Georgia Commons

Constitution of the United States

Amend. VI. Rights of the Accused in Criminal Prosecutions

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Current through: the volume states no acts currency; this is its 2025 edition.

  1. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The notes below are printed with the section but are not enacted law (O.C.G.A. § 1-1-1(c)). They are shown apart from the text.

Editor's notes

The United States Supreme Court has declared that the due process clause of U.S. Const., amend. 14 protects the rights specified in U.S. Const., amend. 6 in state, as well as federal, criminal proceedings. See Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967) (speedy trial); In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682 (1948) (public trial); Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966) (impartial jury); United States v. Cohen Grocery Co., 255 U.S. 81, 41 S. Ct. 298, 65 L. Ed. 516, 14 A.L.R. 1045 (1921) (notice of charges); Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (jury trial); Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) (confrontation of accusers); Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (compulsory process); and Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), and Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972) (assistance of counsel).

Cross references

Rights under amendment generally, Ga. Const. 1983, Art. I, Sec. I, Paras. XI, XIV. Criminal trial venue, Ga. Const. 1983, Art. VI, Sec. II, Paras. VI, VIII, §§ 17-2-2, 17-7-150 et seq. Juries generally, Ga. Const. 1983, Art. I, Sec. I, Para. XI and § 15-12-101 et seq. Assistance of counsel, §§ 15-11-103, 17-7-24, and 17-12-23. Pretrial procedures in general, § 17-7-110 et seq. Speedy trial, §§ 17-7-170, 17-7-171, 17-7-172, 17-8-33, 38-2-1062, 38-3-62, 42-3-71. Conduct and argument of counsel, § 17-8-50 et seq. Public Defender Council, § 17-12-1 et seq. Securing attendance of witnesses and production and preservation of evidence, § 24-13-1 et seq. Compulsory process, § 24-13-20 et seq. Procedure for compelling an out-of-state witness to attend criminal or grand jury proceedings, § 24-13-94. Speedy trial, §§ 17-7-170, 38-2-1062, 38-3-62, 42-3-71, 17-8-33, 38-2-1062, 38-3-62, 42-3-71. Suspension or tolling of deadlines and time schedules in event of judicial emergency, § 38-3-62.

Law reviews

For article discussing unanimity of jurors, see 2 Ga. B.J. 13 (1940). For article advocating reforms to improve the jury mentally and morally, see 5 Ga. B.J. 38 (1942). For comment discussing right to counsel for indigent defendants, in light of Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942), see 5 Ga. B.J. 51 (1942). For comment regarding due process right to counsel for indigent defendant charged with felony, in light of Williams v. Kaiser, 323 U.S. 471, 65 S. Ct. 363, 89 L. Ed. 398 (1945), see 7 Ga. B.J. 484 (1945). For comment on Gholson v. Commonwealth, 308 Ky. App. 82, 212 S.W.2d 537 (1948), holding judge must determine whether indigent intelligently and voluntarily waives right to counsel, see 11 Ga. B.J. 251 (1948). For comment on Uveges v. Pennsylvania, 335 U.S. 437, 69 S. Ct. 184, 93 L. Ed. 127 (1948), holding due process requires court to offer provision of counsel before permitting accused to plead guilty, see 11 Ga. B.J. 364 (1948). For comment on Frazier v. United States, 335 U.S. 497, 69 S. Ct. 201, 93 L. Ed. 187 (1948), holding defendant’s choice to eliminate nongovernment employees from jury panel cannot be repudiated as petitioner was given fair and lawfully selected panel, see 11 Ga. B.J. 366 (1949). For comment on United States ex rel. Kennedy v. Burke, 176 F.2d 96 (3rd Cir. 1949), holding absence of counsel permissible where petitioner’s age, intelligence, and experience established intelligent guilty plea, see 12 Ga. B.J. 228 (1949). For article detailing historical use of injunctive law enforcement in equity including discussion of disadvantages of criminal injunctions, see 1 Mercer L. Rev. 1 (1949). For comment on Henderson v. State, 207 Ga. 206, 60 S.E.2d 345 (1950), see 13 Ga. B.J. 230 (1950). For comment on Hibdon v. United States, 204 F.2d 834 (6th Cir. 1953), reversing a felony conviction decided by a majority verdict upon the accused’s waiver of a unanimous verdict induced by the trial court, see 16 Ga. B.J. 234 (1953). For comment on Chandler v. Fretag, 348 U.S. 3, 75 S. Ct. 1, 99 L. Ed. 4 (1954), reversing conviction as a habitual criminal of petitioner who was denied aid of counsel, see 17 Ga. B.J. 401 (1955). For comment on Chandler v. Fretag, 348 U.S. 3, 75 S. Ct. 1, 99 L. Ed. 4 (1954), regarding extension of due process to include right to employ counsel in trial under habitual criminal statute, see 4 J. of Pub. L. 212 (1955). For article, “Jury Trials in Contempt Cases,” see 20 Ga. B.J. 297 (1957). For comment on Hill v. Balkcom, 213 Ga. 58, 96 S.E.2d 589 (1957), holding that where court appointed counsel in a criminal case is a member of the bar in good standing, which is prima facie evidence of his competency as an attorney, and serves his client in good faith and with loyalty, the requirements of due process are met, see 19 Ga. B.J. 519 (1957). For comment on Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957) and Kinsella v. Krueger, 351 U.S. 470, 76 S. Ct. 886, 100 L. Ed. 1342 (1956) as to military authority overseas over dependents of servicemen, see 6 J. of Pub. L. 540 (1957). For comment discussing the constitutionality of the statutory prohibition against expenditures by labor unions in connection with federal elections, 18 U.S.C. § 610, see 21 Ga. B.J. 575 (1959). For comment discussing right to counsel of indigent indicted for noncapital felony, in light of Cash v. Culver, 358 U.S. 633, 79 S. Ct. 432, 3 L. Ed. 2d 557 (1959), see 22 Ga. B.J. 111 (1959). For comment on Martinez v. State, 167 Tex. 97, 318 S.W.2d 66 (1958), holding suspension of attorney from state bar rendered him unqualified to afford representation envisioned by guarantees of sixth amendment, see 22 Ga. B.J. 239 (1959). For article, “Civil Liberties and Statutory Construction,” see 8 J. of Pub. L. 66 (1959). For article, “The Right of Confrontation: Its History and Modern Dress,” see 8 J. of Pub. L. 381 (1959). For comment on Hudson v. North Carolina, 363 U.S. 697, 80 S. Ct. 1314, 4 L. Ed. 2d 1500 (1960), holding unconstitutional denial of counsel to petitioner where guilty plea of codefendant placed him in prejudicial position, see 23 Ga. B.J. 265 (1960). For note on amenability of dependents of servicemen and non-military employees to court-martial overseas, see 9 J. of Pub. L. 252 (1960). For comment on Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 (1963), holding accused has right to counsel in all felony cases regardless of indigency, see 26 Ga. B.J. 96 (1963). For comment on Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 (1963), holding right to counsel is extended to noncapital felonies in the state courts, see 26 Ga. B.J. 186 (1963). For note discussing habeas corpus as a means of exerting control by the central government in protecting the constitutional rights of criminal defendants and the ramifications for federalism, see 16 Mercer L. Rev. 281 (1964). For comment criticizing Lovett v. State, 108 Ga. App. 478, 133 S.E.2d 595 (1963), as to right of accused to assistance of counsel in making an unsworn statement, see 15 Mercer L. Rev. 512 (1964). For comment discussing admissibility of voluntary statements made after indictment and release on bail in absence of retained counsel, in light of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), see 16 Mercer L. Rev. 343 (1964). For article, “Changing Constitutional Concepts in Criminal Law and Procedure,” see 1 Ga. St. B.J. 421 (1965). For article, “The Indigent Defendant in Georgia Prior to Gideon v. Wainwright,” see 2 Ga. St. B.J. 207 (1965). For article supporting the adoption of comprehensive right to counsel legislation, see 3 Ga. St. B.J. 157 (1966). For comment on Juelich v. United States, 342 F.2d 29 (5th Cir. 1965), see 2 Ga. St. B.J. 504 (1966). For article, “The Supreme Court, the Individual and the Criminal Process,” see 1 Ga. L. Rev. 386 (1967). For note discussing prejudicial publicity before and during trial in light of Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966), see 16 J. of Pub. L. 215 (1967). For note, “Constitutional Rights of a Taxpayer in a Criminal Tax Investigation,” see 16 J. of Pub. L. 403 (1967). For comment on Weiner v. Fulton Co., 113 Ga. App. 343, 148 S.E.2d 143 (1966), see 18 Mercer L. Rev. 477 (1967). For comment criticizing Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967) in its application of the sixth amendment speedy trial guarantee to the states as an encroachment upon states rights, see 18 Mercer L. Rev. 497 (1967). For comment discussing Miranda warnings in criminal tax prosecutions, see 18 Mercer L. Rev. 502 (1967). For comment discussing constitutionality of disqualification of jurors in murder trial for general objection to death penalty in light of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), see 3 Ga. L. Rev. 234 (1968). For article, “Police Interrogation and the Supreme Court: An Inquiry into the Limits of Judicial Policy-Making,” see 17 J. of Pub. L. 241 (1968). For comment criticizing use of detainer by state to effectively thwart the right to speedy trial of federal defendants in state court, in light of State v. Evans, 432 P.2d 175 (Ore. 1967), cert. denied, 390 U.S. 971, 88 S. Ct. 1093, 19 L. Ed. 2d 1182 (1968), see 17 J. of Pub. L. 431 (1968). For comment discussing the right of an accused to court-appointed counsel when charged with “petty” offense in light of James v. Headley, 410 F.2d 325 (5th Cir. 1969), see 3 Ga. L. Rev. 750 (1969). For comment on State v. Rand, 20 Ohio Misc. 98, 247 N.E.2d 342 (Com. Pleas 1969), holding criminal defendant competent to stand trial under properly administered tranquilizing drugs, see 18 J. of Pub. L. 503 (1969). For note raising chilling effect on defendant’s constitutional rights posed by sentencing provision for capital offenses, § 26-301, prior to its 1973 amendment, in light of United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), see 20 Mercer L. Rev. 309 (1969). For comment discussing limits on the military’s jurisdiction and the constitutional rights of servicemen in light of O’Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291 (1969), see 21 Mercer L. Rev. 311 (1969). For comment on Anderson v. Laird, 316 F. Supp. 1081 (D.D.C. 1970), as to religious regulations at military academies, see 5 Ga. L. Rev. 400 (1971). For article on the judicial development of the fourteenth amendment’s due process clause and the selective incorporation of the Bill of Rights, see 22 Mercer L. Rev. 533 (1971). For comment on Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) regarding constitutionality under this amendment’s confrontation clause of expulsion of defendant from the courtroom for misconduct, see 22 Mercer L. Rev. 467 (1971). For comment on Freeman v. Wilcox, 119 Ga. App. 325, 167 S.E.2d 163 (1969) and a juvenile’s right to counsel at pre-adjudicatory stages of juvenile proceedings, see 22 Mercer L. Rev. 597 (1971). For comment on North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), as to acceptability of guilty pleas made while claiming innocence, see 22 Mercer L. Rev. 785 (1971). For comment on Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970) and Georgia’s coconspirator exception to the hearsay rule, see 22 Mercer L. Rev. 791 (1971). For comment discussing constitutionality of conviction upon less-than-unanimous jury vote, see 7 Ga. L. Rev. 339 (1973). For comment on Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), establishing an indigent’s right to appointed counsel in nonfelony criminal cases, see 22 J. of Pub. L. 191 (1973). For comment on extension of “The Right to Counsel to Petty Offenses Involving Actual Loss of Liberty,” in light of Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), see 24 Mercer L. Rev. 497 (1973). For article, “The Supreme Court and Civil Liberties: 1973-1974,” see 23 Emory L.J. 905 (1974). For note advocating judicial discretion in permitting a pro se defense, see 23 Emory L.J. 523 (1974). For comment on Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), as to probationer’s rights at probation revocation, see 23 Emory L.J. 617 (1974). For comment criticizing Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973), permitting imposition of increased sentence by jury after retrial, see 23 Emory L.J. 879 (1974). For article, “Providing Legal Services to Prisoners,” see 8 Ga. L. Rev. 363 (1974). For notes, “Discretionary Appointment of Counsel at Post-Conviction Proceedings: An Unconstitutional Barrier to Effective Post-Conviction Relief,” see 8 Ga. L. Rev. 434 (1974). For comment on Lynn v. State, 231 Ga. 559, 203 S.E.2d 221 (1974), appearing below, see 8 Ga. L. Rev. 973 (1974). For comment criticizing Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), holding petitioner’s right to confrontation was preeminent to state policy protecting anonymity of juvenile offenders, see 26 Mercer L. Rev. 343 (1974). For article, “Prisoners’ Perceptions of their Constitutional Rights: A Client’s View of the World of Criminal Justice,” see 24 Emory L.J. 67 (1975). For article, “The Supreme Court and Civil Liberties: 1974-1975,” see 24 Emory L.J. 937 (1975). For comment on Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975), appearing below, see 9 Ga. L. Rev. 963 (1975). For comment criticizing Mercer v. Hopper, 233 Ga. 620, 212 S.E.2d 799 (1975), see 27 Mercer L. Rev. 325 (1975). For article discussing available means of discovery for criminal cases in Georgia, see 12 Ga. St. B.J. 134 (1976). For comment on United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976), holding denial of defendant’s request to be