This appeal is from Scotty Lee Stansell’s conviction for malice murder arising from his fatal shooting of his wife Crystal. 1 The State put on evidence at trial which supported a finding of the following facts and events. The Stansells had been married for approximately two years and had a six-month-old child at the time of the shooting, but their marriage was troubled and they were considering divorce. On the Thursday before the shooting, which occurred in the early morning hours of a Sunday, Stansell threatened to beat his wife and told his wife’s sister that if his wife did not shut up or leave with her sister, he “might just kill her.” On Saturday, arguing with his wife and displeased about what she was going to wear to work, Stansell cut her shirt off with a knife. After she went to work that day, Stan-sell and Merritt, a friend with whom he planned to attend a concert, went to another friend’s home and left the couple’s child. Instead of going to the concert, Stansell and Merritt drove around drinking beer, stopping twice to speak with women. When Stansell went back to get his child, his wife was there. As they argued, he threatened to *148 cut her clothes off her again. After the couple agreed to leave the child there overnight and went their separate ways, Stansell and Merritt continued to drive around some more, meeting and speaking to the victim briefly at a gas station. When Stansell and Merritt returned to Stansell’s home, Crystal Stansell was already there. The three talked for a while and Stansell told his wife about the women he had seen that night. When Merritt said he did not have a girlfriend, Crystal Stansell, who had previously dated Merritt, said she would be his girlfriend. Stansell then walked to a corner where a rifle was leaning against a wall and picked it up. Merritt saw him swinging the rifle back and forth between him and Crystal Stansell, looked down for a moment, then heard a shot. Stansell told Merritt he had shot his wife and sent Merritt for help. When Merritt returned, Stan-sell and a neighbor he had summoned were attempting to resuscitate the victim. Stansell asked Merritt to say that Stansell had not been drinking and that the shooting was an accident. Police officers at the scene noticed a smell of alcohol around Stansell. The bullet from the rifle entered Crystal Stansell’s left arm and went through her heart and lungs, killing her.
1. Stansell asserts that the trial court erred in denying his motion for directed verdict of acquittal and his motion for new trial on the general grounds. Since the evidence summarized above was sufficient to authorize a rational trier of fact to find Stansell guilty beyond a reasonable doubt of malice murder
(Jackson v. Virginia,
2. In two enumerations of error, Stansell argues that reversible error occurred when the trial court failed to charge the jury on the State’s burden of disproving beyond a reasonable doubt the affirmative defense of accident, and contends that he received ineffective assistance of counsel when trial counsel withdrew a request to charge on that defense.
Based on Stansell’s testimony that the rifle fired accidentally while he was ensuring that it was unloaded, Stansell was entitled upon request to have the jury instructed on the defense of accident, including instruction that the State had the burden of disproving the defense of accident.
Griffin v. State,
However, Stansell raised on motion for new trial and raises now on appeal the question of whether trial counsel’s action in withdrawing the charge amounted to ineffective assistance of counsel. “In order to establish ineffectiveness of trial counsel under
Strickland v. Washington,
Trial counsel testified at the motion-for-new-trial hearing that he withdrew the charge request as a tactical matter, hoping to avoid causing the State to attack the accident defense too vigorously in closing argument. Counsel testified that he felt at the time that the defense had done a good job of establishing the defense of accident, but he did not want the prosecuting attorney to emphasize to the jury the degree to which the State’s evidence negated the defense’s evidence of accident. Instead, counsel preferred that the State put its effort into peripheral issues. Counsel defended his tactical choice by noting that the prosecuting attorney had not, in fact, belabored the extent to which the State had refuted Stansell’s claim of accident, but had, as the defense had hoped, concentrated on peripheral issues. “Judicial review of counsel’s performance should be highly deferential with substantial latitude given trial counsel in deciding trial strategy.”
Lakes v. State,
The test for reasonable attorney performance “has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial ... we are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.” [Cit.]
Jefferson v. Zant,
3. In rebuttal of Stansell’s testimony on cross-examination that he had never threatened his wife’s life, the State put on the testimony of the victim’s sister who stated that Stansell told her days before the shooting that he would have to kill the victim if she did not shut her mouth or leave with the witness. Stansell argues that the testimony was inadmissible because there was no notice and hearing pursuant to Uniform Superior Court Rule (USCR) 31. That argument is unavailing since we held in
Wall v. State,
4. Stansell argues that the trial court’s instructions on malice murder and felony murder were erroneous because the instructions on each offense did not include a specific reminder that, as to that offense, the jury should acquit if the charge was not proven beyond a reasonable doubt. Our review of the jury charge does not support Stansell’s argument. Although the trial court did not, in the portions of the charge relating to the specific offenses, address the concept of reasonable doubt, that concept was explained fully in the course of
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the trial court’s jury charge. Reviewing the charge as a whole, as we must
(Spearman v. State,
Since we have found the charge adequate, Stansell’s alternative enumeration of error, that trial counsel was ineffective for failing to object to those specific charges or to reserve objections for appeal, is without merit. Berry v. State, supra, Division 4 (c).
Judgment affirmed.
Notes
The shooting took place on November 24,1996, and Stansell was arrested and charged with murder on that date. An indictment returned on January 31, 1997, charged Stansell with malice murder, felony murder, and aggravated assault. After a trial conducted on July 28-30, 1997, a jury found Stansell guilty on all counts. The trial court sentenced Stansell to life imprisonment for malice murder, the felony murder charge stood vacated by operation of OCGA § 16-1-7, and the aggravated assault charge merged into the malice murder conviction. Stansell filed a motion for new trial on August 28, 1997, which was amended several times and was denied on January 27,1998. Pursuant to a notice of appeal filed February 11, 1998, the appeal was docketed in this Court on March 24,1998, and was submitted for decision following oral argument on June 8, 1998.