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Final Copy 288 Ga. 571

S10A2042. EVANS v. THE STATE.

MELTON, Justice. Omar Evans was tried and found guilty by a jury of malice murder, felony murder, aggravated assault, and possession of a firearm by a convicted felon relating to the shooting death of Dharren Henderson.1 Among other things, Evans contends on appeal that the trial court made a number of improper evidentiary rulings and that he received ineffective assistance of trial counsel. For the reasons set forth below, we affirm. 1. Viewed in the light most favorable to the verdict, the record shows that, On December 9, 2005, Evans was indicted for malice murder, two counts of felony murder (with the underlying offenses being aggravated assault and possession of a firearm by a convicted felon), aggravated assault, and possession of a firearm by a convicted felon. Evans was found guilty on October 9, 2006 on all counts, and he was sentenced to life imprisonment for malice murder. The trial court merged the aggravated assault and possession of a firearm by a convicted felon counts into the malice murder count, and the felony murder counts were vacated by operation of law. See Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993). Evans filed a motion for new trial on November 3, 2006 and an amended motion on December 21, 2006. On March 25, 2008, the motion was denied. A notice of appeal was filed on April 7, 2008. Evans' timely appeal was docketed in this Court to the September 2010 term and submitted for decision on the briefs.
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on March 11, 2010, Dharren Henderson (the victim) and his brother, Darnell Henderson (Henderson), went to a shopping plaza off Six Flags Drive in Cobb County to eat lunch. As they were walking into a restaurant, Evans, whose nickname was "Tic," gave them a dirty look. Evans and the victim exchanged words. Henderson and the victim went into the restaurant to order food, the victim briefly stepped outside, and when the victim returned, he told his brother that Evans had "tried him." Henderson and the victim then went back to their car. After a moment, the victim got out of the car to smoke a cigarette. Henderson next heard the victim and Evans arguing loudly outside the car. When Henderson got out of the car to try to calm things down, he saw Evans "raise his hand up" and heard gunshots.2 Henderson saw the victim fall to the ground. Fearing that Evans would also shoot him, Henderson jumped in his car and drove away. After realizing that Evans was not following him, Henderson returned to the parking lot. The victim had been shot five times and died from gunshot wounds to the head and torso. Henderson initially refused to cooperate with police, claiming that he intended to seek personal revenge against Evans.

Henderson testified that he never actually saw Evans holding a gun, but he believed that he was.
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Henderson eventually capitulated, and he later informed the police that Evans was the shooter and identified Evans in a photo lineup. Several witnesses testified to seeing Evans in the plaza the day of the shooting. Maurice Stephens, who was getting a haircut at the time of the shooting, saw Evans standing outside the barber shop shortly before the shooting. After the shooting, Stephens ran outside and heard Henderson's brother yelling "Tic shot [my] brother." Further evidence revealed that the victim and Evans knew each other before the fatal shooting. The night before the victim's murder, Alterick McCall, the victim's cousin, was hanging out at Henderson's girlfriend's apartment3 when the victim came running in out of breath. The victim told McCall that some guys, including Evans, had tried to "jump" him in the park. The same evening, Corey Stroud, another witness, saw Evans and the victim engaged in an argument at a local football field. This evidence was sufficient to enable a rational trier of fact to find Evans guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia,

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Henderson was dating Evans' ex-girlfriend, who had a child with
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Evans.

443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Evans contends that the trial court erred in allowing the State to introduce evidence about the altercation between Evans and the victim that happened on the night before the shooting. Specifically, Evans asserts that the trial court should have excluded McCall's testimony regarding the victim's statement that Evans had "jumped him," arguing that this statement constituted inadmissible hearsay. The trial court held that the statements were admissible under the necessity exception to hearsay. See OCGA

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