represented at trial by a nonattorney not violative of sixth amendment, see 26 Emory L.J. 457 (1977). For note, “The Limits of Judicial Intervention in Criminal Trials and Reversible Error,” see 11 Ga. L. Rev. 371 (1977). For article discussing legal representation for indigents under the Georgia Criminal Justice Defense Act, proposed in Georgia in 1977, see 13 Ga. St. B.J. 141 (1977). For comment, “The Right to a Speedy Trial,” see 13 Ga. St. B.J. 197 (1977). For article surveying cases dealing with criminal law and criminal procedure from June 1, 1977 through May 1978, see 30 Mercer L. Rev. 27 (1978). For note discussing televised and photographic coverage of court proceedings in light of the individuals’ right to a fair trial, see 29 Mercer L. Rev. 1099 (1978). For comment on United States v. Grayson, 438 U.S. 41, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978), regarding consideration by sentencing judge of his belief that defendant falsely testified during trial, see 28 Emory L.J. 159 (1979). For article surveying judicial developments in Georgia criminal law, see 31 Mercer L. Rev. 59 (1979). For comment on Bonds v. Wainwright, 579 F.2d 317 (5th Cir. 1978), see 30 Mercer L. Rev. 1059 (1979). For comment on Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978), see 31 Mercer L. Rev. 349 (1979). For article discussing the concept of a mandatory public service obligation for lawyers, see 29 Emory L.J. 997 (1980). For article, “United States v. Alessio — Due Process of Law and Federal Grants of Witness Immunity for Defense Witnesses,” see 31 Mercer L. Rev. 689 (1980). For note discussing application of procedural due process requirements to hearings by administrative tribunals, see 32 Mercer L. Rev. 359 (1980). For comment on Hoback v. Alabama, 607 F.2d 680 (5th Cir. 1979), discussing an indigent defendant’s rights to expert witnesses, see 31 Mercer L. Rev. 1103 (1980). For comment discussing the forcible medication of involuntarily committed mental patients with antipsychotic drugs in light of Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980), see 15 Ga. L. Rev. 739 (1981). For article, “Constitutional Criminal Litigation,” see 32 Mercer L. Rev. 993 (1981). For note as to infringement of federally protected right by expansive state created right, see 32 Mercer L. Rev. 637 (1981). For article discussing the constitutional contours of forensic evaluation and the leading case of Estelle v. Smith, 451 U.S. 454 (1981), see Emory L.J. 71 (1982). For note, “The Bifurcated Trial: Is It Used More Than It Is Useful?,” see 31 Emory L.J. 441 (1982). For note, “The Common Law Right to Inspect and Copy Judicial Records: In Camera or on Camera,” see 16 Ga. L. Rev. 659 (1982). For note, “Constitutional Challenges to Grand Jury Foreperson-Selection Procedures,” see 17 Ga. L. Rev. 153 (1982). For article discussing Eleventh Circuit court cases in the year 1981 dealing with constitutional criminal procedure, see 33 Mercer l. Rev. 1083 (1982). For article surveying 1982 Eleventh Circuit cases involving constitutional criminal procedure, see 34 Mercer L. Rev. 1241 (1983). For article surveying 1981-1982 Eleventh Circuit cases involving civil practice and procedure, see 34 Mercer L. Rev. 1363 (1983). For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983). For note discussing the conflict between state and federal rules of evidence in the use of prior inconsistent statements, see 34 Mercer L. Rev. 1495 (1983). For note criticizing the illness exception to a defendant’s right to be present at trial, see 34 Mercer L. Rev. 1521 (1983). For note, “An Assessment of the Use of Cameras in State and Federal Courts,” see 18 Ga. L. Rev. 389 (1984). For article surveying 1983 Eleventh Circuit cases involving constitutional criminal procedure, see 35 Mercer L. Rev. 1139 (1984). For article, “The Bail Reform Act of 1984,” see 34 Emory L.J. 685 (1985). For comment, “The Psychotherapist-Client Testimonial Privilege: Defining the Professional Involved,” see 34 Emory L.J. 777 (1985). For article, “Reappraising the Jury’s Role as Finder of Fact,” see 20 Ga. L. Rev. 123 (1985). For comment discussing Miranda v. Arizona ambiguous requests for counsel, see 20 Ga. L. Rev. 221 (1985). For article, “Justice and Juror,” see 20 Ga. L. Rev. 257 (1986). For note, “Grand Jury Subpoenas of a Target’s Attorney: The Need for a Preliminary Showing,” see 20 Ga. L. Rev. 747 (1986). For article, “Investigating and Preparing an Ineffective Assistance of Counsel Claim,” see 37 Mercer L. Rev. 927 (1986). For article, “The National College — Mercer Criminal Defense Survey: Preliminary Observations About Interviewing, Counseling, and Plea Negotiations,” see 37 Mercer L. Rev. 1019 (1986). For article, “Prosecutorial Misconduct During Closing Argument: The Arts of Knowing When and How to Object and of Avoiding the ‘Invited Response’ Doctrine,” see 37 Mercer L. Rev. 1033 (1986). For survey of 1985 Eleventh Circuit cases on constitutional criminal procedure, see 37 Mercer L. Rev. 1275 (1986). For survey of 1985 Eleventh Circuit cases on evidence, see 37 Mercer L. Rev. 1367 (1986). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For annual survey of legal ethics, see 38 Mercer L. Rev. 269 (1986). For note, “Attorneys’ Fees and the Money Laundering Control Act of 1986: Further Erosion of Criminal Defense Advocacy,” see 21 Ga. L. Rev. 929 (1987). For survey of 1986 Eleventh Circuit cases on constitutional criminal procedure, see 38 Mercer L. Rev. 1141 (1987). For survey of 1986 Eleventh Circuit cases on evidence, see 38 Mercer L. Rev. 1253 (1987). For case note, “Coleman v. Kemp: The Problem of Pretrial Publicity and Its Effect on the Alday Murder Cases,” see 38 Mercer L. Rev. 1477 (1987). For comment, “Batson v. Kentucky: Equal Protection, the Fair Cross-Section Requirement, and the Discriminatory Use of Peremptory Challenges,” see 37 Emory L.J. 755 (1988). For article, “Exclusion of Evidence in Federal Prosecutions on the Basis of State Law,” see 22 Ga. L. Rev. 667 (1988). For article, “The Money Laundering Control Act of 1986: Will Attorneys Be Taken to The Cleaners?,” see 24 Ga. St. B.J. 186 (1988). For survey of 1987 Eleventh Circuit cases on constitutional criminal procedure, see 39 Mercer L. Rev. 1187 (1988). For survey of Eleventh Circuit cases on evidence, see 39 Mercer L. Rev. 1259 (1988). For article, “Taylor v. Illinois: The New and Not-So-New Approach to Defense Witness Preclusion Sanctions for Criminal Discovery Rule Violations,” see 23 Ga. L. Rev. 479 (1989). For article surveying 1988 constitutional criminal procedure decisions by the Eleventh Circuit, see 40 Mercer L. Rev. 1225 (1989). For comment, “Child Sexual Abuse: A New Decade for the Protection of Our Children?,” see 39 Emory L.J. 581 (1990). For comment, “Maryland v. Craig: The Constitutionality of Closed Circuit Testimony in Child Sexual Abuse Cases,” see 25 Ga. L. Rev. 167 (1990). For article, “A Report from the Front in the War on Drugs,” see 7 Ga. St. U.L. Rev. 1 (1990). For comment, “Compulsory Acceptance of Court Appointments: Mallard v. United States District Court for the Southern District of Iowa,” see 7 Ga. St. U.L. Rev. 69 (1990). For annual Eleventh Circuit survey of constitutional criminal procedure, see 42 Mercer L. Rev. 1349 (1991). For annual survey of criminal law and procedure, see 43 Mercer L. Rev. 175 (1991). For note, “Admissibility of Video-taped Testimony: What is the Standard After Maryland v. Craig and How Will the Practicing Defense Attorney be Affected?,” see 42 Mercer L. Rev. 883 (1991). For comment, “McNeil v. Wisconsin: Invocation of Right to Counsel Under Sixth Amendment by Accused at Judicial Proceeding Does Not Constitute Invocation of Miranda Right to Counsel for Unrelated Charge,” see 26 Ga. L. Rev. 1049 (1992). For article, “Criminal Discovery: Disclosure of Police Internal Affairs Division Documents and Police Personnel Files,” see 29 Ga. St. B.J. 34 (1992). For annual Eleventh Circuit survey of constitutional criminal law, see 43 Mercer L. Rev. 1113 (1992). For comment, “Ramseur v. Beyer: The Third Circuit Upholds Race-Based Treatment of Prospective Grand Jurors,” see 27 Ga. L. Rev. 621 (1993). For comment, “The Reporter’s Privilege in Georgia: ‘Qualified’ to Do the Job?,” see 9 Ga. St. U.L. Rev. 495 (1993). For article, “Making the Case for a Constitutional Right to Minimum Entitlements,” see 44 Mercer L. Rev. 525 (1993). For article, “The Peremptory Challenge: A Lost Cause?,” see 44 Mercer L. Rev. 579 (1993). For article, “Resources and Rights: Towards a New Prototype of Criminal Representation,” see 44 Mercer L. Rev. 599 (1993). For article, “Article II Courts,” see 44 Mercer L. Rev. 825 (1993). For article, “Constitutional Criminal Law,” see 44 Mercer L. Rev. 1143 (1993). For note, “Morgan v. Illinois: The Defense Gets the Reverse-Witherspoon Question,” see 44 Mercer L. Rev. 997 (1993). For note, “The Georgia Child Hearsay Statute, and the Sixth Amendment: Is There a Confrontation?,” see 10 Ga. St. U.L. Rev. 367 (1994). For article, “Annual Eleventh Circuit Survey January 1, 1993 — December 31, 1993: Constitutional Criminal Law,” see 45 Mercer L. Rev. 1243 (1994). For annual survey article on evidence issues, see 46 Mercer L. Rev. 233 (1994). For article, “1994 Eleventh Circuit Survey: Constitutional Criminal Procedure,” see 46 Mercer L. Rev. 1297 (1995). For survey of 1995 Eleventh Circuit cases on constitutional criminal procedure, see 47 Mercer L. Rev. 765 (1996). For survey of 1995 Eleventh Circuit cases on federal sentencing guidelines, see 47 Mercer L. Rev. 851 (1996). For survey of 1995 Eleventh Circuit cases on trial practice and procedure, see 47 Mercer L. Rev. 907 (1996). For comment on the right to counsel in post-conviction proceedings, see 47 Emory L.J. 1079 (1998). For article, “The Defense Attorney’s Ethical Response to Ineffective Assistance of Counsel Claims,” see 5 Ga. St. B.J. 40 (1999). For article surveying 1997 and 1998 Eleventh Circuit cases on constitutional criminal procedure, see 50 Mercer L. Rev. 921 (1999). For article surveying 1999 Eleventh Circuit cases involving constitutional criminal procedure, see 51 Mercer L. Rev. 1089 (2000). For article surveying 1999 Eleventh Circuit cases on federal sentencing guidelines, see 51 Mercer L. Rev. 1189 (2000). For note, “Lilly v. Virginia: Answering the Williamson Question — Is the Statement Against Penal Interest Exception ‘Firmly Rooted’ Under Confrontation Clause Analysis?,” see 51 Mercer L. Rev. 1343 (2000). For article, “Misdemeanor Sentencing in Georgia,” see 7 Ga. St. B.J. 8 (2001). For article on constitutional criminal procedure, see 52 Mercer L. Rev. 1305 (2001). For article on criminal law, see 53 Mercer L. Rev. 209 (2001). For comment, “Apprendi v. New Jersey: Should Any Factual Determination Authorizing an Increase in a Criminal Defendant’s Sentence Be Proven to a Jury Beyond a Reasonable Doubt?,” see 52 Mercer L. Rev. 1531 (2001). For article, “Constitutional Criminal Procedure,” see 53 Mercer L. Rev. 1339 (2002). For article, “Constitutional Criminal Procedure,” see 54 Mercer L. Rev. 1403 (2003). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For survey article on death penalty decisions from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 175 (2003). For note, “ ‘What We Meant Was ’ The Supreme Court Clarifies Two Ineffective Assistance Cases in Bell v. Cone,” see 54 Mercer L. Rev. 12713 (2003). For note, “The Meaning of Fifth and Sixth Amendment Rights: Sentencing in Federal Drug Cases after Apprendi v. New Jersey and Harris v. United States,” see 20 Ga. St. U.L. Rev. 723 (2004). For annual survey of evidence law, see 56 Mercer L. Rev. 235 (2004). For comment, “A Deep Breath Before the Plunge: Undoing Miranda’s Failure Before It’s Too Late,” see 55 Mercer L. Rev. 1375 (2004). For article, “The Right to a Jury Decision on Sentencing Facts after Booker: What the Seventh Amendment Can Teach the Sixth,” see 39 Ga. L. Rev. 895 (2005). For note, “A Method to the Madness: The Importance of Proving Prejudice in the Context of the Guilty Plea,” see 39 Ga. L. Rev. 1487 (2005). For article, “The Role of the Federal Sentencing Guidelines in the Wake of United States v. Booker and United States v. Fanfan,” see 56 Mercer L. Rev. 1131 (2005). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005). For annual survey of evidence law, see 57 Mercer L. Rev. 187 (2005). For note, “Blakely v. Washington: Criminal Sentencing and the Sixth Amendment Limitation on Judicial Fact-finding,” see 56 Mercer L. Rev. 1079 (2005). For annual survey of death penalty law, see 57 Mercer L. Rev. 479 (2006). For annual survey of criminal law, see 58 Mercer L. Rev. 83 (2006). For annual survey of evidence law, see 58 Mercer L. Rev. 151 (2006). For article, “Crawford v. Washington and Davis v. Washington’s Originalism: Historical Arguments Showing Child Abuse Victims’ Statements to Physicians are Nontestimonial and Admissible as an Exception to the Confrontation Clause,” see 58 Mercer L. Rev. 569 (2007). For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007). For note, “Definitely Not Harmless: The Supreme Court Holds that the Erroneous Disqualification of Retained Counsel Warrants Automatic Reversal in United States v. Gonzalez-Lopez,” see 58 Mercer L. Rev. 763 (2007). For note, “Testimonial? What the Heck Does That Mean?: Davis v. Washington,” see 58 Mercer L. Rev. 1097 (2007). For survey article on death penalty law, see 60 Mercer L. Rev. 105 (2008). