HUNSTEIN, Justice.
Appellant Eric Hassel was convicted of felony murder and related offenses in connection with the November 18, 2006 shooting death of David Morris Lumpkin. Hassel appeals the denial of his motion for new trial, asserting insufficiency of the evidence, ineffective assistance of counsel, and evidentiary error. Finding no error, we affirm.
Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established as follows. In the early morning hours of November 18, 2006, David Morris Lumpkin was shot and killed at a residence on Moreland Avenue in Athens, Georgia. The residence was inhabited by its owners, Jerome Hemphill and Deborah Echols, as well as various family members, friends, and occasional homeless visitors who stayed there overnight or resided there on a temporary basis. Drug transactions often took place in the driveway of the residence and at other locations nearby. Appellant Eric Hassel, a convicted felon who dated Hemphill's sister, had lived at the house in the past and continued to be a frequent visitor there.
Hassel and his friend Rodney Shepard were friends with Terrence White, who, a few days prior to the shooting, had been robbed at gunpoint of his car, money, jewelry and drugs. Victim Lumpkin's girlfriend had heard rumors that Lumpkin was involved in the robbery, which Lumpkin admitted to her and others that he had helped set up. There was evidence that White himself suspected Lumpkin of participating in the robbery.
At the time of the shooting, Lumpkin and several other people were asleep in the living room at the Moreland Avenue house. Minutes before the shooting, witness Kathleen Robinson heard a knock on the door and observed Timothy Bradford open it, allowing Hassel and Shepard to enter. Robinson testified that Shepard began talking to Bradford, Hassel then exited the house, and Shepard and Bradford exited soon thereafter. Several minutes later, Robinson testified, Bradford reentered alone, leaving the door open, and a few minutes after that, a person dressed in black came inside, shot Lumpkin, and then fled.
Lumpkin's girlfriend, Latoya Brown, testified that a neighbor on Moreland Avenue had told her he saw Hassel and Shepard running down the driveway away from the house immediately after the shooting.
Binika Hankton, a friend of Hassel and Shepard, testified that, on the day before the shooting, she had been at her home with Hassel, Shepard, White, and others, and that White was in possession of an automatic handgun. Hankton also testified that, shortly after the time of the shooting, Shepard and Hassel, who was wearing black, returned to her house in a frantic state. Hankton told detectives that she saw Hassel hand an automatic handgun to Shepard. Hankton testified that Hassel then grabbed a bag, and the two exited through the back door.
Hankton, who cooperated in the investigation, recorded several conversations she had with Shepard after the shooting, in which she described being worried about the police questioning her and he acknowledged his and Hassel's involvement in the shooting. In one of the recordings, which was played for the jury, Shepard told Hankton that he and Hassel had discarded the murder weapon in some trees behind her house. Upon receiving this information, the GBI searched Hankton's yard and located an automatic handgun in a wooded area behind her home. Forensic testing matched this gun with the shell casings found at the scene of the shooting and the projectiles recovered from Lumpkin's body.
Hassel wrote a letter to Hankton shortly after the shooting, after being arrested on an unrelated shoplifting charge, stating:
Another statement by Hassel was admitted through witness Deborah Echols, who testified that Hassel told her in December 2006 that
Hassel told Echols that he had been outside the house when Shepard entered and shot Lumpkin.
1. The evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Hassel was guilty 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). While the evidence is unclear as to whether Hassel was the actual triggerman in the shooting, this uncertainty is of no consequence, as there was ample evidence to inculpate Hassel as a party to the crimes. See
2. Hassel contends his trial counsel failed to conduct a thorough investigation into his defense and thereby rendered ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that his trial counsel's performance was professionally deficient and that but for such deficient performance there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wesley v. State, 286 Ga. 355(3), 689 S.E.2d 280 (2010). To prove deficient performance, one must show that his attorney "performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms." Romer v. State, 293 Ga. 339, 344(3), 745 S.E.2d 637 (2013). Courts reviewing ineffectiveness claims must apply a strong presumption that counsel's conduct fell within the wide range of reasonable professional performance. Id. Thus, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. Id. If the defendant fails to satisfy either the "deficient performance" or the "prejudice" prong of the Strickland test, this Court is not required to examine the other. See Green v. State, 291 Ga. 579(2), 731 S.E.2d 359 (2012).
Hassel specifically contends that trial counsel rendered deficient performance by neglecting to interview Rodney Shepard or Terrence White, both of whom were integral to the State's theory of the case. This claim was explored at the new trial hearing, at which trial counsel testified that he spoke with Shepard's attorney, who indicated that Shepard would not agree to be interviewed. Trial counsel also knew that Shepard, who had elected not to testify at his own trial, was appealing his conviction at the time of Hassel's trial, and thus counsel believed he would likely invoke his Fifth Amendment rights if called to testify at Hassel's trial. Thus, counsel's failure to interview Shepard was attributable to Shepard's unavailability, not counsel's deficient performance. Moreover, in light of the defense's strategy of portraying Shepard as the primary perpetrator, it was unlikely that Shepard's version of events would have been helpful to Hassel in any event.
As for White, Hassel's counsel testified that he recalled reviewing a summary of his police interview, in which White denied involvement and claimed an alibi. In addition, a defense investigator in the case testified that he had attempted to contact White through several channels but had been unable to locate him. Thus, the defense made a reasonable attempt during the investigation to get White's account of events and did not perform deficiently. In addition, Hassel has
3. In his final enumeration, Hassel contends that the trial court erred by admitting the hearsay statements Shepard made to Hankton in their audiotaped telephone conversations played for the jury at trial. The trial court held these statements admissible as declarations of a co-conspirator under former OCGA § 24-3-5, which at the time provided that "the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all."
In this case, there was ample evidence to establish the existence of a conspiracy between Hassel and Shepard to exact revenge against Lumpkin in some form for his role in the robbery of White. A conspiracy consists of an agreement between two or more persons to commit a crime. Griffin v. State, 294 Ga. 325, 751 S.E.2d 773 (2013). Here, Hassel's statement to Echols regarding the shooting clearly reflects an agreement between Hassel and Shepard to confront Lumpkin, and Hassel's statement in his letter to Hankton that he was holding up "his end of the bargain" further supports the finding of such an agreement. These statements, in combination with the evidence regarding Hassel's actions leading up to and after the shooting, are more than sufficient to sustain the finding of a conspiracy.
The statements of Shepard, a co-conspirator, were made to Hankton after the shooting and while the identity of those complicit therein were still being concealed. Therefore, they clearly fall within the ambit of former OCGA § 24-3-5. See Allen, 288 Ga. at 267(4), 702 S.E.2d 869. Contrary to Hassel's assertion, Shepard's statements to his friend Hankton were not testimonial in nature so as to implicate Hassel's right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). See Young v. State, 291 Ga. 627(3), 732 S.E.2d 269 (2012); Allen, 288 Ga. at 267(4), 702 S.E.2d 869.
Judgment affirmed.
All the Justices concur.