NAHMIAS, PRESIDING JUSTICE.
Maurice Bentley was convicted of malice murder and other
crimes in connection with a shooting that killed Michael
Polite and injured Angela Johnson. Appellant contends on
appeal that his trial counsel provided ineffective assistance
by failing to object to an autopsy photograph, failing to
stipulate to Appellant's prior convictions for rape and
incest, and mentioning in front of the jury an earlier trial
in this case. None of these claims has merit, so we
Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant's trial showed the
following. On Christmas Eve 2013, Appellant spent the day
with Crystal Frazier, whom he had known for about a week.
That evening, Appellant dropped off Frazier at the house she
shared with her four children and her mother Angela Johnson.
Michael Polite, Frazier's ex-boyfriend and the father of
her children, was at the house when Frazier arrived. Frazier
planned to leave the house again to go to a Christmas party
with Appellant, and she and Polite argued because he wanted
her to spend the evening with him and their children.
that evening, Appellant returned to the house to pick up
Frazier for the party. He parked his SUV on the street in
front of the house, sat in the passenger seat with the door
open, and waited for her. Polite then went out to the front
yard and told Appellant to leave because Frazier was going to
stay with Polite and the children. Appellant and Polite
argued, and Johnson, Frazier, and Frazier's sister
Kimberly also went out to the front yard. Frazier stood near
Appellant, who was still sitting in the passenger seat, while
Polite, Johnson, and Kimberly stood in front of Appellant in
the yard. Johnson tried to persuade Polite to return to the
house by pulling on his arm. She then heard Polite say,
"[O]h, you got a gun," and "[W]e ain't
gotta do that." Polite stepped back toward the house and
said that he and Appellant "could fight and get it over
with." Appellant then stood up outside the SUV, pulled
out a gun, and shot toward Polite as Polite began to run
away. Polite was shot four times and collapsed near the side
of the front yard; Johnson was shot once in the leg.
Appellant, who was a convicted felon, then fled in his SUV.
later, paramedics arrived, and Polite and Johnson were taken
to a hospital, where Polite died later that night from his
gunshot wounds. Investigators interviewed Johnson, Frazier,
and Kimberly that night; each of the women was shown a photo
lineup and identified Appellant as the shooter. Investigators
found two .380 shell casings near the area where Polite had
collapsed and one .380 shell casing in the street in front of
records showed that Appellant called his cousin moments after
the shooting. The cousin testified that Appellant arrived at
her house in his SUV later that night, parked it on the side
of the house, and told her at some point that he was leaving
to change his clothes, but did not return. Investigators
found Appellant's SUV parked next to the cousin's
house. Almost two weeks later, Appellant was found at another
family member's house; he was arrested after he attempted
to escape by climbing out a window.
trial, Johnson, Frazier, and Kimberly each identified
Appellant as the shooter and testified that no one else had a
gun that night. In addition, Frazier told investigators that
Appellant carried a .380 pistol, and she testified that she
had seen a gun in Appellant's glove compartment earlier
on the day of the shooting. She also testified that shortly
after the shooting, she called Appellant and told him that he
had killed Polite, and Appellant responded that "he
wasn't trying to kill him." During a call Appellant
made from jail, which was recorded and later played for the
jury, Johnson accused Appellant of shooting her and Polite
and said that he needed to tell the truth; Appellant replied,
medical examiner who performed Polite's autopsy testified
that Polite was shot once in the back of his shoulder, once
near his pelvis, and twice in his lower back. The medical
examiner removed four .380 bullets from Polite's body and
testified that the location of the bullet wounds was
consistent with Polite's having run away from the
shooter. A firearms examiner testified that the three shell
casings found at the crime scene were fired from the same
.380 pistol and that all of the bullets recovered from
Polite's body were fired from the same .380 pistol,
although he could not determine whether the same pistol fired
the shell casings and the bullets.