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For comment, “Right to Counsel Denied: Corporate Criminal Prosecutions, Attorney Fee Agreements, and the Sixth Amendment,” see 58 Emory L.J. 1265 (2009). For article, “Eleventh Circuit Survey: January 1, 2008 — December 31, 2008: Casenote: Shots, Shoes, and Self-Representation: Indiana v. Edwards and the New Limitation on the Sixth Amendment Right of Self-Representation,” see 60 Mercer L. Rev. 1509 (2009). For article, “No Witness? No Admission: The Tale of Testimonial Statements and Melendez-Diaz v. Massachusetts,” see 61 Mercer L. Rev. 683 (2010). For note, “Vesting Title in a Murderer: Where is the Equity in the Georgia Supreme Court’s Interpretation of the Slayer Statute in Levenson?,” see 45 Ga. L. Rev. 877 (2011). For note, “Ineffective Assistance of Counsel Blues: Navigating the Muddy Waters of Georgia Law After 2010 State Supreme Court Decisions,” see 45 Ga. L. Rev. 1199 (2011). For article, “Williams v. Illinois: Confronting Experts, Science, and the Constitution,” see 64 Mercer L. Rev. 805 (2013). For article, “Eleventh Circuit Survey: January 1, 2013 — December 31, 3013: Article: Evidence,” see 65 Emory L. J. 945 (2014). For article, “Eleventh Circuit Survey: January 1, 2013 — December 31, 2013: Article: Federal Sentencing Guidelines,” see 65 Emory L. J. 971 (2014). For article on criminal procedure and trials, see 31 Ga. St. U.L. Rev. 75 (2014). For article, “Original Misunderstand-ings: The Implications of Misreading History in Jones,” see 31 Ga. St. U.L. Rev. 471 (2015). For annual survey of criminal law, see 67 Mercer L. Rev. 31 (2015). For article, “Mitya Karamazov Gives the Supreme Court an Onion: The Role of Confessions,” see 66 Mercer L. Rev. 673 (2015). For comment, “The Guiding Hand of Counsel: Effective Representation for Indigent Defendants in the Cordele Judicial Circuit,” see 66 Mercer L. Rev. 781 (2015). For note, “You’ve Got Legal Mail: Applying Constitutional Protections to Attorney Inmate E-Mail Communications,” see 50 Ga. L. Rev. 947 (2016). For annual survey of evidence law, see 67 Mercer L. Rev. 907 (2016). For annual survey on evidence law, see 68 Mercer L. Rev. 1019 (2017). For note, “Methamphetamine, Money, and a Motion to Withdraw as Counsel: United States v. Jimenez-Antunez All Boils Down to the Appropriate Standard,” see 68 Mercer L. Rev. 909 (2017). For article, “From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Safety from Flawed Forensic Sciences Evidence,” see 34 Ga. St. U.L. Rev. 1129 (2018). For article, “From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: The First Amendment Case for Public Access to Secret Algo-rithms Used in Criminal Trials,” see 34 Ga. St. U.L. Rev. 915 (2018). For annual survey on evidence law, see 69 Mercer L. Rev. 1149 (2018). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018). For article, “Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions,” see 69 Mercer L. Rev. 453 (2018). For article, “Raising the Bar: Indigent Defense and the Right to a Partisan Lawyer,” see 69 Mercer L. Rev. 697 (2018). For article, “A Penal Colony for Bad Lawyers,” see 69 Mercer L. Rev. 743 (2018). For article, “Immigration Defense Waivers in Federal Criminal Plea Agreements,” see 69 Mercer L. Rev. 839 (2018). For annual survey on the federal sentencing guidelines, see 69 Mercer L. Rev. 1181 (2018). For article, “Why (Jury-Less) Juvenile Courts are Unconstitutional,” see 69 Emory L.J. 273 (2019). For comment, “Pre-Adjudication Access to Counsel for Juveniles,” see 69 Emory L.J. 359 (2019). For note, “A ‘Critical’ Question of State Law: Georgia’s Ambiguous Treatment of Initial Appearance Hearings and the Implications of Bail Reform,” see 54 Ga. L. Rev. 363 (2019). For note, “Addressing Racial Bias in the Jury System: Another Failed Attempt?,” see 35 Ga. St. U.L. Rev. 843 (2019). For annual survey on criminal law, see 70 Mercer L. Rev. 941 (2019). For annual survey on evidence, see 70 Mercer L. Rev. 1023 (2019). For article, “The Meaning of a Misdemeanor in a Post-Ferguson World: Evaluating the Reliability of Prior Conviction Evidence,” see 54 Ga. L. Rev. 927 (2020). For article, “Confronting Memory Loss,” see 55 Ga. L. Rev. 95 (2020). For annual survey on evidence, see 71 Mercer L. Rev. 1021 (2020). For annual survey of criminal law, see 71 Mercer L. Rev. 967 (2020). For note, “It’s All In The DNA — How United States v. Hano Extends the Statute Of Limitations for the Eleventh Circuit,” see 71 Mercer L. Rev. 1191 (2020). For article, “Distinguishing Plea Dis-counts and Trial Penalties,” see 37 Ga. St. U.L. Rev. 261 (2021). For article with annual survey on criminal law, see 72 Mercer L. Rev. 1093 (2021). For article with annual survey on evidence, see 72 Mercer L. Rev. 1149 (2021). For comment, “If the Mask Fits: The Unconstitutionality of Face Masks in Criminal Trials During COVID-19,” see 72 Mercer L. Rev. 1261 (2021). For article with annual survey on legal ethics, see 73 Mercer L. Rev. 155 (2021). For annual survey on criminal law, see 74 Mercer L. Rev. 93 (2022). For note, “The Georgian Case for Harmless Constitutional Error Reform,” see 40 Ga. St. U.L. Rev. 757 (2024).

Other notes (1123 entries, as printed)
capital offenses.
Rights to assistance of counsel, compulsory process for obtaining witnesses and trial by jury are not limited to cases where the accused is charged with a capital offense. Bridwell v. Aderhold, 13 F. Supp. 253, 1935 U.S. Dist. LEXIS 1098 (D. Ga. 1935), aff’d, 92 F.2d 748, 1937 U.S. App. LEXIS 4689 (5th Cir. 1937). missed federal employee’s Bivens
No federal question raised by distheory claim.
Where plaintiff, a dismissed federal employee, asserted various fourth, fifth, and sixth amendment claims against the plaintiff’s superiors under the Bivens theory (see Bivens v. 6 Unknown Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)), the court found no federal question because Congress had established elaborate remedial scheme for dismissed federal employees. Metz v. McKinley, 583 F. Supp. 683, 1984 U.S. Dist. LEXIS 19160 (S.D. Ga.), aff’d, 747 F.2d 709, 1984 U.S. App. LEXIS 17517 (11th Cir. 1984).
Rights guaranteed under U.S.
Const., amend. 6 and U.S. Const., amend. 5 are personal. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398, 1981 Ga. LEXIS 834 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398, 1983 U.S. LEXIS 4712 (1983). Determination of harm based on
United States Supreme Court standards.
The determination of harm caused by a violation of a federal constitutional right has to be made based on United States Supreme Court standards and not state standards. Alexander v. State, 236 Ga. App. 142, 511 S.E.2d 249, 1999 Ga. App. LEXIS 77 (1999). Duty of appellate courts to protect
constitutional rights.
U.S. Const., amend. 6 combines with Ga. Const. 1976, Art. I, Sec. I, Para. XI (see Ga. Const. 1983, Art. I, Sec. I, Para. XI) to assure that every person charged with offending the laws of this state shall have a public and speedy trial by an impartial jury and appellate courts must independently review the relevant trial court record in each case to ensure compliance with these constitutional dictates. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379, 1979 Ga. LEXIS 1338 (1979), vacated in part, 446 U.S. 961, 100 S. Ct. 2937, 64 L. Ed. 2d 821 (1980). Violation of U.S. Const., amend. 6 stands as a jurisdictional bar to a valid conviction and sentence. Calley v. Callaway, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760, 1976 U.S. LEXIS 851 (1976). Remedies should be tailored to the tional violation alleged and should not unnecessarily result in dismissal of the indictment where the criminal proceeding can proceed with full recognition of defendant’s right to a fair trial. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224, 1981 Ga. LEXIS 692 (1981).
injury suffered from the constitu-Requirements of jury trial generally.
Trial by jury in a criminal case requires, at the very least, that the evidence developed against a defendant comes from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Right of accused to be present at
trial.
On a trial for a capital offense, it is the right of the accused to be present at all stages of the proceeding, and it is the duty of the court to see that the accused is present when any charge is delivered to the jury. If the defendant is absent without knowledge of a charge or recharge to the jury, and without any consent or waiver with reference thereto, such procedure requires a new trial. The presence of the counsel is no substitute for that of the accused on trial. Rider v. State, 195 Ga. 656, 25 S.E.2d 304, 1943 Ga. LEXIS 547 (1943). The general right of one accused of a felony to be present during the course of the trial does not extend to postverdict procedures such as a motion for new trial, at which only questions of law, not questions of fact, are determined. Dobbs v. State, 245 Ga. 208, 264 S.E.2d 18, 1980 Ga. LEXIS 744, cert. denied, 446 U.S. 913, 100 S. Ct. 1845, 64 L. Ed. 2d 267 (1980). Physical restraints on prisoner
during trial.
When physical restraints are necessary and are observed by the jury in a criminal case, the trial court must instruct the jury that the use of physical restraints on the defendant has no bearing on the defendant’s guilt or innocence and should not be considered by them during their deliberations. Allen v. State, 248 Ga. App. 79, 545 S.E.2d 629, 2001 Ga. App. LEXIS 172 (2001).
Intoxication affecting voluntariness of waiver of Miranda rights.
Defendant’s claim that defendant’s waiver of Miranda rights was involuntary because defendant was intoxicated was rejected; an officer testified that defendant did not appear to be intoxicated, that defendant seemed to understand the officer’s questions, and that defendant’s answers were responsive to the officer’s questions, and the trial court was entitled to believe this testimony. Smith v. State, 269 Ga. App. 17, 602 S.E.2d 921, 2004 Ga. App. LEXIS 1061 (2004).
Mental disability affecting voluntariness of waiver of Miranda rights.
— Defendant’s claim that defendant’s waiver of defendant’s Miranda rights was involuntary because defendant had a mental disability and had only an eighth grade education was rejected, as an officer testified that defendant said defendant understood defendant’s rights, that defendant seemed to understand the officer’s questions, and that defendant answered the questions appropriately. Smith v. State, 269 Ga. App. 17, 602 S.E.2d 921, 2004 Ga. App. LEXIS 1061 (2004). Court required to make findings on
Mandarin Chinese speaker’s competency to stand trial without interpreter.
Trial court erred in denying a defendant’s motion for new trial based on the defendant’s contention that the defendant did not understand the proceedings because an interpreter was not provided to the defendant without making findings; there was sufficient evidence to raise a question as to whether the defendant, whose native language was Mandarin Chinese, was competent to be tried without an interpreter, and the trial court was required to make findings as to the defendant’s competency on the record. Ling v. State, 288 Ga. 299, 702 S.E.2d 881, 2010 Ga. LEXIS 890 (2010). Limits on investigative powers of
Congress.
While the power of Congress to investigate for legislative purposes is inherent, it is not unlimited, and is always subject to the limitations imposed by the individual guarantees of the Bill of Rights. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Judge is not a mere moderator, and the judge has an obligation and duty to question witnesses and comment on the evidence when necessary. United States v. Bartlett, 633 F.2d 1184, 1981 U.S. App. LEXIS 21139 (5th Cir.), cert. denied, 454 U.S. 820, 102 S. Ct. 101, 70 L. Ed. 2d 91, 1981 U.S. LEXIS 3156 (1981). A trial judge may elicit facts not yet adduced or clarify those previously presented and the judge may maintain the pace of the trial by interrupting and curtailing counsel’s examinations as a matter General Consideration (Cont’d) of discretion. United States v. Bartlett, 633 F.2d 1184, 1981 U.S. App. LEXIS 21139 (5th Cir.), cert. denied, 454 U.S. 820, 102 S. Ct. 101, 70 L. Ed. 2d 91, 1981 U.S. LEXIS 3156 (1981). Only when a judge’s conduct strays from neutrality is a defendant thereby denied a fair trial as required by the Constitution. United States v. Bartlett, 633 F.2d 1184, 1981 U.S. App. LEXIS 21139 (5th Cir.), cert. denied, 454 U.S. 820, 102 S. Ct. 101, 70 L. Ed. 2d 91, 1981 U.S. LEXIS 3156 (1981). Duty of judge and prosecutor to
provide fair trial.
Trial judges and prosecutors have the responsibility to see that the defendant receives a fair trial. Dean v. State, 247 Ga. 724, 279 S.E.2d 217, 1981 Ga. LEXIS 840 (1981). ied in the context of the entire proceeding and only if, taken as a whole, those comments are so prejudicial as to amount to a denial of a fair trial will the Constitution require a new trial. Allen v. Montgomery, 728 F.2d 1409, 1984 U.S. App. LEXIS 23804 (11th Cir. 1984).
A judge’s comments must be stud-Substitution of judges.
Holding that midtrial substitution of judges is an error subject to harmless error analysis and not a structural defect is not contrary to clearly established federal law as determined by the U.S. Supreme Court. McIntyre v. Williams, 216 F.3d 1254, 2000 U.S. App. LEXIS 15338 (11th Cir. 2000). Miranda warnings need not be scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process in order for answers to those questions to be admissible as evidence. Brown v. State, 140 Ga. App. 160, 230 S.E.2d 128, 1976 Ga. App. LEXIS 1383 (1976), cert. denied, 434 U.S. 819, 98 S. Ct. 58, 54 L. Ed. 2d 75, 1977 U.S. LEXIS 2790 (1977).
given in advance of general on-the-Card from which rights read.
There is no requirement that the state introduce the card from which Miranda rights are read by the officers to the defendant. James v. State, 230 Ga. 29, 195 S.E.2d 448, 1973 Ga. LEXIS 796 (1973).
Waiver of Miranda rights.
Where there was evidence which could have authorized the exclusion of defendant’s statement based on lack of a knowing and understanding waiver of defendant’s Miranda rights, and where the trial court failed to make specific findings on issue, a remand was necessary for the entry of findings on this issue. Livingston v. State, 267 Ga. App. 875, 600 S.E.2d 817, 2004 Ga. App. LEXIS 802 (2004). Obtaining sample of defendant’s
handwriting.
