Following the denial of his motion for new trial, as amended, An dray Faust appeals his convictions for felony murder while in the commission of an aggravated assault and possession of a firearm during the commission of a felony in connection with the fatal shooting of Marcellous Brown. He challenges the sufficiency of the evidence, an evidentiary ruling, aspects of the trial court’s instructions to the jury, and the effectiveness of his trial counsel. Finding the challenges to be unavailing, we affirm.
According to both Chamblee and Milton, Faust came running back toward the car, aiming a rifle at Brown. Brown immediately pulled his pistol out, grabbed Milton in a headlock, and put the pistol to Milton’s head. Faust then fatally shot Brown in the chest. Milton jumped into the back of the car and ran out the other side, and Faust also fled,
Faust argues that the evidence presents a classic example of “he said, she said” and that the State failed to corroborate its theory that Faust’s motive was robbery, while he presented evidence of self-defense and defense of another. When we review the sufficiency of the evidence, however, we do not re-weigh the evidence or resolve conflicts in witness testimony, but instead we defer to the jury’s assessment of the weight and credibility of the evidence. Mosley v. State,
2. Faust urges that the trial court erred in excluding evidence that Brown had methamphetamine on his person when he was killed. According to Faust, that evidence was relevant to support his theory of the case that Brown had been negotiating a drug deal with Milton when Faust had to defend himself and Milton, and to disprove the State’s theory that Brown was an innocent shoe salesman being robbed of his hard-earned money Under our precedent in cases like this one that were tried under the former Evidence Code, a murder victim’s character generally was “irrelevant and, thus, inadmissible. Evidence that impugns a victim’s character cannot be admitted unless it has some factual nexus with the conclusion for which it is being offered.”
In this case, the trial court admitted evidence that the drug ecstasy was found in Brown’s system, but excluded evidence that 50 methamphetamine tablets were discovered in Brown’s underwear. Faust did not present any evidence that Brown had taken methamphetamine, nor has Faust shown how Brown’s possession of methamphetamine would make it more likely that he would attempt to purchase cocaine or to rob Faust and Milton. The only other apparent purpose of showing that Brown possessed methamphetamine and thus was not merely an innocent shoe salesman would be to impugn his character. We have found no connection between Brown’s possession of methamphetamine and Faust’s theory that he did not attempt to rob Brown but instead that Faust justifiably shot Brown when Brown attempted a robbery during a purchase of cocaine after taking ecstasy Because Faust offers only speculation of any such factual nexus, the trial court did not abuse its discretion in excluding evidence of the methamphetamine found on Brown’s person. See Moore,
3. Faust contends that the trial court committed plain error by failing to charge the jury on the definition of simple assault as part of its charge on aggravated assault with a deadly weapon. His contention is one of plain error because he concedes that this issue was not preserved for ordinary appellate review. In order for this Court to review the jury charge for plain error, the accused must not have affirmatively waived the alleged error or defect. Cheddersingh v. State,
For the same reason, Faust has also affirmatively waived his further contention that the trial court erroneously gave a jury instruction on robbery. That instruction was given as part of the charge on justification that defined “forcible felony.” See OCGA § 16-3-21 (a). After considerable discussion of the issue with the prosecutor and the court at the charge conference, defense counsel specifically agreed to the inclusion of robbery, in addition to aggravated assault, in the charge on forcible felonies. Consistent with this agreement, after the trial court charged the jury, defense counsel objected only that the definition of robbery was too broad and was not limited to the defense theory of what Brown had done. Because Faust actually agreed to the giving of a robbery charge and objected to that charge only on a different ground from that which he now raises on appeal, appellate review is precluded unless the robbery instruction amounted to plain error which affected his substantial rights and was not affirmatively waived. See Simpson v. State,
4. Faust asserts that his trial counsel provided constitutionally ineffective assistance in several respects. Under Strickland v. Washington,
To prove deficient performance, one must show that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. Courts reviewing ineffectiveness claims must apply a strong presumption that counsel’s conduct fell within the wide range of reasonable professional performance. Thus, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. If the defendant fails to satisfy either the “deficient performance” or the “prejudice” prong of the Strickland test, this Court is not required to examine the other.