did not testify at trial. His primary defense theory was that
Frazier was the shooter and he was merely present at the
scene. To support this theory, Appellant pointed to evidence
that Frazier and Polite had a violent relationship and that
Frazier had purchased a Davis .380 pistol in 2009. Frazier
testified, however, that at the time of the shooting she no
longer owned that pistol, and the firearms examiner testified
that the bullets from Polite's body were not consistent
with having been fired from a Davis pistol. Moreover, the
prosecutor asked Frazier if she had shot Polite and Johnson,
and she squarely denied it.
does not challenge the legal sufficiency of the evidence
supporting his convictions. Nevertheless, in accordance with
this Court's practice in murder cases, we have reviewed
the record and conclude that, when viewed in the light most
favorable to the verdicts, the evidence presented at trial
and summarized above was sufficient to authorize a rational
jury to find Appellant guilty beyond a reasonable doubt of
the crimes of which he was convicted. See Jackson v.
Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d
560) (1979). See also Vega v. State, 285 Ga. 32, 33
(673 S.E.2d 223) (2009) ("'It was for the jury to
determine the credibility of the witnesses and to resolve any
conflicts or inconsistencies in the evidence.'"
Appellant contends that his trial counsel provided
ineffective assistance in three ways. To succeed on his
claims, Appellant must show that his counsel's
performance was professionally deficient and that he suffered
prejudice as a result. See Strickland v. Washington,
466 U.S. 668, 687 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). To
establish deficient performance, Appellant must show that his
lawyer performed his duties in an objectively unreasonable
way, considering all the circumstances and in the light of
prevailing professional norms. See id. at 687-690. To prove
prejudice, Appellant must demonstrate that there is a
reasonable probability that, but for counsel's
deficiency, the result of his trial would have been
different. See id. at 694. "It is not enough 'to
show that the errors had some conceivable effect on the
outcome of the proceeding.'" Harrington v.
Richter, 562 U.S. 86, 104 (131 S.Ct. 770, 178 L.Ed.2d
624) (2011) (quoting Strickland, 466 U.S. at 693).
Rather, Appellant must establish a "reasonable
probability" of a different result, which means "a
probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694. Finally,
we need not address both parts of the Strickland
test if Appellant makes an insufficient showing on one. See
id. at 697.
Appellant asserts that his trial counsel provided ineffective
assistance by failing to object to the admission of an
autopsy photo. Because the objection to the photo that
Appellant says his counsel should have made would have been
meritless, this claim fails.
photo, which was admitted into evidence during the
State's direct examination of the medical examiner who
performed Polite's autopsy, showed Polite's back with
rods inserted into his four gunshot wounds to approximate the
trajectories of the bullets that struck him. Appellant argues
that his trial counsel should have objected to the photo on
the ground that its admission was precluded by the evidence
rule announced in Brown v. State, 250 Ga. 862 (302
S.E.2d 347) (1983). In Brown, this Court declared
that "[a] photograph which depicts the victim after
autopsy incisions are made or after the state of the body is
changed by authorities or the pathologist will not be
admissible unless necessary to show some material fact which
becomes apparent only because of the autopsy."
Id. at 866.
recently held, however, that Brown's judge-made,
categorical exclusionary rule was abrogated by Georgia's
new Evidence Code. See Venturino v. State, __Ga.__,
__ (830 S.E.2d 110, 116) (2019). See also State v.
Orr, 305 Ga. 729, 739 n.8 (827 S.E.2d 892) (2019).
Because the trial of this case occurred years after the new
Code took effect, any objection to the autopsy photo based on
Brown would have been meritless. See Jackson v.
State, __Ga.__, __ (830 S.E.2d 99, 108) (2019)
(explaining that an appellant "cannot prevail on a claim
of ineffectiveness on the basis that his trial counsel failed
to rely on a case that was not applicable to his
trial"). See also Lockhart v. Fretwell, 506
U.S. 364, 366 (113 S.Ct. 838, 122 L.Ed.2d 180) (1993)
(concluding that the defendant could not establish