A jury found Chesney Devon Fairclough guilty of malice and felony murder. The felony murder verdict was vacated as a matter of law, and the trial court entered judgment of conviction only on the malice murder count and sentenced Fairclough to life imprisonment.
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See
Malcolm v. State,
1. “ ‘ “It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. (Cits.)” (Cit.)’ [Cit.]”
Veasley v. State,
2. Construed in support of the verdict, the evidence shows that Fairclough and three others went to his apartment, where he assaulted the victim with a gun, chased him from the apartment, and shot at him numerous times until he fell down. Fairclough then fled with his girlfriend. At trial, four eyewitnesses testified for the State,
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and other evidence showed that the shell casings and bullets found at the scene matched a pistol box and live ammunition found in Fairclough’s apartment. Fairclough contends that the eyewitness testimony was not sufficient to identify him as the shooter and that thеre were inconsistencies as to the type of bullet used to inflict the fatal wound. “ ‘However, resolving evidentiary conflicts and inconsistencies, and assessing witness crеdibility, are the province of the factfinder, not this Court. (Cit.)’ [Cit.]”
Givens v. State,
3. When an investigator testified that she found a shotgun in Fairclough’s apartment, the prosecutor produced the shotgun and asked the deputy to secure it. The trial court immediately asked the attorneys to approach the bench. The transcript indicates that, out of the hearing of the jury, defense counsel objected and the trial court determined that the prosecutor mistakenly believed that the weapon was relevant. She agreed not tо offer the shotgun as evidence, and the trial court asked Fairclough’s lawyer what relief he proposed. The attorney said only that the jury had already seen the gun, and requested no further relief from the trial court. However, Fairclough contends on appeal that he was deprived of his Sixth Amendment right to a fair trial becausе of prosecutorial misconduct, since the most plausible explanation is that the State wanted to poison the mind of the jury.
A successful objection to prejudicial matter not in evidence cannot be the basis for reversal unless accompanied by a contemporaneous denial of a motion for mistrial оr a denied request to strike, to give curative instructions, or to rebuke counsel. See
Moody v. State,
4. Fairclough urges that his trial counsel rendered ineffective assistance because of allegedly inadequate investigation and preparation. To prevail on this claim, under the standard of
Strickland v. Washington,
Fairclough complаins that his trial attorney presented the theory of self-defense at trial without sufficiently investigating it. According to him, the claim of justification should have been based on a disсrepancy regarding the direction from which the fatal shot came. At the hearing on the motion for new trial, defense counsel testified that the theory that the shots did nоt come from Fairclough’s direction “kind of fell apart,” and the self-defense theory that there was a fight and the victim fired first was supported by the evidence and by Fairсlough’s version of events. The decisions of Fairclough’s trial counsel “with regard to the choice of defenses and theories to be advanced at trial, even if unwisе, are deemed matters of tactic and strategy; as a matter of law, strategic decisions do not amount to ineffective assistance of counsel.”
Sanders v. State,
Fairсlough also asserts that trial counsel failed to prepare him to take the stand, to interview all witnesses personally, to call any witness for the defense, or to cross-examine the State’s witnesses adequately. According to trial counsel’s testimony, he reviewed all of the witnesses’ statements, and his investigator interviewed somе of the witnesses. See
Hamilton v. State,
The trial court found “that trial counsel’s preрaration for trial was adequate, that his investigation of the case was sufficient . . . [and] that he did not err in failing ... to request a continuance of the trial.” After reviewing the rеcord, we conclude that the trial court was not clearly erroneous in its factual findings and credibility determinations and did not err in its legal conclusion that Fairclough rеceived effective assistance of counsel at trial.
Boyd v. State,
Judgment affirmed.
Notes
The crime occurred on June 27, 2000. The grand jury returned an indictment on Oсtober 23, 2000. The jury found Fairclough guilty on November 8, 2001 and, on that same day, the trial court entered the judgment of conviction and sentence. Fairclough filed a motion for new trial on December 13, 2001, and amended it on July 3, 2002. He filed a motion for out-of-time appeal on July 9, 2002, which the trial court granted on the same day. The trial court denied thе motion for new trial on August 2, 2002, and Fairclough filed a notice of appeal on August 30, 2002. The case was docketed in this Court on October 17, 2002 and was orally argued on February 17, 2003.