BENHAM, Justice.
Charles Aldon Bulloch filed this appeal from his conviction for the murder of Paul McKeen, Jr.
This Court has previously reviewed and summarized the evidence presented at trial in the appeal filed by Bulloch's co-defendant Johnny Vernon Phillips. See Phillips v. State, 280 Ga. 728, 632 S.E.2d 131 (2006). Viewed in the light most favorable to the verdict, the evidence shows Bulloch was an admitted drug dealer. McKeen owed Bulloch money for a cocaine purchase. A few days prior to McKeen's death, Bulloch got into a fist fight with McKeen and threatened to beat McKeen to death if he did not pay the money. On the evening of February 27, 1990, McKeen was with his wife in a bar called "The Pub." Phillips and Bulloch were also there with co-defendants Guy Walter Hardaway and James Randall Reagan.
The next morning, Bulloch went to the home of Robert Pearson, who regularly monitored police scanners. Bulloch asked Pearson if he had heard anything about "anything on top of the mountain." Bulloch also told Pearson he would be leaving town for a bit because he, Phillips, Hardaway, and Reagan had severely beaten "that McKeen boy" because of a debt. Bulloch also said McKeen "wouldn't ever owe me no more money." Pearson also testified Bulloch told him that "when [Phillips] got started that [Bulloch] couldn't stop him; that [Phillips] ended up hitting [McKeen] with a tire tool."
That same morning, McKeen was found unconscious and barely alive beside a remote road in Meriwether County. He died in a hospital several days later. Doctors determined the cause of death to be blunt-force trauma to the head that had caused severe brain damage. Sixteen days prior to the McKeen beating, Bulloch and Reagan had beaten another man with a pool stick and driven away from the scene in a black Mustang convertible.
1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Bulloch asserts he was denied effective assistance of trial counsel on several grounds: because trial counsel did not investigate the prosecution's case; did not investigate and interview any defense witnesses except for Bulloch's sister; did not present probative evidence of his alibi; did not offer critical evidence in support of the defense that Bulloch did not participate in McKeen's beating; did not present probative evidence that another named individual was the killer; did not effectively impeach any of the witnesses; was unsuccessful in his effort to exclude the admission of highly prejudicial hearsay testimony; failed to object to the jury instruction on venue; and made several other unspecified trial errors. After conducting an evidentiary hearing on Bulloch's motion for new trial on the ground of ineffective assistance of counsel and other grounds, the motion was denied in a comprehensive
To prevail on a claim of ineffective assistance of counsel, "appellant must show that [his] attorney's performance was deficient and that, but for such deficiency, there is a reasonable probability that the outcome of [his] trial would have been different. In applying this test, we accept the trial court's findings of fact and credibility determinations unless they are clearly erroneous, but we independently apply the proper legal principles to the facts." Waits v. State, 282 Ga. 1, 5(4), 644 S.E.2d 127 (2007) (citation omitted). Trial counsel's testimony established he was, at the time of the trial, an experienced criminal defense attorney with previous experience in murder trials. In preparation for trial, he interviewed only Bulloch and his sister. Trial counsel was aware, however, that attorneys for co-defendants had interviewed a number of other witnesses and he did not deem it necessary to duplicate their efforts. He also reviewed discovery reports on what the State's witnesses had stated to investigators. Trial counsel spent time preparing for cross-examination of witnesses, preparing jury charges, and other pre-trial tasks. Trial counsel acknowledged he did not interview Bulloch's then-girlfriend, who was the owner of the black Mustang convertible in which a witness testified Bulloch and the victim rode to Pine Mountain on the night of the murder, and he did not learn that the girlfriend was allegedly incarcerated and her car allegedly impounded as of the date of the murder. He acknowledged that had he known that fact, he would have used that information as part of his trial strategy. Nevertheless, the evidence established that trial counsel discussed the car with Bulloch and yet was not aware before trial that the car was allegedly impounded. In the Strickland opinion, the Supreme Court of the United States recognized that reasonable professional judgments may support limitations on trial counsel's investigations. 466 U.S. at 691, 104 S.Ct. 2052. We find no error in the court's determination that trial counsel's trial preparation was not deficient.
Trial counsel acknowledged that he reviewed the State's interview of Debra Phillips, that he did not recall that the report showed she would have served as an alibi witness, that he did not recall why he did not call her as a witness, and that it was a mistake not to consider calling her as an alibi witness. Nevertheless, trial counsel did present alibi evidence at trial when Bulloch elected to testify. We find no error in the trial court's conclusion that, even if errors were made, trial counsel's performance was more than adequate. Even if mistakes were made, we conclude they were not "so serious as to deprive the defendant of a fair trial, a trial whose results are reliable." Id. at 687, 104 S.Ct. 2052.
