MIKELL, Judge.
In a bifurcated trial, a Chatham County jury convicted Kenneth Ray Chatman, Jr., of armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Chatman was sentenced to life on the armed robbery, twenty years to run concurrent on the aggravated assault, fifteen years to serve consecutive to the armed robbery on the possession of a firearm during the commission of a felony, and five years to serve concurrent with Count 1 on the remaining conviction.
The evidence adduced at trial showed the following. Deandra Reedy and Shaunte Mitchell, and Mitchell's son, Shadray Mitchell, and her sister, Chaquita Jones, lived in an apartment in Chatham County. Reedy testified that during the early morning hours on March 16, 2007, she was awakened by the sound of a window breaking in her room; that a man held a gun through the window and told her to give him money or he would shoot her; that Mitchell
Mitchell testified that on the evening in question, she worked as a dancer from 9:00 p.m. to 4:00 a.m. When she arrived home, she noticed that a white four-door car with blue stripes was circling her block and that the car was being driven by a female, who was accompanied by a male passenger. Mitchell testified that she thought the car belonged to a female named T.J. Mitchell further testified that she entered her home and went to her room, which she shared with Reedy, and saw a man bust the window in the room and point a gun at Reedy; that the man told Reedy to tell Mitchell to give him all of her money; and that she complied with his request then called the police. Mitchell recalled that the money she gave the man was money she earned as tips so it was in small denominations, specifically several one dollar bills and a few twenty dollar bills. Mitchell recalled that the man had on a white hat and a grey jacket. Mitchell also testified that Reedy told her that she knew the perpetrator, whom she called "Kenny Blue." Mitchell's sister, Jones, who was 12 years old when the incident occurred, also testified that after the incident, Reedy said "that's that boy Kenny Blue."
The 911 operator testified that the call on the armed robbery came in at 4:30 a.m. Officer Santana Willis of the Savannah Chatham Metropolitan Police Department responded to the scene. He testified that Mitchell was nervous and scared, told him that they had just been robbed, and described the suspect as a black male and the weapon used as a black handgun. Mitchell told Willis about the vehicle that had been circling her residence and that she saw the perpetrator run to the same type of vehicle.
Officer Mark Smith also responded to the 911 call. While en route to the scene, which was less than a half of a mile away from his location, he saw a car that met the description of the suspect's car. Officer Ralph DiFiore, traveling in a separate vehicle, also testified that he saw the car at issue, which was occupied by a female driver and a male passenger wearing a white baseball cap. Both Smith and DiFiore followed the car, which accelerated once the officers activated their lights. The vehicle hit a parked car, and both occupants jumped out. The female driver ran toward Smith, shouting that there was a gun in the car. Smith handcuffed her and placed her in his patrol car. Meanwhile, Chatman ran, but DiFiore was able to apprehend and restrain him. After handcuffing Chatman, DiFiore went to the car where he saw a black, semi-automatic handgun sitting in the console and a bunch of cash on the ground next to the passenger side of the car.
Detective Yujean Foster responded to the scene where the suspects had been apprehended and saw Mitchell in Willis's vehicle. Detective Foster testified that he planned to conduct a show-up identification at the scene, but Mitchell told him that she already had identified the suspects. According to Detective Foster, Mitchell also told him that the suspects' vehicle was the same one that had been circling her residence before the robbery. Detective Foster asked Mitchell to contact Reedy and have her come to the police headquarters to be interviewed.
At the police station, Detective Foster interviewed Mitchell, who gave him the denominations of the money that had been stolen from her; and he also interviewed Reedy when she arrived. Detective Foster testified that Reedy gave him a detailed description of what happened and told him that she knew the suspect. A recording of both interviews was played for the jury but was not transcribed in the record.
Detective Foster recalled that after the interviews, he conducted a show-up with Reedy, who identified Chatman as "Blue" and said that he robbed her. Additionally, Detective Foster testified that the money found near the vehicle on the ground and in a purse near the vehicle was in small denominations. Detective Foster also recalled that Chatman wore a jacket on the evening in question but admitted that no jacket was listed on the inventory list compiled when Chatman was processed.
On appeal, Chatman argues that his trial counsel was ineffective, and we find no error. "In order to prevail on a claim of
(a) Chatman asserts that trial counsel was ineffective because she did not adequately explain to him the possibility that he faced a mandatory life sentence if the state introduced three prior convictions under OCGA § 17-10-7(c), or a sentence of life under OCGA § 17-10-7(a), where he would not be eligible for parole until he served 30 years, and that consequently, he could not make a knowing and intelligent decision as to the state's plea offer. Our Supreme Court has ruled that the failure to inform a defendant that he would be ineligible for parole if sentenced as a recidivist does not amount to ineffective assistance of counsel.
