HINES, Justice.
Dewayne Lee Hendricks appeals his convictions for malice murder, aggravated assault, possession of a deadly weapon at a
Construed to support the verdicts, the evidence showed that on the evening of January 17, 2004, Hendricks was employed as a bouncer at the Boom Boom Room dance club. There were many patrons in the club, one of whom, Corey Young, confronted another, Corey Brooks, regarding a debt for a car. Hendricks approached the men and told them they could not fight in the club. Nonetheless, a fight erupted, in which Hendricks was involved. Collier, who had not fought, produced a pistol and shot into the air. In response, Hendricks went to Collier and shouted "shoot me." Collier replied that he did not wish to shoot Hendricks, but only wanted to stop the fight to protect a friend. As Collier put away his pistol and turned to walk away, Hendricks produced a pistol and shot in Collier's direction. Collier fled through the crowd, and Hendricks followed, firing as he did. Collier was able to exit the front door of the club and go to the parking lot. He had been struck by three bullets and was driven to a hospital by friends. He died there of his gunshot wounds. Fleming and Burns were also injured by bullets fired from Hendricks's pistol.
1. Eyewitnesses saw Hendricks fire toward Collier and continue to fire into the crowd. Under the doctrine of transferred intent, and the facts of this case, it is irrelevant whether Hendricks intended to shoot Fleming and Burns, or only Collier. Culler v. State, 277 Ga. 717, 720(4), 594 S.E.2d 631 (2004). 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 was sufficient to enable a rational trier of fact to find Hendricks guilty beyond a reasonable doubt of the other crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Hendricks contends that the State violated the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). "The prosecution, upon a Brady motion, has the duty to produce anything that is exculpatory or impeaching." Vega v. State, 285 Ga. 32, 33-34(2), 673 S.E.2d 223 (2009) (Citation and punctuation
3. At trial, the State informed the court that a defense witness, Latonya Hendricks Lockhart, had been in the courtroom during a portion of the trial, including the testimony of other witnesses. Outside the jury's presence, the State moved that Lockhart be excluded from testifying. The court questioned Lockhart, and ruled that she could testify. But, before she did so, the court informed the jury of the violation of the rule of sequestration, and instructed it that the effect of the violation regarding the weight and credit of her testimony was for the jury's determination.
Hendricks argues that the trial court erred in not granting his motion for mistrial as to this matter. However, Hendricks misstates the record; at no time did he move for a mistrial in regard to Lockhart's violation of the rule of sequestration, or in response to the court's instruction to the jury. In any event, a motion for mistrial in response to the court's instruction regarding the violation of the rule of sequestration would have been unavailing. See Glass v. State, 289 Ga. 542, 546(4), 712 S.E.2d 851 (2011).
The portion of the transcript which Hendricks cites regarding when he made his motion for mistrial clearly does not relate to Lockhart. After one of Hendricks's witnesses was excused, and the jury was sent out of the courtroom for a lunch break, the State first raised the matter of Lockhart's violation of the rule of sequestration. Counsel for Hendricks stated, "I'm going to move for a mistrial because of [the prosecutor's] recitation to the jury that my witness is acting improperly without any kind of proof." The State responded that it had only been exercising its right to a thorough cross-examination, and that in any event, the motion was untimely; the trial court then denied the motion for a mistrial. To the extent that Hendricks's enumeration of error embraces this motion for a mistrial,
4. Hendricks claims that his trial counsel failed to provide effective representation in several respects. In order to prevail on this claim, he 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, 80 L.Ed.2d 674 (1984). To meet the first prong of the required test, he must overcome the "strong presumption" that counsel's performance fell within a "wide range of reasonable professional conduct," and that counsel's decisions were "made in the exercise of reasonable professional judgment." Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. Id. at 784, 325 S.E.2d 362. To meet the second prong of the test, Hendricks must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. Id. at 783, 325 S.E.2d 362. "`We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' [Cit.]" Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).
(a) Hendricks contends trial counsel was ineffective in failing to request a jury instruction on the defense of accident. But, as counsel testified during the hearing on the motion for new trial, not only was there no evidence to support an instruction on accident, but the theory of defense that counsel presented to the jury was that Hendricks did not discharge a firearm at all, and this argument would be inconsistent with an
(b) Hendricks asserts that it was error for trial counsel not to call expert witnesses, but does not show what favorable evidence would have been elicited from such witnesses, or even suggest in what areas such witnesses should have expertise. Accordingly, he fails to meet his burden of showing both deficient performance on counsel's part, and prejudice arising from such performance. Lawrence v. State, 286 Ga. 533, 534(2) 690 S.E.2d 801 (2010).
