1 The crimes occurred on November 21, 2003. On June 30, 2006, a Fulton C o unty gra nd jury indicted Appellant for malice murder, felony

murder, aggrava

ted assault, and possession of a firearm during the commission of a felony . At a trial held from November 5 to 9, 2007 , the jury acquitted Appellant of

malice mu

rder but found him g

uilty of the re maining charg es. The trial court sentenced Appellan t to life in prison for felony murder and a consecutive term of five y ears for the firearm convicti on; the ag

grava ted assa ult verdict merged. Appellant filed a motion for new trial on November

30, 2007, which he amended with the assistance of new counse l on March 1 1, 2013. Afte ra h earing, the trial court entered a n order on May

28, 2013, denying

the new trial motion. Appellant filed a timely notice of a ppeal, and the case was docketed in this Court for t he Jan uary 2014 term

and submit

ted for d ecision on the brie fs. 295 Ga. 161 FINAL C OPY

S14A049 1. WELLS v. THE STATE. NAHMIAS, Justi ce. Appella ntSephus Wells was convicted of fe lony m urder ba sed on aggravated assault with a

deadly weapon and possessi on of a firearm

during the

comm issi on of a felony, in conn ection with th e shooting death of Corey Sinkfiel d. On appea l, he c ontends th at his tr ial cou nsel provi ded inef

fecti ve represe ntation and that the trial cou rt violated OCGA § 17-8-57 by making an impermis sible comment to the ju ry. We aff irm. 1 1. Vi ewed

in the light most favorable to the verdict, the ev idenc e presented at tria

l showed as follow s. On the ni ght of Nove mber 2 1, 2003, Appellant, holding a

semi-automa

tic handgun, approached Sinkfield in a busy2

parking lot at an apartme nt comp lex for t he elderly and

disable d. Appe llant began yelling at Sinkfield, who wa s unarmed, saying, “Talk that s--t th at yo u

were talking,” and, “I d on’t hea r you sa ying any thing now. ” Gary

York, a twot ime gunshot vic tim, was ne arby. York knew Appella nt and Sink field a

n d position edhis wheelchair bet ween th em in an at tempt to defuse the situ ation. York was ab l e to co nvince Appellan t to leave, but as App ellant walked away, he turned ba ck and ye lled, “It ain’t over, motherf-- --r.” York pers uaded Sinkfieldto stay in the pa rking lot fo r a

few minutes, but th en Sinkfield walked off in the sa me direction

that App ellant

went, toward

the apartment com

plex up the stree t where

both Appell ant and Sink field lived. Less t han ten minute s late r, two gunshot s rang out f

rom tha t direc tion. D errick G ardner t estifie d that he saw App ellant

shoot Sinkfi eld wit

h a handgun across the street from

the complex where the two men l ived. G ardner,

a crack cocaine addict at the time, lived in the same complex and kn ew Appella ntand Sinkfi eld. A ccordin g to Gard ner, the y were arguing at thetop of

a flight of concrete steps when Appellant f ired his gun onc e into the air, t elling Sinkfieldthat he

neede d “to get s omew

here. ” When S inkfield

did not flinch or move, Appella

ntwalked straigh t toward him and s wung at his f ace with the

gun,3

which fired again. Sinkfield fell into some bushes and then down the steps. As Appellan twalke d to the bot tom of t he step s, he sa

id, “I’m tired of you youn g punks . . . t

rying m e.” G ardn er addre sse d Appell ant by na me a nd excla imed, “Look what y ou just did!”

Appella ntturned a

round, sa w Sinkfie ld lying o n the step s bleeding profusel

y, and said, “ Oh, s--t ,” bef

ore runnin g away . Gard

n er , who had an ou

tstandin g warra

nt for his arrest, also r an away, telling two women that he passed to call 91 1 because a young man had just b een shot in the he ad. Sinkfielddied at

the scene. The medical examiner concluded th at he was killed by a single gun shot to th e h ead. The bullet entered through Sinkf ield’s left cheek and was fire d from within a few i nches of

his fac e; howe ver, the

re

was no conta ct wound a

t t he point of entry. Sinkfield had no bruising on his face but had scrapes on his face and hands consistent with a fall on concrete steps. Two days a fter the

shooting, Gardne r told the policethat he

saw App ellant shoot Sinkfield and identifi ed Appellant in a photograp hic lineup. The nex t day,

a single 9m

m shel l casing was re covere d from the crime scene, but the murder

w eapo n was never foun d. At the time of Appell ant’s trial, Gardn er was incarc erate d, and he testified that A ppellant had warned him

in jail not to testif

y.4

The defense theory was that Appellant was no t present at the sh ooting and that the State offered m ore evidence that G ardner killed Sinkfield than that Appell ant killed him, em

phasizing that Gardner wa s the only person th at the other witness es saw

fleeing the sc ene im

media tely a fter the

gunshots. Viewedin the li ght most

favorab le to the

verdict, the evidence present ed at trial and summarized abov e was sufficient to authorize a ration al jury to f ind Appella ntguilt y beyo nd a reasonable dou bt of the crimes for which he was convicted and

sentenced. See Jackson v. Virginia , 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560 ) (1979)

