Following a jury trial, Uarsken Starling appeals his conviction of aggravated assault and possession of a firearm by a convicted felon, contending that he received ineffective assistance of counsel, in that his trial counsel failed to stipulate to his felon status or to obtain a jury charge limiting the jury’s consideration of Starling’s criminal history. With respect to the aggravated assault conviction, we hold that trial counsel’s performance was deficient, and because the deficiency directly threatened Starling’s defense, there is a reasonable probability that the outcome of Starling’s trial would have been different. With respect to the possession of a firearm by a felon, the deficiency did not result in a reasonable probability that the trial outcome would have been different. We therefore affirm in part and reverse in part. To establish ineffective assistance of counsel under Strickland v. Washington ,1 a criminal defendant must prove 1 that his trial counsel’s performance was deficient, and 2 that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Punctuation omitted. Hayes v. State .2 “The question of ineffectiveness, including both the performance and prejudice prongs, is a mixed question of law and fact. . . . We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs v. State .3 The record shows that Starling had been sporadically arguing and trading threats with a neighbor and the neighbor’s friends, at one point causing a witness to call the police when the neighbor displayed a gun. The police responded, warned everyone to stay away from each other, and left the scene. As observed by two witnesses watching from a house across the street, when Starling again walked past the neighbor’s yard, an argument ensued and a crowd formed. Both witnesses and Starling himself testified that Starling had a handgun. As the threats escalated, the group backed away, leaving Starling arguing face to face with the victim.
One witness testified that she saw Starling shoot the victim three times before Starling fled, holding a handgun. A second witness testified that he saw Starling with a gun arguing with the victim, but that witness explained that he moved away from the window for a short time only to hear three shots, and upon looking back out the window, the witness saw the victim on the ground and Starling leaving the scene holding a handgun. Starling testified and admitted to arguing with the victim and hearing shots, but he denied that he fired his gun. The victim was hit in the groin, arm, and stomach, and died of his wounds.
