FINAL COPY
294 Ga. 752



                        S13A1910. WALKER v. THE STATE.


       HINES, Presiding Justice.

       Joshua Jarrod Walker appeals from his convictions and sentences for the

crimes of felony murder while in the commission of attempted armed robbery,

armed robbery, and possession of a firearm during the commission of a felony,

all in connection with the slaying of Michael Algreen and the armed robbery of

Julie Looper. For the reasons that follow, we affirm.1

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           The crimes were committed on January 22, 2006. On September 16, 2009, a Chatham
County grand jury indicted Walker, along with Deshaun Kinlaw, for the malice murder of Algreen,
and indicted Walker, Kinlaw, and Quincy Lavant for: the felony murder of Algreen while in the
commission of aggravated assault; the felony murder of Algreen while in the commission of
burglary; the felony murder of Algreen while in the commission of attempted armed robbery; the
armed robbery of Looper; the possession of a firearm during the commission of the crime of
“murder/felony murder”; and the possession of a firearm during the commission of the crime of
armed robbery. Walker was tried alone before a jury March 7-10, 2011, but the jury was unable to
reach any verdict, and a mistrial was declared. Walker was tried before a different jury August 8-15,
2012, and found guilty of felony murder while in the commission of attempted armed robbery, and
armed robbery; he was also found guilty of both counts of possession of a firearm during the
commission of a felony, but acquitted of the other charges. On August 21, 2012, he was sentenced
to life in prison for felony murder, and consecutive terms of 20 years in prison for armed robbery and
five years in prison for possession of a firearm during the commission of a felony; the court
determined that the other charge of possession of a firearm during the commission of a felony
merged with a charge upon which he was also sentenced. See Malcolm v. State, 263 Ga. 369, 371-
374 (4), (5) (434 SE2d 479) (1993). Walker moved for a new trial on August 31, 2012; he amended
the motion on September 4, 2012, and again on April 9, 2013. On June 12, 2013, the motion, as
amended, was denied. On July 10, 2013, Walker filed a notice of appeal; the appeal was docketed
in this Court for the September 2013 term and submitted for decision on the briefs.
     Construed to support the verdicts, the evidence showed that Walker was

selling illegal drugs from a location across the street from the apartment

complex where Algreen and Looper lived. Algreen and Looper sought to buy

drugs from him, and Walker went with them back to their apartment, and

produced powder cocaine for their purchase. Algreen expressed a preference for

crack cocaine and showed Walker a quantity of cash; Walker said he would try

to obtain some crack cocaine.

     Walker went to a nightclub with Deshaun Kinlaw and Quincy Lavant, and

then went with them to the home in which they lived. There, Walker reported

that Algreen had $3,500 to $4,500 in cash and declared his intention to rob

Algreen and Looper; Kinlaw supplied a handgun to Walker and decided to

accompany him, and Lavant joined them. The three men went to Lavant’s car,

and Lavant drove to Walker’s home where another pistol was retrieved. Lavant

then drove to the apartment complex where Algreen and Looper lived; Lavant

stayed with the car while Walker and Kinlaw went into the complex. There,

using T-shirts for masks, Walker knocked on the door of the apartment; when

Algreen opened the door, the men forced their way inside. Walker and Kinlaw

demanded money, and Looper gave Kinlaw $200; when he reached for it, his

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mask slipped and she noted a gap in his front teeth so distinctive as to be

identifying. As Walker faced Algreen, demanding money, Algreen said he did

not have any and began to extract items from his pockets. Looper told Algreen

to “just give them the money,” and Walker shot Algreen multiple times with a

.22 pistol. Walker and Kinlaw ran from the apartment, and Algreen went out the

back door of the apartment, where he collapsed in the courtyard of the complex;

he later died of multiple gunshot wounds.

      Walker and Kinlaw ran to Lavant’s car and entered it. Kinlaw asked

Walker why he shot Algreen; Walker replied that Algreen “didn’t wanna give

up his money.” Lavant then drove the three of them to Florida where they

attempted to establish an alibi by being seen on a store surveillance camera and

buying some parakeets at a market which required the men to put their names

and addresses in a registry.

      1. The evidence authorized the jury to find Walker guilty beyond a

reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia,

443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

      2. Walker contends that his trial counsel failed to provide effective

representation in several respects. In order to prevail on such a claim, he must

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show both that counsel’s performance was deficient, and that the deficient

performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783

(1) (325 SE2d 362) (1985), citing Strickland v. Washington, 466 U.S. 668 (104

SCt 2052, 80 LE2d 674) (1984). To meet the first prong of the required test, he

must overcome the “strong presumption” that counsel’s performance fell within

a “wide range of reasonable professional conduct,” and that counsel’s decisions

were “made in the exercise of reasonable professional judgment.” Id. The

reasonableness of counsel’s conduct is examined from counsel’s perspective at

the time of trial and under the particular circumstances of the case. Id. at 784.