Use of personal history forms which defendant is instructed to complete following arrest as handwriting exemplars violates none of the defendant’s rights under U.S. Const., amend. 6 or U.S. Const., amend. 5. United States v. Walker, 453 F.2d 1205, 1972 U.S. App. LEXIS 11895 (5th Cir.), cert. denied, 407 U.S. 910, 92 S. Ct. 2432, 32 L. Ed. 2d 683, 1972 U.S. LEXIS 2231 (1972). dent analysis of drugs used as evidence and expert testimony about the accuracy of tests made on such drugs may be a constitutionally protected right in other jurisdictions, there is no authority in this state or under the federal Constitution for such a rule. Butler v. State, 134 Ga. App. 131, 213 S.E.2d 490, 1975 Ga. App. LEXIS 1932 (1975). Habeas corpus case is not a criminal prosecution and, thus, does not fit under U.S. Const., amend. 6. Croker v. Smith, 225 Ga. 529, 169 S.E.2d 787, 1969 Ga. LEXIS 555 (1969).
While defense needs for indepen-Military jurisdiction narrowly limited.
Although trial by a military tribunal deprives one of trial by jury and other constitutional rights, it is not unconstitutional. However, military jurisdiction is restricted to the narrowest limits consistent with the power granted Congress in U.S. Const., Art. I, Sec. 8, Cl. 14. Torres v. Connor, 329 F. Supp. 1025, 1970 U.S. Dist. LEXIS 10615 (N.D. Ga. 1970). Burden of showing constitutional
error harmless upon state.
Regarding constitutional errors, the burden of showing that the error was harmless beyond a reasonable doubt is upon the state. Henderson v. State, 251 Ga. 398, 306 S.E.2d 645, 1983 Ga. LEXIS 830 (1983). fendant’s rights without consulting
Defense counsel cannot invoke dedefendant.
Defense counsel, acting on counsel’s own and without having consulted the defendant, is not empowered to invoke the defendant’s personal rights under the fifth and Sixth Amendments. Edwards v. State, 167 Ga. App. 681, 307 S.E.2d 264, 1983 Ga. App. LEXIS 3339 (1983). sued by an impartial magistrate was not violated when a search warrant, otherwise proper, was issued by a magistrate who was of feeble mind and memory. Daitch v. State, 168 Ga. App. 830, 310 S.E.2d 703, 1983 Ga. App. LEXIS 3444 (1983). U.S. Const., amend. 6 does not reevance or need before enforcement of grand jury subpoena to testify. In re Grand Jury Investigation, 769 F.2d 1485, 1985 U.S. App. LEXIS 26364 (11th Cir. 1985). Right of accused to be present at
Requirement that a warrant be isquire preliminary showing of reltrial.
Because the defendant’s own conduct made the progress of the trial practically impossible in the defendant’s continued presence, it was not an abuse of the court’s discretion to remove the defendant from the courtroom. Simmons v. State, 161 Ga. App. 527, 288 S.E.2d 868, 1982 Ga. App. LEXIS 3054 (1982). Because the basis of the right to be present at trial is the constitutional mandate to provide an opportunity to defend oneself, due process requires that the defendant be personally present to the extent that a fair and just hearing would be thwarted by the defendant’s absence, and to that extent only. Finney v. Zant, 709 F.2d 643, 1983 U.S. App. LEXIS 25936 (11th Cir. 1983), overruled in part, Peek v. Kemp, 784 F.2d 1479, 1986 U.S. App. LEXIS 22736 (11th Cir. 1986). A criminal defendant’s constitutional right to be present at trial does not include a concomitant right of absence. Tilley v. State, 201 Ga. App. 360, 411 S.E.2d 100, 1991 Ga. App. LEXIS 1338 (1991). Where the defendant voluntarily is absent from trial, the trial court may direct that a plea of not guilty be entered and proceed with the trial. Croy v. State, 168 Ga. App. 241, 308 S.E.2d 568, 1983 Ga. App. LEXIS 3386 (1983).
Defendant’s absence from courtroom during discussions about juror.
— Defendant’s constitutional rights were not violated when the defendant was allegedly absent from the courtroom when the attorneys were having a discussion with the trial judge about the possibility of replacing a juror because the trial court conducted the trial properly by making sure the defendant was present when necessary; the record did not mention the exact moment the defendant entered the courtroom between the time the trial court ordered the defendant to be brought into the courtroom and the time the recess was concluded, but the absence of that information did not prove that the defendant was not in the court room at the time discussions were had about the missing juror. Milinavicius v. State, 290 Ga. 374, 721 S.E.2d 843, 2012 Ga. LEXIS 74 (2012). Trial court is empowered to order a criminal defendant’s personal appearance when it is necessary to properly conduct the trial. This is especially true where identification of the defendant by a witness is contemplated by the prosecution. Tilley v. State, 201 Ga. App. 360, 411 S.E.2d 100, 1991 Ga. App. LEXIS 1338 (1991).
Alibi defense notice.
Defendant, whose evidence was the sole evidence in support of an alibi defense, was required to file an intention to offer said defense under O.C.G.A. § 17-16-5(a), even when the state was aware that the defendant claimed to be elsewhere on the day of the crime, and such did not affect the defendant’s right to testify under the sixth amendment; moreover, any prejudice to the state was irrelevant, because the statute provided no exception for such prior knowledge, and because common sense dictated that the mere claim to be elsewhere when confronted by authorities was a far cry from intending to present the legal defense of alibi. State v. Charbonneau, 281 Ga. 46, 635 S.E.2d 759, 2006 Ga. LEXIS 654 (2006). Preference for resolving cases on
nonconstitutional grounds.
Courts should not decide a case on constitutional grounds when it can be resolved on statutory and general law grounds. United States v. Northside Realty Assocs., 510 F. Supp. 668, 1981 U.S. Dist. LEXIS 11248 General Consideration (Cont’d) (N.D. Ga.), rev’d, 659 F.2d 590, 1981 U.S. App. LEXIS 16765 (5th Cir. 1981).
Failure to voice objection.
The refusal to grant a mistrial, on the grounds that the state’s cross-examination of a witness was improper, is not an abuse of discretion where the defendant failed to voice an objection during the questioning. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592, 1983 Ga. App. LEXIS 2734 (1983), aff’d, 252 Ga. 133, 311 S.E.2d 821, 1984 Ga. LEXIS 608 (1984). An arrest scene identification was justified where the police were in “hot pursuit” of suspects and needed to quickly ascertain if the persons apprehended were the actual perpetrators. McGhee v. State, 253 Ga. 278, 319 S.E.2d 836, 1984 Ga. LEXIS 901 (1984). Requiring defendant to testify as to
sound of the defendant’s name.
Defendant’s fifth and sixth amendment rights were not violated by requiring the defendant to testify about the sound of the defendant’s name. Werts v. State, 196 Ga. App. 452, 395 S.E.2d 922, 1990 Ga. App. LEXIS 913 (1990).
Refusal to allow evidence of defendant’s mental faculties.
Where a defendant had suffered organic brain damage as a result of an auto accident, the defendant was not deprived of the defendant’s sixth amendment right to defend oneself and develop substantive evidence at trial by the court’s refusal to allow the defense to present evidence pertaining to the defendant’s mental faculties, relevant to the issue of intent and the defenses of entrapment and coercion, and by a charge to the jury on guilty but mentally ill. Holder v. State, 194 Ga. App. 790, 391 S.E.2d 808, 1990 Ga. App. LEXIS 309 (1990).
Conspiracy indictment.
In a prosecution for conspiracy to possess with intent to distribute cocaine, defendant’s sixth amendment right was not violated by holding the defendant accountable for the overall measure of drugs, not simply the quantity submitted into evidence. United States v. Lockett, 867 F. Supp. 1044, 1994 U.S. Dist. LEXIS 16441 (M.D. Ga. 1994), aff’d, 70 F.3d 126, 1995 U.S. App. LEXIS 32870 (11th Cir. 1995).
Indictments generally.
There is no right to a speedy indictment. Griffin v. State, 282 Ga. 215, 647 S.E.2d 36, 2007 Ga. LEXIS 482 (2007), overruled in part, Garza v. State, 284 Ga. 696, 670 S.E.2d 73, 2008 Ga. LEXIS 865 (2008).
Statements made after arrest.
State death row inmate’s federal habeas petition was denied because the inmate’s right against self-incrimination was not abridged during custodial interrogation by police; under the federal constitutional standards applicable at the time of trial, the state courts properly found that the inmate had reinitiated the inmate’s in-custody conversation with police after equivocally requesting an attorney. Ford v. Schofield, 488 F. Supp. 2d 1258, 2007 U.S. Dist. LEXIS 34958 (N.D. Ga. 2007), aff’d, 546 F.3d 1326, 2008 U.S. App. LEXIS 22318 (11th Cir. 2008). Waiver of right to be present at
trial.
Defendant waived the constitutional right to be present during portion of voir dire and on the second day of the trial where the defendant was free on bail and failed to make sufficient arrangements to attend. Winfield v. State, 210 Ga. App. 849, 437 S.E.2d 849, 1993 Ga. App. LEXIS 1368 (1993).
Prosecutor’s conduct.
Defendant was not denied defendant’s sixth amendment right to a fair trial because of prosecutorial misconduct where an investigator testified that the investigator found a shotgun in defendant’s apartment, the prosecutor produced the shotgun and asked the deputy to secure it; defense counsel requested no further relief and never raised the issue of prosecutorial misconduct in the trial court. Fairclough v. State, 276 Ga. 602, 581 S.E.2d 3, 2003 Ga. LEXIS 477 (2003). Defense counsel was not ineffective in stipulating to negative scientific test results because the test results were not inconsistent with the defendant’s defense. Chance v. State, 291 Ga. 241, 728 S.E.2d 635, 2012 Ga. LEXIS 580 (2012).
Deportation consequence.
Judgment finding that the defendant was rendered ineffective assistance of counsel for counsel’s alleged failure to advise of deportation consequences for a destruction of property offense was reversed because the defendant’s date of admission was not within five years of the date of the commission of the crime in 2002; thus, the defendant failed to prove that the defendant was deportable by virtue of having committed a crime of moral turpitude. State v. Addaquay, 302 Ga. 412, 807 S.E.2d 413, 2017 Ga. LEXIS 939 (2017). Speedy and Public Trial 1. In General Speedy trial standards are the
same under federal and state constitutions.
The same standards for deciding claims of denial of a speedy trial are used whether the claim is based on U.S. Const., amend. 6 or Ga. Const. 1976, Art. I, Sec. I, Para. XI (see Ga. Const. 1983, Art I, Sec. I, Para. XI). Fleming v. State, 240 Ga. 142, 240 S.E.2d 37, 1977 Ga. LEXIS 1424 (1977). All defendants are entitled to the
fundamental right to a speedy trial.
United States v. Dyson, 469 F.2d 735, 1972 U.S. App. LEXIS 6828 (5th Cir. 1972).
Speedy trial is a fundamental constitutional right, not a privilege.
Blevins v. State, 113 Ga. App. 702, 149 S.E.2d 423, 1966 Ga. App. LEXIS 1179 (1966); Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461, 1967 Ga. App. LEXIS 914 (1967). Right to speedy trial is a fundamental right that applies to the states through U.S. Const., amend. 14. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1, 1976 Ga. LEXIS 885 (1976). Essential ingredient of the right to speedy trial is orderly expedition and not mere speed. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461, 1967 Ga. App. LEXIS 914 (1967). Right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch. Blevins v. State, 113 Ga. App. 702, 149 S.E.2d 423, 1966 Ga. App. LEXIS 1179 (1966). Right to a speedy trial secures rights to a defendant, but does not
preclude the rights of public justice.
Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461, 1967 Ga. App. LEXIS 914 (1967). It is a unique right endemic to both
the government and the accused.
United States v. Dyson, 469 F.2d 735, 1972 U.S. App. LEXIS 6828 (5th Cir. 1972). Unlike other constitutional rights, both society and the defendant have a potential interest in either having a speedy trial or delaying any trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980).
Accused’s interests in speedy trial.
— The interests of an accused protected by the right to speedy trial are: to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired. Blevins v. State, 113 Ga. App. 702, 149 S.E.2d 423, 1966 Ga. App. LEXIS 1179 (1966); Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461, 1967 Ga. App. LEXIS 914 (1967); Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597, 1974 Ga. App. LEXIS 1749 (1974); State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829, 1976 Ga. App. LEXIS 2585 (1976); Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634, 1979 Ga. App. LEXIS 2388 (1979); State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638, 1980 Ga. App. LEXIS 3016 (1980). Defendant’s speedy trial interests do not per se outweigh those of soci-
ety.
Under the analysis made by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), it cannot be said that the ultimate responsibility of the state to provide a speedy trial is such that the state’s unexcused failure to provide it creates a presumption of deprivation of the right or a burden on the state to prove otherwise. To the contrary, the plain tenor of Barker seems to be that society’s interest in bringing the criminal defendant to trial is not per se out-weighed by the individual’s right to speedy trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980). Reasons-for-delay factor should
have weighed against the state.
In considering the defendant’s speedy trial claim, the trial court erred by weighing the reasons-for-delay factor neutrally be-Speedy and Public Trial (Cont’d) 1. In General (Cont’d) cause the defendant never requested a delay of trial and the record showed that the reasons for the delay were solely attributable to the state due to the need to collect evidence and to provide timely trials to other cases; thus, the factor should have been weighed against the state. Redding v. State, 318 Ga. 225, 897 S.E.2d 801, 2024 Ga. LEXIS 27 (2024).
Dead-docketing a case.
Placing a case upon the dead docket constitutes neither a dismissal nor a termination of the prosecution in the accused’s favor. Consequently, the fact that a case is placed on the dead docket does not affect the constitutional right to a speedy trial. Hayes v. State, 298 Ga. App. 338, 680 S.E.2d 182, 2009 Ga. App. LEXIS 703 (2009), cert. denied, No. S09C1736, 2009 Ga. LEXIS 540 (Ga. Sept. 8, 2009). Factors to be considered in speedy
trial determinations.