. See a lso Vega v. State , 285 Ga . 32, 33 (6 73 SE2d 223) (2009). (“‘It wa s for the j ury to determine the credib ility of the witn esses

a nd to resolv e any

conflic ts or inco nsistenc ies in th e evidence.’ ” (cit ation omitte d)). 2. Appellant contends first that his trial counsel provided inadequate represe ntation beca use couns e l faile d to rec ognize t hat an involuntar

y manslaughter con viction was auth orized by the evidence, did not discuss with Appella nta possible jury inst

ruction on

involunta

ry ma nslaughter, and failed to request such an instructi on. (a) To establish that his trial c ounsel was c onstitut ionally ineffecti ve,5

App ellant

w as required to prov e both de ficie nt perform ance by counse l and resulting prejudice. See Strickla nd v. Was hington , 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To show that h is lawyer ’s performance was deficient, Appella

nt had to demonstra

te that the lawyer performed his d uties in

an objectively unr easonable w ay, conside ring all the circums tance s and in th e light of prevai ling professi onal norm s. See id. at 687-688. This is no e asy showing. As the U

nited Sta tes Supre me C ourt has e xplaine d, [j]udicial s crutin y of counsel’s performanc e must be highly deferential. It is all too t empting for a de fendant to seco nd-guess counsel ’s assista

nce a fter c onviction

or adver se sentence, a

nd it is all too eas y for a c ourt , examining couns el’s defense after it has proved unsuccessful, to conclude tha t a parti cular act or omission of counsel was un reasonable. A fair ass essment of attorn ey performance require s that every effort be made to elim inate t he distorting e ffe cts of hin dsight, t o recons truct th e circumsta nces of counsel ’s challe

nged cond

uct, a nd to eva luate t

he conduc t from counsel ’s perspective at the time . . . . There a re countless ways to prov ide effective assistance in any given case. Even the bes t criminal def

e nse attorneys would not defend a pa rticular client in the same way. Strickla nd , 466 U. S. at 689-69 0 (citat ions omi tted). Accor d Humphre

y v. Nance , 293 Ga . 189, 191 ( 744 SE2d 706) ( 2013). To these e

nds, thelaw r ecognizes a “stro ng presumpti on” that coun sel performed reaso nably, and the defendant bears the burden of overcoming this6

presum ption. See Strickla

nd , 466 U. S. at 689

. To ca rry this burden, A

ppella nt must show that no reasonable lawyer would hav e done w hat his l awye r did, or wouldhave faile d to do what h is lawyer did no t. See Nance , 293 Ga . at 192. In partic ular, “d ecisi ons rega rding trial tact

ics and strate gymay

form the basis for an inef fecti veness c laim

only if t hey were so patently

unreaso nable t

hat no compe tent

attorney would have followed s uch a course.” Reed v. State , 294 Ga. 877, 882 (___ SE2d___) (201 4). Even when a defendant h as pr oved that his counsel’s p erformance was defici ent in this c onstituti onal se nse, he also m ust prove p rejudic e by show ing “a reasonable probability tha t, but for cou nsel’s unp rofession al errors, the result of the proceeding would have been different.” Strickla nd , 466 U. S. at 694. “It is not enough to show t hat theerrors had someconce ivableeffec t on the outco me of

the proceeding .” Harrington v. Richter , 562 U. S. ___ (131 SC t 770, 178 LE2d 624) (2011) (cita tion and pu

nctuation omit

ted). R ather, the def

endant must demonstrate a “reason able probabil ity” o f a different re sult, wh ich, th e United States Supreme C ourt h as expl ained, is “a probability suffic ient to undermine confi dence in the out come.” Strickla nd , 466 U. S. at 694

. In all, t he burden of proving a

denial of effe ctive assistance of counsel is2 OCGA § 16- 5-3 (a)say s: A pe rs on co mm it s t he of

fe ns e o f i nv ol un ta ry m anslaug hte r in the commission of an unlawful act when he causes the dea th of another human being withou t any intention to do so by

the commis si on of an unl awful act other than a felony . A person who commit s the offense of involuntary manslaughter in the commission of anunlawful act, upon conviction thereof, shall be punished by imprisonment for not less than one y ear nor more tha n ten y ears. 7 a heavy one. See Richter , 562 U. S. at ___ . Appel lant ha s not me t that bur den. (b) The premise of Appella nt’s claim is that his trial couns el should have pu rsued the

defense theory that the jury co uld find App ellant guilty of involunta rymansl aughter

as a lesser include d offense

of murder. See O CGA § 16-5-3 (a)

