BENHAM, Justice.
Appellant Antonio Ruffin was, at the time of the criminal conduct involved in this case, an inmate at Hancock State Prison. He was indicted for malice murder and felony murder in connection with the death of fellow
Viewed in the light most favorable to the verdict, the evidence at trial showed that the day before the killing, appellant asked another inmate named Ware if he could borrow his leather work gloves. Ware did not see appellant take the gloves, but testified that he loaned them to another inmate who told Ware that he let appellant use the gloves. When Ware returned to his cell after the fight, he found one glove on the floor. Three days after the killing, a nine and one-half inch shank was found in the toilet cavity in Ware's cell, and Ware claimed he did not know how it got there. The testimony of prison personnel and other inmates established that appellant was seen wearing gloves in the yard of the prison on the day the victim was killed.
One of the inmates testified that appellant started pursuing the victim, who was running to get away from appellant. Appellant struck the victim in the face, and one of the guards testified he saw appellant grab the victim by the shoulder and strike him three times in the stomach. The victim fell to the ground. Appellant then repeatedly kicked the victim in the head while the victim unsuccessfully attempted to block the blows. Another inmate described the altercation as "overkill." A guard saw an object in appellant's hand that appeared to be a knife, which he passed to another inmate who could not be identified. After the altercation, appellant walked off the yard with the rest of the inmates while carrying a bloody glove, leaving blood on the gate.
Afterwards, clothing was found in a trash can near appellant's cell, including a pair of shoes with blood stains, socks, a t-shirt, and a fabric name tag that had been ripped off prison clothes bearing defendant's name and inmate number. Slacks were found in the shower with the name tag over the back pocket removed, and they were wet and smelled of a cleaning solution. Appellant testified that he removed his clothing after returning from the yard and that the shoes and clothing found were his. Forensic testing showed the blood found on the slacks, glove, and shoes matched the victim's DNA, and testimony of a forensic expert established the fabric name tag had been ripped off the slacks found in the shower. Along with other injuries, the victim sustained a stab would to the abdomen, which was the cause of death. The victim was a "jail house lawyer," and the State's theory was that appellant was angry with the victim over legal work he was performing on appellant's behalf.
Appellant testified at trial that on the day of the incident, the victim approached him in the yard and charged him with a shank. Appellant fought for his life trying to defend himself, and he testified he had no intention to kill the victim. During the altercation, however, appellant claimed he was able to wrest the shank away from the victim. According to appellant, the victim then fell to the ground and appellant landed on top of him, accidentally driving the shank into the victim.
1. Appellant does not raise the issue of the sufficiency of the evidence to sustain his conviction. Nevertheless, as is this Court's practice, we have reviewed the evidence and considered its legal sufficiency, and conclude that the evidence adduced a trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of the crime of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
(b) Where, as here, trial counsel fails to raise an objection to the trial court's instruction, appellate review is precluded pursuant to OCGA § 17-8-58, unless appellant can show plain error. See Johnson v. State, 295 Ga. 615(2), 759 S.E.2d 837 (2014). The first element that must be satisfied in order to establish plain error as a result of an alleged failure to instruct the jury on an essential element is that the failure to charge was erroneous. See Shaw v. State, 292 Ga. 871, 873(2), 742 S.E.2d 707 (2013). As with the offense of murder, intent to kill is an essential element of voluntary manslaughter. OCGA § 16-5-2(a)
3. Appellant asserts the trial court also erred by not polling the jury to verify the verdict was unanimous, even though his counsel did not request the court to do so. After the jury had been deliberating for approximately two and one-half hours, the jury sent out the following question: "Need more clarification. Difference on the Counts 1 and 2. Murder Malice and Felony Murder. More in depth on these meanings. Where do we draw the line on self-defense? We are having a problem with Count 1 involving self-defense." In response, and without objection from appellant's counsel, the trial court re-charged the jury on malice murder, felony murder, and self-defense. After just over another hour, according to the times recorded in the trial transcript, the jury reported back to the court that it had not yet reached a verdict on one of the counts. The trial court then gave what is commonly referred to as the Allen charge,
"A poll of the jury as to a guilty verdict is not mandated unless requested...." Coleman v. State, 256 Ga. 306, 307(2), 348 S.E.2d 632 (1986). A defendant waives his right to have the jury polled if it is not asserted right after the jury has rendered the verdict or sentence. Burgeson v. State, 267 Ga. 102(9), 475 S.E.2d 580 (1996). The trial court twice instructed the jury that its verdict must be unanimous. "A jury's initial failure to reach a verdict does not indicate that the ultimate verdict is automatically suspect." Wynn v. State, 228 Ga.App. 124, 129(3)(d), 491 S.E.2d 149 (1997). Here, as in Wynn, there was no indication that the verdict was anything less than unanimous after the jury returned a verdict following the Allen charge. The trial court did not err when it failed to poll the jury.
4. (a) Appellant claims his trial counsel provided constitutionally ineffective counsel because he failed to request jury charges on voluntary manslaughter and mutual combat. "To prevail on a claim of ineffective assistance of counsel, an appellant must prove both deficient performance of counsel and prejudice from the deficient performance. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citation and punctuation omitted.) Gill v. State, 295 Ga. 705(2), 763 S.E.2d 719 (2014). Here, no prejudice is shown because, as set forth in Division 2, supra, instructions on mutual combat and voluntary manslaughter were not warranted under the evidence adduced at trial. Trial counsel does not render ineffective assistance for failing to request a charge that would not have been adjusted to the evidence. Lupoe v. State, 284 Ga. 576, 580(3)(g), 669 S.E.2d 133 (2008). Because the prejudice prong of the Strickland test has not been met, we need not examine the other prong of the test. See Lawson v. State, 296 Ga. 1(2)(a), 764 S.E.2d 816 (2014).
(b) Appellant also claims ineffective assistance of counsel as a result of counsel's failure to request a poll of the jury to assure the verdict was unanimous, given that the jury posed a question that demonstrated juror confusion. Georgia courts have "`consistently rejected ineffective assistance claims based on failure to conduct a poll.'" (Citation omitted.) Marshall v. State, 285 Ga. 351, 353(4)(c), 676 S.E.2d 201 (2009). Certainly, that rule is applicable in this case. With respect to the jury's question, the trial court asked the parties' counsel for suggestions on how to respond and stated that the court would re-charge on malice murder and felony murder. Appellant's counsel asked that the court also re-charge on self-defense, and the trial court agreed to do so. After these additional instructions were given, appellant's counsel stated that he had no exception to the re-charge. Although a criminal defendant is entitled to have the jury polled if a timely request is made (see Coleman, supra), as noted in Division 3, supra, the trial court twice instructed the jury that the verdict must be unanimous, and there was no indication in this case that the verdict was anything less than unanimous. Appellant has failed to show any prejudice as a result of counsel's failure to request a poll of the jury and thus appellant has failed to show constitutionally ineffective assistance of counsel.
Judgment affirmed.
All the Justices concur.