Opinion
A94A2147.
DECIDED FEBRUARY 7, 1995.
Aggravated assault, etc. Fulton Superior Court. Before Judge Long.
Megan C. De Vorsey, for appellant.
Lewis R. Slaton, District Attorney, Herman L. Sloan, Vivian D. Hoard, Assistant District Attorneys, for appellee.
Defendant was indicted for aggravated assault and kidnapping. The evidence adduced at a jury trial reveals that defendant abducted his estranged wife after a violent domestic dispute and held her captive for several hours while a law enforcement officer negotiated for the victim's release. The jury found defendant guilty on both counts of the indictment. However, the trial court merged the aggravated assault charge with the kidnapping charge and sentenced defendant to life in prison. This appeal followed denial of defendant's motion for new trial. Held:
1. In his first and second enumerations, defendant contends the trial court's jury instruction on "reasonable doubt" and "moral and reasonable certainty" eased the State's burden and thereby impaired his due process rights. This contention is without merit.
The trial court gave the same pattern jury instruction on presumption of innocence, burden of proof and reasonable doubt that was approved in Brown v. State, 264 Ga. 48, 49 (3a), 50 ( 441 S.E.2d 235). Specifically, the Supreme Court held that "[w]here . . . the jury charge properly defined reasonable doubt, a reference to a `moral and reasonable certainty' did not lessen the burden of proof necessary to obtain a conviction, and therefore did not violate the Due Process Clause. Bradford v. State, 261 Ga. 833 (2) ( 412 S.E.2d 534) (1992); McDuffie v. State, 210 Ga. App. 112 (2) ( 435 S.E.2d 452) (1993); Starr v. State, 201 Ga. App. 73, 74 ( 410 S.E.2d 180) (1991). Cf. Vance v. State, 262 Ga. 236 (2) ( 416 S.E.2d 516) (1992)." (Footnote omitted.) Id.
2. Next, defendant contends "[t]he court erred by allowing the State to speak for the court and incorrectly define reasonable doubt for the jury [during closing argument]." This enumeration of error presents nothing for review as defendant failed to object to that portion of the State's closing argument he now finds objectionable. Williams v. State, 251 Ga. 749, 801 (14) ( 312 S.E.2d 40).
3. Citing Williams v. State, 261 Ga. 640, 641-643 ( 409 S.E.2d 649), defendant contends the trial court erred in allowing evidence of vulgar and life threatening telephone messages he left on the victim's telephone answering machine less than a week before commission of the crimes charged. Defendant argues that these tape records were "admitted for the improper purpose of showing [his] propensity for violence and improperly placed his character at issue before the jury." Defendant also argues that "the trial court failed entirely to balance the relevance of the alleged prior difficulties against the prejudicial impact of the evidence." We find no basis for this enumeration because defendant did not assert the same arguments in the trial court.
At a pretrial hearing to determine the admissibility of the similar transaction evidence, defendant argued that the tape recordings were "irrelevant to the case" because the messages cannot be characterized as "threats." When the State offered the tape recordings into evidence at trial, defense counsel merely renewed his prior objection. "It follows that defendant waived the evidentiary issue discussed in Williams [ v. State, 261 Ga. 640, supra] and Stephens [ v. State, 261 Ga. 467, 469 (6) ( 405 S.E.2d 483),] and that that issue was not preserved for appellate review. Compare Hunter v. State, 202 Ga. App. 195, 196 (3) ( 413 S.E.2d 526) with Riddle v. State, 208 Ga. App. 8 (1) ( 430 S.E.2d 153)." Woods v. State, 212 Ga. App. 544 (1), 545 ( 442 S.E.2d 22). See Walker v. State, 208 Ga. App. 690, 692 (2) ( 431 S.E.2d 459).
4. In his final enumeration, defendant challenges the trial court's finding that his trial attorney was not ineffective.
Pursuant to the second part of the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 (104 SC 2052, 80 L.Ed.2d 674), for measuring a claim of ineffective assistance of counsel, defendant must show that the alleged deficient performance of his trial attorney actually prejudiced his defense. See Concepcion v. State, 205 Ga. App. 138, 139 ( 421 S.E.2d 554). In this regard, defendant argues that his trial counsel's failure to "preserve objections to the charge prevents [him] from addressing the errors on appeal." Since we have addressed the only challenge defendant raised in this appeal to the trial court's jury instructions, this argument provides no basis for overturning the trial court's denial of defendant's motion for new trial based on ineffective assistance of counsel.
Judgment affirmed. Pope, P. J., and Smith, J., concur.