BLACKWELL, Justice.
Tobee Bradley was tried by a Lowndes County jury and convicted of murder, aggravated assault, armed robbery, and three counts of possession of a firearm during the commission of a crime. Bradley appeals, contending that the evidence is insufficient to sustain his convictions and that several of the crimes of which he was convicted should have merged. Bradley also claims that the trial court erred when it excluded evidence that others might have been involved in the crimes, when it allowed an audio recording of a conversation between Bradley and a police informant to go out with the jury during its deliberations, and when it admitted the prior consistent statements of the police informant. In addition, Bradley contends that he was denied the effective assistance of counsel at trial. Upon our review of the record and briefs, we conclude that the trial court erred with respect to merger, and for that reason, we must vacate the convictions and sentences for aggravated assault and one count of possession of a firearm during the commission of a crime. We find no other error, however, and we otherwise affirm the judgment below.
1. Viewed in the light most favorable to the verdict, the evidence shows that on the afternoon of October 15, 2003, two men ran into the AB Food Mart in Valdosta, where Natavarlal Patel and his son Bobby worked. One of these men, who was wearing a mask, fired three shots from a .38-caliber revolver, killing Natavarlal, who was at the lottery ticket stand, and injuring Bobby, who was behind the cash register. The masked man then fled the scene. The second man walked behind the counter and took approximately $1,500 from a cigar box, and he then fled the scene as well. Bobby Patel provided a description of the men, including their height, build, and race. His description of the shooter was consistent with Bradley, and his description of the second man was consistent with Rogers Pounder, whom Bradley knew
Approximately two years later, a woman contacted the Valdosta Police Department and told officers that she overheard Bradley say that he had robbed the AB Food Mart and that he had given the weapon he used in the robbery to "Mike Thomas." The police officers asked the woman to speak directly with Bradley to get more information, and she agreed to do so. In her first conversation with Bradley, he admitted that he went to the food store on the day of the crimes and saw a cigar box that was "full of cash." He said that he and a man named "Jay" agreed to go back and rob the store later that day "because damn near every cop in Valdosta was at the courthouse for [the mayor's] funeral[,]" that he wore a mask into the store, that he shot the "old man" while he was hanging up lottery tickets and fired several more shots before running out of the store, that he later met up with "Jay" to split the money, and that he was upset with "Jay" because he had already "been in" the money by the time they met and Bradley did not receive as much money as he thought he should have. In a second conversation with Bradley, during which the informant wore a wire, Bradley provided the same information, adding that he fired a total of three shots during the robbery and describing the mask that he wore during the robbery.
Police officers identified Pounder as a man known in the neighborhood as "Jay," and Pounder later admitted to his role in the crimes. At trial, Pounder testified that Bradley approached him about robbing the AB Food Mart, that when they went to the store later that day, Bradley immediately started shooting and then ran out of the store, that Pounder went behind the counter and took approximately $1,500 from a cigar box, that he later met Bradley but gave him only $600, and that Bradley was upset and told him that he thought he was "supposed to get more than that."
(a) Although Bradley claims that the evidence suggests that other people may have been involved in the crimes, we must view the evidence in the light most favorable to the verdict and leave questions of credibility and the resolution of conflicts in the evidence to the jury. As a result, we conclude that the evidence in this case was sufficient to authorize a rational trier of fact to find Bradley guilty beyond a reasonable doubt 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).
(b) Bradley also argues that the trial court should have merged several of his convictions. Bradley was convicted of three counts of possession of a firearm during the commission of a crime, with one possession charge stemming from each of the other crimes of which he was convicted — the murder of Natavarlal Patel, the aggravated assault of Bobby Patel, and the armed robbery of Bobby Patel. But this Court has held that OCGA § 16-11-106(b) does not necessarily authorize one possession charge for every predicate offense. See State v. Marlowe, 277 Ga. 383, 386(2)(b), 589 S.E.2d 69 (2003). Instead,
Id. at 386(2)(c), 589 S.E.2d 69; see also Grell v. State, 291 Ga. 615, 616-617(1), 732 S.E.2d 741 (2012).
