Benjamin Johnson was convicted of murder in connection with
the stabbing death of his brother, Timothy
Johnson. The trial court denied Johnson's
amended motion for new trial, and he now appeals, asserting
error in the admission of hearsay testimony concerning a
prior altercation between the brothers and ineffective
assistance of trial counsel in failing to object to the
testimony or investigate the prior altercation. For the
reasons that follow, we affirm.
to support the jury's verdict, the evidence shows that on
the night in question, appellant visited the victim and the
victim's common-law wife, Hurt, at their home. Appellant
and the victim were watching television and drinking in the
den. Hurt was upstairs when she heard a commotion in the
garage. When she went to the garage to investigate, she found
the brothers had fallen over a treadmill and were
"wrestling" on the floor. Neither brother had a
weapon, and Hurt was able to step between them and break up
the scuffle. Hurt tried to persuade the victim to help her
take appellant home, and told the men to stop arguing.
left the room to go upstairs, she heard the victim exclaim,
"What the hell, Ben, you stabbed me." Hurt turned
and saw appellant stabbing the victim; Hurt grabbed appellant
from behind, but he turned around and Hurt thought he was
going to stab her, so she started to run away. When she
looked again, Hurt saw appellant standing over the victim and
forcing him down the stairs while continuing to stab him.
Hurt testified that the victim did not hit appellant and did
not have a weapon in his hands. When the brothers fell over a
table, the victim grabbed appellant's knife hand and Hurt
was able to take the knife away from appellant, who then left
the house. Hurt called 911 and the victim was treated on
scene and transported to the hospital, where doctors
discontinued resuscitation efforts. An autopsy revealed three
stab wounds to the victim's torso; the fatal wound, in
his chest, passed through his ribs and into his heart.
trial, Hurt testified about an incident that took place in
Stone Mountain "either [during] the very end of the
'90s, [or the] beginning of the year
2000."According to Hurt, she received a call from
the victim to come to a friend's house in Stone Mountain.
When she arrived, she found the victim on the floor "all
beat up, " with cuts on his face, across his chest, and
on his side. The victim told her that appellant and two of
their cousins were at the appellant's apartment and they
all were watching television and drinking; that the victim
was arguing with appellant, who told him he needed to be
quiet and listen because he was the "baby brother;"
that appellant and the victim pushed one another and
"they started fighting;" that the "cousins
jumped in it;" and that they "jumped [the victim] .
. . beat him up really bad, " "cut" him, and
left him "out in the parking lot." The victim got
to a pay phone and called a friend, who picked him up and
took him to his home and called his wife to come get him.
took the stand and testified in his own defense. With respect
to the Stone Mountain incident, he stated that although he
was present, he did not hit the victim, but a cousin did.
With respect to the incident resulting in the victim's
death, appellant testified that the victim was an habitual
heavy drinker and became "mad" when he was drunk.
On the evening in question, Hurt and the victim were fighting
and Hurt began hitting the victim. Appellant stated that he
stepped outside to smoke, and when he walked back in the
victim attacked him without warning and began pounding his
head into the ground. Appellant said he left the house and
called the police on his cellphone, but returned to get his
glasses, and the victim attacked him again. The victim
continued to threaten him, and appellant retreated to the
kitchen and picked a knife up "as a deterrent."
When the victim charged up the stairs, appellant attempted to
push the victim away and accidentally stabbed him with the
knife. He testified that he did not know that he had stabbed
the victim, did not intend to stab him, and did not intend to
kill him. He acknowledged that he told police that he stabbed
the victim "about three or four times, " but
claimed he was defending himself.
Although appellant has not raised the sufficiency of the
evidence in his appeal, we note that it was sufficient to
support his conviction under Jackson v. Virginia,
443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
his first enumeration of error, appellant complains that the
trial court erred in admitting Hurt's hearsay testimony
regarding the Stone Mountain incident under OCGA §
24-8-807. But, pretermitting whether admission of
that testimony was error, any such error was harmless in
light of the substantial evidence of appellant's guilt
and the limited pertinence of the testimony. Hurt testified
in detail to appellant's lengthy and persistent attack
upon the unarmed victim. Appellant did not deny that he was
present and admitted that he stabbed the victim. Although he
claimed at trial that he did not intend to stab the victim
and did so accidentally while trying to stop an unprovoked
attack, he told police that he stabbed the victim "about
three or four times, " which was borne out by the
medical testimony. Therefore, even if admission of the
evidence was error, any error was harmless here given the
substantial evidence of appellant's guilt. See Parks
v. State, 300 Ga. 303, 308 (2) (794 S.E.2d 623) (2016)
(irrelevant evidence of 24-year-old assault conviction
as the trial court observed in its order denying
appellant's motion for new trial, the Stone Mountain
incident occurred between 10 and 15 years earlier. The victim
did not tell Hurt how the incident began, nor did he specify
that appellant caused his injuries, only that appellant and
his cousins hit him and cut him, and he never stated that
anyone had a weapon. While Hurt asked the victim, "Who
cut you?" she did not testify to his response, but
testified that he said he could not believe that his brother
and cousins would beat him up and cut him. In his testimony
at trial, appellant recounted the incident and stated that
the victim suddenly and without warning threw a telephone and
hit him in the face. He denied attacking the victim, stating
that after the victim hit him with the telephone, his cousin
took the victim outside. Later, the cousin told him that he
punched the victim once, knocking him down. Moreover, the
State did not cross-examine appellant regarding the incident,
and, according to the trial court, neither side mentioned the
incident in closing arguments. It is doubtful that this
decade-old, equivocal and uncertain testimony affected the
verdict, particularly in light of the substantial evidence of
appellant's guilt. See Bridges v. State, 279 Ga.
351, 355 (5) (613 S.E.2d 621) (2005) ("in light of the
marginal value of this evidence to the State's
prosecution" and overwhelming evidence of guilt, error
in admitting evidence was harmless).
Because the admission of the testimony was harmless, we need
not consider whether adequate notice was given of the
State's intention to use Hurt's testimony under OCGA
§ 24-8-807. Nor can appellant show ineffective
assistance of counsel. "If the [evidence] itself would
not constitute harmful error under the circumstances, then
there is no reasonable probability that the trial
lawyer's failure to object to it affected the outcome of
the case. Therefore, [appellant] has not made the requisite
showing of prejudice resulting from defense counsel's
acquiescence in the impermissible [evidence]."
Pearson v. State, 277 Ga. 813, 817 (5) (c) (596
S.E.2d 582) (2004). See also Skaggs-Ferrell v.
State, 287 Ga.App. 872, 879 (4) (652 S.E.2d 891) (2007)
("As any error was harmless, [appellant's] claim of
affirmed. All the Justices concur.
 The crime occurred on December 8,
2013. On March 4, 2014, a DeKalb County grand jury indicted
Johnson for felony murder and aggravated assault. He was
tried before a jury March 30-April 1, 2015. The jury found
Johnson guilty on both counts. He was sentenced to life
imprisonment for felony murder; the trial court merged the
aggravated assault charge with the felony murder charge. See
Malcolm v. State, 263 Ga. 369, 372-373 (5) (434
S.E.2d 479) (1993). Johnson's amended motion for new
trial was denied on July 15, 2016, his notice of appeal was
filed on July 25, ...