Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C154397.
Siggins, J.
Mayhue Titus Johnson appeals his jury convictions for murder and possession of a firearm by a felon. Johnson contends the trial court erred when it admitted hearsay evidence that third parties referred to him as “Butch.” We agree, but conclude that exclusion of the testimony would not have affected the verdict. Johnson also challenges two photo lineup identifications on the grounds they were unduly suggestive. But we disagree. Thus, Johnson has not shown the court erred when it declined to exclude one of the identifications, or that his trial counsel was ineffective for failing to move to exclude the other. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2005, Wallace McClinton was living in a shed at a West Oakland auto yard. One evening, McClinton and his friend Steve Gaspari were playing video games. Gaspari heard a metallic sound, and told McClinton it sounded like someone was in the fenced yard. When McClinton went to the door, Gaspari heard someone call McClinton by his first name and ask him, “are you stealing something from me now?” Then Gaspari heard several shots, and saw someone in the doorway who ran away. The man Gaspari saw was African-American, and wore a beige or tan jacket. Earlier that day, Gaspari saw Johnson at the auto yard and had a brief conversation with him. When the shooter called McClinton by name, Gaspari recognized the voice as Johnson’s.”
When he first spoke to police after the shooting, Gaspari said he thought the man in the doorway was the one who he spoke to at the yard earlier that day, but he did not really want to point the finger at anyone until he talked to someone. Gaspari told police he thought he would recognize the man’s voice if he heard it again. When asked at the preliminary hearing whether he still had questions whether the voice he heard was Johnson’s, Gaspari answered he “[did] not know it to be a fact.” At trial, Gaspari said the voice was “[k]ind of deep, deep scratchy, ” and he could not remember telling police anything different. But the voice changed when the man was yelling to a higher pitch.
As McClinton lay bleeding from gunshot wounds, he told Gaspari his assailant was “Booger or Booker, ” but Gaspari did not know who that was. Gaspari called 9-1-1 for help and saw someone standing outside in the yard. The person jumped over the razor-wire-topped fence into the property next door. When the police arrived and asked McClinton who shot him, McClinton said it was an African-American man named Butch. It was unclear whether anyone overheard McClinton’s conversation with police.
Gaspari did not initially tell police that McClinton identified his assailant, but testified that McClinton “didn’t give me a name. All he said was Booker or Booger. I couldn’t make heads or tails of it.” A few days after the murder, Gaspari saw a newspaper article about Johnson’s arrest and learned of his name for the first time.
Later that night, McClinton’s friend Irma Harris was walking in the neighborhood about two blocks from the auto yard when someone who was hiding underneath a flatbed truck called to her by name and told her he just shot McClinton. Harris could not see what the man was wearing and could “not really” see his face. The man asked Harris to check on his dog and to see if a neighbor, Robert Hamon, would give him a ride. Harris was a reluctant witness and declined to identify Johnson in court, although she said she had seen him before and that he looked “familiar.”
Hamon also knew McClinton. At about 3:00 a.m., Harris woke Hamon up and told him there was somebody under his truck. When Hamon went outside to check, he heard a voice from underneath the truck and saw a man wearing dark clothing under the bed lying on top of the drive shaft. Hamon recognized the man’s voice as Johnson’s, whom Hamon had known for many years by his nicknames Booker and Larry. He last spoke with Johnson a few days earlier and knew he owned a small dog. After he spoke to Johnson, Hamon went back to bed. When he checked the truck later that morning, Johnson was gone. Hamon was interviewed by police and identified Johnson in a photo lineup a few days after the shooting. At trial, Hamon testified he had no doubt Johnson was the man who was hiding underneath his truck that night.
Although Hamon did not see Johnson for a 15-year period, they had recently become reacquainted when Johnson moved into the neighborhood.