In this case, there were two victims, and none of the crimes are of the type enumerated in subsections (2) through (5) of
(c) We also find that the trial court erred in failing to merge Bradley's conviction for the aggravated assault of Bobby Patel with his conviction for the armed robbery of Bobby Patel. We have held "that there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery." Long v. State, 287 Ga. 886, 889(2), 700 S.E.2d 399 (2010) (finding that the "deadly weapon" requirement of aggravated assault with a deadly weapon is the equivalent of the "offensive weapon" requirement of armed robbery, and relying on Lucky v. State, 286 Ga. 478, 481, 689 S.E.2d 825 (2010), which established that the assault requirement of aggravated assault is the equivalent of the "use of an offensive weapon" requirement of armed robbery). And "[b]ecause aggravated assault [with a deadly weapon] does not require proof of any element that armed robbery does not, convictions for both offenses will merge — but only if the crimes are part of the same `act or transaction.'" Thomas v. State, 289 Ga. 877, 880(3), 717 S.E.2d 187 (2011) (citations omitted).
Here, the aggravated assault, as charged in the indictment, occurred when Bradley assaulted Bobby Patel with the .38-caliber revolver. The State argues that the aggravated assault was completed when Bradley fired the weapon and then ran out of the store and that only then did the armed robbery occur as a separate transaction. But the armed robbery could not have occurred exclusively after Bradley fled from the store because the undisputed evidence was that Pounder did not have a weapon. Instead, the armed robbery must have begun when Bradley pointed the .38-caliber revolver at Bobby for the purpose of robbing the store, during which time the aggravated assault also occurred, and the armed robbery concluded immediately thereafter when Pounder took the money out of the cigar box. Because the aggravated assault of Bobby arose out of the same "act or transaction" as the armed robbery of Bobby, the aggravated assault was an offense included in the armed robbery conviction, and Bradley's conviction and sentence for aggravated assault also must be vacated. See Sears v. State, 292 Ga. 64, 73-74(6), 734 S.E.2d 345 (2012); Thomas, 289 Ga. at 880(3), 717 S.E.2d 187.
2. Bradley claims that the trial court erred when it excluded statements suggesting that other people may have been involved in the crimes. As to the first statement, a girlfriend of Hashim Walker apparently was available to testify at trial that Walker told her that he robbed the "Indian store" and that he had shot someone.
First, Bradley claims that the statements were admissible under the necessity exception to the hearsay rule.
Here, the trial court concluded that the statements did not bear sufficient indicia of reliability, and this finding is supported by the evidence. In fact, Bradley's argument at trial was that many people in the community were falsely claiming to have committed the crimes, and that Bradley's confession was similarly fabricated. The incomplete statement of G.M. is particularly untrustworthy because the teacher was not able to provide the rest of the statement and Bradley did not even suggest how the boy might have been in the position to know that Bradley "didn't shoot him...." And while Bradley claims that Walker's statement was trustworthy because the police investigated Walker to determine if he was involved in the crimes,
Bradley also asserts that the trial court violated his rights to due process and a fair trial when it excluded these statements. Bradley cites Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), for the proposition that due process requires the admission of evidence of a third party's confession even where such admission would otherwise violate the rules of evidence. But in Chambers, the Supreme Court expressly limited its holding to the facts and circumstances of that case and also found that the third party's confession bore "persuasive assurances of trustworthiness" and "was critical to [the] defense." Id. at 302(III)(B), 93 S.Ct. 1038; see also Green, 442 U.S. at 97, 99 S.Ct. 2150 (hearsay declaration against the penal interest of a co-conspirator is admissible during the punishment phase of a death penalty case where that declaration is "highly relevant to a critical issue ... and substantial reasons existed to assume its reliability."). Here, as discussed above, the trial court considered the reliability of the statements, and it did not abuse its discretion in determining that they were not sufficiently reliable to be admitted. See Grell, 291 Ga. at 618(2), 732 S.E.2d 741.