Capps v. State,
(a) Faust first claims that trial counsel was ineffective for not objecting to the prosecutor’s use of a .38 caliber revolver and an AK-47 as demonstrative exhibits that were intended to represent Brown’s revolver and Faust’s rifle, which were never recovered. See footnote 2, supra. Faust argues that the exhibits were not shown to be sufficiently similar to the guns actually used, that Milton testified the AK-47 did not look like Faust’s rifle, and that the prosecutor used the exhibits to prejudice Faust by causing the jury to focus on the much larger size of Faust’s weapon. Where, as here, there is no question that real guns were used during the crimes but were not recovered, the introduction of guns of the type believed to have been used was generally permissible in cases, like this one, to which the old Evidence Code applied. McCoy v. State,
(b) Faust next claims that his trial counsel was ineffective when she failed to object to a detective’s testimony that contained hearsay, an improper conclusion, and bolstering. After Chamblee and Milton had testified, the detective recounted the statement that Milton had given him. Although Faust first insists that all of that testimony amounted to hearsay that did not come within an exception, he admitted at the hearing on his motion for new trial that Milton’s statement to the detective “was a little bit contradictory to what Mr. Milton testified to.” Trial counsel testified to her opinion that Milton’s statement was not inadmissible hearsay because he had testified and was subject to cross-examination. And Faust has never argued that Milton’s statement lacked sufficient inconsistency or otherwise failed to fulfill the requirements to be admissible as a
Faust further complains of the following statements in the detective’s testimony that were not part of Milton’s statement: “Apparently [Chamblee] thought it was a robbery too”;
(c) Faust also claims that trial counsel provided him ineffective assistance by failing to object or move for a mistrial in response to two portions of the State’s closing argument. First, Faust asserts that counsel should have objected when the prosecutor argued facts not in evidence, specifically, that Faust was out to rob the victim. The evidence shows, however, that Faust asked Brown to come sell him some shoes, that Faust and then Milton discussed prices, that Faust approached with a rifle, and that Chamblee told Faust to take the money, the shoes, and whatever he wanted. From this evidence, the jury was authorized to infer that, even if Faust did not demand money or goods, he intended to commit a robbery. See Boyd v. State,
Faust’s other claim that his trial counsel was ineffective during the State’s closing argument is that counsel should have objected when the prosecutor asked the jurors to put themselves in the position of the residents of the neighborhood and to speak for the neighborhood with their verdict. The only comment that Faust quotes from the State’s closing argument is that “you all have to have the courage to speak up and talk for a community that’s too scared to talk for itself.” It is appropriate for the prosecutor to urge the jury to speak on behalf of the community Gibson v. State,
Judgment affirmed.
Notes
The crimes occurred on June 6, 2006. On November 15, 2006, a Fulton County grand jury returned an indictment against Faust charging him with malice murder, felony murder while in the commission of aggravated assault, felony murder while in the commission of possession of a firearm by a convicted felon, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. He was tried before a jury April 1-6, 2009, and found not guilty of malice murder, but the jury was unable to reach a verdict on the remaining charges, so a mistrial was declared as to those counts of the indictment. Faust was retried before a jury on February 22-26, 2010, on the charges of felony murder while in the commission of aggravated assault, aggravated assault, and possession of a firearm during the commission of a felony, and found guilty of all three of those charges. The charges of felony murder while in the commission of possession of a firearm by a convicted felon and possession of a firearm by a convicted felon were not submitted to the jury, but placed on the dead docket. On February 26, 2010, Faust was sentenced to life in prison for felony murder and a consecutive term of five years in prison for possession of a firearm during the commission of a felony; the aggravated assault merged with the felony murder for the purpose of sentencing. Trial counsel filed a motion for new trial on Faust’s behalf on March 4, 2010, and the motion was amended by new counsel on July 22, 2015. The motion for new trial, as amended, was denied on October 29, 2015. Anoticeof appeal was filed on November 12, 2015, and the case was docketed in this Court for the April 2017 term. The appeal was submitted for decision on the briefs.
Faust took the rifle with him, and Chamblee threw Brown’s pistol into some bushes, but neither weapon was recovered.
As already stated, Faust was convicted and sentenced for two crimes: felony murder while in the commission of an aggravated assault, and possession of a firearm during the commission of a felony. By concluding that the evidence was constitutionally sufficient to prove felony murder, we necessarily also mean that our review of the evidence shows that it was constitutionally sufficient to prove Faust guilty of the aggravated assault on which the felony murder was predicated. We note, however, that in addition to his challenges to the sufficiency of the evidence of felony murder and possession of a firearm, Faust also asserts, as a separate enumeration of error, that there was insufficient evidence for a rational trier of fact to find him guilty of aggravated assault beyond a reasonable doubt. But Faust was not sentenced for that crime, and no judgment of conviction as to that crime was entered against him. As set forth in footnote 1, supra, the count of aggravated assault merged with the felony murder for which Faust was sentenced. As a result, his separate claim regarding the sufficiency of the evidence of aggravated assault is moot. See Anderson v. State,
“The admissibility of evidence of a victim’s character is now governedby OCGA §§ 24-4-404 and 24-4-405.” Gibson v. State,
At the end of the discussion, defense counsel ultimately appeared to oppose not only an instruction on the second method of aggravated assault, but also the instruction on the first method that was given.
Conversely, assuming that this contention has not been affirmatively waived, we see no plain error. “A failure to charge amounts to plain error only to the extent that the failure to charge was erroneous, the error was obvious, the failure to charge likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Johnson v. State,
Conversely, assuming that Faust did not affirmatively waive this contention, we fail to see any plain error. “In order to intelligently consider th[e] defense [that the accused was using the force necessary to prevent a forcible felony,] the jury must be informed as to what constitutes the forcible felony relied upon.” Wiseman v. State,
To the contrary, Faust complained in his amended motion for new trial and the hearing thereon that the admission of Milton’s statement allowed the State to impeach its own witness. If Faust had raised that issue on appeal, his claim that trial counsel was ineffective for failing to object to Milton’s statement would still fail. As the trial court concluded, the State was lawfully entitled to impeach its own witness. See Edwards v. State,
It appears that this statement, considered in context, is not referring to Chamblee’s prior testimony, but amounts to a limited reference directly to Milton’s own statement that during the incident, Chamblee said “the money’s in the car.”