In determining whether the right to speedy trial has been violated, a court is required to consider four factors: length of the delay, the reasons for the delay, the accused’s assertion of the accused’s right, and prejudice to the accused. Johnson v. Smith, 227 Ga. 611, 182 S.E.2d 101, 1971 Ga. LEXIS 796 (1971); Hughes v. State, 228 Ga. 593, 187 S.E.2d 135, 1972 Ga. LEXIS 858 (1972); Mays v. State, 229 Ga. 609, 193 S.E.2d 825, 1972 Ga. LEXIS 699 (1972); United States v. Dyson, 469 F.2d 735, 1972 U.S. App. LEXIS 6828 (5th Cir. 1972); Hall v. State, 131 Ga. App. 786, 206 S.E.2d 644, 1974 Ga. App. LEXIS 1555 (1974); Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597, 1974 Ga. App. LEXIS 1749 (1974); Boyd v. State, 133 Ga. App. 395, 211 S.E.2d 22, 1974 Ga. App. LEXIS 1083 (1974); United States v. Smith, 65 F.R.D. 464, 1974 U.S. Dist. LEXIS 11349 (N.D. Ga. 1974); State v. King, 137 Ga. App. 26, 222 S.E.2d 859, 1975 Ga. App. LEXIS 1196 (1975); Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1, 1976 Ga. LEXIS 885 (1976); State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829, 1976 Ga. App. LEXIS 2585 (1976); Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64, 1976 Ga. App. LEXIS 1362 (1976); United States v. Duke, 527 F.2d 386, 1976 U.S. App. LEXIS 12729 (5th Cir.), cert. denied, 426 U.S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1190, 1976 U.S. LEXIS 2184 (1976); United States v. Campbell, 531 F.2d 1333, 1976 U.S. App. LEXIS 8890 (5th Cir. 1976), cert. denied, 434 U.S. 851, 98 S. Ct. 164, 54 L. Ed. 2d 121, 1977 U.S. LEXIS 3167 (1977); United States v. Palmer, 537 F.2d 1287, 1976 U.S. App. LEXIS 7345 (5th Cir. 1976), cert. denied, 434 U.S. 1018, 98 S. Ct. 738, 54 L. Ed. 2d 764, 1978 U.S. LEXIS 343 (1978); Fleming v. State, 240 Ga. 142, 240 S.E.2d 37, 1977 Ga. LEXIS 1424 (1977); Powell v. State, 143 Ga. App. 684, 239 S.E.2d 560, 1977 Ga. App. LEXIS 2463 (1977); Arnold v. State, 239 Ga. 752, 238 S.E.2d 876, 1977 Ga. LEXIS 1321 (1977); Cravey v. State, 147 Ga. App. 29, 248 S.E.2d 13, 1978 Ga. App. LEXIS 2602 (1978); Natson v. State, 242 Ga. 618, 250 S.E.2d 420, 1978 Ga. LEXIS 1303 (1978), cert. denied, 441 U.S. 925, 99 S. Ct. 2036, 60 L. Ed. 2d 399, 1979 U.S. LEXIS 1667 (1979); United States v. Edwards, 577 F.2d 883, 1978 U.S. App. LEXIS 9854 (5th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 458, 58 L. Ed. 2d 427, 1978 U.S. LEXIS 3851 (1978); Haisman v. State, 242 Ga. 896, 252 S.E.2d 397, 1979 Ga. LEXIS 766 (1979); Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634, 1979 Ga. App. LEXIS 2388 (1979); Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808, 1980 Ga. LEXIS 683, cert. denied, 446 U.S. 968, 100 S. Ct. 2948, 64 L. Ed. 2d 828, 1980 U.S. LEXIS 1854 (1980); Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509, 1980 Ga. App. LEXIS 2327 (1980); State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980); State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638, 1980 Ga. App. LEXIS 3016 (1980); United States v. Hill, 622 F.2d 900, 1980 U.S.App. LEXIS 15192 (5th Cir. 1980); Nelson v. State, 247 Ga. 172, 274 S.E.2d 317, 1981 Ga. LEXIS 609, cert. denied, 454 U.S. 882, 102 S. Ct. 365, 70 L. Ed. 2d 192 (1981); Glidewell v. Burden, 822 F.2d 1027, 1987 U.S. App. LEXIS 9929 (11th Cir. 1987), cert. denied, 484 U.S. 1018, 108 S. Ct. 727, 98 L. Ed. 2d 676, 1988 U.S. LEXIS 47 (1988); United States v. Burke, 673 F. Supp. 1574, 1986 U.S. Dist. LEXIS 28482 (N.D. Ga. 1986), aff’d, 856 F.2d 1492, 1988 U.S. App. LEXIS 13983 (11th Cir. 1988), cert. denied, 492 U.S. 908, 109 S. Ct. 3222, 106 L. Ed. 2d 571, 1989 U.S. LEXIS 3245 (1989); McClanahan v. State, 196 Ga. App. 737, 397 S.E.2d 24, 1990 Ga. App. LEXIS 1060 (1990), overruled in part, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669, 2003 Ga. LEXIS 775 (2003); Redd v. State, 261 Ga. 300, 404 S.E.2d 264, 1991 Ga. LEXIS 244 (1991), cert. denied, 505 U.S. 1218, 112 S. Ct. 3025, 120 L. Ed. 2d 897, 1992 U.S. LEXIS 4589 (1992); Hall v. State, 201 Ga. App. 133, 410 S.E.2d 448, 1991 Ga. App. LEXIS 1227 (1991); United States v. Hayes, 40 F.3d 362, 1994 U.S. App. LEXIS 35561 (11th Cir. 1994), cert. denied, 516 U.S. 812, 116 S. Ct. 62, 133 L. Ed. 2d 24, 1995 U.S. LEXIS 5376 (1995). The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. Ayers v. State, 181 Ga. App. 244, 351 S.E.2d 692, 1986 Ga. App. LEXIS 2817 (1986); McClanahan v. State, 196 Ga. App. 737, 397 S.E.2d 24, 1990 Ga. App. LEXIS 1060 (1990), overruled in part, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669, 2003 Ga. LEXIS 775 (2003). Dismissal of an indictment on speedy trial grounds was in error, and remand was appropriate because the trial court erred in the court’s key factual findings regarding the defendant’s anxiety and concern and actual impairment to the defense and, additionally, the trial court attributed only eight months of delay to the State of Georgia, without addressing the reasons for the nearly eight additional years of delay, including a year of delay caused, apparently deliberately, when the defendant became a fugitive. Moreover, the trial court did not properly balance the factors so that the intermediate appellate court could not properly affirm the judgment. State v. Porter, 288 Ga. 524, 705 S.E.2d 636, 2011 Ga. LEXIS 93 (2011). Order denying the defendant’s speedy trial claim noted that the 14-month delay was presumptively prejudicial, but failed to address any of the other Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) factors; further, there was no evidence that a hearing was held. Therefore, remand was required for the trial court’s entry of findings of fact and conclusions. McDougler v. State, 323 Ga. App. 828, 748 S.E.2d 475, 2013 Ga. App. LEXIS 756 (2013). It is necessary for the trial court to consider and weigh each of these factors in determining the speedy trial issue. State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829, 1976 Ga. App. LEXIS 2585 (1976).
Defendant’s conduct must be balanced against prosecution’s conduct.
— Whether a defendant has been denied the right to a speedy trial is determined by a balancing test, weighing the conduct of the prosecution with that of the defendant. Boyd v. State, 133 Ga. App. 395, 211 S.E.2d 22, 1974 Ga. App. LEXIS 1083 (1974); United States v. Edwards, 577 F.2d 883, 1978 U.S. App. LEXIS 9854 (5th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 458, 58 L. Ed. 2d 427, 1978 U.S. LEXIS 3851 (1978). Court did not err in denying motion to dismiss on speedy trial grounds because, although the initial delay was attributable to the state, after the indictment was filed the state moved with reasonable promptness, and defendant filed a defense motion only weeks before the trial date. Chappell v. State, 272 Ga. App. 1, 611 S.E.2d 157, 2005 Ga. App. LEXIS 213 (2005). tive process, and each case must rely upon its own circumstances. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980). Premature demand for speedy
Balancing test is a delicate, sensitrial.
Although defendant filed a speedy trial demand prematurely, defendant nonetheless placed all parties on notice that a speedy trial was wanted and, in considering defendant’s motion for discharge and acquittal on constitutional grounds, the trial court weighed this factor in defendant’s favor. State v. Bazemore, 249 Ga. App. 584, 549 S.E.2d 426, 2001 Ga. App. LEXIS 567 (2001). Given defendant’s premature speedy trial demand, made after defendant’s arrest, but before the grand jury indictment Speedy and Public Trial (Cont’d) 1. In General (Cont’d) was filed, the trial court properly denied defendant’s motion for discharge and acquittal. Roberts v. State, 263 Ga. App. 472, 588 S.E.2d 242, 2003 Ga. App. LEXIS 1099 (2003), aff’d, 278 Ga. 610, 604 S.E.2d 781, 2004 Ga. LEXIS 990 (2004). Relevant time period for measuring
delay.
The relevant period of time in determining the right to a speedy trial is that between the indictment, or institution of prosecution, and the trial. United States v. Durham, 413 F.2d 1003, 1969 U.S. App. LEXIS 11903 (5th Cir.), cert. denied, 396 U.S. 839, 90 S. Ct. 100, 24 L. Ed. 2d 89, 1969 U.S. LEXIS 951 (1969). Unless the defendant has been held in custody by the state, the relevant period of time in measuring the length of delay as a denial of the right to a speedy trial is that between the indictment or institution of prosecution by information, etc., and the trial, not the preindictment delay. Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597, 1974 Ga. App. LEXIS 1749 (1974). Delay in trying a case is to be determined from the date of arrest or of indictment, whichever comes first. Cravey v. State, 147 Ga. App. 29, 248 S.E.2d 13, 1978 Ga. App. LEXIS 2602 (1978). Effect of state delay on federal
prosecution.
The fifth, sixth, and fourteenth amendments did not bar a federal prosecution because any arguably improper or unconstitutional delay in the prosecution was occasioned solely by Georgia authorities; there was no basis here for imputing Georgia’s dilatory conduct to the United States or to the federal prosecution. United States v. Boone, 959 F.2d 1550, 1992 U.S. App. LEXIS 8909 (11th Cir. 1992). Right to speedy trial applies to a person who is at large on bail, since, in addition to protecting an accused against prolonged incarceration, the right also serves other purposes which are applicable whether the defendant is on bail or not. Blevins v. State, 113 Ga. App. 702, 149 S.E.2d 423, 1966 Ga. App. LEXIS 1179 (1966). Right to a speedy trial has no application to delays resulting from a finding of incompetency. Gibbs v. State, 235 Ga. 480, 220 S.E.2d 254, 1975 Ga. LEXIS 908 (1975), cert. denied, 424 U.S. 924, 96 S. Ct. 1134, 47 L. Ed. 2d 333, 1976 U.S. LEXIS 625 (1976). Delay in ruling on new trial motion. — Trial judge’s delay in ruling on the new trial motion after conviction of the accused is not a denial of the constitutional right to a speedy trial where the delay does not deprive the accused of the opportunity to serve the sentence concurrently with another sentence imposed in a separate trial. Herring v. Ault, 230 Ga. 398, 197 S.E.2d 354, 1973 Ga. LEXIS 928 (1973). Delay in sentencing may violate
speedy trial protections.
Unreasonable delay in sentencing may constitute a violation of a defendant’s right under U.S. Const., amend. 6 to a speedy trial. United States v. Campbell, 531 F.2d 1333, 1976 U.S. App. LEXIS 8890 (5th Cir. 1976), cert. denied, 434 U.S. 851, 98 S. Ct. 164, 54 L. Ed. 2d 121, 1977 U.S. LEXIS 3167 (1977).
Accused entitled to speedy sentence where formal trial waived.
The accused who wishes to waive a formal trial is entitled also to secure, if the accused desires, a speedy sentence, in which situation the Federal Rules of Criminal Procedure will implement or augment U.S. Const., amend. 6 in providing for a speedy trial to an accused who seeks, by way of a trial, nothing more than the prompt imposition of such sentence as the court deems appropriate to the offense. Barkman v. Sanford, 162 F.2d 592, 1947 U.S. App. LEXIS 2149 (5th Cir.), cert. denied, 332 U.S. 816, 68 S. Ct. 155, 92 L. Ed. 393, 1947 U.S. LEXIS 1658 (1947). Right to a speedy trial does not apply in probation revocation proceedings, since they are not criminal proceedings. United States v. Jackson, 590 F.2d 121, 1979 U.S. App. LEXIS 16770 (5th Cir.), cert. denied, 441 U.S. 912, 99 S. Ct. 2012, 60 L. Ed. 2d 385, 1979 U.S. LEXIS 1595 (1979). Right to a speedy trial does not
apply to parole revocation.
The right to a speedy trial is not applicable to parole revocation proceedings. Moultrie v. Georgia, 464 F.2d 551, 1972 U.S. App. LEXIS 8333 (5th Cir. 1972). Delay of parole revocation hearing pending incarceration in another
state.
Although Georgia law requires a parole revocation hearing (see O.C.G.A. § 42-9-5), where a person has committed a crime in another state, has been convicted, and is incarcerated in that state, it is not unconstitutional to delay the parole revocation hearing until expiration of that later sentence. Moultrie v. Georgia, 464 F.2d 551, 1972 U.S. App. LEXIS 8333 (5th Cir. 1972). Speedy trial rights not forfeited by
incarceration for another offense.
Merely because an individual charged with a criminal offense is serving a prison term for another offense does not mean that the individual forfeits the right to a speedy trial for the pending charge. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461, 1967 Ga. App. LEXIS 914 (1967); United States v. Duke, 527 F.2d 386, 1976 U.S. App. LEXIS 12729 (5th Cir.), cert. denied, 426 U.S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1190, 1976 U.S. LEXIS 2184 (1976). fense pending trial does not, ipso facto, show that the delay is unoppressive but it may where no anxiety or prejudice is shown. State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829, 1976 Ga. App. LEXIS 2585 (1976). Trial court has no power to consider a claim of denial of speedy trial as to warrants issued in other judicial circuits. Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808, 1980 Ga. LEXIS 683, cert. denied, 446 U.S. 968, 100 S. Ct. 2948, 64 L. Ed. 2d 828, 1980 U.S. LEXIS 1854 (1980).