McClinton’s friend Pedro Reyes Hernandez lived nearby and also worked at the auto yard. The night of the shooting, he left work between 9:00 and 10:00 p.m. and locked the gate. He was talking to friends on the corner when he heard four gunshots from the direction of the yard. A minute or two later, he saw a man jump over the fence and onto the street. The man was approximately six-feet tall, wearing a hooded sweatshirt and pants. Hernandez saw “just a silhouette” and could not identify the color of the sweatshirt. It was dark and the man was about 50 feet away from him. The man ripped his clothes on the razor wire as he went over the fence, and he headed away from Hernandez and his friends. When the police arrived, Hernandez unlocked the gate for them, and showed them where he saw the man jump the fence. When he came to work after the shooting, he saw the truck Johnson drove in the yard with a barking Chihuahua inside it. Hernandez had seen Johnson with the dog the day before.
Jerry Clark was a mechanic who often parked his motor home in the neighborhood. Clark had previously met McClinton, Johnson, and Hamon in connection with his work. About a week before the shooting, Clark overheard a loud, hostile argument in a warehouse between two men he believed to be Johnson and McClinton. One night shortly thereafter, Clark was asleep in his motor home when he felt the vehicle move. He got up and discovered Johnson trying to get underneath it. After Clark told him to come out, Johnson said someone was chasing him and asked for a jacket because he was cold. Johnson appeared “sweaty, ” but did not appear to have any blood on him. After Clark gave him a jacket, Johnson crossed the street and hid underneath Hamon’s truck. Clark also saw Harris in the area and heard her talking to Johnson when he was underneath Hamon’s truck. Early the next morning, Clark saw Johnson was still underneath the truck, and he talked to Hamon about it later that day. When asked if he ever saw Johnson with a dog, Clark described a “little, bitty, like a little fu-fu dog or something. Quite a loud dog.”
Clark did not know Johnson’s name at the time.
Melinda Nutters knew Johnson by the nickname “Boog”, and said he had a Pomeranian dog named “Little Boy.” She never heard anyone at the auto yard refer to Johnson as Butch.
A police technician at the scene after the shooting photographed and collected samples of fresh blood from the top of the fence and the sidewalk. Johnson’s DNA profile matched the blood samples when a statistical calculation indicated there was one chance in 236 billion that it would. The technician also photographed and collected three bullet casings from the shed, and a bullet was recovered there a few days later. A gun that was found on the roof of an adjacent building was determined to be the weapon used in the shooting, but police were unable to obtain fingerprints from it. The doctor who performed the autopsy on McClinton testified that he was probably killed by a bullet that passed through his left buttock and punctured two major blood vessels.
Inspector Bruce Brock was the primary investigator on the case. On the night of the shooting, Brock took a taped statement from Gaspari who said the shooter’s voice was high pitched, loud, “sore, ” and similar to the voice of a man Gaspari referred to as Booker who was at the lot earlier that day and drove a truck. The shooter’s height and weight were also similar to the man who drove the truck, and he appeared to be in his late 40’s. Gaspari told Brock that McClinton did not identify the shooter and suggested to Brock that he speak with McClinton’s former girlfriend, Keely Coffman. Brock had been told McClinton called the shooter Butch, but could not recall whether he mentioned that name to Gaspari.
When Brock interviewed Coffman, she directed him to Hamon, who described his encounter with the man underneath his truck on the night of McClinton’s murder. Through other sources, Brock learned that Johnson owned a car that was parked in the auto yard at the time of the shooting. He put together a photo lineup containing Johnson’s photo, and showed it to Hamon, who recognized Johnson as the man who hid under his truck.
Johnson was arrested approximately a week after the shooting and had scratches on his back and lower leg, and a healing scab on his left ankle. When he was arrested he asked the officers to take care of his dog.
Shortly before trial, Brock obtained positive identifications of Clark and Harris when he showed their photos to Hamon. When Brock interviewed Harris, she described how she saw a man underneath a truck around the time of McClinton’s shooting and reluctantly identified him in a photo lineup. Brock interviewed Clark the following day, and he also identified the man who hid underneath Hamon’s truck in a photo lineup. Clark also told Brock that he thought he saw McClinton “having words” with Johnson.
Coffman testified for the defense that she once lived with McClinton, and last saw him on the evening he was killed. McClinton introduced Johnson to her as Booker, and Coffman never heard McClinton call Johnson by a different name. Coffman had heard about someone named Butch who she believed was Johnson’s older brother. She did not believe Johnson was Butch, and she had no idea what Butch looked like.
