After a jury trial, Deon Binns was acquitted of murder and two counts of felony murder and convicted of aggravated assault, aggravated battery, possession of a firearm by a convicted felon, and two counts of possession of a firearm during the commission of a felony. On appeal, Binns contends that: 1 the trial court erred in admitting identification testimony; 2 the investigator impermissibly commented upon Binns’s post-arrest silence; 3 trial counsel was ineffective for failing to object to the comment upon Binns’s post-arrest silence; 4 the trial court constructively amended the indictment; and 5 the trial court improperly admitted testimonial hearsay. Finding no reversible error, we affirm. On appeal from a criminal conviction, Binns no longer enjoys a presumption of innocence, and we view the evidence in a light most favorable to the jury’s finding of guilt. In so doing, we neither weigh the evidence nor assess witness credibility, but only ascertain whether the evidence was sufficient to establish Binns’s guilt beyond a reasonable doubt. As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, the jury’s verdict will be upheld.1 So viewed, the evidence shows that Demone Baker and Michael Kemp sold drugs out of the Summit Crossing apartment complex in Atlanta. Baker testified that on August 1, 2002, he saw Binns and another man coming to the apartment. Baker told Kemp that they were coming, and Kemp told him to open the door for them. Baker testified that Kemp and Binns were friends. Baker went in the kitchen and from his vantage point, could only see the man who accompanied Binns. Baker then walked into the dining room where he could see Kemp sitting on a sofa and Binns standing over Kemp holding a gun. When Baker walked around the corner, Binns shot him. Baker tried to run but was hit on his left side and fell. Binns told Kemp to get up and go to the door and as they walked pass Baker, Binns shot Baker two more times, once near the heart and again near his shoulder. Baker saw Kemp use his key to open the burglar door. Once they exited the door, Baker could no longer see Kemp, but he saw Binns point the gun and fire one time. Baker testified that after the first shot, he heard Kemp say “Please, don’t kill me.” Baker further testified that he heard two more gunshots followed by something tumbing down the stairs. Baker identified Binns at trial as the person who shot him and Kemp. Baker recalled that when the police arrived, he could not speak. At the hospital Baker’s mother and Carletta Merritt, his girlfriend, kept asking Baker if he knew who shot him. He indicated that he knew but could not speak. The next time the women came to Baker’s room, they wrote letters of the alphabet and pointed to them, and Baker spelled out B-E-N. Baker testified that Binns was the person to whom he was referring.
Detective M. Walker interviewed Baker and then obtained an arrest warrant for Binns. Walker arrested Binns several months later. Walker acknowledged on cross-examination that the only evidence that connected Binns to the case was Baker’s statement. Binns testified that he did not murder Kemp or shoot Baker. Binns explained that he, Kemp, and Baker were a part of the same crew that sold drugs for an individual he refused to name and implied that he was framed because he wanted to lead his own crew.