In the instant case, trial counsel testified that she discussed the plea offer with Chatman, told him that he was facing a possible life sentence or life without parole, and tried to explain the recidivist statute to Chatman, but Chatman did not want to talk about it. Trial counsel further testified that when she attempted to discuss the details of the plea, Chatman repeatedly said that it was not good enough and that she needed to do better. Additionally, when she tried to discuss the ramifications of rejecting the plea, Chatman would become angry, yell at her, maintain his innocence, and insist that they discuss the evidence instead. At the hearing on the motion for new trial, Chatman testified that he would have accepted the plea offer had he known that he would have to serve 30 years before he could be considered for parole, but he also testified on cross-examination that he
Credibility determinations are exclusively within the province of the fact finder,
(b) In four assertions of error, Chatman argues that trial counsel had no theory of defense, which caused the trial court to comment that it did not understand the theory of defense, and impeded trial counsel's ability to make effective opening and closing arguments and to defend the case. Trial counsel testified that the defense theory was misidentification; that she did not discuss the theory during the opening statement because she wanted to develop it during cross-examination of the state's witnesses; and that she made a strong closing argument about the state's theory of identity.
To the extent that Chatman is arguing that the only viable alternative was to forego trial and accept the plea, we defer to the discussion above. However, if Chatman is asserting that a better defense theory exists, he has made no argument as to what that theory should have been or as to what evidence should have been introduced to support that defense. Therefore, again, Chatman has not established prejudice, i.e., that there was a reasonable probability that the result of the trial would have been different if counsel had pursued a different defense.
(c) Chatman asserts that trial counsel was ineffective because she failed to mention Crissy Foster ("Crissy"), the person who was arrested with Chatman and had robbery proceeds in her purse. Additionally, Chatman asserts as error trial counsel's failure to object to hearsay testimony that Crissy yelled that there was a gun in the car when she and Chatman were apprehended.
Trial counsel testified that for strategic reasons there was no need to mention Crissy's
(d) Chatman mentions trial counsel's handling of Reedy's testimony in several of the grounds asserted as the basis for a finding of ineffectiveness. Chatman asserts that trial counsel should have subpoenaed Reedy to impeach her with her prior inconsistent statement. The pertinent facts pertaining to Reedy's testimony follow.
The videotaped interview of Reedy conducted by Detective Foster was played for the jury, in which she identifies Chatman as the perpetrator. Trial counsel indicated that she planned to call Reedy as a witness and to introduce the tape of Reedy's conversation with Chatman's former lawyer, William Dowell, in which she told him that she did not want to have the wrong person arrested and that several people had told her that Chatman was not the perpetrator; however, trial counsel was unable to introduce the recording as a prior inconsistent statement because Reedy was not present to authenticate the tape. The court gave trial counsel time to locate Reedy to no avail, then it resumed the trial, at which point the defense rested without offering any evidence. Trial counsel testified at the hearing on the motion for new trial that she did not know that the tape of Reedy's statement to Detective Foster would be played for the jury that day, which is the reason she did not request that Reedy remain in the courtroom.
Even if we presume that trial counsel's failure to subpoena Reedy so that she could be impeached with the statement to Dowell constituted deficient performance, to show the prejudicial effect of her failure to call Reedy, "[Chatman] is required to make an affirmative showing that specifically demonstrates how counsel's failure would have affected the outcome of his case."
(e) Chatman also asserts as ineffective trial counsel's failure to subpoena Dowell to lay a foundation to introduce Reedy's prior inconsistent statement. However, as stated above, Reedy testified about her statement to Dowell that Chatman may not have been the perpetrator. Therefore, even had Dowell been called to lay a foundation for the introduction of the tape into evidence, the actual recording would have been cumulative of Reedy's testimony. Thus, again, Chatman has failed to show prejudice.
(f) Chatman maintains that counsel was ineffective because she failed to understand the contemporaneous objection rule. But Chatman has not pointed to any evidence that was erroneously admitted because of trial counsel's deficient performance. Therefore,
(g) Lastly, Chatman argues that his trial counsel was ineffective because she had conversations with her client in open court, which the jury could hear. Chatman does not point us to any evidence in the record that whatever was said between Chatman and trial counsel was heard by the jury and prejudiced his case. Instead, Chatman refers us to trial counsel's testimony that she was trying to get Chatman to lower his voice after being warned a few times that they could be heard, and that she finally went into a private area with Chatman when he continued to be loud. Chatman argues, summarily, that this testimony evidences counsel's lack of understanding of basic trial procedures and warrants a finding of ineffectiveness. Because Chatman has not shown prejudice, however, we find no error.
Judgment affirmed.
SMITH, P.J., and ADAMS, J., concur.