Thе appellant, Rowland Zellars, appeals from his conviction for the malice murder of John Jefferson.
1
Zellars raises numerous issues,
1. At trial, the State presented evidence that on July 30, 1994, Zellars was talking and drinking beer with several оf his neighbors — John Jefferson, Letitia Key (Jefferson’s wife), and Harold Neal. Neal testified that he, Zellars, Jefferson, and Key were all friends; that he (Neal) rented a room to Zellars; and that he and Zellars visited socially on numerous occasions. According to Neal and Key, Zellars got into an argument with Jefferson and Key, and the dispute culminated when Zellars pulled a gun and shot Jefferson and Key. Jefferson died as a result of his wounds, but Key did not. After the incidеnt, Zellars never returned to the residence in which he had been living, and never returned to a job that he had held for almost a year. In 2000, Zellars surrendered to the police.
Having reviewed the evidence in the light most favorаble to the verdict, we conclude that it was sufficient for a rational trier of fact to have found Zellars guilty of malice murder beyond a reasonable doubt. 2
2. Zellars contends that the trial court erred by permitting two signed statements on the back of the photographic lineup and admonition sheet to go to the jury room. On the admonition sheet on the back of the photo array were statements by Key and Neal that “No. 5” was the onе who shot Jefferson and Key. Zellars contends that permitting these statements to go to the jury room violated the continuing witness rule. However, because Zellars’s trial counsel did not object to this procedure at trial, Zellars is procedurally barred from raising the issue on appeal. 3
3. Zellars also contends that the trial court erred in permitting the trial to proceed on an indictment that contained counts barred by the statute of limitаtions. Again, however, Zellars did not object to the time-barred counts at trial, and is therefore procedurally barred from raising this issue on appeal. 4
4. Zellars contends that the trial court erred by admitting evidence of his 1982 conviction for aggravated assault as a prior similar transaction. We disagree. The evidence
5. Zellars contends that, because the trial court admitted the similar transaction evidence for the purposе of showing bent of mind and course of conduct, the trial court erred in its limiting instructions by informing the jury that it could consider the evidence for several additional purposes. However, as Zellars did not request an instruction limiting the jury’s consideration of the evidence, the “trial court did not err in failing to limit the jury’s consideration any more than it did.” 7
6. Zellars next contends that he received ineffective assistance of trial counsel. For the reasons that follow, wе find no merit to this contention.
To prevail on his ineffectiveness claims, Zellars has the burden to demonstrate that trial counsel provided deficient performance and that that performance prejudiced his defense. 8 As for the prejudice prong, Zellars must show that, but for counsel’s errors, there is a reasonable probability that the outcome of the trial would have been different. 9
(a) Zellars first contends that trial counsel was ineffective for failing to make a continuing witness objection to the photographic lineup and admonition sheet that went into the jury room. As for this contention, we conclude that, even if trial counsel provided defiсient performance by failing to object to the photographic array going into the jury room, Zellars has failed to carry his burden to demonstrate prejudice. Because the witnesses who identified Zellars at the photographic array were friends of Zellars and had known him for some time and because they testified at trial and identified Zellars as the perpetrator of the crimes, we cannot conclude that it is reasonably probable that the outcome of the trial would have been different if trial counsel had made a continuing witness objection and the trial court had prohibited the array from going out with the jury.
(b) As noted in footnote one оf this opinion, there were five counts of the indictment (Counts 4-8) on which the statute of limitations had run. The other three counts (Counts 1-3) charged Zellars with malice murder and two counts of felony murder, and there is no statute of limitations for murder. 10 Although Zellars was convicted of all eight counts of the indictment, in ruling on the motion for new trial, the trial court dismissed the five counts on which the statute of limitations had expired. Zellars now contends that trial counsel was ineffective for failing to contend before trial that Counts 4 to 8 of the indictment were barred by the statute of limitations.
Assuming that counsel provided deficient performance, we conclude that the prejudice prong of Zellаrs’s ineffectiveness claim has not been satisfied. In this regard, although the statute of limitations had run on the aggravated assault against Jefferson (Count 4 of the indictment) and on the possession of a firearm by a convicted felon (Count 5), those two crimes served as the underlying felonies on the two felony murder counts of
(c) Having examined Zellars’s two other allegations of ineffectiveness, we conclude that he has failed to demonstrate either that trial counsel’s performance was deficient or that the alleged deficient performance prejudiced the defense. 13
7. Zellars next contends that the trial court erred in charging the jury that the level of certainty demonstrated by an eyewitness in his or her identification of a defendant is a factor the jury may consider in evaluating the eyewitness’s reliability. However, because Zellars requested the charge in question, he is procedurally barred from challenging the use of the instruction on appeal. 14 Moreover, even assuming that the charge was error, we conclude that it was harmless, as the evidence of Zellars’s guilt is overwhelming and as the two eyewitnesses in this case were friends with Zellars, had known him for an extended period of time, and were socializing with him around a kitchen table on the day of the crimes. 15
Judgment affirmed.
Notes
The crimes occurred on July 30, 1994, and Zellars was indicted on May 26, 2000. The indictment charged Zellars in Count 1 with the malice murder of Jefferson; in Count 2 with the felony murder of Jefferson, with the aggravated assault of Jefferson as the underlying felony; in Count 3 with the felony murder of Jefferson, with the possession of a firearm by a convicted felon as the underlying felony; in Count 4 with the aggravated assault of Jefferson; in Count 5 with the possession of a firearm by a convicted felon; in Count 6 with the aggravated assault of Letitia Key; in Count 7 with burglary; and in Count 8 with the possession of a firearm during the commission of certain crimes. Before trial, the State notified Zellars of its intent to seek recidivist punishment. On May 24,2001, a jury found Zellars guilty on all counts. The trial court sentenced Zellars to life in prison without parole for the malice murder conviction; merged the convictions on Counts 2-5 with the conviction for malice murder; sentenced Zellars to 20 concurrent years in prison for the burglary conviction and the aggravated assault conviction against Key; and sentenced Zellars to five years in prison for Count 8. On May 31,2002, Zellars filed a motion for new trial. On April 25, 2002, the court reporter certified the trial transcript, and on September 2, 2003, Zellars filed an amended mоtion for new trial. On September 11, 2003, the trial court dismissed Counts 4-8 of the indictment on the ground that the statute of limitations had expired, sentenced Zellars to life in prison for malice murder, merged the convictions on Counts 2 and 3 with the conviction for malice murder, and denied the motion for new trial. On September 29,2003, Zellars filed a notice of appeal, and the appeal was docketed in this Court on February 19, 2004. The case was submitted for decision on briefs on May 4, 2004.
Jackson v. Virginia,
Tuff v.
State,
Tuff,
Boyd v. State,
Mullins v. State,
Murphy v. State,
Williams v. State,
Benham v. State,
OCGA§ 17-3-1 (a).
State v. Jones,
See
Corza v. State,
The other two allegations of ineffectiveness were that counsel was ineffective for failing to file a motion to dismiss based on a violation of his constitutional right to a speedy trial and for failing to object to the trial cоurt’s limiting instruction or the prosecutor’s argument on the similar transaction evidence.
DeLoach v.
State,
See
Jones v. State,