. 2 This theory would have required c ounsel to argue, and the jury to believe, that the

shooting wa s not intentional (in which case it would be malice murder ), although Appellant ackn owledge s that th e shooting was at least reckle ss conduct

preclu ding a c omple te ac cident defense. See O CGA § 16-2-2 (exclud ing an ac cident

defense wherethere w as cri minal intenti on or

criminal neglige nce); Reed

v. State , 279 Ga. 81, 86 (610 SE 2d 35) (2005). In additi on,

an involunta

ry ma nslaughter theory

would hav e required couns el to a rgue, a nd the jury to believe, tha

t Appellant’s use of a loade d gun to strike at Sinkfield

was reckless conduct but that Appella nt did not

use the gun as a “deadly weapon ” (which w ould be the felony of aggravate d assault, see OC GA § 16-5-3 Accordingly , when the trial court aske d abou t lesser charges at the char ge conference, Appellant’s counsel said, “All o r noth ing. All or noth ing toda y, j udge,” and late r added, “Obvious ly – We’re saying

we weren’t at the shooting scene.” 8 21 (a) (2)) — even t

hough, in fact, the

gu n fired a

nd killed Sinkfield, the medical evidence indicated th at Sinkfield ’s face was not bru ised by a blo w and that the gun was fired from a fe w inches away rather than on contact, Appella nt had just fired one shot into t

he air w hile co nfronting Sinkfield, and even a gun used as a bl

udgeon may be deemed a deadly weapon. See Arthur v. State , 275 Ga. 790 , 791 (573 SE 2d 44) (2002). While such a c onvoluted a nd poorly support ed theory may be conceivable, trial counsel

would hav e had to present it, without losing all credib ility, agains t the backdrop of the core def ense th eory th at Appe llant w as not even at t he crime

scene and that someone else was the shoot er — a t heory based on the cl aim of complete innocen ce tha

t Appell ant ma

int ained to his cou

nsel thro ughout the trial, and one with a pl ausible basis i n the eviden ce, if the j ury coul d be convinced not

to believe Gardner, w

ho certa inly wa s an im

peach able w itness. 3 For these reasons, it was not “patently unre asonabl e” for t rial c ouns el not to concoct this complicated th eory, to convin ce Appellant that it was the preferable wayto proce ed, and to se ek an in voluntary mansl aughter

instruct ion base d on9

the theory. Reed , 294 Ga. at 882. See a lso McKee v. Stat e , 277 Ga . 577, 579- 580 (591 SE2d 814) (2004) (holding th at trial counse l’s perfo rmanc e was n ot defici ent wherehe fail ed to re qu est acharge of involunta

ry ma nslaughter as a lesser include d offense

of murder that w ould have conflic ted wit

h the “a ll-orn othing” defense

strate gy that

counsel , after consult ation wi th the de fenda nt , had decide d to pursu e). Several c ases from the Eleventh Circuit support this conclus ion. See Hunt v. Commr., Ala. Dept. of Corre ctions , 666 F3d 708, 727 (11th Cir. 201 2) (holding t hat thedefenda

nt’s att orneys w ere not

ineffective in failing to pursue a

n additio nal def

ense theory

that would have been inc onsistent with counsel s’ strat egy of denying the def endant’ s guilt entirely); Dill v. Allen , 488 F3d 1344, 1357 (11th Cir

. 2007) (“ [C]onstitut ionally suff icient assistance of coun sel doe s not require pres enting a n alter native— not to m ention unavail ing or inconsistent — theory of the case .”); Willia mson v. Moore , 221 F3d 1177, 1180-11 81 (11th Cir. 2000) (f inding no ineffective assis tance where

a reasonable attor ney could have deem ed an alte rnative theory “inconsis tent with [the defen dant’s] own d escription o f the killin g”). In sum, the “decision not to requ est a jury charge on a les ser included offensein orde r to pursue an ‘all -or-not hing’ defen se is a matter of trial10

strategy,” and reasonable trial s trate gy, whe ther wi se or unwise, generally d oes not amount to ineff

ective assistance of co unsel. D avis v. State , 287 Ga . App. 786, 788 (653 SE2d 1 04) ( 2007 ). Fur thermo re, even if we wer e to ass ume that trial counsel ’s perfor

