296 Ga. 681
FINAL COPY
                     S14A1925. HEARD v. THE STATE.


      HUNSTEIN, Justice.

      Appellant Eric Tramaine Heard was convicted by a jury of murder and

related offenses in connection with a July 2009 burglary and attempted robbery

culminating in the shooting death of Shereecka Pitts in the presence of her two

young daughters and her sister. Appellant appeals the denial of his amended

motion for new trial, contending that the evidence was insufficient for a jury to

find him guilty; his trial counsel rendered ineffective assistance; and the trial

court erred with regard to certain witness testimony and by not giving a specific

jury instruction. Finding no error, we affirm.1

      1
         On December 16, 2010, a Clayton County grand jury indicted Appellant for
the following: malice murder; felony murder (predicated on burglary); felony murder
(predicated on aggravated assault); burglary; 12 counts of aggravated assault; four
counts of criminal attempt to commit armed robbery; kidnapping; simple battery;
false imprisonment; eight counts of possession of a weapon during a crime; and
possession of a firearm by a convicted felon. Appellant was tried by a jury on
February 27-March 1, 2012. The jury found Appellant guilty of two counts of felony
murder, eight counts of aggravated assault, four counts of criminal attempt to commit
armed robbery, kidnapping, simple battery, false imprisonment, eight counts of
possession of a firearm during the commission of a crime, and possession of a firearm
by a convicted felon. On March 12, 2012, the court sentenced Appellant to life
imprisonment for felony murder, a consecutive life term for kidnapping, and
consecutive terms totaling 116 years for the counts of aggravated assault, simple
battery, false imprisonment, possession of a firearm during the commission of a
      Viewed in the light most favorable to the jury’s verdict, the evidence

adduced at trial established as follows. On the morning of the crimes, Pitts, her

daughters, and her sister, Lachauda Pitts, were at Pitts’ house watching

television when they heard the doorbell ring; they saw no one at the door. After

going back to Pitts’ bedroom, they heard people coming in the house and saw

two men approaching them. The two women ran towards the garage in an effort

to escape. Behind her, Lachauda then heard one of the men say, “You move I’ll

blow your mother f****** brains out.” She turned to see one of the men

holding a .40 caliber firearm and the other holding a firearm she could not

identify. The women stopped and retreated towards the bedroom where the two

young girls were located. The gunmen followed.

      The two men demanded money, and the women replied that they did not

have any. Pitts told the assailants to take anything in the house, and Lachauda

got on the ground. Lachauda watched as Appellant opened the closet door,


crime, and possession of a firearm by a convicted felon. The remaining counts
merged or were vacated by operation of law. Appellant filed a motion for new trial
on March 30, 2012, which was amended on February 20, 2013. After a hearing on
Appellant’s amended motion for new trial on March 21, 2013, the trial court denied
Appellant’s motion on January 7, 2014. Appellant filed a notice of appeal on
February 6, 2014. The appeal was docketed to the September 2014 term of this Court
and submitted for a decision on the briefs.
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pushed Pitts inside, and demanded that she find money. The other man pointed

a gun in Lachauda’s face and repeatedly said that he would shoot her, while she

begged for her life. Lachauda then observed Appellant shoot Pitts in the

abdomen and saw her fall to the ground. Lachauda watched as Appellant shot

Pitts again in the leg. Pitts’ daughters began jumping and crying hysterically

upon seeing their mother shot. Appellant then put his hand around Lachauda’s

throat and said, “I’ll just do you how I just did your mother f****** sister [sic]

where the money at?” Appellant pointed a gun in Lachauda’s face and told her

to get the two girls off of the bed before he shot them. Lachauda gathered the

girls off of the bed and tried to calm them. Appellant demanded cell phones

from Lachauda, but she could not locate them. Appellant and the other gunman

then ran out of the front door.

      When police arrived on the scene, they found Pitts unresponsive, with

gunshot wounds to her right thigh and abdomen. She died of these wounds at

the hospital. The bullet recovered from her body matched another bullet that

investigators found on the bedroom carpet. Investigators also recovered a .40

caliber shell casing in the bedroom.

      Lachauda was able to give a description of both gunmen to the lead

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detective at the scene. Approximately two hours later, Lachauda spoke further

with this detective at police headquarters and gave descriptions of the two

gunmen to a sketch artist. Based on tips received after the media published the

sketches, investigators identified Appellant as one of the assailants. Four days

later, the lead detective showed Lachauda a photographic lineup. Upon seeing

Appellant’s photograph in the lineup, Lachauda immediately began crying and

shaking, and she identified Appellant as the shooter and the gunman that had

demanded money, threatened her and the girls, grabbed her by the throat, and

pointed a gun in her face. She testified to this effect at trial and identified him

in open court.

