Viral Patel was convicted of felony murder with aggravated assault as the underlying felony in connection with the shooting death of Tyree Garrett. Patel’s conviction was affirmed on direct appeal. Patel v. State , 278 Ga. 403 603 SE2d 237 2004. Appellate counsel, who did not enter an appearance in the case until after the notice of appeal had been filed, raised a claim of ineffective assistance of trial counsel. Id. at 9. Because that was the first practicable time for Patel to have asserted the claim, we remanded the case to the trial court to afford him the opportunity to litigate the issue. Id. at 9. Following an evidentiary hearing, the trial court concluded that Patel’s trial counsel rendered reasonably effective assistance during the trial. Finding no error in that ruling, we affirm. In summary, the evidence showed that Patel owned and operated a convenience store. He used an unattached building near the store for storage of his inventory. On occasion, thieves had broken into the storage building and had stolen certain items. On the night in question, Patel and one of his regular customers stationed themselves in the storage building; Patel was armed with a pistol. They heard voices outside the building followed by the sound of breaking plywood. Patel shouted, “Halt,” and there were several minutes of silence; he then fired the pistol three times. One bullet struck Garrett in the face, causing him to fall to the ground outside the storage building. Forensic evidence established that the bullet had passed through the wall of the storage shed prior to striking and killing Garrett. To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficiency so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington , 466 U. S. 668 104 SC 2052, 80 LE2d 674 1984; cit. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. Cit. The trial court’s findings with respect to effective assistance of counsel will be affirmed unless clearly erroneous. Cit. Domingues v. State , 277 Ga. 373, 374 1 589 SE2d 102 2003.
a Trial counsel asserted the defenses of justification, OCGA § § 16-3-20 1; 16-3-21 a, and use of force in defense of real property other than habitation,1 OCGA § 16-3-24.2 Relying on Benham v. State , 277 Ga. 516 591 SE2d 824 2004, Patel asserts that trial counsel was ineffective in failing to request a jury instruction on use of force in defense of habitation under OCGA § 16-3-23,3 in that the latter provides a broader defense to the use of deadly force than those relied upon at trial.