Johnson was charged with murder with personal use and discharge of a firearm causing great bodily injury, and possession of a firearm by a felon. The jury found Johnson guilty on both counts and found the firearm enhancements true. The court denied Johnson’s new trial motion and sentenced him to 50 years to life in prison consisting of consecutive terms of 25 years to life each for the murder and for discharge of a firearm causing great bodily injury. The sentences on the remaining firearm enhancements were stayed. The court also imposed a concurrent two-year midterm sentence for the possession of a firearm by a felon. Johnson timely appealed.
The information also alleged prior felony convictions that were dismissed on the prosecutor’s motion.
DISCUSSION
A. Hearsay Evidence
Johnson contends the trial court erred when it permitted Hamon to testify that he heard third parties refer to Johnson as Butch. We agree that Hamon’s testimony was inadmissible hearsay, but conclude that its admission was harmless error.
As he was dying, McClinton told police he was shot by an African-American man named Butch. Over defense counsel’s objection, Hamon was permitted to testify that he heard people refer to Johnson by the names of Booker, Larry and Butch.
When he was cross-examined, Hamon agreed that he told Inspector Brock he only heard Johnson referred to as Butch “through third-person contacts.” Hamon did not call him Butch and never heard anyone address him as Butch. Hamon agreed with defense counsel’s statement that he got the information about “Booker being Butch... [n]ot second[-]hand but third-hand.”
An out-of-court statement offered to prove the truth of the matter asserted is inadmissible hearsay unless it falls within a recognized exception to the hearsay rule. (Evid. Code, § 1200.) The Attorney General contends that Hamon’s testimony that he heard people refer to Johnson as Butch was not hearsay because it was not admitted to establish that Johnson actually went by the name Butch, but was instead admitted to show that some people referred to Johnson in that way. In this case, that is a distinction without a difference because the only relevance of the third party statement was to establish that Johnson was Butch, the man the dying victim named as his killer. Indeed, the Attorney General acknowledges as much by arguing “the testimony helped to establish the identity of the shooter by showing that the nickname used by Hamon’s acquaintances to refer to appellant-rightly or wrongly-was the same nickname used by the victim himself to identify the shooter to the police officer.”
The Attorney General relies upon People v. Freeman (1971) 20 Cal.App.3d 488 to argue that such “[u]tterances serving to identify are admissible as any other circumstance of identification would be.” But this case is very different than Freeman. In Freeman, the defendant was convicted as the driver of a get-away car used in a daytime robbery. He claimed he could not have been involved in the robbery because he spent the night at the home of his fiancée and left there shortly before noon to see a doctor. (Id. at pp. 490-491.) A prosecution rebuttal witness, whose daughter was the girlfriend of one of the defendant’s accomplices, was allowed to testify that she overheard her daughter greet a man the morning of the robbery by saying, “Hi, Norman, ” the defendant’s first name. (Id. at p. 492.) The appellate court determined the statement “was not hearsay, because not offered to prove the statement’s truth or falsity but as evidence of the fact that the statement was made.” (Ibid.) The Freeman court considered the statement to be relevant circumstantial evidence that tended to undermine the defendant’s alibi because it placed a person named Norman in the company of one of the robbers on the morning of the robbery. Whether or not one agrees with the Freeman court’s hearsay analysis, Hamon’s challenged testimony has no relevance here other than to identify Johnson as McClinton’s killer. Freeman is also factually distinguishable from this case because the witness in Freeman was present when her daughter greeted the man in question by name. (Ibid.) Here, Hamon testified that he never heard anyone address Johnson as “Butch, ” and only heard Johnson referred to as Butch “through third-person contacts.”
Even though the trial court erred when it admitted Hamon’s testimony that he heard Johnson was called Butch, it is not reasonably probable that its admission affected the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836.) Johnson’s identity as McClinton’s murderer was supported by physical evidence and the testimony of multiple witnesses. Johnson’s DNA matched the blood found on the gate post and sidewalk where Gaspari and Hernandez saw a man jump over the razor-wire-topped fence soon after the shooting. There were scratches on Johnson’s back and right shin, and a healing scab on his left ankle when he was arrested approximately a week after the murder.
