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Final Copy 290 Ga. 873 S12A0009. KENDRICK v. THE STATE.

MELTON, Justice. Following a jury trial, Michael Bernard Kendrick appeals his conviction for felony murder, aggravated assault, and possession of a firearm during the commission of a felony, contending, among other things, that the trial court incorrectly charged the jury and that he received ineffective assistance of trial counsel.1 For the reasons set forth below, we affirm.

On August 14, 2001, Kendrick was indicted in Fulton County for malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. At an April 2003 jury trial, the jury was unable to reach a verdict on any of the charges with the exception of aggravated assault, for which Kendrick was found guilty of the lesser included offense of simple battery. Kendrick was retried on the remaining counts, and, on August 19, 2004, a second jury acquitted Kendrick of malice murder, but found him guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a felony. Kendrick was sentenced to life imprisonment for felony murder with an additional five years, suspended, for possession of a firearm. Although the trial court initially denied Kendrick's motion for new trial on April 9, 2009, the trial court subsequently vacated that order and allowed Kendrick to file an amended motion for new trial on June 30, 2010. The amended motion was denied on June 20, 2011, and Kendrick filed a timely notice of appeal. The resulting case was docketed to the January 2012 term of this Court and submitted for decision on the briefs.
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1. Viewed in the light most favorable to the verdict, the record shows that, on May 21, 2001, Kendrick, Timothy Copeland, and several other men, including Anthony Willoughby and Carl Tucker, were drinking outside Chapel Forest Apartments in Fulton County. An altercation arose between Kendrick and Copeland, and Kendrick struck Copeland in the head with a gin bottle2 and poured beer on him. The fight was broken up, and Kendrick and Willoughby left the premises to buy more beer. In the meantime, Copeland went home to change his shirt and returned to the gathering. Shortly thereafter, Willoughby drove up in his car with Kendrick in the passenger seat. Two eyewitnesses, Tarshea Durham and Tucker,3 saw Kendrick get out of the car and start shooting at Copeland. Copeland began running, but he was struck by a bullet and fell on the ground. Kendrick reloaded, and, according to the two eyewitnesses, stood over the fallen Copeland and shot him in the back. Both eyewitnesses testified that Copeland was unarmed, and testing of Copeland's hands indicated that he had

This act formed the basis for Kendrick's conviction for battery in his first trial.
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Durham and Tucker knew both Kendrick and Copeland well.
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not fired a gun. Kendrick fled after the shooting,4 and Copeland died at the scene from the gunshot wounds. In addition, similar transaction evidence was introduced which showed that, in a prior incident, Kendrick fought with a male friend at a similar party, pulled out a gun, and shot the person with whom he was fighting in the arm. These facts were sufficient to enable the jury to find Kendrick guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although Kendrick and Willoughby testified that Copeland began shooting at Kendrick first, the jury, as the arbiter of witness credibility, was entitled to disbelieve this version of the facts. See Hall v. State, 264 Ga. 85 (1) (441 SE2d 245) (1994). 2. Kendrick contends that the trial court erred by denying his written request to charge the jury on involuntary manslaughter as a lesser included offense of the felony murder charge. At trial, Kendrick testified that Copeland shot at him first, Kendrick immediately began to run away, and he fired his gun back at Copeland while he was running. Kendrick now argues that his act of

Kendrick had a minor wound on his hand which he testified was the result of being shot by Copeland.
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running away while firing his gun at Copeland5 could be considered to be reckless conduct, a misdemeanor, that would support a charge on involuntary manslaughter as a lesser included offense of felony murder. We disagree. [Kendrick's] admitted act of purposefully [firing his gun at Copeland] constitutes the felony offense of aggravated assault, not reckless conduct. See OCGA

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