To meet the second prong of the test, he must show that there is a reasonable

probability that, absent any unprofessional errors on counsel’s part, the result

of his trial would have been different. Id. at 783. “‘We accept the trial court’s

factual findings and credibility determinations unless clearly erroneous, but we

independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State,

277 Ga. 75, 76 (586 SE2d 313) (2003).

      (a) Walker contends that trial counsel was ineffective in failing to object

when the State posed a hypothetical question to a prospective juror during voir

dire. The incident occurred when the State asked the panel of prospective jurors

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whether they could concern themselves only with guilt or innocence, and not

punishment; one juror asked the State to rephrase the question. The State

responded:

      Okay. Here’s . . . here’s an example. Consider there’s a very poor
      young girl who steals some bread out of desperation to feed her
      hungry child. Can you make a distinction and make a decision only
      as to whether or not she stole the bread without considering the
      possible punishment? That means you only look at strictly what the
      law and the facts say that person did, not what the punishment will
      be or could be.

Walker urges that counsel should have objected at this point.

      As Walker recognizes, there is no per se rule against hypothetical

questions during voir dire of prospective jurors. This Court has noted that,

under Uniform Superior Court Rule 10.1,

      [h]ypothetical questions are discouraged, but may be allowed in the
      discretion of the court. It is improper to ask how a juror would act
      in certain contingencies or on a certain hypothetical state of facts.
      No question shall be framed so as to require a response from a juror
      which might amount to a prejudgment of the action. [Cit.]

Ellington v. State, 292 Ga. 109, 127 (7) (b) (735 SE2d 736) (2012). The

question posed by the State did not in any way call for a response amounting to

a prejudgment of the State’s prosecution of Walker. Further, although

      [h]ypothetical voir dire questions are not per se improper [cit.] . . .

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      a trial judge should be cautious in allowing counsel to propound
      questions which ask the juror to assume that certain facts will be
      proven. Such questions tend to improperly influence jurors. [Cit.]

Waters v. State, 248 Ga. 355, 365 (3) (283 SE2d 238) (1981). No such

assumption was made in the State’s hypothetical. Rather, it simply responded

to the prospective juror’s question. Accordingly, Walker fails to establish either

that the failure to object when the question was posed constituted deficient

performance, or that doing so would have been successful so as to create a

reasonable probability of a different result. Smith v. Francis, supra; Strickland,

supra.

      (b) Walker testified in his own defense, and on cross-examination, the

State impeached Walker by introducing three prior convictions of his. Trial

counsel did not object to the introduction of the convictions, and Walker

submits that this was error, contending that trial counsel should have objected

that their prejudicial effect upon Walker substantially outweighed their

probative value, citing former OCGA § 24-9-84.1 (a) (2).2

      2
          Former OCGA § 24-9-84.1 read, in relevant part:

               (a) General rule. For the purpose of attacking the credibility of a witness, or
      of the defendant, if the defendant testifies:
               (1) Evidence that a witness has been convicted of a crime shall be admitted
      if the crime was punishable by death or imprisonment of one year or more under the

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      The trial court did not err in denying the motion for new trial on this

ground. Although Walker contends that the convictions at issue were not crimes

involving dishonesty or the making of a false statement, there is no such

requirement under OCGA § 24-9-84.1 (a) (2). See Whitaker v. State, 283 Ga.

521, 523 (2) (661 SE2d 557) (2008). And, Walker’s credibility was clearly an

issue at trial; he testified that he was at his sister’s home in Florida at the time

of the killing, and that he had not returned to Savannah between Christmas and

his mother’s funeral a month after the killing, despite the fact that his mother


      law under which the witness was convicted if the court determines that the probative
      value of admitting the evidence outweighs its prejudicial effect to the witness;

              (2) Evidence that the defendant has been convicted of a crime shall be
      admitted if the crime was punishable by death or imprisonment of one year or more
      under the law under which the defendant was convicted if the court determines that
      the probative value of admitting the evidence substantially outweighs its prejudicial
      effect to the defendant; and
              (3) Evidence that any witness or the defendant has been convicted of a crime
      shall be admitted if it involved dishonesty or making a false statement, regardless of
      the punishment that could be imposed for such offense.
              (b) Time limit. Evidence of a conviction under subsection (a) of this Code
      section is not admissible if a period of more than ten years has elapsed since the date
      of the conviction or of the release of the witness or the defendant from the
      confinement imposed for that conviction, whichever is the later date, unless the court
      determines, in the interest of justice, that the probative value of the conviction
      supported by specific facts and circumstances substantially outweighs its prejudicial
      effect. However, evidence of a conviction more than ten years old, as calculated in
      this subsection, is not admissible unless the proponent gives to the adverse party
      sufficient advance written notice of intent to use such evidence to provide the adverse
      party with a fair opportunity to contest the use of such evidence.



