HINES, Justice.
Kenneth Earl Kendrick appeals his convictions for malice murder and possession of a firearm by a convicted felon during the commission of a felony, in connection with the death of J'Muar Undrelle Taylor. For the reasons that follow, we affirm.
Construed to support the verdicts, the evidence showed that Kendrick lived with Sheila Hill. Kendrick owned a white Oldsmobile Cutlass; Hill owned an Acura Legend. In the early morning hours of August 4, 2003, Taylor was driving a Hyundai automobile, with his friend Robert Brooks as his passenger. The men saw a white Oldsmobile Cutlass, and Taylor said that he would steal it; a light-colored Acura Legend was nearby. Taylor exited the Hyundai, and Brooks got into the driver's seat. Taylor entered the Cutlass, broke open the ignition, and drove away; Brooks followed him in the Hyundai. At a traffic light, Brooks saw a light-colored Acura Legend pull up beside the Cutlass, and three or four gunshots were fired from the Acura toward the Cutlass. The Cutlass drove through the light, with the Acura following; two or three more shots were fired from the Acura toward the Cutlass. After a few hours, Brooks placed an anonymous telephone call to police and related the events; he later gave police investigators a statement.
A witness who saw the cars as the gunshots were fired telephoned 911. At 3:00 a.m., a responding police officer found the Cutlass crashed against a utility pole, with Taylor in the driver's seat; he was dead from two gunshot wounds to the head. The car had struck the pole at a high rate of speed, without braking. A spent bullet was found on the floor of the Cutlass. Later that morning, Kendrick reported his Cutlass automobile stolen. A police investigator interviewed him at his home; Kendrick stated that he had seen his car at 10:00 p.m. on August 3, 2003, noticed it missing at 5:05 a.m. on August 4, 2003, and did not know who had taken
Kendrick was arrested, and telephoned Hill from the jail. Kendrick told Hill that: he heard his Cutlass being stolen; he chased after the Cutlass in her Acura; he shot at the driver of the Cutlass; he saw the Cutlass crash; he exited the Acura; he went to the Cutlass to see if he could identify the driver; he shot the driver; and he threw away the firearm.
At trial, Kendrick testified that: he heard his Cutlass being stolen; he took a pistol and entered Hill's Acura to give chase; he saw the driver of the Cutlass produce a pistol; he and the driver of the Cutlass shot at one another; and he drove away. No bullet holes were found on the Acura that Kendrick was driving, and no weapon was found in the Cutlass; Brooks testified that no gunshots were fired from the Cutlass, and that he never knew Taylor to carry a firearm.
1. The evidence was sufficient to enable a rational trier of fact to find Kendrick guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. On cross-examination, the State asked Kendrick whether his testimony on direct examination was "the very first time any member of law enforcement of anyone [sic] associated with the State of Georgia has heard your explanation that you were defending yourself ... ?" Kendrick's attorney objected that this was a comment on Kendrick's right to remain silent, and the trial court overruled the objection. As Kendrick had chosen to speak to the investigating officer, the State could properly impeach him with his prior inconsistent statements. Pye v. State, 269 Ga. 779, 786-787(14), 505 S.E.2d 4 (1998); McMichen v. State, 265 Ga. 598, 606(11)(a), 458 S.E.2d 833 (1995). See also Stringer v. State, 285 Ga. 842, 846(4), 684 S.E.2d 590 (2009).
3. Kendrick contends that the trial court erred in not instructing the jury on the law of defense of habitation, in the context of an automobile. See OCGA § 16-3-24.1.
As it appears in the Pattern Jury Instructions, the relevant charge reads:
Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.03.10 (4th ed.2007). Kendrick stated that he wished the entire instruction to be given to the jury.
As the trial court noted, subsection (a) of the pattern instruction, which authorizes the use of deadly force, applies when there is a person present in the automobile to be protected from "assault or offer of personal violence," see Benham v. State, 277 Ga. 516, 591 S.E.2d 824 (2004); Suggested Pattern Jury Instructions, supra, which was not the case here. "A requested charge must be legal, apt, and precisely adjusted to some principle involved in the case and be authorized by the evidence. If any portion of the request to charge fails in these requirements, denial of the request is proper. [Cit.]" Stokes v. State, 281 Ga. 875, 877(3), 644 S.E.2d 116 (2007).
Nor did subsection (b) of the pattern instruction apply.
Coleman v. State, 286 Ga. 291, 298(6), 687 S.E.2d 427 (2009). Had Kendrick been justified in using deadly force to prevent Taylor's entry into his automobile for the purpose of committing the felony of motor vehicle theft, the theft was complete when Taylor drove away with the Cutlass, Holt v. State, 239 Ga. 606, 607, 238 S.E.2d 399 (1977), and the evidence showed that Kendrick did not use deadly force "until the justification for the use of deadly force [was] over...." Coleman, supra. Under the facts of this case, there could be no reasonable belief that firing a pistol at the driver of another car while driving on the road was "necessary to prevent or terminate the other's unlawful entry into or attack upon a motor vehicle," as that term is used in the pattern jury instructions.
4. Kendrick claims that his trial counsel failed to provide effective representation in several respects. In order to prevail on this claim, he must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first prong of the required test, the defendant must
Kendrick contends that counsel should have focused the jury's attention on the fact that Brooks was not being prosecuted for any involvement in the theft of the Cutlass, or for originally telling the investigating officers that he did not know that Taylor would steal the Cutlass when he exited the Hyundai. But, the jury had already been informed that Brooks had multiple felony convictions, was a close friend of the victim, and Kendrick fails to establish that had counsel additionally impeached Brooks, there is a reasonable probability that the result of the trial would have been different. See Buchanan v. State, 273 Ga.App. 174, 181-182(5), 614 S.E.2d 786 (2005).
Next, Kendrick contends that trial counsel should have moved for a directed verdict on the malice and felony murder charges, and should have attempted to have the case submitted to the jury solely on the charge of voluntary manslaughter. But, as noted in Division 1, supra, the evidence was sufficient to authorize a conviction of malice murder,
Finally, Kendrick contends that, after the trial court overruled his objection that the State's cross-examination of him constituted a comment on his right to remain silent, see Division 2, supra, trial counsel should have objected to further State questioning, which he now contends constituted such a comment.
Judgments affirmed.
All the Justices concur.
This is the only memorialization of the language of Kendrick's request, and it contains slight differences when compared to the pattern jury instruction. Although slight, these differences amply illustrate the importance of compliance with USCR 10.3.