James K. Johnson was convicted of malice murder, aggravated assault and possession of a firearm during the commission of a crime. He was sentenced to life imprisonment for the murder and given a consecutive five-year sentence for the possession count. The aggravated assault conviction was merged with the malice murder conviction. 1 He appeals.
*381 The evidence at trial showed that appellant and the victim, John LeCroy, lived on adjacent tracts of land in rural Floyd County. In December 1993, appellant purchased a small parcel of land at a tax sale which had previously belonged to LeCroy. LeCroy continued to maintain that the parcel rightfully belonged to him, but was unable to obtain funds to repurchase the parcel when appellant offered to sell the parcel back to him. Several weeks prior to the shooting, appellant erected a fence to separate the disputed parcel from LeCroy’s land. LeCroy was angered by the fence. On the evening of March 14, 1994, LeCroy, who had been drinking, ran back and forth along the fence, shouting obscenities and threatening to kill appellant. Appellant went to LeCroy’s property to confront him; as appellant stood in the road, LeCroy approached him with his fists clenched and raised. When LeCroy was within six-eight feet of appellant, appellant produced a gun and shot LeCroy three times. Although LeCroy had yelled that he would kill appellant, that he would cut off appellant’s head, and one witness testified that she observed a gun in LeCroy’s hand, no gun or knife was observed by other eyewitnesses to the shooting or found on or near his body. Appellant admitted shooting LeCroy, but claimed it was in self-defense.
1. After reviewing the evidence in the light most favorable to the jury’s determination of guilt, we conclude that a rational trier of fact could have found Johnson guilty of the crimes charged beyond a reasonable doubt.
Jackson v. Virginia,
2. Appellant amended his motion for a new trial to claim that his trial counsel had been ineffective. Appellant now contends that the court erred in concluding, after an evidentiary hearing, that appellant had not made the showings required by
Strickland v. Washington,
It is uncontroverted that counsel failed to meet the USCR 31.6 notice requirements for the admission of specific acts of violence by the victim. At the hearing on appellant’s new trial motion, appellant’s trial counsel testified he knew before trial of evidence of acts of violence by the victim toward third parties. 4 He concluded, however, that certain of the acts would not be admissible because appellant had been unaware of them or they were either too remote in time to the crime charged or too dissimilar. He also testified that he believed such evidence would have been cumulative of testimony by numerous State’s witnesses.
In its order denying appellant’s motion for a new trial, the trial court found that appellant’s evidence of specific violent acts was cumulative of testimony by State’s witnesses and that counsel’s failure to introduce such evidence and to call character witnesses on appellant’s behalf was acceptable trial strategy. Because the trial court concluded that appellant had not met the first prong of Strickland, it did not consider whether counsel’s performance prejudiced appellant’s defense.
Counsel's decision not to introduce specific acts of violence by the victim based on his belief that they were inadmissible because unknown to appellant was clearly erroneous.
Marks v. State,
Counsel’s legal error compels us to conclude that appellant has “overcome the strong presumption that counsel’s conduct [fell] within the broad range of reasonable professional conduct. [Cit.]”
Roberts v. State,
This conclusion alone is insufficient, however, to afford appellant a new trial. He must also demonstrate that there is a reasonable probability that the outcome of his trial would have been different, but for the substandard performance of his counsel.
Strickland,
supra;
Hayes v. State,
Our standard of review of a trial court’s determination with respect to effectiveness of counsel is whether its findings are clearly erroneous.
Smith v. State,
3. Appellant contends that it was error to allow a police officer to
*384
give his opinion that appellant’s statement to the effect “Well . . . you know a man can just take so much,” referred to LeCroy. Inasmuch as the officer was not opining on the ultimate issue of fact and the jury was free to conclude that the officer was incorrect, this enumeration presents no grounds for reversal. See
Fordham v. State,
*384
4. Appellant next challenges the use of LeCroy’s statement to his wife regarding a threat made to LeCroy by appellant. Her statement to the investigator about what LeCroy had told her was properly admitted under the necessity exception. OCGA § 24-3-1 (b);
Hayes v. State,
5. Contrary to appellant’s contention, the charge to the jury, read in its entirety, adequately covered the defense of justification and the State’s burden of proof with regard thereto.
Coleman v. State,
6. There was no error in admitting testimony regarding ownership of the disputed parcel inasmuch as this evidence was not the sort of “prior acts” contemplated by USCR 31.1. See
Barrett v. State,
7. Nor do we find any merit in appellant’s contention that the trial court erred in refusing to permit his physician to testify as an expert as to appellant’s psychological makeup and his state of mind at the time of the shooting. The transcript reveals that the defense failed to pursue testimony from its expert with regard to his state of mind at the time of the shooting even though the prosecution affirmatively stated it had no objection to this testimony.
8. Appellant’s final argument that the trial court erred when it sustained the State’s objection to appellant’s wife’s testimony regarding his mental depression is without merit. Appellant acknowledged at trial that he was not asserting an insanity defense or any defense based upon depression. See OCGA § 24-2-1. Moreover, we are precluded from reviewing his assertion, raised for .the first time on appeal, that his alleged depression is analogous to the “battered women’s syndrome.”
Judgment reversed.
Notes
The crimes occurred on March 14, 1994. Appellant was indicted on May 20, 1994 and convicted on November 4, 1994 following a jury trial. Appellant’s motion for a new trial was filed November 23, 1994, amended March 5, 1995 and denied June 15, 1995. His appeal was docketed in this Court on June 30, 1995 and orally argued on September 11, 1995.
See
Chandler v. State,
Appellant also claimed his trial counsel was ineffective in failing to call witnesses to testify to his good character, in failing to advise him of his constitutional right to testify and in refusing to allow him to testify in his own defense. While we might regard trial counsel’s decision not to call character witnesses on appellant’s behalf as ill-advised and based on an evaluation of the evidence which hindsight shows to be incorrect, we nevertheless regard that decision as being a matter of trial strategy, which, even if erroneous, does not itself constitute a denial of effective assistance of counsel. See
Stewart v. State,
The transcript of the hearing on appellant’s new trial motion established that there were at least three witnesses who had been interviewed by trial counsel, had related previous acts of violence by LeCroy toward them, and were available to testify at trial. Two of these witnesses testified at the hearing as to these acts of violence. Compare
Goodwin v. Cruz-Padillo,