BENHAM, Justice.
Appellant Marcus Ford appeals his convictions stemming from the shooting deaths of Paul Gaines ("Paul") and Michael Gaines ("Michael"), as well as the aggravated assaults of Isaac Walker ("Walker") and Antwan Clark ("Clark").
At trial, appellant testified that Paul had a gun and shot at him first, at which point he retrieved a gun and shot back. Walker and Clark testified that none in their group, including Paul, was armed with a gun. Clark testified appellant was armed with a black "baby" Glock handgun. Police did not recover any guns from or near the decedents' bodies or from inside the vehicle which had been abandoned during the shooting. All six shell casings found at the scene were in one general location near where witnesses said appellant was standing during the shooting. The ballistics expert testified that the six shell casings were fired from the same gun and were consistent with being fired from a.40 caliber Glock gun. Appellant's wife testified that, three years prior to the shooting, she bought two Glock guns, one of which she kept under a sofa located on a porch outside appellant's house. Although the Glocks she purchased were 9 millimeter weapons, appellant's wife also testified that she purchased.40 caliber ammunition for the gun kept under the sofa. The ballistics expert also testified the two bullets recovered from Paul's body and the single bullet recovered from Michael's body were fired from the same gun and were consistent with being fired from a.40 caliber Glock semiautomatic pistol. The medical examiner testified that Paul suffered six gunshot wounds and died from a fatal wound to the chest. Michael was shot in the back and the bullet traversed his spine and disrupted a large blood vessel to the heart, mortally wounding him. The parties stipulated that appellant was a convicted felon.
We note, however, that the trial court made a sentencing error when it sentenced appellant for the aggravated assaults of Paul and Michael. Those two aggravated assaults should have merged as a matter of fact into the convictions for malice murder. See Hulett v. State, 296 Ga. 49(2)(a), 766 S.E.2d 1 (2014). Accordingly, the concurrent sentences of 20 years for each of the aggravated assaults of Paul and Michael must be vacated.
2. Appellant alleges the prosecutor engaged in misconduct by making misleading comments in his opening statements, by pursuing a theory that appellant was a drug dealer, by making certain comments during closing argument, and by improperly cross-examining Benjamin "Pee Wee" Hickey. Our review of the record shows, however, appellant never made an objection concerning prosecutorial misconduct at any point during the proceedings, including during the State's opening and closing and its cross-examination of Hickey, and never asked the trial court to rebuke the prosecutor for any alleged misconduct. "The contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct." (Citation an internal quotations omitted.) Sanders v. State, 289 Ga. 655(2), 715 S.E.2d 124 (2011). In the absence of any objection regarding prosecutorial misconduct, these allegations of error are not properly before this Court for review. See Doyle v. State, 291 Ga. 729(2), 733 S.E.2d 290 (2012); Duvall v. State, 290 Ga. 475(2)(a), 722 S.E.2d 62 (2012); Shealey v. State, 257 Ga. 437(3), 360 S.E.2d 266 (1987).
3. Appellant alleges that the trial court erred when it did not grant his motion for mistrial at the close of the State's case-in-chief. Whether to grant a mistrial is a matter of the trial court's discretion. Jackson v. State, 292 Ga. 685(4), 740 S.E.2d 609 (2013). The trial court's ruling denying a motion for mistrial will not be disturbed unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial. Id. at 689, 740 S.E.2d 609.
As basis for his motion for mistrial, appellant complained that the State had not called Hickey to testify and therefore failed to establish, as indicated by the prosecutor's opening statement, that appellant was a drug dealer. The State, however, was not required to call Hickey as a witness.
4. Appellant complains the trial court erred when it overruled appellant's objection to the prosecutor's calling Hickey a liar during closing argument. During his closing argument, the prosecutor stated that he did not call Hickey to testify because he
Here the record shows that during the defense's presentation of evidence, Hickey testified on direct-examination that appellant did not sell drugs and he denied telling authorities that appellant sold drugs. On cross-examination, however, he admitted telling authorities that he was "a crack connoisseur." He also admitted that on the night of the shooting, Paul had confronted him and told him, "What you doing, man? Don't come around my area no more." It was also clear from cross-examination that some of Hickey's testimony on direct, in particular testimony about whether appellant sold drugs, was different from the pre-trial statements Hickey allegedly made to the prosecutor and the State's investigator. Thus, although the prosecutor should have avoided personalizing the argument, his comments in closing as to his reasons for not calling Hickey to testify during the State's case in chief or as to the reliability of Hickey's testimony, which were in response to defense counsel's argument, were supported by the evidence. Additionally, the trial court instructed the jurors that statements made by the lawyers did not constitute evidence. The trial court did not commit reversible error when it overruled appellant's objection.
