HUNSTEIN, Justice.
Appellant Sylvester Hendrix was convicted of murder and related offenses in connection with the October 6, 2011 shooting death of Dujon Parker. Hendrix appeals his convictions and sentences, contending that his trial counsel rendered constitutionally ineffective assistance and alleging trial court error and juror irregularities. Though we find no merit in Hendrix's enumerations, we do find error in certain aspects of Hendrix's sentences, and we must, therefore, vacate and remand for resentencing.
Viewed in the light most favorable to the jury's verdicts, the evidence adduced at trial established as follows. On October 6, 2011, Hendrix took his car to a DeKalb County car wash, where victim Dujon Parker and several other men had congregated. In the course of washing Hendrix's car, Charles Porter, a car wash employee, accidentally locked the keys inside the car. Angered, Hendrix yelled and cursed at Porter. Parker, who witnessed this altercation, asked Porter whether he was okay, and Hendrix then began arguing with Parker. In the meantime, Hendrix's car was unlocked; as he prepared to drive away, Hendrix said to Parker, "I got something for you." After Hendrix left, several of the men at the car wash urged Parker to leave, but he refused, maintaining he had done nothing wrong.
A short time later, Hendrix returned to the car wash and exited his car with a gun. As Hendrix approached Parker, Parker grabbed for the gun, and a struggle ensued. During the struggle, Parker was shot twice, first in the leg, then in the chest. Hendrix got back into his car and drove away. The gunshot to Parker's chest proved fatal.
After the shooting, which had taken place in broad daylight, four eyewitnesses identified Hendrix from a photographic lineup as the perpetrator. Three of these witnesses had been acquainted with Hendrix prior to the shooting. Three of the four testified affirmatively that Parker was unarmed at the time of the shooting. Two of these witnesses also reported to a detective on the case that they had received a phone call from Hendrix on the night of the shooting, during which Hendrix issued threats and offered money to discourage their cooperation with police. One of these witnesses reported receiving a second, similar phone call from Hendrix a few days thereafter.
1. Though Hendrix has not enumerated the general grounds, we have concluded that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Hendrix was guilty of all 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. Hendrix contends that his trial counsel rendered constitutionally ineffective
(a) Hendrix first contends that counsel rendered ineffective assistance by opting at trial to pursue a misidentification defense rather than asserting a self-defense claim. Hendrix maintains that, from the outset, he admitted to trial counsel that he had shot Parker but claimed that it was Parker who had produced the gun, escalating the altercation and necessitating Hendrix's actions. Counsel's decision to pursue a misidentification defense was unreasonable, Hendrix contends, given the number of eyewitnesses that identified Hendrix as the shooter and the fact that most of these witnesses were previously acquainted with Hendrix. In addition, Hendrix asserts, in forgoing the self-defense claim, counsel forfeited the opportunity to present evidence regarding Parker's prior threats of gun violence against Hendrix and others.
At the new trial hearing, trial counsel, a well-regarded veteran criminal defense attorney, testified that he had in fact investigated and prepared a self-defense strategy based on Hendrix's representations about the shooting. However, according to counsel, he ultimately opted at trial to pursue a misidentification strategy, which aimed to establish an unsubstantiated "rush to judgment" against Hendrix, by highlighting inconsistencies in witnesses' testimony, witness credibility issues, shoddy investigative methods, and a lack of corroborating evidence.
"An attorney's decision about which defense to present is a question of trial strategy." Washington v. State, 276 Ga. 655, 659(3)(b), 581 S.E.2d 518 (2003). Unless the choice of strategy is objectively unreasonable, such that no competent trial counsel would have pursued such a course, we will not second-guess counsel's decisions in this regard. Boyd v. State, 275 Ga. 772, 776(3), 573 S.E.2d 52 (2002) (in assessing whether counsel's performance was reasonable, "`[w]e ask only whether some reasonable trial lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial'"). An attorney's decision to pursue a particular defense is generally reasonable if it is supported by evidence in the case. McLean v. State, 297 Ga. 81(3), 772 S.E.2d 685 (2015).
In addition to faulting counsel's choice of trial strategy, Hendrix also assails counsel for failing to consult with him regarding this choice. At the new trial hearing, Hendrix testified that he had never denied being the person who had the altercation with Parker but at all times maintained that it was Parker who produced the gun. Hendrix testified further that he was never made aware of the possibility that counsel might not pursue a self-defense claim at trial and that, when Hendrix inquired about the absence of a self-defense claim, counsel essentially told Hendrix to trust his judgment. For his part, trial counsel conceded that he did not consult with Hendrix regarding this change in strategy prior to introducing the defense theory during opening statements. Thus, it is apparently undisputed that counsel did not consult with Hendrix prior to making this strategic decision and proceeding with it at trial.