Incarceration for a separate of-Differing terms of court.
O.C.G.A. §§ 15-6-3(15.1) and 17-7-171 did not combine to deprive a criminal defendant of equal protection of the law by permitting the county of the defendant’s adjudication to operate with only two terms of court, while other similar-sized counties operate with more terms of court. Although the defendant may have had to wait months longer for the trial than similarly situated defendants in other counties, the presumptive validity of the statutes stood. Henry v. State, 263 Ga. 417, 434 S.E.2d 469, 1993 Ga. LEXIS 643 (1993). Same considerations which require a speedy trial for an unincarcerated person apply to one imprisoned by another sovereign. Lawrence v. Blackwell, 298 F. Supp. 708, 1969 U.S. Dist. LEXIS 8993 (N.D. Ga. 1969). That a defendant is confined in another jurisdiction, or another state, is not dispositive of a speedy trial issue. Sassoon v. State, 138 Ga. App. 172, 225 S.E.2d 732, 1976 Ga. App. LEXIS 2096 (1976). Claim by incarcerated defendant of denial of speedy trial by another ju-
risdiction.
A defendant who is being held by one jurisdiction cannot force the officials of another judicial circuit in which the defendant is wanted to travel to the jurisdiction in which the defendant is incarcerated to test the continuing validity of their charges against the defendant by raising the claim that the defendant is being denied a speedy trial. Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808, 1980 Ga. LEXIS 683, cert. denied, 446 U.S. 968, 100 S. Ct. 2948, 64 L. Ed. 2d 828, 1980 U.S. LEXIS 1854 (1980). Speedy indictment claim waived by
entry of guilty plea.
A speedy indictment claim, like other nonjurisdictional defects in pretrial proceedings, is waived by the entry of a voluntary and intelligent guilty plea. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1, 1976 Ga. LEXIS 885 (1976).
Guilty plea waives speedy trial defense.
Having fully and voluntarily entered a plea of guilty, a criminal defendant cannot raise as a defense the right to a speedy and public trial because in the case of a plea of guilty, a guilty plea waives any defense known and unknown. Mason v. Banks, 242 Ga. 292, 248 S.E.2d 664, 1978 Ga. LEXIS 1179 (1978). Appeal from denial of motion for
speedy trial.
The refusal by a superior court to grant to a defendant in a criminal case not affecting the defendant’s life a written motion for a speedy trial pursuant to the defendant’s constitutional right thereto is a judgment appealable to the Court of Appeals under former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34). Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461, 1967 Ga. App. LEXIS 914 (1967). Defendant may not raise the issue of speedy trial on appeal, unless such Speedy and Public Trial (Cont’d) 1. In General (Cont’d) issue was first raised at trial. Moore v. State, 141 Ga. App. 245, 233 S.E.2d 236, 1977 Ga. App. LEXIS 1854 (1977).
Remedy for violations of right.
In light of the policies which underlie the right to a speedy trial, dismissal must remain the only possible remedy. Hall v. State, 131 Ga. App. 786, 206 S.E.2d 644, 1974 Ga. App. LEXIS 1555 (1974). tions involve issues of fact that should be resolved by a court having jurisdiction of the criminal prosecution. Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808, 1980 Ga. LEXIS 683, cert. denied, 446 U.S. 968, 100 S. Ct. 2948, 64 L. Ed. 2d 828, 1980 U.S. LEXIS 1854 (1980). Right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461, 1967 Ga. App. LEXIS 914 (1967). Each case involving the right to a speedy trial must be analyzed on an ad hoc basis, upon its own particular facts and circumstances. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980).
Constitutional speedy trial ques-Delay due to mental health issues.
— Trial court abused its discretion in granting defendant’s motion to dismiss as there was no evidence that the state caused any delay and defendant’s speedy trial right was not violated where defendant was indicted more than one year after the incident, but was not arrested until a year after the incident, defendant was out on bond, so defendant’s indictment four months after defendant’s arrest was timely, defendant had legal counsel two months after the indictment, defendant’s protestations of innocence were not a basis for finding a speedy trial violation, and the state’s acquiescence in defendant’s attempt for a mental health placement and the resultant delay did not constitute a speedy trial violation. State v. Byrd, 266 Ga. App. 121, 596 S.E.2d 426, 2004 Ga. App. LEXIS 316 (2004). The trial court did not abuse its discretion in granting the defendants’ motions to dismiss the charges filed against them because the court was authorized to find that, as the result of the state’s negligence, both of the defendants were subjected to an extraordinarily long delay in being brought to trial, that they were not dilatory in asserting their right to a speedy trial, and that, as a result of the delay, their ability to defend against the belated murder charge was prejudiced. State v. White, 282 Ga. 859, 655 S.E.2d 575, 2008 Ga. LEXIS 5 (2008). Length-of-delay factor should have
weighed against state.
In considering the defendant’s speedy trial claim, the trial court erred by weighing the length-of-delay factor neutrally because, after finding that the delay of 25 months was uncommonly long, the court should have weighed the factor against the state, rather than examining the reasons for the delay. Redding v. State, 318 Ga. 225, 897 S.E.2d 801, 2024 Ga. LEXIS 27 (2024). Defendant’s right to speedy trial was not violated under the following facts: (1) The length in delay in the case, from the time of arrest, was only six weeks, due to a crime lab analysis of the substance seized, which eventually produced exculpatory evidence; and (2) the defendant did not assert the defendant’s rights, and the defendant was clearly not prejudiced, since the net effect of the delay was dismissal of the charges. Lambert v. McFarland, 612 F. Supp. 1252, 1984 U.S. Dist. LEXIS 22707 (N.D. Ga. 1984). Defendant’s right to a speedy trial was not violated by a 21-month delay between the defendant’s indictment and trial because: (1) the defendant was convicted on other indictments during this period and was being held under those convictions pending the defendant’s appeals; and (2) a period of only eight days elapsed between the defendant’s assertion of the defendant’s right and the trial. Mincey v. State, 257 Ga. 500, 360 S.E.2d 578, 1987 Ga. LEXIS 918 (1987). A two-year delay between commission of the crime and the beginning of trial is not unconstitutional where some of the delay was due to separate trials of codefendants, the defendant did not assert the defendant’s speedy trial right until just before trial, and the only prejudice due to the delay was to the state. Harrison v. State, 257 Ga. 528, 361 S.E.2d 149, 1987 Ga. LEXIS 939 (1987), cert. denied, 485 U.S. 982, 108 S. Ct. 1281, 99 L. Ed. 2d 492, 1988 U.S. LEXIS 1507 (1988). Notwithstanding the fact that there was a delay of 22 months and that defense counsel attempted to have the defendant brought to the county for purposes of entering a guilty plea, because the defendant and the defendant’s competent counsel did not assert a right to a speedy trial, especially in the time period from the defendant’s release from incarceration until the case was on the trial calendar, and further because the defendant was not prejudiced by the failure to bring the case to trial, the defendant’s motion to acquit was denied. Coggins v. State, 188 Ga. App. 455, 373 S.E.2d 269, 1988 Ga. App. LEXIS 1095 (1988). A delay of nearly one year between remittitur of defendant’s case to the trial court and defendant’s trial did not violate speedy trial rights. Chambers v. State, 213 Ga. App. 414, 444 S.E.2d 820, 1994 Ga. App. LEXIS 633 (1994), cert. denied, No. S94C1461, 1994 Ga. LEXIS 1014 (Ga. Sept. 16, 1994). Even though a five-year delay in defendant’s trial was partially attributable to the state, the complex nature of the crime and the defendant’s own failure to assert the defendant’s rights also contributed significantly to the delay; thus, the delay did not impair the defendant’s ability to defend against the charges. Daughenbaugh v. State, 225 Ga. App. 7, 482 S.E.2d 517, 1997 Ga. App. LEXIS 285 (1997). A one year delay in trial following filing of demand for speedy trial did not violate defendant’s rights. Boone v. State, 229 Ga. App. 379, 494 S.E.2d 100. A 22-month delay in the defendant’s trial did not violate the defendant’s rights based on the absence of the state’s primary witness for several months, the defendant’s refusal to cooperate with counsel, the defendant’s request for a continuance, and the defendant’s failure to show that the defendant was prejudiced. Jackson v. State, 231 Ga. App. 187, 498 S.E.2d 780, 1998 Ga. App. LEXIS 391 (1998). Defendant’s right to speedy trial was not violated notwithstanding that the defendant was arrested in April 1992 and not tried until September 1996, and the defendant was incarcerated while awaiting trial, because (1) the record revealed that much of the delay was attributable to the defense in that the defendant repeatedly announced that the defendant’s experts were not ready for scheduled hearings or trial, and the defendant asked for a delay in the proceedings so that plea negotiations could be conducted; (2) the defendant did not assert the defendant’s constitutional right to a speedy trial until May 1996, and the defendant never asserted the defendant’s statutory right to a speedy trial; and (3) the defendant did not bring forth evidence that the delay impaired the defendant’s defense. Pruitt v. State, 270 Ga. 745, 514 S.E.2d 639, 1999 Ga. LEXIS 311, cert. denied, 528 U.S. 1006, 120 S. Ct. 502, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7568 (1999). Defendant’s right to a speedy trial was not violated because defendant did not file a statutory demand for speedy trial under O.C.G.A. § 17-7-170 and the delay was partially attributable to defendant. Manning v. State, 250 Ga. App. 187, 550 S.E.2d 762, 2001 Ga. App. LEXIS 724 (2001). Trial court did not abuse its discretion in denying defendant’s motion for discharge and acquittal based on defendant’s claim that the state violated defendant’s sixth amendment speedy trial right because any prejudice that defendant suffered from the 14 years it took to bring defendant to trial was caused by defendant; indeed, the sole reason for the lengthy delay was that defendant failed to appear for the trial set for a few weeks after defendant’s arrest, even though defendant had notice about when that trial was to take place. Smith v. State, 260 Ga. App. 403, 579 S.E.2d 829, 2003 Ga. App. LEXIS 374 (2003). Defendant’s speedy trial right under the sixth amendment and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a) were not violated when the defendant was arrested in 1998, indicted in 1999, and tried in 2004. Part of the delay was caused by the defendant’s mistaken release; defense counsel shared responsibility for the delay; the defendant had not asserted the right to a speedy trial Speedy and Public Trial (Cont’d) 1. In General (Cont’d) until the day before the commencement of the defendant’s first trial; there was no oppressive pretrial incarceration because the defendant had been incarcerated for only four or five months; and the death of a witness was not prejudicial because the witness’s identification of a person fleeing the crime scene as someone other than the defendant did not preclude the possibility that the defendant was the other person seen running from the scene and because counsel evidently regarded the deceased witness’s observations as harmful to the defense. Smith v. State, 284 Ga. 17, 663 S.E.2d 142, 2008 Ga. LEXIS 542 (2008). Four-year delay in bringing a defendant to trial did not violate the defendant’s sixth amendment right to a speedy trial since: (1) the delay was due in part to both sides’ interlocutory appeals; (2) the state did not deliberately delay the trial to hamper the defense; (3) the defendant waited until less than three weeks before trial to assert the speedy trial claims; and (4) the testimony of two witnesses who died before the trial would have been more favorable to the state than to the defendant, and the state agreed to stipulate to the witnesses’ testimony. Layman v. State, 284 Ga. 83, 663 S.E.2d 169, 2008 Ga. LEXIS 528 (2008). There was no violation of the defendant’s constitutional speedy trial rights under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), as a delay in bringing defendant to trial due to a backlog in the court system was not shown to have caused any prejudice to the defendant, and the defendant failed to timely assert the right to a speedy trial. Thomas v. State, 296 Ga. App. 231, 674 S.E.2d 96, 2009 Ga. App. LEXIS 187 (2009). Defendant’s constitutional speedy trial right was not violated by delays ranging from two to five years. The primary reason for the delay was the defendant’s cooperation in another inmate’s case, to which the defendant agreed; the defendant waited several years to assert the speedy trial right; and there was no prejudice to the defendant, who was already serving a lengthy federal prison sentence. Marshall v. State, 286 Ga. 446, 689 S.E.2d 283, 2010 Ga. LEXIS 118 (2010). Three and a half year delay in bringing a capital case to trial was not caused solely by the state. Although funding ran out to pay the defendant’s preferred attorneys, there were experienced public defenders available; the defendant’s refusal to cooperate with the public defenders impeded the case, as did the defendant’s preferred counsel’s attempts to be reassigned to the case when they knew there was no money to pay them. Weis v. State, 287 Ga. 46, 694 S.E.2d 350, 2010 Ga. LEXIS 277, cert. denied, 562 U.S. 850, 131 S. Ct. 100, 178 L. Ed. 2d 63, 2010 U.S. LEXIS 5992 (2010). Although there was a presumption of prejudice due to the four-year delay with respect to a defendant’s speedy trial rights under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), there was no violation thereof upon analysis of the four factors; the reason for the delay was due to the defendant’s counsel, the defendant did not file a timely demand for a speedy trial, and the defendant did not show prejudice. Brewington v. State, 288 Ga. 520, 705 S.E.2d 660, 2011 Ga. LEXIS 100 (2011). As two defendants’ speedy trial time from the date of the defendants’ mistrial through to the date the defendants’ second dismissal motion was denied was only a little over three months, there was no presumption of prejudice and the defendants’ speedy trial rights were not violated under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. 1, Para. XI(a). Brewington v. State, 288 Ga. 520, 705 S.E.2d 660, 2011 Ga. LEXIS 100 (2011). There was no abuse of the superior court’s discretion in denying the defendant’s motion to dismiss based on alleged violations of the defendant’s constitutional rights to a speedy trial because the superior court expressly found that there was no evidence that the delay was the result of any intentional or deliberate action by the state to hamper the defense and that once the case appeared on a trial calendar, the defendant lengthened the delay by seeking and obtaining a continuance; even if the state’s failure to explain with specificity the state’s role in the delay so as to result in a finding of negligence, when a delay was caused by the mere negligence of the state, that was relatively benign, and therefore, that factor had to be weighed only slightly against the state. Higgenbottom v. State, 290 Ga. 198, 719 S.E.2d 482, 2011 Ga. LEXIS 944 (2011). Defendant’s right to a speedy trial was not violated because at most the delay could be attributed to negligence on the part of the state, which was generally considered to be relatively benign; the state did not deliberately attempt to delay trial in order to hamper the defendant’s defense or to gain a tactical advantage. Williams v. State, 290 Ga. 24, 717 S.E.2d 640, 2011 Ga. LEXIS 865 (2011). Prosecutions following dismissal of
original complaint.
