1 Tog eth er wi th c o-i ndi ctee Rod ney S hepard, H assel wa s charged in a multicount in dict ment handed down by an Athens-Clar ke County grand jury in January 2008. Hassel w as indicte d on one count of malice m

urder, t h ree c ounts of fe lony murder, one count of

aggravat ed assault , five count s of firear m posse ssion during t

he comm ission of a crim e, and tw o counts of firear m posse ssion by a convicte d felon. Following

a pre-trial appeal in which Hassel challenged the trial court’ s denial of

his plea in bar and

motion to dismiss on speedy trial grounds, see Hassel v. State , 284 Ga. 861 (672 SE 2d 627) (2009) (affir ming denial of ple a in bar a ndmotion

to dismiss), the case proc eeded to a

jury trial aga inst Hasse l alone. Shepard w as tried and convicted in separa

te procee dings. Atthe conclusion of trial on May 1, 2009, Hassel was acquitted of malice m urder and the ass ociated f

irearm possession c ount, but was convicted on all other count s. He w as sentenc ed to life impri sonme nt for fe lony murder; a consecu

tive five- year

term for firear m posse ssion during t

he com missio n of a crime; and an a dditional f ive-y ear conse cutive term for fire arm possession

by a convicted felon. Th e rema ining convic tions were vacate d by ope ration of l aw or merged for sente ncing purposes. Through trial coun sel, Ha ssel file d a tim ely m otion for new trial, which , through new appella te counsel, was amended in July 201 1 and again in August

2011. He arings were held on O ctober 3, 2011 and Janua ry 30, 2012, and the tri al court denied the ne w trial m otion on Apr

il 20, 2012. On M ay 1, 2012, 294 Ga. 834 FINAL C OPY S13A138 2. HASSEL v. THE STATE.

H UNS TEIN , Justice. Appella ntE ric Hassel was convicted of felony murder and related offen ses in connection with

the Nove mber 18, 2006 shooting death of David Morris Lumpki n. Hassel appeal s the denial of his moti on for new t rial, asserting insufficien cyof

the evi dence , ineff

ective assista nce of c ounsel, and evi dentia ry

error . Find ing n o erro r, we aff irm. 1Hassel filed a not ice of appea l. The appeal was docketed to the September 2013 term

of this Cour

t and was t

hereaft er subm

itted for decision on t

he briefs

. 2 Viewed in the light most favorable to the jury’s verdict, the evi de nce adduced at tria

l esta blished a s follows. In the ea rly m orning hours o f

November 18, 2006, David

Morris L umpkin w as shot a

ndkilled a

t a res idence

on Morela

nd Avenuein Athens, Georg ia. The residence was inhabited by its owner s, Jero me Hemphill and Deborah Echo ls, as well a s various fami ly members , frien ds, and occasional home less vis itors who s taye d thereovernight or reside d thereon a tempo r a rybasis. Drug tra nsacti ons often t ook plac e in the drivewa y of the residence and at o ther loc ation s nea rby. Appellant Eri c Hassel, a convicted felon who dated Hem phill ’s siste r, had l ived at the house

in the pa st and continued t o be a frequent v isitor ther e. Hassel and his friend R

odney She

pard we re frie nds with Terrence White, who, a few days prior to th e shooting, h ad bee n robbed a t gunpoint of

his car , money, jewelry and drugs. Vic tim Lumpkin’s gi rlfriend h ad heard rumors t hat Lumpkin was involved in the r obbery, wh ich Lum pkin admitted to her and others that he

had hel ped set up. There was evide nce that White him self suspected Lumpki n of particip ating in the ro bbery.3

At the time of the shoo ting, Lumpkin and several other people were asleep in the living room a

t the Mor eland A

venue hou se. Minutes be fore the shooting, witness Kathle en Robins on heard a kn ock on the

door and obs erved T imothy Bradford open it, allowing Hasse l and She pard to enter. Robin son testifi ed that Shepard began t alking

to Bradford , Hassel then exited the house , and She pard and Bradford exit ed soon th ereafter. Several minutes later , Robinso n testif ied, Bradford reentered alone, leavin g the d o or open, and a few minutes after that, a person dresse d in blac k cam e inside , shot Lu mpkin, and the n fled. Witness Danie l Gbum, who was presen t at the Morela nd Avenue