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was terminally ill and his sister traveled from Florida to see her before she died,

testimony that was directly contrary to that of multiple witnesses who placed

him at the scene of the killing. It would not have been an abuse of discretion to

deny the motion to exclude the convictions, and Walker cannot show prejudice

resulting from the failure to make the argument he now contends should have

been made at trial. See Williams v. State, 292 Ga. 844, 852 (3) (e) (742 SE2d

445) (2013). See also Robinson v. State, 312 Ga. App. 110, 113 (2) (717 SE2d

694) (2011) (Noting that when conduct for which the defendant is tried is

dissimilar to that involved in the prior convictions, the danger of prejudice is

lessened.)

       (c) In Walker’s prior trial on these charges, a mistrial was declared when

the jury could not reach a unanimous verdict. At Walker’s second trial, which

resulted in the convictions and sentences now on appeal, Looper testified in

rebuttal to Walker’s alibi defense that he was the person who sold cocaine to her

and Algreen shortly before the killing.3 Walker contends that trial counsel

should have impeached her with her testimony from the first trial to the effect


       3
         During her testimony in the State’s case-in-chief, she generally referred to the person who
sold the drugs.

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that she had not ever identified Walker as the drug seller, instead only giving a

description of the seller. However, counsel testified during the hearing on the

motion for new trial that he did not pursue this course of impeachment because,

although not overly detailed, the description she gave matched Walker’s

appearance. Counsel further testified that he believed that the most effective

course of action was to elicit testimony from Looper that in the six-and-one-half

years since Algreen was killed, she had not once identified Walker as the man

who sold her and Algreen the drugs.4

       Walker fails to demonstrate deficient performance by trial counsel as to

this issue. “The scope of cross-examination is grounded in trial tactics and

strategy, and will rarely constitute ineffective assistance of counsel.” Freeman

v. State, 284 Ga. 830, 835 (4) (672 SE2d 644) (2009) (Citation omitted.). In

light of the cross-examination of Looper that counsel conducted, Walker fails

to show that counsel’s representation fell outside the wide range of reasonable

professional conduct, or that his decisions were not made in the exercise of

reasonable professional judgment. See Smith v. Francis, supra. See also Romer


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       Counsel also elicited testimony from Looper that she had been drinking and likely mixed
Xanax and alcohol before the drug purchase.

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v. State, 293 Ga. 339, 344 (3) (a) (745 SE2d 637) (2013).

      (d) Walker contends that counsel should have elicited from Lavant and

Kinlaw testimony that they faced considerable time in prison if they did not

agree to testify for the State against Walker; essentially, Walker asserts that the

men should have specifically testified to a computation of prison time that they

might have received, and then compared that to what they actually received.

Trial counsel elicited from each man the testimony that his charges were

significantly reduced in exchange for his testimony in Walker’s prosecution,

including the elimination of the charges of murder. At the hearing on the

motion for new trial, Walker failed to establish what either Lavant or Kinlaw

might have testified to in response to the questions he now contends should have

been posed, and thus fails to establish a reasonable probability that the result of

his trial would have been different if counsel had posed additional questions.

Smith v. State, 292 Ga. 588, 592 (4) (b) (740 SE2d 129) (2013).

      (e) Finally, Walker contends that trial counsel should have impeached

various witnesses with: prior hearsay testimony; testimony that was cumulative

of testimony from other witnesses; testimony from Walker’s prior trial that he

contends was inconsistent with that given at his second trial; and testimony from

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the prior trial that he argues would have impeached witness testimony to a

greater extent than the impeachment that counsel elicited at the second trial. He

argues that, had all these impeachment efforts been undertaken, it would have

increased the chances of the jury rejecting the testimony of these damaging

witnesses, and strengthened counsel’s closing argument. However, trial counsel

engaged in extensive impeachment of witnesses, and it cannot be said that in

doing so counsel acted beyond the bounds of reasonable conduct and judgment;

thus, Walker fails to show deficient performance on trial counsel’s part. See

Smith v. Francis, supra. “The fact that present counsel would pursue a different

strategy does not render trial counsel’s strategy unreasonable. Effectiveness of

trial counsel is not judged by hindsight or result.” Freeman, supra (Citations

and punctuation omitted.).

      Judgments affirmed. All the Justices concur, except Hunstein, J., who

concurs in the judgment only as to Division 2 (b).




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                          Decided March 10, 2014.

     Murder. Chatham Superior Court. Before Judge Morse.

     Steven L. Sparger, for appellant.

     Meg E. Heap, District Attorney, Isabel M. Pauley, Assistant District

Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,

Katherine L. Iannuzzi, Assistant Attorney General, for appellee.




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