With respect to Bulloch's assertion that trial counsel was ineffective as a result of his unsuccessful efforts to exclude hearsay testimony, the trial transcript shows that counsel raised objections to the admissibility of testimony of the victim's wife with respect to an out-of-court statement the victim made to her but raised no objection to the testimony of the victim's brother regarding an out-of-court statement made to him. This testimony is discussed in detail in Division 3, below, in which we conclude it was not error to admit the testimony of the wife over the objections of Bulloch's counsel and that Bulloch waived his right to assert error with respect to the brother's testimony because he failed to object to that testimony. We reject Bulloch's assertion that the victim's out-of-court statement to his brother is a "testimonial statement" as that term is used in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Bulloch has not established ineffective assistance of counsel on the ground that trial counsel called Bulloch as the only defense witness. Under the version of OCGA § 17-8-71 in effect at the time of trial, a criminal defendant had the right to make the final closing argument to the jury if the defendant presented no evidence.
We have considered Bulloch's additional arguments relating to the conduct of trial counsel and also find them insufficient to demonstrate ineffectiveness of trial counsel. We find no error in the trial court's finding that trial counsel's strategy and tactics were reasonable. With respect to Bulloch's assertion that this Court should consider the combined prejudicial effect of counsel's deficiencies, we "evaluate only the effects of matters determined to be error, not the cumulative effect of non-errors." Waits v. State, supra, at 6, 644 S.E.2d 127 (citations and punctuation omitted). As previously noted, applying the Strickland standards, even if counsel were deficient in certain respects, "we conclude that those deficiencies would not in reasonable probability have changed the outcome of [the trial]." Barrett v. State, 292 Ga. 160, 189, 733 S.E.2d 304 (2012).
3. Bulloch asserts the trial court committed reversible error in admitting hearsay testimony of the victim's wife and brother regarding statements the victim made to them prior to the night in question about being in a fight with Bulloch.
(a) The victim's wife, Carrie Laura McKeen, testified on re-direct examination that, on the Friday night before the Tuesday night on which the victim suffered his fatal injuries, he came home with a torn shirt looking like he had been in a scuffle. She became angry with him and demanded to know what had happened. The victim told her he had been in a fight with Bulloch. This testimony was admitted over trial counsel's objection on the ground of hearsay and his assertion that the State was required to establish indicia of reliability before the statements of the unavailable declarant could be presented into evidence. Counsel for co-defendant Phillips also objected on the ground that the question was not within the proper scope of redirect examination. The trial court overruled the objections because the State represented it would present other evidence to corroborate the statement and also because, according to the trial court, the wife was not testifying to the truthfulness of the victim's statement, but only to what he stated to her. With respect to corroborating evidence, Kamala Liming, Bulloch's niece, later testified that on the Friday night before the victim was killed, she had been at The Pub with Bulloch and upon leaving she drove
We agree that the wife's testimony about her deceased husband's statement is hearsay and is not admissible pursuant to OCGA § 24-3-2
The question then becomes whether the statement was admissible pursuant to the necessity exception of OCGA § 24-3-1 (b)
Moreover, even if it were error to have admitted the wife's testimony concerning the victim's out-of-court statement about a previous fight with Bulloch over a drug debt, we find it is highly probable that the error did not contribute to the judgment, pursuant to the test set forth for such errors in Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869 (1976). Here, the wife's testimony was merely cumulative of other evidence presented concerning the previous fight. See Teague, supra, 252 Ga. at 536, 314 S.E.2d 910. As there was otherwise sufficient evidence to prove Bulloch's guilt beyond a reasonable doubt, "[u]nder the totality of the circumstances, the trial court did not abuse its discretion in permitting the testimony." Allen, supra, 284 Ga. at 314(2), 667 S.E.2d 54.
(b) The victim's brother, who was sixteen years old at the time his brother died at age 20, testified that on either Saturday or Sunday before the victim was killed the victim came to the store where he worked, looking disheveled and acting nervous. He asked if he could borrow twenty dollars to buy .30 caliber carbine shells for a gun the victim occasionally borrowed from their grandfather. When asked what was wrong, the victim answered he had had an altercation with someone the previous week and needed ammunition for that gun. The brother testified: "[H]e said `If anything out of the ordinary happens, Charles Bulloch's who did it.... [W]rite that name down.'" When the brother wrote the name on a piece of paper, the victim looked at it and said: "`Yes, Charles. Anything happens to me, give that to daddy.'" In fact, the note with Bulloch's name on it was given to the sheriff's department before the victim died and the witness identified it at trial. Bulloch's counsel raised no objection to this testimony but proceeded to cross-examine the brother about the victim's out-of-court statement.
4. As his final enumeration of error, Bulloch asserts the trial court improperly instructed the jury on the issue of venue, resulting in reversible error.
In this case, the charge correctly instructed the jury that venue would be established if they found beyond a reasonable doubt that the murder was committed in Harris County; that the cause of death was inflicted in Harris County; or (as set forth in OCGA § 17-2-2(h)), if it could not be determined in what county the crime was committed, "it may be considered to have been committed in [Harris County]" if they found beyond a reasonable doubt that it might have been committed in Harris County.
Judgment affirmed.
All the Justices concur.