentence taken from a much longer charge on jury deliberations, instructing the jurors not to surrender their individual opinions “in order to be congenial.” The court instructed the jurors on reasonable doubt, and their duty to express their individual opinions during deliberations. The court also fully charged the jury on the presumption of innocence and substantially covered the principles of law set forth in Bell’s requested charge number 14. Finally, Bell’s requested charge number 4 with regard to the burden of proof was given almost verbatim. The trial court did not err in refusing to give these requested charges.
5. Ronald, through new counsel on appeal, raises a claim of ineffective assistance of trial counsel in violation of his state and federal constitutional rights. In order to establish ineffectiveness of counsel under
Strickland v. Washington,
Ronald raises as ineffective assistance, first, the failure of his counsel to move for a directed verdict. Because we hold in Division 1 that the evidence satisfies the requirements of
Jackson v. Virginia,
this ground is insufficient as a matter of law. Second, Ronald complains of his counsel calling witnesses when the State had failed to prove its case, and failing to object to a portion of the testimony of one of them. As noted above, Ronald’s characterization of the State’s evidence is incorrect. Moreover, “[t]he decisions on which witnesses to call, whether and how to conduсt cross-examinations, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. The fact that the case could have been tried differently on behalf of the defendant does not mean that he failed to receive a vigorous and competent defense.” (Citations and punctuation omitted.)
York v. State,
Judgments affirmed.