HINES, Presiding Justice.
Jeffery Wright appeals from his convictions and sentences for the malice murder of Ricardo Carbajal, the aggravated assaults of Carbajal, Eduardo Torrijos, Librado Gonzalez, and Victor De Leon Vega, the false imprisonment and armed robbery of Andre Lard, and possession of a firearm during the commission of a crime. For the reasons that follow, we affirm.
Construed to support the verdicts, the evidence showed that on June 16, 2008, Wright, along with Zachary Brown and Nathan Stokes, approached Lard while in Wright's Crown Victoria automobile; Brown exited the vehicle and, at gunpoint, forced Lard into Wright's car and took from him some marijuana, his wallet, cell phone, shirt, and pants. After releasing Lard, Brown fired a shot, and Wright drove the car away. A .40 caliber spent cartridge casing was found at the scene.
On June 20, 2008, Wright placed a pistol in the rear passenger compartment of his Crown Victoria, while Brown was present.
Wright shouted to Brown just before Brown shot Carbajal.
On June 21, 2008, Brown gave law enforcement officers a custodial statement concerning the Carbajal shooting.
During the hearing at which he pled guilty to the malice murder of Carbajal and the armed robbery of Lard, Brown testified to similar facts. However, at trial, he testified that Wright did not have any foreknowledge of his plans to rob Lard or the Hispanic men, and at the Sedona Falls apartment complex, he exited the car with Stokes to meet an unidentified "somebody," and that after exiting the vehicle, he independently formulated
1. The State presented evidence of a 2004 incident in which, in a residential neighborhood, Wright, along with two other men, was seated on a roadside curb when Trevor Norris was walking toward his home; one of the men wore a paint ball mask. Wright and his companions began to run after Norris, who was able to enter his home and shut and lock the door behind him. However, Wright had also managed to enter the home, and began to struggle with Norris, repeatedly demanding, "where's the money"; Norris sold marijuana out of his home and had previously sold it to one of Wright's companions, who also was aware that Norris had recently sold a "four-wheeler." Norris was able to exit his house through a backdoor and called 911 from a neighbor's home; he did not wish to prosecute his attackers because of his marijuana activities and fear of reprisal.
Under the law effective at the time of Wright's trial, to introduce evidence of a similar transaction, the State was required to show that:
Brown v. State, 295 Ga. 804, (8), 764 S.E.2d 376 (2014) (Case nos. S14A0800 & S14A0801, decided October 6, 2014) (Citation and punctuation omitted.) Citing OCGA § 24-4-404(b),
2. The State intended to call Stokes to testify during Wright's trial. He had previously pled guilty to the felony murder of
The court, the prosecutor, and Wright's counsel discussed the possibility that Stokes would be ordered to testify, and the potential use of the transcript of his plea hearing. Defense counsel queried whether it might be considered a prior inconsistent statement, "or is it a necessity exception, or — I'm not [sure] how it would come in." The court replied that it might be used for impeachment or to refresh Stokes's recollection, and noted that the State could "hand him a copy of his transcript and say, Does that refresh your recollection, and then go on from there in terms of that. So I don't know, based on what we know right now, for what purpose it might be used, and probably the State doesn't know for sure either." The court invited counsel to address the court outside the jury's presence regarding the use of the plea transcript, in the event it became necessary.
Wright's counsel added: "I guess to fully flesh out my point, my only concern is, my right to — the confrontation right with respect to that statement." The court responded that it would monitor the situation, "so that you can have a meaningful cross-examination of the witness and so forth," to which defense counsel replied, "Okay."
After further discussion, the court informed Stokes that, given his prior guilty pleas, he had no privilege against self-incrimination, and ordered Stokes to testify. When the jury was again in the courtroom, Stokes was called to testify; he said that although he entered guilty pleas to charges regarding involvement in the murder of Carbajal and the robbery of Lard, in fact, he had no involvement in those crimes, but that he was "forced" into entering "coerced" pleas. He admitted that he was in a car driven by Wright on June 20, 2008, but denied that he went to the apartment complex where Carbajal was killed. He also denied having gone with Wright and Brown to the area where Lard was robbed four days earlier. During his plea hearing, however, Stokes had testified: "We went over there to get some money; not sure what, but it was briefly known, and we were going to go rob Mr. Ricardo [Carbajal] and his friend. I'm sorry that he died that night, but the robbery went south and he got killed." When Stokes was on the witness stand during Wright's trial, he was asked whether he had so testified at the plea hearing and replied that he could not recall. He was then asked to read this portion of the plea transcript to see if it refreshed his recollection, and he testified that it did not. He also testified that at the time of his pleas, he did not know what the evidence in the case was.