5. When the trial court overruled appellant's objection to the prosecutor's comments described in division 4 herein, it stated as follows: "Well, I overrule your objection. I think this is proper argument based on the evidence and the witnesses." Appellant contends this statement was an improper comment on the evidence in violation of former OCGA § 17-8-57. We disagree. The trial court was merely stating the basis for its ruling which it is permitted to do. See Ridley v. State, 290 Ga. 798(2), 725 S.E.2d 223 (2012).
At trial, appellant made an objection that the State was misrepresenting testimony about the weapon used for the shootings. The following colloquy transpired between defense counsel and the trial court:
Appellant complains that the highlighted statement by the trial court violated former OCGA § 17-8-57. Again we disagree. The ballistics expert did in fact testify that the three bullets retrieved from decedents' bodies were fired from the same gun and were consistent with being fired from a .40 caliber Glock gun. The trial court was explaining its ruling and never expressed any opinion about the veracity of the evidence itself. In any case, when the colloquy is considered as a whole, it is clear that the trial court was
6. Appellant alleges that the trial court erred when it denied his Batson
7. At the State's request and over appellant's objection, the trial court gave an instruction on mutual combat. Appellant complains that this was improper; however, the giving of such a charge would have only benefitted appellant and, thus cannot sustain an allegation of error. See Sanders v. State, 283 Ga. 372(2)(c), 659 S.E.2d 376 (2008) ("Because the mutual combat charge authorizes a jury to find the defendant guilty of voluntary manslaughter in lieu of murder, it is a charge that benefits a defendant and, as such, a convicted defendant's complaint that it was improper to give the charge is without merit.")
Appellant also complains about the trial court's charge on felony murder (possession of a firearm by a convicted felon). This allegation of error is moot. Since appellant was convicted and sentenced for malice murder, his convictions for felony murder were vacated as a matter of law and any issues concerning those crimes are moot. See Young v. State, 290 Ga. 392(7), 721 S.E.2d 855 (2012).
8. Appellant's final allegations of error concern his assertion that counsel rendered constitutionally ineffective assistance. In order to prevail on a claim of ineffective assistance of counsel, appellant
(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34(4), 644 S.E.2d 837 (2007). If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by the Court. Wright v. State, 291 Ga. 869, 870(2), 734 S.E.2d 876 (2012). We address each alleged instance of ineffective assistance below.
a. Appellant contends counsel was ineffective for failing to ask certain jurors follow-up questions about bias during voir dire. The conduct of voir dire "can be a matter of trial strategy" and does not necessarily establish ineffective assistance. Morgan v. State, 276 Ga. 72(9), 575 S.E.2d 468 (2003). In this case, appellant has failed to show any deficiency or prejudice.
b. Appellant alleges trial counsel was deficient for failing to call Latoya Dixon as a witness. At trial, appellant planned to call Dixon in order to testify about Paul's alleged violent behavior towards third persons (i.e., Chandler
During the proffer, Dixon testified about an occasion during which Walker pulled a gun on her and Paul intervened by walking her away from the situation. Dixon said she did not tell appellant about this incident. During another incident, she said that Paul pointed the same silver gun at appellant and threatened to kill him. She said appellant's reaction to the situation was to laugh in "their face" and "let it go." The trial court ruled that the testimony about Walker pulling a gun on Dixon could not come in because appellant did not know about the incident.
While the evidence of Paul's pointing a silver gun at appellant and making a threat to kill appellant
c. Appellant contends that trial counsel was ineffective when she did not argue or explain voluntary manslaughter/mutual combat to the jury. At the motion for new trial hearing, counsel explained that her trial strategy was an all or nothing defense predicated on self-defense and, for this reason, she did not pursue any alternate defense such as voluntary manslaughter/mutual combat. We cannot say counsel's performance in pursuing an all or nothing strategy was so outside the broad range of professional conduct so as to constitute deficient performance. See Wells v. State, 295 Ga. 161(2)(b), 758 S.E.2d 598 (2014); McKee v. State, 277 Ga. 577(6)(a), 591 S.E.2d 814 (2004). Therefore, appellant's ineffective assistance claim cannot prevail.
Judgment affirmed in part and vacated in part.
All the Justices concur.