Gaspari also recognized the shooter’s voice and said McClinton told him the shooter’s name was something like Booker, a nickname by which Johnson was known by McClinton, Hamon and Coffman. Harris testified that she heard the man hiding under Hamon’s truck say, “I just shot [McClinton].” Johnson had a dog and the man under the truck asked Harris to check on his dog. A few minutes before Harris saw Johnson, Clark saw him under his motor home and told him to leave. Johnson replied that someone was chasing him and asked Clark for a jacket. He then crossed the street and climbed under Hamon’s truck. Hamon, who had known Johnson for years, recognized his voice when he spoke to Johnson while Johnson was under the truck. There was also evidence suggesting motive that could have arisen from an argument between Johnson and McClinton over some unspecified personal property. Gaspari heard the shooter address McClinton by name and ask him: “[A]re you stealing something from me now?”
The record thus contains strong evidence of Johnson’s guilt, independent of Hamon’s testimony that people referred to Johnson as Butch. Hamon’s hearsay was also qualified by his cross-examination when Hamon admitted he testified at the preliminary hearing that he had only heard Johnson referred to as Booker or Larry. It is not likely the jury attributed determinative significance to Hamon’s testimony on this issue; nor do the prosecutor’s brief references during argument to Butch when discussing Hamon’s testimony change our analysis. In light of the evidence as a whole, there is no reasonable likelihood the outcome would have been more favorable to Johnson had Hamon not been permitted to testify that he had heard others refer to Johnson as Butch. (People v. Watson, supra, 46 Cal.2d at p. 836.)
During the prosecutor’s opening statement, she asked the jury: “Now, how do we know it’s not a Who-done-it? Because Rob Hamon will tell you that the person lying underneath his truck was a guy that he knew by the name of Booker. That’s what he knew the defendant as. He continues to say, But I think his name is either Larry or Butch or something like that. [Objection overruled.] So Rob tells us that it’s the defendant.” During closing arguments, the prosecutor discussed Hamon’s identification of Johnson as the man who hid under his truck, and stated that Hamon “said... from the very beginning when he talked to Inspector Brock. Inspector Brock says, ‘Well, what’s his name?’ He says, ‘Well, I know him as Booker. But I also know he goes by Larry or Butch.’ That’s what he said from the beginning. And there’s no evidence that he knew one of the police officers was told by the victim when he was dying that the name was Butch. There’s no evidence of that. He’s just telling you what he knew at the time. But he knew it was Booker regardless, regardless, that’s the guy right there, the defendant, who was hiding underneath his truck.”
While Johnson also contends Hamon’s testimony “so lacks any indicia of reliability that it violates due process, ” the cases he cites do not support his conclusion. (See People v. Otto (2001) 26 Cal.4th 200, 210-211 [statutorily authorized admission of multiple-level hearsay did not violate due process where victims’ hearsay statements possessed sufficient indicia of reliability]; Ohio v. Roberts (1980) 448 U.S. 56, 66 [conditioning admissibility of hearsay under the Confrontation Clause on showing that it falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness”], overruled in Crawford v. Washington (2004) 541 U.S. 36, 60-69 [restoring unavailability and cross-examination requirements to admission of testimonial statements]; Chambers v. Mississippi (1973) 410 U.S. 284, 298-303 [due process violated when, under local evidentiary rules, defendant was denied the opportunity to cross-examine a witness who had confessed to the crime, or to introduce the witness’s self-incriminating statements]; California v. Green (1970) 399 U.S. 149, 163-164 & fn. 15 [observing that “considerations of due process, wholly apart from the Confrontation Clause, might prevent convictions where a reliable evidentiary basis is totally lacking, ” but rejecting the claim that “the Constitution is necessarily violated by the admission of a witness’ prior inconsistent statement for the truth of the matter asserted”].)
B. Photo Lineups
Johnson also argues it was error for the trial court to admit unduly suggestive and unreliable photo lineup identifications by Clark and Harris without holding a hearing on their admissibility. We disagree with Johnson’s characterization that the lineups were unduly suggestive.
