Aрpellant James Nix was convicted of malice murder, felony murder, and two counts of aggravated assault arising out of the fatal shooting of Bruce Neave. 1 He appeals, and for the reasons thаt follow, we affirm in part and vacate in part.
1. The evidence authorized the jury to find that on the day of the crimes appellant, Bruce Neave, and Tracy Neave were working together on a сonstruction job. Bruce Neave received $100 cash and a $100 check as payment for the work. He gave appellant $20. The three then drove to a gas station so Bruce could cash the $100 check. After cashing the check, Bruce gave appellant another $20. Appellant believed the $40 he received was unfair, and he and Bruce began arguing. The group drove to appellant’s parents’ home, and appellant went inside. Once inside, appellant told his father, Hubert Nix, to get a gun and run off the Neaves. Hubert Nix went outside, pointed a gun at Bruce and Tracy Neave, and told them to leavе. At the same time, appellant picked up a shotgun, went outside, and fatally shot Bruce Neave.
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When construed most strongly in support of the verdicts, the evidence is sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt that appellant directly committed the murder and aggravated assault of Bruce Neave and that he was guilty as a party to the aggravatеd assault of Tracy Neave.
Jackson v. Virginia,
2. The jury found appellant guilty of malice murder, felony murder with aggravated assault as the underlying felony, and aggravated assault. The trial court merged the aggravated assault count with the felony murder count and sentenced appellant to two concurrent life sentences on the malice murder and felony murder counts. Appellant, however, murdered a single victim and can be sentenced for either malice or felony murder but not both. OCGA § 16-1-7;
Malcolm v. State,
Although appellant may not be sentenсed on the felony murder guilty verdict, he may be sentenced on the underlying guilty verdict for the aggravated assault of Bruce Neave if it does not merge by fact into the murder conviction for which he was sentenced.
Malcolm,
supra,
3. In several enumerations of error, appellant contends he received ineffective assistance from trial counsel. In order to prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced appellant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.
Strickland v. Washington,
(a) Appellant contends trial counsel was ineffective in failing to request jury charges on defense of others and prior inconsistent statements as substantive evidence. Appellant’s defense at trial was that he did not point the gun at or shoot anyone, and no evidence was adduced to authorize a charge on the defense of others. Trial counsel cannot be faulted for failing to request a jury charge which was not authorized.
Callendar v. State,
As to the charge on prior inconsistent statements, even assuming it was error not to request the charge, appellant has failed to demonstrate a reasonable probability that the result of the proceeding would have been different if the charge had been given.
Strickland,
supra,
(b) At the time of trial, counsel had in his possession a copy of Tracy Neave’s first offender plea and adjudication of guilt on a previous theft charge. Counsel questioned Tracy on сross-examination about her conviction, as well as her descriptions of the gun used by Hubert Nix in the crimes. Appellant argues that counsel’s failure to tender the certified copy of her plea and adjudication of guilt and to question her further regarding her description of the gun was ineffective assistance.
Review of the transcript of the hearing on the motion for new trial reveals that trial counsel’s deсisions were matters of trial strategy and tactics within the bounds of reasonable professional conduct. Counsel testified that he did not tender the certified copy of the conviction into evidence because he wanted to retain the right to close and although there was some indication that the first offender treatment had been revoked, he had information that it was later reinstated. Trial counsеl’s decision not to introduce the conviction into evidence was a reasonable trial strategy. See
Sims v. State,
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We similarly find that counsel’s decision not to further question Tracy about alleged inconsistencies in her description of the gun was neither deficient nor prejudicial. The record shows that сounsel questioned Tracy about the alleged inconsistencies. Counsel testified at the motion for new trial hearing that he ceased this line of questioning because in response to each of his questions Tracy emphatically stated that it was appellant, not his father, who shot Bruce. Counsel’s decision not to allow the witness the opportunity to continue to specifically identify appellant is one involving reasonable trial tactics and strategy and was not deficient performance under these facts. See
Willingham v. State,
4. Appellant contends the trial court erred when it excluded evidence of Hubert Nix’s statements to officеrs that he shot Bruce Neave. Evidence that another person confessed to the crime for which the defendant is being tried is generally inadmissible hearsay, but it may be admitted in the guilt-innocence phase of a trial “under exceptional circumstances that show a considerable guaranty of the hearsay declarant’s trustworthiness. [Cits.]”
Drane v. State,
Pretermitting the issue of whether appellant has shown sufficient guarantees of trustworthiness, we find that the error, if any, was not harmful. The еxcluded testimony was cumulative of other evidence introduced, including a statement made by Hubert Nix to the first officer on the scene that the “[v]ictim grabbed the gun and it went off[,] I did not mean to shoot him,” as well as the testimony of other witnesses who stated that shortly after the crimes Hubert Nix told them he was the one who shot Bruce Neave. Accordingly, we conclude the trial court did not commit reversible error when it excluded Hubеrt Nix’s similar statements to police. See
Harris v. State,
5. Nor did the trial court commit reversible error by excluding the hearsay statements of appellant’s mother. Even assuming such statements were admissible under the necessity exception to the hearsay
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rule, see OCGA§ 24-3-1 (b), their exclusion was harmless error. Her statements were cumulative of other evidence admitted at trial, making it highly probable that their exclusion did not affect the verdict.
See Kennedy v. State,
Judgment affirmed in part and vacated in part.
Notes
The crimes occurred on August 26, 2000. Appellant was indicted by a Franklin County grand jury during the September 2000 term and charged with mаlice murder, felony murder, and two counts of aggravated assault. After a jury trial on June 13-15, 2001, the jury found appellant guilty of all charged crimes. He was sentenced to two concurrent terms of life imprisonment on thе malice murder and felony murder counts and a concurrent sentence of twenty years for the aggravated assault of Tracy Neave. The trial court merged the conviction for the aggravated аssault of Bruce Neave into the felony murder count. Appellant filed a motion for new trial on June 29,2001, which was amended on April 6,2005 and denied on June 9,2005. A notice of appeal was filed on July 1,2005. The case was docketed in this Court on July 12, 2005, and orally argued on November 21, 2005.