Though the judgment of trial counsel with regard to trial strategy is entitled to considerable deference in our assessment of ineffective assistance claims, we also note that attorneys do have an affirmative duty to consult with their clients on such matters. See Reid v. State, 235 Ga. 378, 379(1), 219 S.E.2d 740 (1975) (citing ABA Standards Relating to the Administration of Criminal Justice for principle that decisions regarding trial tactics and strategy are "`the exclusive province of the lawyer after consultation with his client'" (emphasis added)); see also Florida v. Nixon, 543 U.S. 175, 187(II), 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (noting that trial counsel has a duty to consult with his client regarding "questions of overall defense strategy").
(b) Hendrix next contends that trial counsel rendered ineffective assistance by failing to ensure that the trial court asked all three statutory voir dire questions required under OCGA § 15-12-164(a).
(c) Hendrix next contends that trial counsel was ineffective for failing to object when the prosecutor adduced testimony from Atlanta Police Detective Kevin Leonpacher regarding reports by two of the four eyewitnesses — Samuel Heard and Ferrard Sanford — that Hendrix had contacted them in the aftermath of the shooting in an effort to deter their cooperation with the homicide investigation. As the record reflects, however, Detective Leonpacher's testimony was adduced only after Heard and Sanford, on direct examination by the prosecutor, both denied having been contacted by Hendrix and having reported such contacts to the police. Detective Leonpacher's testimony regarding Heard and Sanford's reports was admissible as evidence of prior inconsistent statements by these witnesses. See OCGA § 24-6-613(b) (permitting admission of extrinsic evidence of witness' prior inconsistent statement where witness has first been afforded opportunity to explain or deny such statement and opposing party has had opportunity to examine witness regarding same); see also Paul S. Milich, Ga. Rules of Evidence, § 14:3, p. 430 (2014-2015 ed.) (foundation for prior inconsistent statement "typically is accomplished by confronting the witness with the substance of the prior statement and asking the witness if he made such a statement"). Insofar as the State properly laid the foundation for the detective's testimony regarding these witnesses' prior inconsistent statements, trial counsel had no grounds for challenging this testimony and cannot be adjudged ineffective for failing to object to it. See Wesley, 286 Ga. at 356, 689 S.E.2d 280
(d) Hendrix similarly asserts that trial counsel was ineffective for failing to object to the prosecutor's comments during closing argument regarding witness intimidation. Specifically, the prosecutor highlighted the evidence of Hendrix's post-shooting phone calls to Heard and Sanford; the obvious reluctance of another witness — who was ultimately declared hostile — to testify against Hendrix; and the visible increase in spectators "on the defendant's side of the ledger" during the testimony of the eyewitnesses. As the prosecutor's characterization drew on reasonable inferences from admissible evidence and the trial proceedings, it was within the wide realm of acceptable closing argument. See McClain v. State, 267 Ga. 378, 384(3)(b)(1), 477 S.E.2d 814 (1996) ("the prosecutor has wide latitude to argue inferences from the evidence"). Counsel's failure to object, therefore, did not constitute ineffective assistance. See Wesley, 286 Ga. at 356, 689 S.E.2d 280.
3. In his final enumeration, Hendrix contends that the trial court erred by failing to strike for cause a venire juror who expressed doubt about whether she could be fair and impartial. The record reflects that this venirewoman did initially equivocate regarding her ability to be fair and impartial but ultimately indicated that she believed she could listen to all of the evidence and determine Hendrix's guilt or innocence on that basis.
Trial courts are required to excuse for cause any juror deemed to be "substantially impaired in [his or her] ability to be fair and impartial." OCGA § 15-12-164(d). Such impairment will be found only where it is shown that the juror
Poole v. State, 291 Ga. 848, 852(3), 734 S.E.2d 1 (2012). Given this juror's affirmation that she could decide the case based on the evidence, the trial court did not abuse its discretion in declining to excuse her for cause. See id. at 851, 734 S.E.2d 1 ("[w]hether to strike a juror for cause lies within the sound discretion of the trial judge").
4. While the evidence was sufficient to sustain Hendrix's convictions and we find no merit to Hendrix's enumerations of error, we do find error in Hendrix's sentences. First, while the jury was authorized to find Hendrix guilty of both malice and felony murder, because there was but a single victim, he cannot be convicted and sentenced on both counts, and the felony murder count must be vacated as mere surplusage. See Malcolm v. State, 263 Ga. 369(4), 434 S.E.2d 479 (1993). Because the felony murder count should have been vacated, it was error for the trial court to merge the felon-in-possession count with the felony murder count, and Hendrix is subject to be sentenced on the felon-in-possession count. In addition, because the aggravated assault was based on the same act as the malice murder, the aggravated assault was a lesser included offense that should have been merged into the malice murder. See, e.g., Dyal v. State, 297 Ga. 184(1), 773 S.E.2d 249 (2015).
Judgment affirmed in part and vacated in part, and case remanded.
All the Justices concur.