      After police arrested Appellant, Sterling Flint contacted police, claiming

to have information about the murder. Flint met with police, where he gave a

videotaped statement implicating Appellant as the shooter. At trial, Flint

changed his story, claiming that he did not know Appellant and that he had lied

in his statement to police. The videotaped statement was played for the jury.

In it, Flint told investigators that he knew that Appellant “did it” and that he had

heard Appellant say, in reference to the crimes, “B**** should have gave [sic]

up the money” and “nobody gonna [sic] find out what I did to the b****.”

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      1. The evidence as described above was sufficient to enable a rational

trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of

the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99

SCt 2781, 61 LE2d 560) (1979).

      2. Appellant argues that the photographic lineup shown to Lachauda was

so impermissibly suggestive that it gave rise to a substantial likelihood of

irreparable misidentification. We disagree.

            An unduly suggestive procedure is one which leads the
      witness to the virtually inevitable identification of the defendant as
      the perpetrator, and is equivalent to the authorities telling the
      witness, “This is our suspect.” Where the identification procedure
      is not unduly suggestive, it is not necessary to consider whether
      there was a substantial likelihood of irreparable misidentification.



Williams v. State, 290 Ga. 533, 535-536 (2) (a) (722 SE2d 847) (2012)

(punctuation omitted).

      Applying this standard, we conclude that the photographic lineup shown

to Lachauda was not unduly suggestive. Though Appellant asserts that the lead

detective improperly used a post-arrest photograph of Appellant in the

photographic array, we find no error. Each of the photographs in the lineup


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depicted a black male standing before a similar blue background. The fact that

a post-arrest photograph of Appellant was used in the lineup does not render it

impermissibly suggestive. See Sharp v. State, 286 Ga. 799 (4) (692 SE2d 325)

(2010) (photographic lineup consisting of booking photographs did not render

them impermissibly suggestive). Moreover, the record does not indicate any

police action that would have led Lachauda to single out Appellant in the lineup.

Lachauda had a physical reaction to Appellant’s photograph during the lineup,

was confident that he was the shooter, and was consistent in her identification

from the time of the lineup, four days after the crimes, through the time of trial.

      3. Appellant argues that his trial counsel rendered constitutionally

ineffective assistance.    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 his trial would have been different. Strickland v.

Washington, 466 U. S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley

v. State, 286 Ga. 355 (3) (689 SE2d 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

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of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745

SE2d 637) (2013). 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 SE2d

359) (2012).

      (a) Appellant asserts that counsel were ineffective for failing to file a

motion to suppress Lachauda’s identification of Appellant in the photographic

lineup.   Given our determination that the photographic lineup shown to

Lachauda was not unduly suggestive, any such motion by counsel would not

have been successful, and Appellant thus can show neither deficient

performance nor prejudice in this regard. See Durden v. State, 293 Ga. 89, 97

(6) (a) (744 SE2d 9) (2013) (“failure to make a meritless motion or objection

cannot constitute ineffective assistance of counsel”).

      (b) Appellant contends that counsel failed to properly impeach Flint with

his prior convictions. Given Flint’s acknowledgment during his trial testimony

that he was at that time incarcerated on unrelated charges, Appellant cannot

show prejudice from counsel’s failure to probe more deeply into Flint’s criminal

history. Additionally, insofar as Appellant neglected to introduce evidence of

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any of Flint’s prior convictions at the new trial hearing, this claim must fail. See

Fuller v. State, 278 Ga. 812 (2) (d) (607 SE2d 581) (2005).

      (c) Appellant asserts that counsel were ineffective for failing to impeach

Lachauda with her prior inconsistent statements. However, Appellant’s trial

counsel were not questioned at the new trial hearing about their failure to

impeach Lachauda, and we thus must presume that their decisions in this regard

were reasonably strategic and cannot give rise to an ineffectiveness claim. See

Bright v. State, 292 Ga. 273 (2) (a) (736 SE2d 380) (2013).

      (d) Appellant contends that counsel failed to call a rebuttal witness to

contradict Flint’s testimony. To prevail on this claim, Appellant must make “an

affirmative showing [of] how counsel’s failure would have affected the outcome

of his case” by demonstrating that the rebuttal witness’ testimony would have

been relevant and favorable to him. Goodwin v. Cruz-Padillo, 265 Ga. 614,

615 (458 SE2d 623) (1995). Although the rebuttal witness testified at

Appellant’s hearing on his motion for new trial, he did not testify specifically

about what his trial testimony would have been. Having failed to make any

proffer of the rebuttal witness’ expected trial testimony, Appellant cannot

establish prejudice in this regard. Id.