We review de novo a trial court’s ruling that an identification procedure was not unduly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.) “In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” [Citations.] [¶] The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. [Citations.] ‘The question is whether anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ ” (People v. Cunningham, supra, 25 Cal.4th at pp. 989-990.) “A judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable. In some circumstances, not presented here, such a determination may be constitutionally necessary. But it does not follow that the Constitution requires a per se rule compelling such a procedure in every case.” (Watkins v. Sowders (1981) 449 U.S. 341, 349; see also People v. Cooks (1983) 141 Cal.App.3d 224, 306-307 [“No California decision... has held that due process of law requires a hearing outside the presence of the jury in each and every case”].)
Nor does Evidence Code section 402 require a hearing. Section 402 provides in relevant part: “(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.” (Italics added.)
Johnson moved in limine to exclude Clark’s photo identification, arguing the conduct of the lineup was unduly suggestive. Johnson claimed the lineup was unfair because Clark said the person he saw under Hamon’s truck could be either photo No. 2 or No. 4, and the other pictures did not look like either of them. Johnson also claimed Inspector Brock repeatedly suggested that Clark saw No. 4, and that Brock had Clark initial No. 4, even though Clark was uncertain of his identification. The trial court refused to exclude Clark’s identification, stating that defense counsel could attack the suggestiveness and accuracy of the identification on cross-examination. Defense counsel also wanted the court to listen to an audio recording of the identification procedure. The court declined to do so, but ruled that defense counsel could use it when he cross-examined Clark.
Defense counsel apparently used the transcript of the recording when cross-examining Clark.
Clark testified that when Inspector Brock contacted him approximately three years after the shooting, he showed Clark a six-photo lineup. Clark recognized the person shown in No. 4, and put his initials on that picture. Clark also thought photo No. 6 was a possibility, and asked Brock if No. 2 and No. 4 were the same photo, but Brock said he could not give him an answer. When he met with the prosecutor approximately two weeks later, Clark said he thought he picked “the right guy” because “after reflection, the person that I met [approximately a week before McClinton’s murder] was the same person who was under my motor home, without a doubt in my mind.”
On cross-examination, when asked to confirm that the officer said No. 2 and No. 4 were pictures of different people, Clark responded: “I don’t remember what he actually said at that point, but they said they couldn’t tell me if that was the person that they were inquiring about.”
On cross-examination, Clark testified that he was first drawn to photo No. 4. He considered No. 2 also a possibility, but “as [he] looked at it further, it was No. 4.” When Officer Brock asked him, “So it’s between 2 and 4, but you think it’s 4?” Clark said, “Yeah, I kind of think it’s 4, though.” The officer asked Clark to initial No. 4. Clark acknowledged it was a long time between seeing the man under his truck and his identification, and he made that clear to the officers during the photo lineup. Inspector Brock acknowledged that he was not sure he admonished Clark before he showed him the lineup. But otherwise, he essentially corroborated Clark’s account and he was not cross-examined on the details of the lineup.
Johnson argues that Clark’s photo lineup was unduly suggestive because Brock could not recall whether he first admonished Clark that the lineup might or might not contain the suspect’s photo and that he was under no obligation to make an identification. But Johnson cites no authority that requires such an admonition in every case. The cases Johnson cites merely consider an admonition as one factor in determining suggestiveness. (See People v. Avila (2009) 46 Cal.4th 680, 697-699; People v. Johnson (1992) 3 Cal.4th 1183, 1218.) Johnson also contends Clark was uncertain of his identification of No. 4 during the lineup, and Brock directed Clark’s attention to Johnson’s photo “by asking him questions about it.” But in context, the record does not indicate that any of the officer’s questions were unduly suggestive, nor does Johnson argue that his photo stood out from the others in any way that was inherently unfair. (Cf. People v. Johnson, supra, at p. 1215 [the defendant was the only person in the photo lineup wearing jail clothing].) Johnson has not carried his burden to show that Clark’s photo lineup identification was “ ‘ “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” ’ ” (People v. Sanders (1990) 51 Cal.3d 471, 508.) Nor has he shown the identification was unreliable under the totality of the circumstances. Even though Clark viewed the photo lineup several years after the shooting, he knew Johnson before McClinton’s murder. Clark had a good opportunity to observe Johnson on the night of the shooting when he spoke with Johnson outside his motor home. While Johnson now argues “[t]he circumstances under which Clark saw Johnson were not associated with an important or significant event-such as witnessing a crime, ” Clark testified the events were “memorable, ” particularly in view of his earlier meeting with Johnson at the warehouse.