house that night, testified that, prior to the shooting, Ha ssel had twice a sked him to try to get L umpkin t o come

outside t he house, bu

tthat Lumpkin had refused both time s. Gbum also testified th at, a t one point whil e he wa s standin g outside the house with Ha ssel, S hepard arrive d and whispered, “Where is he? Where is he?” to which Hassel respond ed, “He’s coming, he’s coming.” Lumpki n’s girlfriend , Latoya Brown, testified that a neig hbor o n Morela ndAvenuehad told he

r he saw Hasse l and Shepar d running dow n the2 Brown ’s testim ony abou t this statement was adm

itted after the neighbor had testified and denied having identified the assailants. See Gibbons v. State , 248 Ga. 858, 862 (286 SE2d 717) (1982) (prior inconsistent statement of witness who testifies and is subject to cross-examination is admissible as substantive evidence). 4 dri veway away

from the house im

media tely a fter the

shooting. 2 Brown a lso testified that, e arlie r on the e vening of t he shootin g, Hass el had a ppeare d, uninvited , at a pa

rty sheand Lum

pk in were

hosting, l ooking for L

umpkin. When she and Lumpkin arrived bac k at th e Morela nd Avenue

house af ter the party, Hasse l was there . Hassel asked L umpkin to walk down the street w ith him, which Lumpkin refused to do. Later, Brown te stified, she was dozing in the living room

when she

heard H assel’ s voice and, minutes la ter, t he blas t of the gunshot s that ki lled Lu mpkin. Binika Hankton, a frie nd of

Hassel and Shepard, te stified that, on the day before the shooti ng, she had been ather hom e with H assel, Shepard, White, and others, and that White was in possessio n of an aut omati c handgun . Hankt on also testified that, shortly a fter the time of the shooting, Shepard and Hassel, who was wearing blac k, returned to her house in a franticstate. Hankton told detectives that she saw Hasse l hand a n autom atic ha

ndgunto Shepa

rd. Ha nkton testified that Hassel then g rabbed a bag, a nd the tw o exited throu gh the back5

door. Hank

ton, who cooperated in the inve stigati on, rec orded se vera l

convers ations she had with S hepard after the s hooting , in which she des cribed being worried

about the

policequestioning her an d he ac knowledge d his and Hasse l’s involvement in the shooting. In one of th e recordings , which was played for the jury, Shepard told Hankton t

hat he and Ha ssel ha d disca rded the murder weapon in some trees b ehind her ho use. Upon r eceiving this inf ormation, the GB I searc hed Han kton’s ya rd and loc ated a

n aut omati c handgun in a wooded area

behind he r home . Forens ic tes ting ma tched t his gun with the shell casing s found at t he scene of t he shootin g and the pro jectiles recovered from Lumpk in’s bod y. Hassel wrote a lette r to Hankt on shortly after the shooting, aft er bein g arrest ed on an u

nrelat ed shoplif

ting cha rge, st ating:

I need bail money [sic] tell y our boys I e xpecte d to be out alrea dy

. . . I heard rumors you are telling stor ies. Plea se keep quiet. . . . I want i t clea

r that I u nderstood t

hat I’d be treated better than this. Myend of the

bargai n is being

upheld. Oth ers nee d to step u p 4 [me] . . . s ometh ing 2 let me know [what’s ] up. Another statement by

Hassel was a dmitted through w itness Deborah6

Echols, who test ified that Hassel to ld her in December 200 6 that they wasn’t [sic] supposed to kill [Lumpkin]. It wa sn’t supposed to happen at my house. They w ere supp osed to lu re him out the ya

rd, down the drive

way, and ask h im whe

re the d rug s and the money and the jewelry w as [sic]. . . . [Hassel] sa id he told [Shepard] not to kill [Lumpkin ] there in — you kn ow — not at my hous e. Hassel told Echols t hat he had been outs ide the hous e when Shepard entere d and shot Lum pkin. 1. The evidence as summarized above was sufficient to enable a rational trier of fact t o conclu de bey ond a rea sonabledoubt that Hasse l was gui lty of th e crimes of which he was con victed. Jackson v. Virginia , 443 U. S. 307 (99 SCt 2781, 61 LE2d 560 ) (1979) . While the evidence is unclear as to wheth er Hassel

was the actual triggerm an in the shooting, this uncertainty is of no cons equence,

as there was ample evidence to inculpate Hassel as a party to th e crimes. See OCGA § 16-2-20 (pe rsons “conc erned i n the co mmi ssion of a crime,” by way of intenti onally

aiding a nd abett ing or inte ntionall

y advis ing, enc ou raging o r counsel ing another to com mit suc h crim e, m ay becharge d with an d convicted of commission of th e crime)