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      (e) Appellant asserts that counsel failed to investigate the owner of a cell

phone found at the crime scene. However, Appellant did not produce this cell

phone at the new trial hearing, nor did he make any proffer as to what further

investigation would have uncovered.         He thus cannot establish ineffective

assistance of counsel on this ground. White v. State, 293 Ga. 825 (2) (c) (750

SE2d 165) (2013).

      (f) Appellant also claims his counsel were ineffective for failing to

produce Appellant’s cell phone records. However, counsel testified at the new

trial hearing that they had obtained these records, reviewed them, and spoken to

Appellant about his incoming and outgoing calls. Counsel testified that they did

not have any reason to disbelieve what Appellant told them about the calls and

his whereabouts when he received the calls, and that, on this basis, they did not

follow up further in this regard. Applying the strong presumption that counsel’s

conduct fell within the wide range of reasonable professional performance, we

do not find that counsel’s actions here were so patently unreasonable that no

competent attorney would have followed such a course. See Romer, 293 Ga. at

344. Additionally, Appellant has failed to establish how this evidence or other

information from his cell phone records would have been favorable to his

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defense. See White, 293 Ga. at 827-828.

      (g) Appellant also contends that counsel were ineffective because (1) they

never questioned Appellant’s alibi witness about Appellant’s whereabouts on

the morning of the murder; (2) they failed to request limiting instructions when

the trial court allowed the State to impeach Flint by playing his videotaped

statement; and (3) they failed to request a jury charge on “assault” as it related

to aggravated assault alleged in the indictment. Appellant did not raise any of

these issues in his amended motion for new trial or at the hearing on his motion,

and the trial court did not rule on them. Accordingly, he has failed to preserve

these issues for review on appeal. Jones v. State, 294 Ga. 501 (2) (755 SE2d

131) (2014).

      4. Appellant argues that the trial court erred with regard to Flint’s

testimony. First, he asserts that the court improperly allowed Flint to testify

about a discussion he had with Appellant. However, trial counsel did not object

to this testimony; he objected only to the playing of Flint’s videotaped

statement. “The failure to make a timely and specific objection is treated as a

waiver.” Seabrooks v. State, 251 Ga. 564, 567 (1) (308 SE2d 160) (1983).

Accordingly, Appellant has not preserved this issue for appeal. See id.

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      Second, Appellant contends that the court erred by admitting the videotape

of Flint’s statement without proper authentication.           A “videotape is

authenticated by showing it is a fair representation of the object, scene, or

person depicted,” and any witness familiar with the subject depicted can

authenticate a videotape. Walthall v. State, 281 Ga. App. 434, 441 (2) (b) (636

SE2d 126) (2006). At trial, Flint acknowledged that the State had a videotape

of his interview with Cobb County detectives, identified himself in the video,

and admitted that the date on the video was consistent with the date he was

interviewed. See id. At the new trial hearing, Appellant did not present any

evidence to show that the videotape was not a fair representation or had been

altered. The Court finds that Flint’s testimony sufficiently authenticated the

videotaped statement.

      Third, Appellant asserts that the court erred by failing to give the jury a

limiting instruction regarding the use of the videotaped statement for

impeachment purposes only. Even assuming such an instruction would have

been proper, Appellant never requested a limiting instruction. Therefore,

Appellant can show no error. Herring v. State, 277 Ga. 317, 319 (3) (588 SE2d

711) (2003) (“Limiting instructions must be requested in order for the failure to

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instruct to be erroneous.”).

      5. Appellant argues that the trial court erred by not giving the jury a

charge on “assault” as it related to the offense of aggravated assault. Because

Appellant failed to object to the court’s jury instructions at trial, we review this

enumeration only for “plain error.” See Scott v. State, 290 Ga. 883 (4) (725

SE2d 305) (2012). The record reflects that the court charged the jury on the

offenses of aggravated assault with intent to commit murder, aggravated assault

with intent to rob, and aggravated assault with a deadly weapon. The court

provided the statutory definition of simple assault when charging on aggravated

assault for these offenses. See OCGA § 16-5-20. Therefore, there was no error.

Johnson v. State, 289 Ga. 650 (5) (715 SE2d 99) (2011) (aggravated assault

charge was sufficient because it covered the fundamentals of simple assault).

      Judgment affirmed. All the Justices concur.



                               Decided March 2, 2015.

      Murder. Clayton Superior Court. Before Judge Benefield.

     Stephenson Law Group, Pamela S. Stephenson, Whatley & Associates,
Lynn H. Whatley, for appellant.


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      Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant
District Attorney, Samuel S. Olens, Attorney Geneal, Patricia B. Attaway
Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Andrew G. Sims, Assistant Attorney General, for appellee.




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