THOMPSON, Justice.
Appellant Torrence Sanders was convicted of felony murder, armed robbery and other related offenses in connection with the vehicular death of Shirley Ann Akins and the armed robbery of Danny Rakestraw, Emmanuel Asamoah, and Raymond Carr.
Viewed in a light most favorable to the verdict, the evidence shows that Sanders and co-defendant Ntyono Pennie drove to an apartment complex in a Black Nissan Maxima and approached an acquaintance, Danny Rakestraw, who was in the parking lot. Pennie asked to go to Rakestraw's apartment, ostensibly to listen to music. Rakestraw agreed, and the three men entered the apartment. They were joined by Rakestraw's brother-in-law, Emmanuel Asamoah, and Rakestraw's roommate, Raymond Carr. Sanders and Pennie both produced guns which they then used to rob the three men of their valuables. Thereafter, Pennie instructed Sanders to drive the black Maxima to the entrance of the apartment building. Pennie shot Rakestraw in the wrist and then ran to the parking lot where he got into the vehicle being driven by Sanders.
Police were notified, and an officer spotted a black Maxima at a standstill behind a truck at a red light a half-mile from the apartment complex. The officer, driving a marked sheriff's patrol car with blue lights activated, pulled in behind the Maxima. When the traffic light turned green and the truck advanced, the Maxima drove around the truck and sped off. The officer activated his siren and pursued the Maxima, which was traveling 70 mph in a 45 mph zone. The Maxima sped through a red light at an intersection where it collided with Akins' car, killing her. The two occupants of the Maxima exited the car and were pursued on foot by police. An officer tackled co-defendant Pennie, but Sanders escaped. Items taken in the armed robbery were found in Pennie's possession. The Maxima was registered to Pennie, and the weapon used to shoot Rakestraw was found in the car. Sanders' fingerprints were on the exterior driver's side of the vehicle, and his backpack, containing his birth certificate and personal mail, was found inside. Sanders was apprehended and taken into custody seven months later.
1. When construed most strongly in support of the verdict, the evidence was sufficient to enable a rational trier of fact to find Sanders guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On appeal, Sanders argues that the State failed to meet its burden to prove his identity as a participant in the crime, an essential element of the State's case. Specifically, Sanders contends that pursuant to OCGA § 24-9-85(b) the jury was required to disregard the testimony of Rakestraw, the only eyewitness to identify Sanders as being present at the scene of the crime. OCGA § 24-9-85(b) states "[i]f a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence." Although Sanders argues that Rakestraw's testimony was filled with "lies, inconsistencies and contradictions," there is no evidence that Rakestraw acted with a manifest purpose to testify falsely, thus his credibility was an issue to be evaluated by the jury. See Fugitt v. State, 256 Ga. 292, 298, 348 S.E.2d 451 (1986); compare Fugitt v. State, 251 Ga. 451, 452-453, 307 S.E.2d 471 (1983). The fact that a witness' testimony may contain inconsistencies does not, standing alone, rise to the level of false swearing necessary to justify striking the testimony. Brooker v. Brown, 307 Ga.App. 10, 11, 703 S.E.2d 692 (2010). See Hardy v. State, 293 Ga.App. 265, 268, 666 S.E.2d 730 (2008).
Moreover, Rakestraw's identification of Sanders is supported by circumstantial evidence. Sanders' DNA was found on the inside cracked windshield of the vehicle— presumably left there when Sanders hit his head at the time of impact with Akins' vehicle. Likewise, the presence of Sanders' fingerprints on the exterior driver's side of the car and the presence of his backpack inside the car are consistent with the fact that he was a party to the crimes. Accordingly, Rakestraw's credibility was an issue for the
Having rejected Sanders' contention that the jury was required to disregard Rakestraw's testimony, this Court finds no merit to Sanders' claim that his conviction was based upon insufficient circumstantial evidence. There was direct evidence of Sanders' guilt, thus his reliance on OCGA § 24-4-6 is misplaced.