. Specifically, witness testimony indicated that Hassel repea

tedly s ought

out Lumpkin in the hou

rs lea ding up to the

murde r and attempted to lure him away from safe surro undings . Multiple witn esses testified7

that, minutes before th e murder, Hassel and Sh epard entered the res idence togethe r, and after the sho ts were f ired, both were seen fleein g the scene. Short ly after

the shoot

ing, Ha ssel an d Shepard

frantic ally entered Hankton’ s apartment, whereHasse l handed Shepard an automatic ha ndgun, a nd then quicklyexi ted out the back of her apartment, where the murd er weapon was ultimately

locate d. Has sel’s letter to Hankton, stating that he was “hol ding up h is end of the

bargai n,” indi cate d his participat ion in a sc heme

relat ed to the crime, a fact further corrobora

ted by hi s damn ing stat eme nts to Ec hols. Ha ssel’s enumeration of err or on this issue is with out merit. 2. Hasse l conte nd s his trial counse l faile d to conduc t a thorou gh investig ation

into his defe nse and t

hereby rendere d ineffe ctive a ssistanc e of counsel. To esta

blish ine ffective assi stance of counse l, a de fendant

must sho w that his trial coun sel’s perfor mance was professio nally deficient and that but for such defici ent per forma

nce there is a reasonable probability that the result of the trial would have been different. Strickla nd v. Was hington , 466 U. S. 668, 695 (104 SCt 2052, 80 LE2d 674 ) (1984 ); Wesl ey v. State , 286 Ga . 355 (3) (68 9 SE2d 280) (2010). To prove deficie n t performance, one must show that his attorney “performed at trial in an objectively unrea sonable way considering all8

the circum stance s and in th e light of p revailing pr ofessional n orms.” Rome r v. State , 293 Ga. 339, 344 (3) (745 SE2d 637) (201 3). Courts re viewing ineffe ctiven ess claim s must apply a strong pre sumptio n that counsel’ s conduct fell within th e wide ra

nge of re asonabl e profes sional performa nce. Id. Thus, decisi ons regarding tr ial tactics and strateg y m ay form the basis for an ineffe ctiven ess claim only if t hey were so patently unrea sonablethat no compe tent

attorney would ha

ve follow ed su ch a c our se. Id. If the de fendant fails to satisfy either the “de ficie nt perform ance” or the “pr ejudic e” prong of the Strickla ndtest, this Court is not req uired to examine th e other. See Green v. State , 291 Ga . 579 (2) (73 1 SE2d 359) (2 012). Hassel specifically contend s that trial c ounsel rendered de ficie nt performance by neglec ting to in terview Rodney Sh epard or Terrence Wh ite, both of whom were integra l to the State’s theory of the case. This c la i m was explored at the new trial hearin g, a t which tr ial cou nsel te stified

that he spoke with Shepard’s attorney, who in dica ted tha t Shepar d would not a

gree to be intervie wed. Trial counsel also knew that Shepard, who had ele cted not to testify at his own tri al, wa s appealing his conviction at the tim e of Hassel’s trial, and thus counsel believed he would like ly invoke his Fifth Amendment rights3 While we note that Shepard did testify at the new trial hearing and indicated that neither

he nor Ha ssel had an

y involvement i

n the shooting , the tri al judgefound this testimony “ self serving, contradictory to other statem ents he has made to police, and not b elievable .” We def er to the trial

judge in t

hese cre dibility

determ inations. See g enerally Battles v. State , 290 Ga. 226, 230 (71 9 SE2d 423) (2011). S ee also Silvers v. State , 278 Ga. 45, 48 (3) (597 SE2d 373) (2004) (“‘ [t]he o nce-unava ilable defendant who now seeks to exculpate his co-defendant lacks credibility’”). 9 if calledto testify at Hasse l’s tria l. Thus, counsel ’s failu re to int erview

