Appellant Chavarious Johnson appeals his conviction of felony murder and related crimes in connection with the shooting death of Elvis Daniels. Finding no error, we affirm.
Viewed in the light most favorable to the verdict, the evidence adduced at trial established as follows. On the night of March 30, 2008, Kendrick Norwood ran into Daniels, with whom he was acquainted, at the South Fulton County apartment complex where Daniels lived with his girlfriend. Daniels, a small-time drug dealer, told Norwood he was "fixing to serve my trap," i.e., sell marijuana to his customers, and headed to his apartment. Norwood was then approached in the parking lot by a small gold car occupied by three men, one of whom asked Norwood about purchasing marijuana. Norwood went to Daniels' apartment and offered to broker the deal; Daniels and Norwood then went out to the parking lot with a quarter pound of marijuana and walked up to the men in the car. The man in the front passenger seat got out of the car, and there was a brief exchange about which of the men had money and whether the purchase would be made. As Daniels and Norwood turned away as if to reject the deal, the man from the front passenger seat grabbed Daniels by the neck, pulled a gun, and demanded money, and the backseat passenger moved to get out of the car. Norwood dropped over $100 in cash from his pockets and ran, as gunshots were fired. Norwood escaped unharmed, but Daniels sustained three gunshot wounds, including a fatal wound to the back. Neither Norwood nor Daniels was armed at the time.
Evidence recovered from the scene together with the autopsy results indicated that there had been two weapons involved in the shooting, a nine millimeter semi-automatic pistol and a .38 caliber handgun.
Calvin Anderson witnessed the shooting. He testified that he saw a gold car with three men in it about to pull out of the apartment complex parking lot when Norwood beckoned them to come back. Anderson saw a man emerge from the front passenger side of the car, demand that Daniels and Norwood "get these folks their money," pull out a gun, grab Daniels by the neck, and begin shooting when Daniels tried to break free. Anderson saw Norwood run away, at which point Anderson, too, ran away.
Surah Weaver testified that she had spent approximately an hour and a half talking with Daniels in the parking lot of the apartment complex prior to his murder. During the conversation, Weaver observed a small car occupied by three black men drive by slowly several times and noted that Daniels appeared unnerved by them.
During the police investigation, both Norwood and Anderson identified appellant from a photographic lineup as the shooter from the front passenger side of the perpetrators' car. In addition, both Norwood and Anderson also identified, from a second photo lineup, an associate of appellant, Marquavious Bonner, as having been one of the other men in the car.
There was also evidence implicating appellant in a shooting that occurred in DeKalb County approximately ten days after the Daniels shooting. The victim in that shooting, Henry Bigby, testified that he was walking in the parking lot at an apartment complex
In the course of arresting appellant, officers seized a .40 caliber pistol from the apartment where he was living at the time, which was itself admitted as evidence at trial.
1. Though appellant has not enumerated the general grounds, we find that the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant contends the trial court erred by allowing the State to present evidence regarding the Bigby shooting, asserting that this incident was insufficiently similar to the Daniels shooting to warrant admission as a similar transaction.
(Citation omitted.) Abdullah v. State, 284 Ga. 399, 401(3), 667 S.E.2d 584 (2008). In assessing the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate act and the crimes in question. Hall v. State, 287 Ga. 755(2), 699 S.E.2d 321 (2010). A trial court's decision to allow similar transaction evidence will not be disturbed absent an abuse of discretion. Moore v. State, 288 Ga. 187(3), 702 S.E.2d 176 (2010).
Here, the trial court admitted the evidence regarding the Bigby shooting for the limited, proper purpose of establishing appellant's bent of mind and course of conduct, see, e.g., Barnes v. State, 287 Ga. 423(3), 696 S.E.2d 629 (2010); Smith v. State, 273 Ga. 356(2), 541 S.E.2d 362 (2001), and instructed the jury on several occasions to consider it for this purpose alone. With regard to the similarities between the incidents, the evidence reflected that both crimes involved nighttime shootings occurring less than two weeks apart wherein a man emerged from a gold car in the parking lot of an apartment complex and opened fire with little apparent provocation. In light of these similarities, we find no error in the trial court's admission of the similar transaction evidence. See Moore, supra, 288 Ga. at 191(3), 702 S.E.2d 176; Abdullah, supra, 284 Ga. at 401(3), 667 S.E.2d 584; Smith, supra, 273 Ga. at 357(2), 541 S.E.2d 362.