2. Sanders challenges his conviction for felony murder while in the commission of an armed robbery and aggravated assault. He asserts that the armed robbery cannot serve as a predicate for felony murder in his case because the escape phase of the armed robbery had terminated prior to his flight from the police. Sanders argues that the underlying felony offense of armed robbery had ended prior to the accident leading to the victim's death, because at the time the police initially located and approached the Maxima, it was at a standstill at a red light— a place of "seeming security," Collier v. State, 244 Ga. 553, 560, 261 S.E.2d 364 (1979), overruled on other grounds, Thompson v. State, 263 Ga. 23, 25, 426 S.E.2d 895 (1993). There is no merit to Sanders' argument.
Generally, whether a felony is terminated is a question of fact for the jury unless the evidence is so overwhelming that reasonable men could not differ. Collier, supra, at 562, 261 S.E.2d 364. The evidence shows that Sanders was being pursued by the police when he was at the stop light—he was at a standstill only because there was a truck in front of him and he could not advance until the light turned green. The jury was properly instructed concerning escape, as well as on the elements of felony murder with the underlying offense of armed robbery and aggravated assault. Further, as Sanders voiced no objection to the jury charge as given other than to renew his request for a lesser included offense, absent plain error this issue is precluded from appellate review pursuant to OCGA § 17-8-58(b). State v. Kelly, 290 Ga. 29, 32(1), 718 S.E.2d 232 (2011); Collier v. State, 288 Ga. 756, 759, 707 S.E.2d 102 (2011). Finding no error on the part of the trial court or the jury, we reject Sanders' claim.
3. Sanders next argues that the trial court erred by permitting the prosecutor to violate the "golden rule" during his opening statement and closing argument.
4. Sanders also asserts that the trial court erred by allowing the prosecutor
In the instant case, there was no contemporaneous objection to the argument; therefore, Sanders' claim of trial court error is waived for purposes of appeal. Martin v. State, 281 Ga. 778, 780(2), 642 S.E.2d 837 (2007). "[T]he burden is always on the appellant in asserting error to show it affirmatively by the record." (Punctuation omitted.) Westmoreland v. State, 287 Ga. 688, 696(1), 699 S.E.2d 13 (2010).
5. In a related enumeration of error, Sanders argues he received ineffective assistance of counsel due to counsel's failure to object to the comments made by the State regarding his failure to come forward voluntarily. He claims that he was prejudiced by the comments and by the fact that they were not based upon facts in evidence. We disagree.
In order to prevail on his claim of ineffective assistance of counsel under Strickland, Sanders "must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance." White v. State, 283 Ga. 566, 569(4), 662 S.E.2d 131 (2008). Sanders points to trial counsel's testimony at the hearing on Sanders' motion for new trial, wherein counsel agreed that he "probably should have objected" to the prosecutor's comments in the opening statement regarding Sanders' failure to come forward after his escape from police. However, we need not analyze the deficient performance prong of Strickland if we determine that the prejudice prong has not been satisfied. Peterson v. State, 284 Ga. 275, 663 S.E.2d 164 (2008). Even assuming arguendo that an objection to the offending argument would have had merit, Sanders has not shown a reasonable probability that the outcome of the trial would have been different had counsel made the objection. See Lambert v. State, 287 Ga. 774, 777(2), 700 S.E.2d 354 (2010) (where evidence of guilt is overwhelming, a defendant cannot demonstrate the required prejudice under Strickland). The conviction in this case is supported by an eyewitness identification, DNA consistent with Sanders' on the crack in the windshield of the getaway car, Sanders' fingerprint on the handle of the driver's door of the getaway car and Sanders' birth certificate and mail in the getaway vehicle. Accordingly, we conclude that Sanders has failed to carry his burden of proof on the prejudice prong on his ineffective assistance of counsel claim.
Judgment affirmed.
All the Justices concur.