Lеe Curtis Nichols was convicted of malice murder and possession of a sawed-off shotgun in connection with the shooting death of Jim Pricks. 1 He received a life sentence for the murder conviction and a concurrent five years on the gun charge. We affirm.
On the evening of August 31, 1985, Nichols and his girl friend, Janie Newberry, were customers of the Chile World Restaurant and Lounge in Acworth, Georgia. Nichols and several others became involved in a dice game for juke box money. During the game, Niсhols began arguing with one of the other participants. At that point, the owner of the lounge, Jim Fricks, asked Nichols to leave. Nichols and Newberry then left the restaurant but Nichols returned after а few minutes saying that “he wanted to pay his tab and he wanted to pay it now.” Nichols then began cursing аnd screaming and threw a ten dollar bill next to the cash register. Fricks refused to accept payment, stating that Nichols did not owe as much as he was offering. Nichols walked out of the restaurant and Fricks followed him in an attempt to smooth things over. When Nichols reached his car he grabbеd a .12 gauge sawed-off shotgun and shot Fricks in the abdomen. At trial, Nichols and Newberry both testified that Fricks had hit Nichols several times in the parking lot prior to the shooting and that Nichols acted in self-defense. Other witnesses to the incident testified that Fricks never hit Nichols.
1. Nichols contends the trial court erred by refusing to dismiss a juror for cause, after the panel had been selected, because the juror was the spouse of the District Attorney’s volunteer investigator who had worked on Nichols’ case. We note that the juror in question became ill during trial and was replaced by an alternаte. There was no error.
2. Nichols maintains he was denied effective assistance of counsel for three reasons.
a. He argues that trial counsel was ineffective by failing to call thrеe witnesses who would have substantiated his theory of self-defense. However, the record clearly establishes that counsel interviewed all three of the potential witnesses prior to triаl and determined their testimony would not have been beneficial or would have been merely cumulative. Counsel obviously considered presenting the
c. Finally, Nichols alleges that counsel was ineffective in failing to secure the removal of the juror discussed in Division 1. But as we have stated аbove, the juror was later excused and no error occurred.
3. Nichols contends the trial сourt erred in refusing to direct the prosecution to choose between a theory of malice murder or felony murder. The prosecution is not required to make this choice.
Hicks v. State,
4. Nichols argues that his defense was hindered because the trial court refused to admit evidence of the victim’s character and of a previous altercation between the defendant аnd the victim in which the victim pointed a pistol at the defendant. To the contrary, the record shоws that the court, after a hearing outside the presence of the jury, allowed Newberry to tеstify about the incident involving the pistol and that the victim had a reputation in the community for being “pretty wild.” Consequently, we find no error under
Morris v. State,
5. We have examined Nichol’s enumеrations of error regarding several jury instructions and find them to be without merit.
6. The evidence was sufficient to support the convictions.
Jackson v. Virginia,
Judgment affirmed.
Notes
The crime was committed оn August 31, 1985. The defendant was indicted in October 1985 and trial began on March 3,1986. A verdict was returned on March 5,1986 аnd defendant was sentenced that same day. A motion for new trial was filed March 14, 1986 and the motion was denied on February 16, 1987. The transcript was certified by the court reporter on May 28, 1987 and the appeal was docketed in this court on June 4, 1987.