Brock asked Clark, for example, “What is it about 4 or what makes you think 4 looks more like him? Is there any identifiable reason?” Johnson claims in his reply brief “[t]here is no wrong answer to the question of which photograph looks ‘more like’ a person, ” but that concern appears to go more to the reliability of the identification than to its suggestiveness.
When shown the photo lineup, Clark first identified No. 4, and he later confirmed that selection when he spoke with the prosecutor. Johnson seizes on Clark’s statement to the prosecutor that he “picked the right guy” as evidence that Clark “thought there was a right answer he was expected to give.” But in context, the statement is more reasonably interpreted to mean that Clark was sure the person he previously spoke with was the same person he saw under his motor home on the night of the shooting.
Johnson also challenges Harris’s photo lineup identification. He says the procedure used by Brock was unduly suggestive for two reasons. First, Brock commented that Harris initially looked at photo No. 6, and that his comment “suggested an answer” to her when, in fact, she was looking at photo No. 1. Second, he challenges Brock’s instruction to Harris that she choose the person who looked “most like” the man she saw hiding under the truck. This, Johnson says, led Harris to think she did not need to make a positive identification. Neither reason is persuasive.
Defense counsel did not move to exclude Harris’s photo lineup identification at trial, but we address the issue on the merits because Johnson argues that counsel’s failure to do so constituted ineffective assistance of counsel.
Brock’s comment about photo No. 6 was to the effect that he saw Harris’s eyes go to photo No. 6 right away when she first saw the lineup. He did not comment substantively on the person in the photograph, and made no comment to Harris that suggests the person depicted in photo No. 6 was the person hiding under the truck or the one who shot McClinton. Moreover, Harris promptly corrected Brock and told him she was looking instead at photo No.1. In the circumstances, it does not appear this exchange had an unduly suggestive effect on the lineup.
The potential suggestiveness of Brock’s comment to Harris that she pick the man who looked “most like” the man hiding under the truck must also be considered in its context. When Brock testified, he explained that his direction to Harris was designed to allay her stress and render her more at ease with the process of identification. She was a reluctant participant in the interview who was previously acquainted with Johnson and one of the other men depicted in the lineup. In these circumstances, the significance of Brock’s comments seem more suitable for challenge by cross-examination because they go more to the reliability of Harris’s identification than the suggestiveness of the lineup. We cannot conclude that Brock’s comments to Harris were so suggestive that they created a likelihood she would identify the wrong person. (See People v. Cunningham, supra, 25 Cal.4th at pp. 989-990.)
Harris was also reluctant to identify Johnson in the preliminary hearing and at trial. In context, it appears more likely her reluctance was attributable to a concern that her testimony would put her in danger, rather than any uncertainty over Johnson’s identity.
C. Ineffective Assistance of Counsel Claim
Johnson claims his trial counsel was ineffective because he failed to move to exclude Harris’s photo lineup identification. But there is no basis upon which we would conclude that such a motion would have merit as we have rejected his argument that the identification was unduly suggestive or unreliable. Thus, Johnson has shown neither that counsel’s failure to file such a motion fell below an objective standard of reasonableness, nor that the outcome of the proceeding would otherwise have been more favorable to him. (See People v. Maury (2003) 30 Cal.4th 342, 389 [“To prevail on a claim of ineffective assistance of counsel, a defendant “ ‘ “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice” ’ ”].)
D. Cumulative Error Claim
We have found error in the admission of hearsay evidence, as discussed above, but conclude that error was harmless. Otherwise, we have rejected Johnson’s arguments that errors occurred during his trial. Accordingly, we reject his contention that the cumulative effect of error requires reversal of his convictions.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Jenkins, J.