4. Bradley contends that the trial court erred when it allowed the State to introduce prior consistent statements of the police informant about her conversations with Bradley. But Bradley objected at trial only to her testimony about what Bradley said in the second conversation, which was recorded, and even then, Bradley objected only upon best evidence grounds. Bradley did not make an objection on the grounds he now asserts, and he has, therefore, failed to preserve this claim on appeal. See Sears v. State, 292 Ga. at 67(3), 734 S.E.2d 345.
5. Finally, we consider Bradley's claim that he was denied the effective assistance of counsel at trial. To prevail on a claim of ineffective assistance, Bradley must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show that the performance of his lawyer was deficient, Bradley must prove that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687-688(III)(A), 104 S.Ct. 2052. See also Kimmelman v. Morrison, 477 U.S. 365, 381(II)(C), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). And to show that he was prejudiced by the performance of his lawyer, Bradley must prove "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694(III)(B), 104 S.Ct. 2052. See also Williams v. Taylor, 529 U.S. 362, 391(III), 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This burden, though not impossible to carry, is a heavy one. See Kimmelman, 477 U.S. at 382(II)(C), 106 S.Ct. 2574. We conclude that Bradley has failed to carry his burden.
First, Bradley complains that his trial lawyer was unsuccessful in convincing the trial court to admit evidence of the statements allegedly made by Walker and G.M., as discussed herein in Division 2. At trial, Bradley's lawyer argued that the statements should be admitted because they showed that numerous people were falsely claiming to have been involved in the shooting and that the statements were evidence that Bradley's claims to have been involved in the shooting were similarly fabricated.
Similarly, Bradley claims that his trial lawyer was ineffective because he failed to make proper objections when the trial court allowed the tape recording of his conversation with the informant to go out with the jury during its deliberations. But, as discussed in Division 3, such an objection would have been meritless. And the failure to make a meritless objection cannot amount to ineffective assistance. See Wesley v. State, 286 Ga. 355, 356(3)(b), 689 S.E.2d 280 (2010).
Finally, Bradley asserts that his trial lawyer was ineffective when he allowed the State to present what he alleges are prior consistent statements of the informant about her conversations with Bradley. But the record shows that there were several inconsistencies between the informant's testimony and her prior statements, that these inconsistencies likely served to benefit Bradley, and that the admission of the prior statements would have been a reasonable trial strategy. For example, the informant testified at trial that she first became aware of Bradley's role in the crimes when she overheard him confess to her son while she stood outside the room; but in her prior statement about that confession, the informant claims to have been an active participant in the conversation — sitting with Bradley and asking him questions about his role and for details about the crime. The prior statement supported the defense theory that the informant was not a passive recipient of an overheard confession but rather was a frequent police informant who wanted monetary benefits in exchange for providing the police with evidence against Bradley and that she had to "push and pull" Bradley in order to coax out the confession. Another difference between the informant's testimony and her prior statements concerned the timing of when Bradley purportedly gave the revolver to Thomas. At trial, the informant testified on direct examination only that Bradley said that he gave the revolver to Thomas. But during cross examination, the informant acknowledged that in her recorded conversation with Bradley — which Bradley now claims is an inadmissible prior consistent statement of the informant
Judgment affirmed in part and vacated in part.
All the Justices concur.
HUNSTEIN, Chief Justice, concurring.
I concur in the result and write separately only to note my growing discomfort with our recent case law regarding merger of the offenses of armed robbery and aggravated assault. I agree that Long v. State, 287 Ga. 886(2), 700 S.E.2d 399 (2010), cited by the majority, presents an analogous fact pattern and thus compels us to hold under the circumstances of this case that the two offenses must merge. However, I disagree with the sweeping statement in Long that "there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery," id. at 889(2), 700 S.E.2d 399, to the extent it purports to hold as a matter of law that these two offenses will always merge. There may be a fact scenario not yet presented that will warrant our retreat from this absolute position.
In addition, it strikes me as incongruous that our precedent compels us to merge the above offenses committed against the injured-but-surviving victim while allowing us to sustain separate offenses (armed robbery and murder) against the deceased victim. Nevertheless, applying the "required evidence" test we adopted in Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006), this result is clearly correct in this case. Prosecutors seeking to avoid this incongruity in similar circumstances might be wise to seek indictment on aggravated battery, as an alternative to aggravated assault.