MELTON, Justice.
Omar Evans was tried and found guilty by a jury of malice murder, felony murder, aggravated assault, and possession of a firearm by a convicted felon relating to the shooting death of Dharren Henderson.
1. Viewed in the light most favorable to the verdict, the record shows that, on March 11, 2010, Dharren Henderson (the victim) and his brother, Darnell Henderson (Henderson), went to a shopping plaza off Six Flags Drive in Cobb County to eat lunch. As they were walking into a restaurant, Evans, whose nickname was "Tic," gave them a dirty look. Evans and the victim exchanged words. Henderson and the victim went into the restaurant to order food, the victim briefly stepped outside, and when the victim returned, he told his brother that Evans had "tried him." Henderson and the victim then went back to their car. After a moment, the victim got out of the car to smoke a cigarette. Henderson next heard the victim and Evans arguing loudly outside the car. When Henderson got out of the car to try to calm things down, he saw Evans "raise his hand up" and heard gunshots.
Several witnesses testified to seeing Evans in the plaza the day of the shooting. Maurice Stephens, who was getting a haircut at the time of the shooting, saw Evans standing outside the barber shop shortly before the shooting. After the shooting, Stephens ran outside and hea rd Henderson's brother yelling "Tic shot [my] brother."
Further evidence revealed that the victim and Evans knew each other before the fatal shooting. The night before the victim's murder, Alterick McCall, the victim's cousin, was hanging out at Henderson's girlfriend's apartment
This evidence was sufficient to enable a rational trier of fact to find Evans guilty of the charged offenses beyond a reasonable doubt.
2. Evans contends that the trial court erred in allowing the State to introduce evidence about the altercation between Evans and the victim that happened on the night before the shooting. Specifically, Evans asserts that the trial court should have excluded McCall's testimony regarding the victim's statement that Evans had "jumped him," arguing that this statement constituted inadmissible hearsay. The trial court held that the statements were admissible under the necessity exception to hearsay. See OCGA § 24-3-1 (b).
"For hearsay to be admitted under the necessity exception, it must be established that the testimony is necessary and that it has particular guarantees of trustworthiness." (Citation omitted.)
3. Evans argues that the trial court erroneously allowed the State to introduce evidence of Evans' involvement in a prior shooting as a similar transaction. We review the trial court's decision for an abuse of discretion. See
Evidence of an independent offense is admissible where the State shows: (1) that it seeks to introduce the evidence for an appropriate purpose, (2) there is sufficient evidence to establish that the defendant committed the independent offense, and (3) there is sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter.
In addition to a certified copy of Evans' guilty plea to three counts of aggravated assault, other evidence showed that the prior shooting occurred in 1996 less than five miles away from the scene of the murder now in question. Further evidence shows that Maurice Stephens was confronted by a man who thought Stephens had stolen a radio, and they had an argument. On the night of the shooting, Stephens was driving down the street when several men shot at his vehicle. Multiple bullets struck the car, but Stephens was not seriously injured. The police later apprehended Evans and another man, and Stephens identified them both as the shooters.
Evans contends that the prior aggravated assault was not sufficiently similar to the victim's murder to constitute an admissible similar transaction. The crimes need not be exactly alike for them to be sufficiently similar. We cannot say that the trial court's admission of this evidence, based on the similarities that Evans used a handgun, committed the offenses with little or no provocation, fled the scene, and attempted to cause serious injury or death in the same immediate location, was an abuse of discretion.
4. Evans contends that the trial court committed reversible error by permitting the prosecution to solicit statistics and information about the neighborhood where the crime occurred. This testimony included evidence regarding the crime rate of the neighborhood, five murders and multiple stabbings in the area between January and March of 2005, and the percentage of people in the neighborhood who had guns. Evans contends that this evidence was irrelevant and highly prejudicial. The trial court admitted this evidence, over objection, based on the State's contention that the evidence was necessary to explain why the police had such a difficult time gaining any information from the 60 to 100 people at the crime scene, including the victim's brother.
Contrary to Evans' contentions, this evidence was not used to suggest that Evans had been involved in any other previ ous crimes committed in the neighborhood. See
5. Evans claims that the trial court erred in allowing testimony concerning a lengthy manhunt for Evans. Agent Tony Simpson, who was assigned to the U. S. Marshal Service Fugitive Squad in Atlanta, and Detective Pam Coalson both testified regarding Evans' flight after the murder. Evans argues that this testimony was prejudicial and irrelevant because there was no evidence showing that he knew an arrest warrant had been issued for him or that police were looking for him.
Evidence as to whether a defendant tried to evade capture is admissible as evidence of flight.
6. Evans claims that the trial court erred when it failed to give a complete jury charge on circumstantial evidence. The trial court gave the following charge:
Evans contends that the trial court erred because it failed to include the following section from the Suggested Pattern Jury In structions charge on circumstantial evidence:
Evans argues that, since the omitted part of the charge reflects the statutory language of OCGA § 24-4-6 regarding circumstantial evidence, that the trial court's omission constituted reversible error. However, the evidence against Evans was both direct and circumstantial. Henderson witnessed firsthand and provided direct testimony that he saw Evans raise his arm and point it at the victim, followed by gunfire and the victim's collapse to the ground with bullet wounds in his head. Henderson then screamed, "Tic shot [my] brother." Thus, the statutory language of OCGA § 24-4-6 was not required. See
In any event, despite the fact that there may have been only circumstantial evidence of a gun in Evans' hand, failure to give the full charge on circumstantial evidence, if error at all, was harmless. In this case, the trial court instructed the jury on the definition of circumstantial evidence and gave a full instruction on reasonable doubt. "Omitting a charge [regarding the exclusion of all reasonable hypotheses] is not harmful or erroneous as a matter of law when some direct evidence is presented and the jury receives a proper instruction on reasonable doubt, as was done here."
7. Finally, Evans claims he received ineffective assistance of trial counsel because his trial attorney did not object, request a limiting instruction, or move for a mistrial, in response to McCall's testimony. Trial counsel represented Evans until his notice of appeal was filed, and thus, this issue is raised for the first time on appeal. "Generally, when the appeal presents the earliest practicable opportunity to raise an ineffectiveness claim, and the claim is indeed raised for the first time on appeal, [the court] remand[s] the case to the trial court for an evidentiary hearing on the issue."
In order to succeed on a claim of ineffective assistance, Evans must prove both that his trial counsel's performa nce was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.
As explained above, McCall's testimony was admissible under the necessity exception to hearsay as a prior difficulty, showing Evans' motive, intent, and bent of mind. Trial counsel was not deficient for failing to raise a meritless objection.