Shepard

was attribu

table to Shepard ’s unava ilabili ty, not counsel ’s defic ient performance. Moreove r, in light of the de fense’sstrate gy of portraying Sh epard

as the prim ary pe rpetra

tor, it w as unlike ly that

Shepard’ s version of e v ents would have been helpful to Hasse l in any event. 3 As for White , Hass el’s c oun sel testi fied tha t he rec alled review ing a

s umma ryof his polic e inter view, in which

White denied involveme nt and claimed an alibi. In addit ion, a defense inv estigator in the case testified that he had attem pted to c ontact

White th rough seve ral cha

nnels but had been unable to locate him. Thus, the defen se made a reasona ble att empt d

uring the investig ation

to get White’s account of events and d id not perf orm deficiently. In addition , Hassel has failed to establish that White, who did appear at the new trial hearing but invoked his Fifth Amendme nt rights, wouldhave off ered a ny informa tion or testi mony he lpful to Hasse l’s defense. Whi te has t hus failed to4 Under the new G eorgia Evidence Co de, the c o-conspira tor hears ay exc eption is now codified at OCGA § 24-8-801 (d) (2) (E). 10 showany pre

judicein this respect. A ccordi ngly, H assel’ s inef fectiv eness cl aims must fail. 3. In his f

inal en umera tion, Ha ssel co ntends that the trial court e rred by admit ting the hearsay sta

tements Shepard m ade to Hankton in their audiotaped teleph one conversations played for the jury at trial. The

tria l court h eld the se statements admissible as decla rations o f a co-c onspirato r under former OCGA § 24 -3-5, whi ch at t

he tim e provide d that “th e dec larations by a ny one of the conspira tors during thependenc y o f the criminal proje ct shall be admissible against all.” 4 This exception to the hearsa y rule applie s to stat eme nts ma de by

co-cons pirators not only l eading up to and dur

ing the unde rlying c rimebut also afterw ard, during theconce alment phaseof the consp iracy. See Allen v. State , 288 Ga. 263 ( 4) (702 S E2d 869) ( 2010). In this case, t here w as ample evidenc e to est ablish th e exist ence of a conspiracy betwe en Has sel and Shepard to exact revenge a

gainst Lumpkin in

some form for

his role in the rob bery

of White. A conspiracy cons ists of an agree ment

between two or mo re per sons to commit a crime. Griffin v. State ,11

294 Ga. 325 (751 SE2d 773 ) (2013) . Here, Hassel’s statem ent to Echols regarding the shooting cle arly r eflec ts an ag reem ent bet

ween H assel a

nd Shepa rd to co nfront Lum

pkin, and Hasse l’s stat eme nt in his le tter to H ankton that hewas holding up “his end of the bargain ” further supports the finding of such an agreement. These statements, in co mb ination with the evidence regarding Hasse l’s ac tions lea ding up to a

nd afte r the sh ooting, a

re more than sufficient to sustain the fi nding of a conspiracy. The statements of Shep ard, a co-cons pirator, were made to Hankton after the shooting and while the identity of those compl icit the

rein were still

being

conce aled. Therefore, they clearly fall within the ambit of form er OCGA § 24- 3-5. See Allen , 288 Ga. at 267 (4). Contrary to Hasse l’s assertion, She pard’s statements to h is f

riend Hankton were not testimonial in nature so as to implicateHasse l’s right o f confront ation und er Crawf ord v. Wa shington , 541 U. S. 36 (124 SC t 1354, 158 L E2d 177) (2004) . See Young v. State , 291 Ga. 627 (3) (732 SE2d 269) (2012); Allen , 288 Ga . at 267 ( 4). Judgme nt affir

med. All the

Justice s concur .12

Decid ed Februa

ry 24, 201 4 – Rec onsidera tion deni ed Marc h 28, 2014. Murder. Clarke

Superior C ourt. Be fore Judge Haggar d. Jana W. Jacobso n , for appellant. Kenneth W. Mauldin, Dis tr ict Attorney, Brian V . Patte rson, Ass istant District At to rney, Samuel S. Olens, Atto rney General, Patricia B. Attaway Burton, Deputy Attorney Gener al, Paula K. Smith, Seni or Assistan t Attorney General, Benjamin H. Pierman, Assis tant Attorney Gener al , for appellee.