BENHAM, Justice.
In a bifurcated trial, appellant Michael Bernard Jones was convicted of the felony murder of Curtis Tony Howard (with aggravated assault as the predicate felony), possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon.
1. The State presented evidence that two men discovered the victim's body in the bed of his pickup truck which was parked behind a vacant Richmond County mobile home. The medical examiner testified the victim had died as a result of gunshot wounds to his chest and abdomen that were consistent with having been inflicted by a rifle. Appellant was arrested in Texas several days later while a passenger in a car that was stopped for speeding by a Texas Highway Patrol officer, who discovered there was an outstanding warrant from Georgia for appellant's arrest. The man who was driving the car in which appellant was a passenger when he was arrested testified that appellant had
Two of the three men indicted with appellant pled guilty to lesser charges and testified against appellant. Each of the testifying co-indictees stated he had purchased kilograms of cocaine from the victim, who did not live in the area, and that the victim had called each of them earlier in the week to say he was coming to town later in the week. One co-indictee testified he and the victim drove to the other testifying co-indictee's Burke County home in the victim's pickup truck. As they approached the house, the passenger co-indictee telephoned the co-indictee who owned the home and told him of their impending arrival. When they drove behind the house, appellant and the third co-indictee, both armed with "long guns," approached the pickup truck—appellant on the driver's side and the third indictee on the passenger side—and ordered the occupants to get out of the truck and lie face-down on the ground. The passenger co-indictee testified his shirt was pulled up over his head, obscuring his vision, but he heard the armed men repeatedly ask the victim for the location of the drugs. After the victim said the drugs were at the motel where he was staying and begged for his life, two shots were fired, both of which struck the victim. The co-indictee who owned the house then came out of his house and rolled the victim over onto his back and, upon discovering the victim was dead, slapped appellant. Appellant and the three co-indictees placed the victim's body in the bed of the victim's pickup truck, and appellant drove the victim's truck to the vacant mobile home in Richmond County and parked the truck in the backyard. The two co-indictees who testified followed appellant in a truck owned by one of them and picked up appellant at the vacant mobile home. One co-indictee testified that, on the way back to Waynesboro, appellant asked the driver to go by a dumpster where he disposed of a black plastic bag. The other co-indictee testified that appellant had a bag that looked as if it had a gun in it when they picked him up at the mobile home, and appellant left the bag at his home.
The evidence summarized above was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant killed the victim while committing an aggravated assault and while in possession of a firearm. After the State presented proof in the second part of the bifurcated proceeding that appellant had been convicted seven years earlier of felony shoplifting, the evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of being a convicted felon in possession of a firearm. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Martin v. State, 281 Ga. 778(1), 642 S.E.2d 837 (2007) (bifurcated proceeding in which defendant was found guilty of possession of a firearm by a convicted felon).
2. Appellant contends he was not afforded his constitutional right to effective assistance of counsel at trial.
Coleman v. State, 286 Ga. 291(6), 687 S.E.2d 427 (2009). If appellant fails to meet his burden of proving either prong of the test, the reviewing court need not examine whether the burden of proving the other prong has been met. Fuller v. State, 277 Ga. 505(3), 591 S.E.2d 782 (2004).