The jury was excused for a lunch break, and the State moved to have the transcript of the plea hearing read to the jury as a prior inconsistent statement under former OCGA § 24-9-83,
After the lunch recess, defense counsel stated that he had taken the opportunity to examine the transcript, raised matters pertaining to Stokes's in-court address to Carbajal's widow, and questioned whether some of Stokes's hearing testimony was, in fact, inconsistent with his trial testimony. The court ruled that Stokes's apology to the victim's widow was inconsistent with his trial testimony that he was not involved in the killing, and that "in order for the jury to understand what [Stokes] said, you would have to read this statement, essentially, in its entirety." The court also stated, however, that if defense counsel would point to "specific lines ... that should be stricken, I would consider those as well," and the State made certain suggestions regarding redaction, most of which were agreed to by defense counsel. Defense counsel then moved to redact the State's recitation of the factual basis for the pleas, see State v. Evans, 265 Ga. 332, 333-334(1), 454 S.E.2d 468 (1995); Uniform Superior Court Rule 33.9, on the theory that, essentially, the prosecutor would be testifying "[a]nd I don't think that would be appropriate. We are not allowed, obviously, to testify at trial." The State responded that the State's recitation of the factual basis would impeach Stokes's trial testimony that he "did not know the facts of what he was pleading to." Defense counsel further argued that the procedure would place before the jury "the State's version of the case [but] that's the whole point of us having a trial," and that if the factual basis were presented as a "version of facts" to which Stokes agreed, "now, it's not a Bruton
Wright asserts that Stokes's testimony during the plea hearing should not have been admitted at his trial as Stokes never denied having made the statements recorded in the plea hearing transcript. Under former OCGA § 24-9-83, however,
Johnson v. State, 289 Ga. 106, 108(3), 709 S.E.2d 768 (2011) (Citations and punctuation omitted.)
Wright further argues that the State's recitation of the factual basis for the pleas, and the portions of the plea transcript addressing Stokes's attorney's representation of him at the hearing, were not prior inconsistent statements made by Stokes, and thus, not admissible under former OCGA § 24-9-83. However this argument ignores that at trial the State asserted that these portions of the plea hearing transcript contradicted Stokes's trial testimony that he did not know the facts underlying the charges against him when he entered his guilty pleas, and that his pleas were coerced. As such, the evidence was admissible not under former OCGA § 24-9-83, but under former OCGA § 24-9-82.
3. Wright contends that the evidence against him was insufficient to prove beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). He notes that he was not specifically identified by any victim,
Conway v. State, 281 Ga. 685, 687(1), 642 S.E.2d 673 (2007). Wright argues that the in-court testimony of Brown should be credited, and that the impeaching testimony from his plea hearing and his custodial statement should have been rejected, and the jury should have thus accepted that Wright did not know of, or participate in, the plan to rob Carbajal, which resulted in his death. However, this ignores the eyewitness evidence that the driver of the Crown Victoria, Wright, shouted to Brown before Brown shot Carbajal, then gestured to Brown and Stokes to get into the car, which Wright then drove away, and Wright's behavior as the driver of the "getaway" vehicle after both Carbajal's shooting and the robbery of Lard.
"When this Court reviews the sufficiency of the evidence, it does not re-weigh the evidence or resolve conflicts in witness testimony, but instead it defers to the jury's assessment of the weight and credibility of the evidence. [Cit.]" Greeson v. State, 287 Ga. 764, 765, 700 S.E.2d 344 (2010). It is for the jury to resolve conflicts in the evidence and questions of witness credibility, not this Court. Tolbert v. State, 282 Ga. 254, 256(1), 647 S.E.2d 555 (2007). The evidence authorized the jury to find Wright guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson, supra.
4. Finally, Wright contends that his trial counsel failed to provide effective representation in several respects. In order to prevail on a claim of ineffective assistance of counsel, Wright must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
At the hearing on his motion for new trial, Wright did not call his trial attorney as a witness. "When trial counsel does not testify at the hearing on the motion for new trial, it is extremely difficult to overcome the strong presumption that counsel's performance was reasonable. [Cit.]" White v. State, 281 Ga. 276, 281(6), 637 S.E.2d 645 (2006). Further, as to trial counsel's failure to call at trial witnesses to contradict the testimony of the victim of the 2004 similar transaction, Wright cannot show prejudice resulting from this performance; the witnesses he claims counsel should have called did not testify during the hearing on the motion for new trial, and Wright failed to establish what trial testimony they would have given that would have aided his defense. See Reaves v. State, 292 Ga. 545, 550(4), 739 S.E.2d 368 (2013). Wright also complains that trial counsel did not introduce evidence of his "diminished mental capacity, and special education records from school," but again, no such evidence was introduced at the hearing on the motion for new trial, and he fails to show prejudice. Id. To the extent that Wright presented testimony at the hearing that he could be taken advantage of by friends, the trial court did not err in determining that Wright failed to show prejudice resulting from trial counsel's failure to present such. Smith, supra.
Judgments affirmed.
All the Justices concur.