Speedy trial guarantees focus only on pending criminal prosecutions and not on prosecutions following the dismissal of the original complaint. United States v. Puett, 735 F.2d 1331, 1984 U.S. App. LEXIS 20640 (11th Cir. 1984). Delay in transmitting the record of appeal after the defendant’s conviction was not a violation of the defendant’s federal and state constitutional rights to a speedy trial. Crosby v. State, 188 Ga. App. 191, 372 S.E.2d 471, 1988 Ga. App. LEXIS 936 (1988). Right to public trial is subject to
other considerations.
The right to a public trial has uniformly been held to be subject to the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice. Lowe v. State, 141 Ga. App. 433, 233 S.E.2d 807, 1977 Ga. App. LEXIS 1941 (1977).
Partial closure of courtroom.
Trial court did not abuse the court’s discretion by partially closing the courtroom during the victims’ testimonies because the trial court limited the closure by allowing the defendant, the attorneys for the defense and the state, immediate families or guardians of the victims, immediate families or guardians of the defendant, the attorneys’ employees, officers of the court, sheriff’s deputies, and any members of the press to remain in the courtroom, which was acceptable pursuant to the sixth amendment. Pate v. State, 315 Ga. App. 205, 726 S.E.2d 691, 2012 Ga. App. LEXIS 344 (2012), cert. denied, No. S12C1308, 2012 Ga. LEXIS 1027 (Ga. Oct. 1, 2012). Exclusion of certain persons from
courtroom.
Where defendant was charged with, inter alia, child molestation, and the trial court, pursuant to O.C.G.A. § 17-8-54, excluded certain individuals from the courtroom when the victims testified, this was distinguished from a total closure of the courtroom and did not require as rigorous a level of constitutional scrutiny, and defendant’s right to a public trial was not violated. Hunt v. State, 268 Ga. App. 568, 602 S.E.2d 312, 2004 Ga. App. LEXIS 964 (2004), cert. denied, No. S04C1977, 2004 Ga. LEXIS 901 (Ga. Oct. 12, 2004). When a defendant claimed that the defendant’s sixth amendment right to a public trial had been violated by the exclusion of the defendant’s family from the courtroom during voir dire, the trial court was authorized to weigh the credibility of witnesses and to find as fact that bailiffs and court officials did not bar the defendant’s family from the courtroom at that time. Moreover, the defendant had waived the issue by not bringing the matter to the trial court’s attention when the defendant learned of it, which was before the jury was struck, thereby foreclosing the trial court’s ability to rectify the matter with a new jury pool or in any other way. Craven v. State, 292 Ga. App. 592, 664 S.E.2d 921, 2008 Ga. App. LEXIS 820 (2008), cert. denied, No. S08C1939, 2008 Ga. LEXIS 935 (Ga. Oct. 27, 2008). Right to public trial denied when
trial held in county jail.
Defendant was denied the right to a public trial under the sixth amendment of the United States Constitution and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a) when the defendant’s trial was held in a county jail because the produced unrebutted evidence that jail authorities excluded from the jail courtroom the defendant’s brother, a member of the public who wanted to attend the trial; the closure of the courtroom to the brother was neither brief nor trivial as the brother was kept Speedy and Public Trial (Cont’d) 1. In General (Cont’d) out of the courtroom during the entire trial, which involved criminal charges brought against the defendant in regard to a family member, and the trial court, by deciding to hold the defendant’s trial in a facility where the public’s access was governed exclusively by the jail authorities, failed in the court’s obligation to take reasonable measures to accommodate public attendance at the trial. Purvis v. State, 288 Ga. 865, 708 S.E.2d 283, 2011 Ga. LEXIS 248 (2011). Exclusion of spectators because of
witness’s fear of harm.
There is no abuse of discretion of the court in the exclusion of spectators during the testimony of a witness who is in fear of possible harm because of testimony to be given. Lowe v. State, 141 Ga. App. 433, 233 S.E.2d 807, 1977 Ga. App. LEXIS 1941 (1977). Right to fair trial versus rights of public to gain access to hearings in criminal cases. See R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815, 1982 Ga. LEXIS 1165 (1982).
Right to fair trial denied.
The evidence below supported the habeas court’s findings that (1) in failing to seek a continuance the defendant’s counsel rendered ineffective assistance at the defendant’s trial; and (2) counsel’s ineffectiveness so prejudiced the defendant’s case that the defendant was effectively denied the right to a fair trial as guaranteed by the sixth and fourteenth amendments to the United States Constitution. Turpin v. Bennett, 272 Ga. 57, 525 S.E.2d 354, 2000 Ga. LEXIS 22 (2000). Right to public trial not denied by temporary closing of courtroom for
child victim’s testimony.
In a child molestation case, the trial court did not deny the defendant the sixth amendment right to a public trial when the court cleared the courtroom for the testimony of the 17-year-old victim in light of the victim’s fragile emotional and psychological history and the fact that the courtroom was immediately reopened after the victim testified. Mullis v. State, 292 Ga. App. 218, 664 S.E.2d 271, 2008 Ga. App. LEXIS 736 (2008). By failing to challenge the constitutionality of O.C.G.A. § 17-8-54 until after the child victim testified, the defendant waived the right to argue on appeal that the statute violated the defendant’s constitutional right to a public trial. Craven v. State, 292 Ga. App. 592, 664 S.E.2d 921, 2008 Ga. App. LEXIS 820 (2008), cert. denied, No. S08C1939, 2008 Ga. LEXIS 935 (Ga. Oct. 27, 2008).
Closed hearing on motion to suppress.
Sixth amendment right to a public trial was violated where trial court closed entire hearing on motion to suppress and failed both to consider reasonable alternatives to closing the proceedings and to make findings adequate to support the closure. Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31, 1984 U.S. LEXIS 86 (1984).
Effect of court order on resentencing.
The state was not barred from subjecting the defendant to a second capital sentencing trial approximately one year and eight months after the last judicial activity by the federal district court’s 1988 order that “petitioner within 180 days after this order becomes final by failure to appeal or by mandate of the circuit Court of Appeals shall be afforded a new sentencing phase trial, failing which upon motion a writ of habeas corpus discharging [the defendant] from custody shall issue.” Moore v. Zant, 972 F.2d 318, 1992 U.S. App. LEXIS 20476 (11th Cir. 1992), cert. denied, 507 U.S. 1007, 113 S. Ct. 1650, 123 L. Ed. 2d 271, 1993 U.S. LEXIS 2469 (1993). 2. Attachment of Right plies before arrest or indictment, but
United States Const., amend. 5 ap-U.S. Const., amend. 6 applies afterwards.
Delay that occurs between commission of an offense and arrest or indictment may violate the right to due process under U.S. Const., amend. 5. If, however, the delay occurs between arrest or indictment and trial the controlling constitutional provision is U.S. Const., amend. 6’s guarantee of the right to a speedy trial. United States v. Smith, 65 F.R.D. 464, 1974 U.S. Dist. LEXIS 11349 (N.D. Ga. 1974). Due process considerations under U.S. Const., amend. 5 apply to oppressive prearrest and preindictment delay, but the more specific guarantees of U.S. Const., amend. 6 apply to postarrest delay. United States v. Traylor, 578 F.2d 108, 1978 U.S. App. LEXIS 9652 (5th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S. Ct. 848, 59 L. Ed. 2d 41, 1979 U.S. LEXIS 333 (1979). Where the delay in bringing a defendant to trial occurs in the investigative stage before either arrest or indictment, due process, not sixth amendment, standards apply. Andrews v. State, 175 Ga. App. 22, 332 S.E.2d 299, 1985 Ga. App. LEXIS 2768 (1985). Constitutional right attaches upon arrest, while statutory rights attach
upon indictment.
Although O.C.G.A. §§ 17-7-170 and 17-7-171 prescribe a means of asserting one’s right to a speedy trial after indictment, there is a right to a speedy trial under U.S. Const., amend. 6, which attaches at arrest and can be asserted thereafter. Haisman v. State, 242 Ga. 896, 252 S.E.2d 397, 1979 Ga. LEXIS 766 (1979); Glidewell v. State, 169 Ga. App. 858, 314 S.E.2d 924, 1984 Ga. App. LEXIS 2829 (1984). Over and above the provisions of O.C.G.A. § 17-7-170, the Sixth Amendment rights to speedy trial attach upon arrest. Andrews v. State, 175 Ga. App. 22, 332 S.E.2d 299, 1985 Ga. App. LEXIS 2768 (1985). Unlike the statutory protections conferred by O.C.G.A. §§ 17-7-170 and 17-7-171 that attach with formal indictment or accusation, the sixth amendment provides constitutional protection over and above the statutory provisions and under that amendment, the right to a speedy trial attaches upon arrest and can be asserted thereafter; a trial court properly denied defendant’s statutory speedy trial demand where no indictment was filed, but improperly overlooked or failed to consider defendant’s constitutional speedy trial demand, and thus, the trial court’s judgment was vacated and the case was remanded with direction to the trial court to address defendant’s constitutional claims. Smith v. State, 266 Ga. App. 529, 597 S.E.2d 414, 2004 Ga. App. LEXIS 158 (2004). Former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170) is not regarded as affording guidelines in relation to the federal constitutional provisions guaranteeing the right to a speedy trial, being limited to and in a proper case applicable only to the state right. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461, 1967 Ga. App. LEXIS 914 (1967). Question of speedy indictment is an aspect of the right to speedy trial. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1, 1976 Ga. LEXIS 885 (1976).
Applicability of speedy trial provision.
Speedy trial provision of U.S. Const., amend. 6 has no application until the putative defendant in some ways becomes an accused. United States v. Duke, 527 F.2d 386, 1976 U.S.App. LEXIS 12729 (5th Cir.), cert. denied, 426 U.S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1190, 1976 U.S. LEXIS 2184 (1976); Gaylor v. State, 139 Ga. App. 370, 228 S.E.2d 390, 1976 Ga. App. LEXIS 1813 (1976). Defendant’s fifth amendment due process rights and sixth amendment right to a speedy trial were not violated through the bringing of an indictment against the defendant in 1992 for criminal conduct that occurred in 1987. United States v. Lockett, 867 F. Supp. 1044, 1994 U.S. Dist. LEXIS 16441 (M.D. Ga. 1994), aff’d, 70 F.3d 126, 1995 U.S. App. LEXIS 32870 (11th Cir. 1995). ment and prearrest delay does not invoke the protections of U.S. Const., amend. 6. Gaylor v. State, 139 Ga. App. 370, 228 S.E.2d 390, 1976 Ga. App. LEXIS 1813 (1976). Confinement in administrative segregation is not an arrest or an accusal for purposes of U.S. Const., amend. 6. United States v. Blevins, 593 F.2d 646, 1979 U.S. App. LEXIS 15260 (5th Cir. 1979). vestigate, and accuse any person within any particular period of time. Gaylor v. State, 139 Ga. App. 370, 228 S.E.2d 390, 1976 Ga. App. LEXIS 1813 (1976). Preindictment or prearrest delay
Defendant’s claim of a preindict-Speedy trial provisions do not require the government to discover, innot a denial of speedy trial.
If the delay to which complaint is made occurred Speedy and Public Trial (Cont’d) 2. Attachment of Right (Cont’d) prior to indictment or arrest, there is no denial of the right to a speedy trial. Armour v. State, 140 Ga. App. 196, 230 S.E.2d 346, 1976 Ga. App. LEXIS 1402 (1976). Due process standards apply to
preindictment delay.
Where a post-arrest, preindictment delay occurs in the investigative stage before either arrest or indictment, due process, not U.S. Const., amend. 6, standards apply. Haisman v. State, 242 Ga. 896, 252 S.E.2d 397, 1979 Ga. LEXIS 766 (1979); State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638, 1980 Ga. App. LEXIS 3016 (1980). Statute of limitations is primary
protection against preaccusation delay.
The primary guarantee against prosecutorial delay in seeking an indictment being the applicable statute of limitations, the government has no duty to discover, investigate, and accuse any person within any particular period of time. A case can be dismissed for preaccusation delay, but only if the defense shows actual prejudice and demonstrates that the delay was an intentional device by the prosecution to gain a tactical advantage. United States v. Duke, 527 F.2d 386, 1976 U.S. App. LEXIS 12729 (5th Cir.), cert. denied, 426 U.S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1190, 1976 U.S. LEXIS 2184 (1976). When speedy trial protections are
engaged.
It is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage particular protections of the speedy trial provisions of U.S. Const., amend. 6. Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205, 1975 U.S. LEXIS 97 (1975); Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839, 1975 Ga. LEXIS 1206 (1975); Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1, 1976 Ga. LEXIS 885 (1976); Armour v. State, 140 Ga. App. 196, 230 S.E.2d 346, 1976 Ga. App. LEXIS 1402 (1976); United States v. Duke, 527 F.2d 386, 1976 U.S. App. LEXIS 12729 (5th Cir.), cert. denied, 426 U.S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1190, 1976 U.S. LEXIS 2184 (1976); United States v. Byrum, 540 F.2d 833, 1976 U.S. App. LEXIS 6657 (5th Cir. 1976), cert. denied, 429 U.S. 1076, 97 S. Ct. 819, 50 L. Ed. 2d 796, 1977 U.S. LEXIS 561 (1977); United States v. Pitts, 569 F.2d 343, 1978 U.S. App. LEXIS 12192 (5th Cir.), cert. denied, 436 U.S. 959, 98 S. Ct. 3076, 57 L. Ed. 2d 1125, 1978 U.S. LEXIS 2219 (1978); Haisman v. State, 242 Ga. 896, 252 S.E.2d 397, 1979 Ga. LEXIS 766 (1979); Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634, 1979 Ga. App. LEXIS 2388 (1979); United States v. Blevins, 593 F.2d 646, 1979 U.S. App. LEXIS 15260 (5th Cir. 1979); State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638, 1980 Ga. App. LEXIS 3016 (1980); United States v. Nixon, 634 F.2d 306, 1981 U.S. App. LEXIS 20934 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103, 1981 U.S. LEXIS 3238 (1981). Time is not to be measured from the time of initial arrest but from the time the petitioner is accused of the crime he is challenging. United States v. Nixon, 634 F.2d 306, 1981 U.S. App. LEXIS 20934 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103, 1981 U.S. LEXIS 3238 (1981). The speedy trial clause does not attach at the time of an earlier arrest simply because the indictment for the present offense arises from the same activities that formed the basis of the earlier arrest. United States v. Derose, 74 F.3d 1177, 1996 U.S. App. LEXIS 2198 (11th Cir.), modified, No. 94-8730 (11th Cir. 1996). But if crimes for which a defendant is ultimately prosecuted really only dant’s initial arrest and the different accusatorial dates between them are not reasonably explicable, the initial arrest may well mark the speedy trial provision’s applicability as to prosecution for all the interrelated offenses. United States v. Nixon, 634 F.2d 306, 1981 U.S. App. LEXIS 20934 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103, 1981 U.S. LEXIS 3238 (1981). Dismissal of indictment as tolling
gild the charge underlying the defenspeedy trial requirements.
