HINES, Justice.
Following the denial of his motion for new trial, Harold Lee Render appeals his convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a crime in connection with the fatal shooting of Lamarcus Walker and the wounding of Edward Scott. Render's challenge is that his trial counsel provided him with ineffective assistance. For the reasons that follow, we affirm.
The evidence construed in favor of the verdicts showed the following. Render had a history of employment in law enforcement, including working as a police officer and as an armed security guard. Render's 26-year-old son was shot and killed in 2006. Within a few months after the shooting, the Render family began to suspect Lamarcus Walker as
On April 30, 2007, Render encountered Walker at a convenience store in DeKalb County. Render and Walker exchanged words and Render drew a handgun and shot Walker multiple times. Walker tried to run from Render. Render fired more shots at Walker, and a stray bullet hit Edward Scott in the groin. Walker fell while he was running, and Render stood over him and again fired multiple shots into him. Walker died instantly. He had sustained gunshot wounds to his left upper arm, the right side of his face, and the back of his head. No weapons were found on Walker's body.
1. The evidence was sufficient to enable a rational trier of fact to find Render guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Render contends that his trial counsel was ineffective in two respects. But, in order to prevail on his claims of ineffectiveness, Render has to demonstrate that trial counsel's performance was deficient and that the deficiency so prejudiced him that a reasonable probability exists that, but for counsel's errors, the outcome of Render's trial would have been different; in doing so he must overcome the strong presumption that his attorney's actions fell within the broad range of professional conduct. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Futch v. State, 286 Ga. 378, 380(2), 687 S.E.2d 805 (2010).
(a) Render contends that his trial counsel "egregiously erred" when counsel "made no attempt to introduce evidence that would have allowed the jury to understand the reasonable nature" of his fear of Walker. He urges that counsel was ineffective because he conceded the inadmissibility of evidence of Walker's prior acts of violence even though such evidence was "clearly admissible" and crucial to his sole defense of justification/self-defense.
Render argues that there are "two prongs" or methods by which a defendant may have admitted into evidence prior acts of the victim against third parties. First, he cites this Court's holding in Chandler v. State, 261 Ga. 402, 405 S.E.2d 669 (1991), that evidence of specific acts of violence by a victim against third persons can be admitted into evidence in the situation in which a defendant claims justification. Id. at 407(3)(b), 405 S.E.2d 669. The defendant has the burden of demonstrating the admissibility of Chandler evidence, and at a minimum must follow the procedural requirements for introducing the evidence, establish by competent evidence the existence of prior violent acts, and make a prima facie showing of justification. Spencer v. State, 287 Ga. 434, 436(2)(a), 696 S.E.2d 617 (2010). In his initial brief, Render states unequivocally that Chandler has no application in his case, conceding that there was no competent evidence of specific violent acts by Walker against other parties for his trial counsel to present; however, he urges that his situation was governed instead by "longstanding, statutorily-based evidentiary law" relating to self-defense, namely permitting evidence of his motivation or state of mind at the time of the
It is true that the exception under OCGA § 24-3-2 may allow evidence of a death threat against a defendant when the evidence is offered not for the truth of the matter asserted but rather to show the victim's state of mind; however, such evidence is admissible only in the circumstances in which there is a conflict in the evidence as to who instigated the fight, to corroborate evidence of communicated threats, or to establish the attitude of the deceased. Massey v. State, 272 Ga. 50, 51(3), 525 S.E.2d 694 (2000). But, that is not the type of evidence that Render claims should have been placed before the jury. He complains that the jury did not hear that he had heard from Walker's friends that they were scared that Walker would hurt them if they testified against him and that Walker had killed three or four people, i.e., that Render had knowledge of Walker's violence which made his alleged fear reasonable at the time he shot Walker. As noted, when a defendant claims he justifiably used force in self-defense, evidence of the victim's prior acts of violence can be relevant "to support the defendant's claim that the victim assaulted the defendant in accordance with this violent character." Strozier v. State, 300 Ga.App. 199, 200(2), 685 S.E.2d 743 (2009). But, that is precisely the type of evidence contemplated in and controlled by Chandler. Strozier v. State, at 200(2), 685 S.E.2d 743. What is more, as for the jury being informed of Render's allegedly fearful state of mind with regard to Walker, Render's attorney was able to elicit testimony from Render on the stand about his belief that the victim was dangerous, including that at the time of the shooting, he knew of Walker's bad reputation for violence and, in fact, that Walker's nickname was "OG," which stood for "original gangster."
Render has not met his burden under Strickland to show that his trial counsel was deficient in the manner urged, much less that the alleged deficiency prejudiced his defense. Jones v. State, 280 Ga. 205, 206(2), 625 S.E.2d 1 (2005).
(b) Render also contends that his trial counsel rendered ineffective assistance by failing to object to a portion of the charge to the jury regarding the defense of justification, which he maintains has long been held improper and was inherently prejudicial to him by effectively removing his sole defense from the case.
The trial court charged the jury:
(Emphasis supplied.) Render urges that the inclusion of the word "not" unfairly and illegally limited the charge on justification and made it burden-shifting by explicitly ruling out those situations, like his version of events, involving "threats, accompanied by menaces . . . that do not amount to an actual assault," and therefore, that he has demonstrated prejudice as well as deficient performance. But, that is not the case.
It is plain that the trial court intended to give the pattern jury instruction on threats and menaces causing a reasonable belief of danger which would amount to justification, and that the inclusion of the word "not" was merely a misstatement by the trial court. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 3.16.10. The instruction as given must be considered by this Court in the context of the trial court's charge as a whole. Shadron v. State, 275 Ga. 767, 771(5), 573 S.E.2d 73 (2002). This is also the case when the challenge to a specific jury instruction is made in the context of a claim of the ineffective assistance of counsel. Henderson v. State, 252 Ga.App. 295, 298(1)(b), 556 S.E.2d 204 (2001). Examination of the entire jury charge in this
Assuming arguendo that trial counsel was deficient for failing to object to the court's misstatement, Render still cannot prevail on his claim that his attorney's conduct constituted ineffective assistance because he has not shown that the deficiency so prejudiced him that a reasonable probability exists that, but for counsel's error, the outcome at trial would have been more favorable. Futch v. State, supra at 380(2), 687 S.E.2d 805. Simply, here again he has failed to satisfy the Strickland standard. Durrence v. State, 287 Ga. 213, 218(2)(b), 695 S.E.2d 227 (2010).
Judgments affirmed.
All the Justices concur, except NAHMIAS, J., who concurs in Divisions 1 and 2(b) and in the judgment.