manc e was d efici ent as a lleged , Appel lant did n otsho w resulting prejudice because, gi ven the evidence in this case, ther e is not a reasonable pr obabilit y that the outc ome of his trial would ha

ve bee n more favorable even if

the jury had been given a

n in voluntary mansl aughter instruct ion. 3. Duringthe jury

charg e, the t rial court explained (with emphasis added): A person c ommi ts the off ense of aggrava

ted ass ault whe

n t ha t person assaults another person with a deadly weapon. To constitute such an assault, ac tual injury to the allege d victi m nee d n ot be shown. It is onlynec essary that the evidenc e show beyond a reasonable doubt that

the de fendant

attem pted to c ause a

violent injury to the alle ged vi ctim. The State must also pr ove as a material elem ent of aggravated assault, as alleged in this ca se, that th e assaul t was m ade with a deadly weapon. A fi rearm when used as such is a deadly weapon as a matter of law. Intent to kill is not an elem ent of aggravated as sault w ith a deadly we apon. A deadly weapon need not be introd uced. It is not

necessary for the State to admit into evidence the dea dly we apo n use d by the defenda nt

in order for the defendant to be found guilty of aggrava ted assault. Appella ntdid not obje ct to thi s jury ins truction when it was given, and4 An appellate court may , but is not required, to reverse a t ri al court for plain error if the instructional error was not affirmatively waived by the

defendant, was obvious bey ond reasona ble dispute, likely affe cted the outcome of the proc eeding s, and ser

iously af fe ct ed th e f

ai rn es s, in te gr it y, or public reputation of

judicial proceedings. See Inma n v. State , 294 Ga. 650, 655 (___ SE2d ___) (2 01 4) . S ee ge ne ra ll y State v. K elly , 290 Ga. 29, 32-33 (718 SE2d 232) (2011).

11 indeed, at thecharge

confere nce, h is trial

counsel said, “Obvious ly, the fire arm is a deadly weapon. I have no objecti on to that.” Trying to circumvent both this lack of contemporaneous objecti on and the strict limits tha t normally apply to “plain error”review

of unobj ecte d-to jury

instruct ions, se e OCG

A § 17-8-58 (b), 4 Appella

nt seek s refuge

in OCGA

§ 17-8-57, w

hich sa ys: It is error for any judge in any crimin al case, . . . in his cha rge to the jury , to express or int imat e his opin ionas to what has or h as not been proved or as to the guilt of the ac cused. Should any judge violate this Code

secti on, the v iolatio n shall be held by the S upreme Court or Court of

Appeal s to be e rror and t he d ecisi on in the c ase reversed, and a new tri al granted in th e court below . . . . Alleged violations of OCGA § 17-8 -57 are s ubject to a sort of “super-plain error”review; not on ly may t hey be r aised on appeal wit hout any obj ection at trial, but, if su staine d, they autom atica

lly re sult in re versal

witho ut consi derati on of whether the error caused any actual prejudice. See Murphy v. State , 290 Ga. 459, 461 (722 SE2d 51) (2012). See a lso C olli er v. State , 288 Ga . 756, 763 (707 SE2d 102) (2011) (Na hmias , J., c oncurring specia lly).12

Citing OCGA § 17-8-5 7, Appellant no w argues that bysaying “the deadly weapon used by the def endant, ” the trial c ourt im properly express ed its opinion that the gun was a

“deadly weapon ” and th at Appe llant w as the p erson who used itto kill the victim. But this mischaracterizes t he trial court’ s statement, which

was drawnverbat im from a case holding that “[i]t is not nec essary for the State to admit into evid ence the deadly we apon used by the d efenda

nt in orde r for

the defenda ntto be found guilty of agg ravated assault.” Lattimer v. State , 231 Ga. App. 594, 595 (499 SE2d 671) (19 98). In c ontext, it is cl ear tha t the court

was referr ing to “the de fendant ” in the generi c sense

and not to Appellant. It is al so clear in context that “deadl y weapon ” was a ref erence to an element of th e crime that the State h ad t o prove, not a factual a ssertion by the court. This enumeration of error has no m erit. Judgme nt affir

med. All the

Justice s concur .

Decid ed May

5, 2014.13

Murder. Fulton Supe rior Court . Befo re JudgeBaxte r. Steven E . Philli

ps , for appellant. Paul L. How ard, Jr. , Distr ict Attorney, Paige R

eeseWhitake r, Sheila

E. Gallow, Assistant Dis trict Attorn eys, S amuel S . Olens, Attorney General, Patric ia B. Attaw ay Bur

ton, Deputy Attorney General, Paula K. Sm ith, Se nior Assista ntAtt orney General, Jason M. Rea, Assis tant Attorney Gener al , for appellee.