(c) Hendricks also claims that counsel did not confer with him adequately before trial.
(d) Hendricks contends that trial counsel should have called three witnesses (to testify at trial); Linda King, Eric Boney, and Keith McGill. At the time of the crimes, King was a law enforcement officer who investigated the shootings. During the hearing on the motion for new trial, counsel testified that he did not believe that it would have been productive to call King to testify on behalf of the defense as, at the time of trial, she had been relieved of her law enforcement position for malfeasance, had family members under federal indictment, and was potentially facing a federal indictment herself, all of which contributed to her having a poor reputation in the community. Hendricks never asked counsel why he did not call Boney
Smiley v. State, 288 Ga. 635, 638(2)(b), 706 S.E.2d 425 (2011). See also Vaughns v. State, 274 Ga. 13, 16(6)(c), 549 S.E.2d 86 (2001).
(e) During the hearing on the motion for new trial, counsel testified that he had no specific recollection as to whether he advised Lockhart regarding the rule of sequestration. See Division 3, supra. Although Hendricks asserts that it was deficient performance for counsel to fail to properly advise Lockhart regarding the rule, assuming that such is the case, Hendricks fails to show that there is a reasonable probability that the outcome of his trial would have been different if counsel had done so, Lockhart had been properly sequestered, and she had testified to the same effect, but without the trial court instructing the jury that a violation of the rule had
5. After his convictions, Hendricks moved for a new trial, asserting the general grounds. He later amended his motion to assert additional grounds, including that: trial counsel's assistance was ineffective; the trial should have been bifurcated; the State failed to provide Brady, supra, material; the trial court erred in failing to grant a mistrial; the trial court erred in admitting into evidence his prior convictions; the trial court erred in allowing his character to come into evidence; and the instructions to the jury were insufficient. Before the hearing on the motion for new trial, Hendricks subpoenaed several witnesses. Upon the State's motion, the trial court inquired as to the purpose of some of these witnesses. After discussion, and Hendricks's proffer of what the contents of the various witnesses' testimony would be, the court excluded the testimony of three witnesses, and Hendricks asserts that this was error.
Of course, it is not error to exclude irrelevant evidence from a hearing on a motion for new trial. See Skaggs v. State, 278 Ga. 19, 21-22(3), 596 S.E.2d 159 (2004). And, "[t]he law is settled that a post-trial declaration by a State's witness that [his] former testimony was false is not a ground for a new trial." Leon v. State, 237 Ga.App. 99, 104(3)(b), 513 S.E.2d 227 (1999) (Citations and punctuation omitted.). See also Bryant v. State, 268 Ga. 664, 665(3), 492 S.E.2d 868 (1997); Stroud v. State, 247 Ga. 395, 276 S.E.2d 597 (1981).
One of the excluded witnesses was King, who had investigated the shootings at the club. See Division 4(d), supra. In his proffer, Hendricks stated that, had King been called to testify at trial, her testimony would have been able to impeach witnesses Sears and Murphy as having changed their versions of events between her investigation and their testimony at trial. The State noted that, during the previous session of the hearing on the motion for new trial, defense counsel had testified that he did not believe King would have been a productive witness, and gave his reasons for that. The State further noted that the statements Sears and Murphy gave to King were used to impeach their testimony at trial. The court ruled that it would not hear King's testimony if her testimony merely would be that she could have impeached witnesses by their prior statements when there were transcripts of the prior interviews; Hendricks did not make any further proffer of what King might have testified.
The other two witnesses whose testimony was excluded from the hearing had testified at trial. Hendricks proffered that Corey Young would testify at the hearing on the motion for new trial that Hendricks was, in fact, not the shooter, and that he did not testify so at trial because no one asked him. Young's trial testimony was that he saw no one with a gun. And, Hendricks proffered that Deanthony Fleming would testify at the hearing on the motion for new trial that he was "forced" to testify at trial. As the State noted, at trial, Fleming had testified that he had not seen Hendricks with a handgun, and only after having his memory refreshed by his prior statement to King did Fleming testify that Hendricks had a pistol.
Hendricks now contends that if either Young or Fleming had any agreement with the State regarding their trial testimony, the court's ruling that they would not be permitted to testify at the hearing on the motion for new trial prevented the introduction of Brady material at that hearing. But, at the hearing, he proffered no evidence of a Brady violation that would be shown by their testimony,
Judgments affirmed.
All the Justices concur.