Appellant cites four instances in which he contends trial counsel did not provide effective assistance of counsel: counsel's failure to contest the validity of the arrest warrant that resulted in appellant's arrest in Texas; counsel's failure to contest the trial judge's authority to preside over appellant's trial; counsel's failure to appear at arraignment; and counsel's failure to ask the trial court to remove a juror who spoke with a witness
(a) Appellant sees deficient performance in counsel's failure to question the sufficiency of the affidavit executed in support of a law enforcement officer's application for the arrest warrant issued for appellant. Appellant posits that the affidavit did not contain material from which the magistrate could make a finding of probable cause and, had the arrest warrant been ruled illegal, would have prevented the introduction at trial of the testimony of the State's witnesses and the forensic evidence presented against appellant. Trial counsel testified at the hearing on the motion for new trial that he had not challenged the affidavit since appellant was afforded a preliminary hearing at which the probable cause to hold appellant for trial was assessed and found to be present. The affidavit in support of the arrest warrant is not in the appellate record. Compare Jones v. State, 287 Ga. 770(7), 700 S.E.2d 350 (2010); Murray v. State, 307 Ga.App. 621(2), 705 S.E.2d 726 (2011); Ware v. State, 258 Ga.App. 706(3), 574 S.E.2d 898 (2002). The absence of evidence from which a finding of trial counsel's deficient performance could be made, coupled with appellant's mere speculation concerning the prejudice purportedly wrought by the unproven deficient performance, leads us to conclude the trial court did not err when it determined that appellant did not carry his burden of proving ineffective assistance of counsel with regard to this claim. See Lanier v. State, 288 Ga. 109(3) (a), 702 S.E.2d 141 (2010) (unfounded speculation will not support a finding of deficient performance); Whitus v. State, 287 Ga. 801(2), 700 S.E.2d 377 (2010) ("Speculation is insufficient to satisfy the prejudice prong of Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)].").
(b) Appellant next argues that trial counsel performed deficiently when he did not challenge the trial court's jurisdiction, i.e., the authority of Judge Michael Annis to preside over appellant's trial in the absence of an order transferring appellant's case to Judge Annis from Judge Neal Dickert, to whom appellant asserts the case was originally assigned.
(c) Appellant maintains that trial counsel's failure to appear at appellant's arraignment constituted ineffective assistance of counsel because appellant lost the opportunity to demur to an indictment that purportedly was vague and ambiguous since it did not set out in each count the role each co-indictee played, thereby depriving appellant of a perfect indictment and of information sufficient to put him on notice to allow for an effective defense. Trial counsel testified at the hearing on the motion for new trial that appellant was "very involved" in his defense, implying that appellant was well aware of the
A defendant is entitled to be tried on a perfect indictment and may file a special demurrer seeking greater specificity or additional information concerning the charges contained in the indictment. Wallace v. State, 253 Ga.App. 220(3), 558 S.E.2d 773 (2002). A defendant who does not file a timely special demurrer waives the right to be tried on a perfect indictment. Dasher v. State, 285 Ga. 308(2), 676 S.E.2d 181 (2009); OCGA § 17-7-110 (timing of pre-trial motions).
Metz v. State, 284 Ga. 614(3), 669 S.E.2d 121 (2008). See also Dunn v. State, 263 Ga. 343(2), 434 S.E.2d 60 (1993) ("Due process is satisfied where the indictment puts the defendant on notice of the crimes with which he is charged and against which he must defend."). It is not the purpose of an indictment to set forth the role each co-indictee played in the commission of the crime. Since the charges in the indictment contained the elements of the offenses intended to be charged and sufficiently apprised appellant of what he had to be prepared to meet, thereby allowing him to prepare a defense and safeguarding him against double jeopardy, a timely-filed special demurrer would have been denied. Metz v. State, supra, 284 Ga. 614(3), 669 S.E.2d 121. If trial counsel's failure to appear at arraignment was the reason why a special demurrer was not filed, appellant suffered no harm from the failure to appear.
(d) Lastly, appellant contends trial counsel was ineffective when he failed to move for the removal from the jury of a juror who spoke with a witness after court had been adjourned on the day the witness testified for the State during appellant's trial. Both the witness and the juror, while under oath and outside the presence of each other, informed the trial court, the prosecutor, and defense counsel of the content of their conversation that was initiated by the juror and lasted about one minute.
A defendant is entitled to trial by a jury untainted by improper influence, and
Holcomb v. State, 268 Ga. 100(2), 485 S.E.2d 192 (1997). Inasmuch as the hearing established the uncontradicted substance of the conversation and that it was not an attempt to discuss the merits of the case or influence the juror, appellant was not harmed by the improper communication and trial counsel did not perform deficiently in failing to seek the juror's removal. The trial court did not err when it determined appellant had not established ineffective assistance of counsel. See Peterson v. State, 284 Ga. 275, 278, 663 S.E.2d 164 (2008).
Judgment affirmed.
All the Justices concur.