Appellant also contends that his trial counsel rendered ineffective assistance by failing to highlight the inconsistencies between Bigby's trial testimony and his account of the shooting as reported to police immediately after he was shot. As reflected by the police report documenting the Bigby shooting, which was admitted at the motion for new trial hearing but was offered neither at the Rule 31.3(B) hearing
In order to establish ineffective assistance of counsel, appellant bears the burden of showing that counsel's performance was professionally deficient and that there is a
3. Appellant next contends that the trial court erred by admitting into evidence the .40 caliber gun seized upon appellant's arrest. We find no error in this regard, however, as the gun was offered as evidence of appellant's commission of the Bigby shooting. Given the State's obligation to establish appellant's involvement therein in order to support its effort to present the similar transaction evidence, see Division 2, supra, and given the similarity between the gun found and the gun used in the Bigby shooting, there was no error in the admission of the gun. See Dukes v. State, 273 Ga. 890(4), 548 S.E.2d 328 (2001) (trial court properly admitted evidence regarding gun found at time of defendant's arrest, even though gun was not weapon used in charged crimes, where gun was found with other physical evidence related to charged crimes); Martin v. State, 198 Ga.App. 488, 402 S.E.2d 95 (1991) (trial court properly admitted evidence of burglary defendant's possession, at time of his arrest, of items stolen in separate burglary used as similar transaction).
4. In his final enumeration, appellant asserts error, on both Confrontation Clause and hearsay grounds, with respect to several references in testimony by the lead investigator in the case, Brett Zimbrick, to a tip he had received from an unnamed source implicating appellant in the shooting. The Confrontation Clause generally prohibits the admission of an out-of-court testimonial statement made by a declarant who is not available for cross-examination by the accused. Crawford v. Washington, 541 U.S. 36, 40, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Gay v. State, 279 Ga. 180(2), 611 S.E.2d 31 (2005). In a similar vein, the hearsay rule generally prevents witnesses from testifying as to statements made by third parties. OCGA § 24-3-1 (prohibiting hearsay except in cases of necessity and defining hearsay as "that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons," id. at (a)).
The record reflects that most of the instances in which Zimbrick made mention of the tip did not involve recitation of any "statement" made by the tipster but rather merely referred to unspecified "information" that Zimbrick had come to possess with regard to the case or simply acknowledged that an unnamed source existed.
There were two instances in which Zimbrick did testify, albeit obliquely, as to the substance of the tipster's actual statement: first, in response to the prosecutor's question as to why Zimbrick became involved in the investigation of the Bigby shooting, Zimbrick replied that he had received "information from the same source indicating that [appellant] was responsible for [the Bigby shooting]"; second, in response to questioning as to why the arrest warrant for Marquavious Bonner had been rescinded, Zimbrick testified that he had received "information from another source [indicating] possible involvement by another individual other than Mr. Bonner." However, any error in the admission of this testimony was harmless, as the first of these statements was merely cumulative of the much more detailed testimony of Bigby himself affirmatively identifying appellant as his shooter, and the second of these statements related not to the evidence against appellant but rather to the strength of the case against Bonner. See White v. State, 273 Ga. 787(4), 546 S.E.2d 514 (2001) (erroneous admission of hearsay deemed harmless where testimony cumulative of other admissible evidence); Jones v. State, 265 Ga. 84, 86(4), 453 S.E.2d 716 (1995) (assuming arguendo that statement was inadmissible on hearsay and confrontation grounds, error was harmless because statement was cumulative of other admissible evidence and thus `"did not contribute to the conviction'").
Judgment affirmed.
All the Justices concur.