Dismissing an indictment does not toll the speedy trial calendar when the next indictment is for precisely the same offense and the same transaction. United States v. Nixon, 634 F.2d 306, 1981 U.S. App. LEXIS 20934 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103, 1981 U.S. LEXIS 3238 (1981). ing Speedy Trial Assertion of right is a consideration in determining violation of right to
3. Burden of Requesting and Provid-speedy trial.
U.S. Const., amend. 6 is an independent guaranty of the right to a speedy trial, and the defendant’s assertion or failure to assert the defendant’s statutory right under former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170) is simply one of the factors to be considered in determining whether the right under U.S. Const., amend. 6 has been impinged. Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597, 1974 Ga. App. LEXIS 1749 (1974). Former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170) may prescribe a means of asserting one’s right to a speedy trial after indictment, the accused has a right under U.S. Const., amend. 6 to a speedy trial, which right attaches at arrest and can be asserted thereafter. Defendant’s preindictment failure to assert this right will be weighed against the defendant. State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638, 1980 Ga. App. LEXIS 3016 (1980). Although a pretrial delay of over five years in a child molestation case was uncommonly long and was mostly attributable to the negligence of the state, the defendant’s failure to file a statutory demand for speedy trial and the delay of five years, and 21 calendar calls, in asserting the defendant’s right weighed heavily against the defendant. Denial of the defendant’s motion to dismiss the indictment was proper. Stewart v. State, 310 Ga. App. 551, 713 S.E.2d 708, 2011 Ga. App. LEXIS 609 (2011). bility to assert the right to a speedy trial, the assertion of or failure to assert that right is a factor to be considered in an inquiry into the deprivation of the right. The defendant’s assertion of that right would be entitled to strong evidentiary weight in determining whether the defendant has been deprived of the right. The failure to assert the right to a speedy trial would make it difficult to prove that the defendant was denied that right. Powell v. State, 143 Ga. App. 684, 239 S.E.2d 560, 1977 Ga. App. LEXIS 2463 (1977). Although defendant has no duty to bring the case to trial, failure to assert the right will make it difficult for a defendant to prove that the defendant was denied a speedy trial. United States v. Edwards, 577 F.2d 883, 1978 U.S. App. LEXIS 9854 (5th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 458, 58 L. Ed. 2d 427, 1978 U.S. LEXIS 3851 (1978). Regardless of the procedures mandated for a statutory demand for speedy trial, under O.C.G.A. § 17-7-170(a), a defendant has the right to assert a constitutional speedy trial demand any time after arrest. Hester v. State, 268 Ga. App. 94, 601 S.E.2d 456, 2004 Ga. App. LEXIS 856 (2004), cert. denied, No. S04C1830, 2004 Ga. LEXIS 875 (Ga. Sept. 27, 2004). Trial court erred in declining to find a defendant’s failure to assert the speedy trial right weighed against the defendant as the defendant was represented by counsel. State v. Thaxton, 311 Ga. App. 260, 715 S.E.2d 480, 2011 Ga. App. LEXIS 689 (2011). Accused has some duty to alleviate
While an accused has no responsistress of waiting for trial.
Although it is true that an accused who suffers emotional stress while awaiting the disposition of the charges against the accused is inherently prejudiced, the accused has some obligation to attempt to alleviate this stress by requesting a speedy trial or filing a statutory demand for trial pursuant to § 17-7-170. Cravey v. State, 147 Ga. App. 29, 248 S.E.2d 13, 1978 Ga. App. LEXIS 2602 (1978). In a capital case, where a pro se defendant filed what was claimed to be a statutory speedy trial demand but that actually invoked the sixth amendment speedy trial provisions, the statutory right to a speedy trial under O.C.G.A. § 17-10-170 was not properly asserted. Bonakies v. State, 263 Ga. App. 812, 589 S.E.2d 573, 2003 Ga. App. LEXIS 1140 (2003), cert. dismissed, No. S04C0560, 2004 Ga. LEXIS 203 (Ga. Mar. 1, 2004). It is the state’s responsibility, not the defendant’s, to assure a case is Speedy and Public Trial (Cont’d) 3. Burden of Requesting and Providing Speedy Trial (Cont’d) promptly brought to trial. State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829, 1976 Ga. App. LEXIS 2585 (1976). Where no reason appears for a delay in bringing an accused to trial, a court must treat the delay as caused by the negligence of the state in bringing the case to trial. Hester v. State, 268 Ga. App. 94, 601 S.E.2d 456, 2004 Ga. App. LEXIS 856 (2004), cert. denied, No. S04C1830, 2004 Ga. LEXIS 875 (Ga. Sept. 27, 2004). Duty to provide a speedy trial does not impose a paramount legal burden on the state, but is simply the logical syntactical reconciliation of the two rights: since society has the right to try the defendant and the defendant has the right to be tried quickly, if society tries the defendant, it must do so quickly, particularly if the defendant has asserted the right; but since both parties do stand alike at the beginning, when both parties stand alike in their respective failures to provide and assert the right to speedy trial, then because of the peculiar nature of the individual’s right to speedy trial as one whose deprivation can definitely work to the defendant’s advantage, the weight of the equities generally lies naturally with society and its right to try the criminal defendant. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980). Constitutional right of defendant charged with vehicular homicide and hit and run to a speedy trial was violated when defendant was not indicted for three years, without explanation, and two additional years of delay between defendant’s indictment and a possible trial were attributable to the state, despite defendant’s five-year delay in demanding a speedy trial because defendant’s delay was mitigated by the delay in indicting the defendant and by the delay in appointing counsel for the defendant until the statutory time for demanding a speedy trial, under O.C.G.A. § 17-7-170(a). Hester v. State, 268 Ga. App. 94, 601 S.E.2d 456, 2004 Ga. App. LEXIS 856 (2004), cert. denied, No. S04C1830, 2004 Ga. LEXIS 875 (Ga. Sept. 27, 2004). Defendant is held to have some responsibility to assert a speedy trial claim even though it is the state’s duty to bring the defendant to trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980). Weighing the state’s negligent delay in bringing defendant to trial against defendant’s failure to timely assert a sixth amendment right to a speedy trial and defendant’s failure to show that the delay impaired the defense, the trial court did not err in denying defendant’s motion to dismiss the indictment. Smith v. State, 275 Ga. 261, 564 S.E.2d 441, 2002 Ga. LEXIS 482 (2002). Defendant’s rights to a speedy trial may be implemented by a written demand for trial under former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170). Underhill v. State, 129 Ga. App. 65, 198 S.E.2d 703, 1973 Ga. App. LEXIS 879 (1973).
Noncompliance with statutory procedures for demanding speedy trial.
— Where the defendant is not within the purview of the provisions relating to demand for trial by persons serving a term of imprisonment in a Georgia penal institution (see O.C.G.A. § 42-6-3), nor does the record show compliance with former Code 1933, §§ 27-1901, 27-2001, or 27-2002 (see O.C.G.A. §§ 17-7-170, 17-8-21, or 17-8-33), the defendant is not denied the right to a speedy trial within the meaning of Ga. Const. 1945, Art. I, Sec. I, Para. V (see Ga. Const. 1983, Art. I, Sec. I, Para. XI, XIV) or U.S. Const., amend. 6 when the trial is delayed after the defendant withdraws the guilty plea. Butler v. State, 126 Ga. App. 22, 189 S.E.2d 870, 1972 Ga. App. LEXIS 1031 (1972). While the burden is on defendant to protect the defendant’s statutory rights for a speedy trial, by making a timely demand for trial under former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170), his failure in doing so does not, of itself, work a waiver of rights under U.S. Const., amend. 6. Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597, 1974 Ga. App. LEXIS 1749 (1974). Defendant’s direct appeal from the denial of a speedy trial motion to dismiss lay given the state of Georgia law; however, the motion was properly denied because defendant, who had been incarcerated in the interim period, was equally responsible for the pretrial delay, never asserted the right to trial, never requested disposition of the subject offenses, suffered no prejudice, and did not suffer oppressive pretrial incarceration. Lamar v. State, 262 Ga. App. 735, 586 S.E.2d 416, 2003 Ga. App. LEXIS 1005 (2003). ment is not assertion of right to
Motion to dismiss or quash indictspeedy trial.
Motion to dismiss or quash indictment for denial of speedy trial, which did not request an immediate trial, is not a demand for trial and is not an assertion of the right to speedy trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980). State’s duty upon assertion of
speedy trial right.
There is a duty on the state to make a diligent, good-faith effort to bring the accused before the appropriate state court for trial, provided the accused has made a sufficient demand for a trial, in order not to violate the speedy trial requirement of U.S. Const., amend. 6. May v. Georgia, 409 F.2d 203, 1969 U.S. App. LEXIS 13171 (5th Cir. 1969). The state has a duty, under the sixth amendment as made applicable by the fourteenth amendment, to make a diligent, good-faith effort to bring defendants to trial in Georgia notwithstanding trial and incarceration for a federal offense in another state; where the state timely initiated a request for the appellant’s release, especially after the date when the appellant filed a demand to dismiss or for immediate trial, the state satisfied its duty. Obiozor v. State, 213 Ga. App. 523, 445 S.E.2d 553, 1994 Ga. App. LEXIS 638 (1994). Error in applying the speedy trial
test.
Trial court erred in granting defendant’s motion to dismiss the indictment on speedy trial grounds as the trial court miscalculated the length of the delay; improperly considered the state’s preindictment, pre-arrest inaction for purposes of evaluating the reasons for the delay; failed to weigh the defendant’s assertions of the right to speedy trial; and erred in finding that the defense was substantially impaired by the death of the defendant’s sister. State v. Gay, 321 Ga. App. 92, 741 S.E.2d 217, 2013 Ga. App. LEXIS 327 (2013).
Insufficient evidence to show denial of speedy trial.
Constitutional right to a speedy trial did not require granting of defendant’s motion for discharge and acquittal where, inter alia, all but a couple of months of the time defendant was incarcerated before trial was attributable to service of other sentences, there was no evidence of defendant’s anxiety and concern, and there was no evidence that defendant’s defense was impaired as none of the witnesses who testified at the first trial were allegedly unavailable. Weldon v. State, 262 Ga. App. 782, 586 S.E.2d 452, 2003 Ga. App. LEXIS 1024 (2003). Defendant’s motion for a new trial was denied as defendant failed to obtain defendant’s lawyer’s testimony as to why defendant failed to tender the police report to impeach a detective’s testimony; defendant failed to carry the burden of establishing that the purported deficiency in trial counsel’s representation was indicative of ineffectiveness and was not an example of a conscious and deliberate trial strategy. McPetrie v. State, 263 Ga. App. 85, 587 S.E.2d 233, 2003 Ga. App. LEXIS 1118 (2003), overruled in part, McClure v. State, 306 Ga. 856, 834 S.E.2d 96, 2019 Ga. LEXIS 643 (2019). Superior court abused its discretion in dismissing an indictment on speedy trial grounds, despite a five-year delay in bringing the defendant to trial, which was held to be excessively long and not to be excused; however, because the delay was caused by the state’s negligence or other court-related circumstances which were not to be weighed heavily against the state, given the defendant’s failure to assert a speedy trial violation or show prejudice from the same, dismissal of the indictment was reversed. State v. Giddens, 280 Ga. App. 586, 634 S.E.2d 526, 2006 Ga. App. LEXIS 904 (2006). That a defendant never asserted a statutory right to a speedy trial, agreed to some continuances, never objected to oth-Speedy and Public Trial (Cont’d) 3. Burden of Requesting and Providing Speedy Trial (Cont’d) ers, and never acted on the trial court’s invitation to file an out-of-time speedy trial demand, established that the defendant did not timely and vigilantly assert the defendant’s constitutional right to a speedy trial. Therefore, the defendant’s motion to dismiss on speedy trial grounds was properly denied. Bowling v. State, 285 Ga. 43, 673 S.E.2d 194, 2009 Ga. LEXIS 47 (2009). There was no abuse of the superior court’s discretion in denying the defendant’s motion to dismiss based on alleged violations of the defendant’s constitutional rights to a speedy trial because the defendant did not make an unusual showing of anxiety and concern, which were always present to some extent during the pendency of a criminal prosecution. Higgenbottom v. State, 290 Ga. 198, 719 S.E.2d 482, 2011 Ga. LEXIS 944 (2011). 4. Prejudice from Delay
Where no trial demand, only question presented is whether pretrial delay constitutional.
Where the defendant files no demand for trial pursuant to O.C.G.A. § 17-7-170, the only question presented is whether the delay between the defendant’s arrest and the commencement of the defendant’s trial is a violation of the defendant’s sixth amendment right to a speedy trial. Mullins v. State, 167 Ga. App. 670, 307 S.E.2d 61, 1983 Ga. App. LEXIS 2573 (1983). Length of the delay is the threshold
triggering mechanism.
No inquiry into the other factors is required unless there has been a delay of such length as to be presumptively prejudicial. United States v. Hill, 622 F.2d 900, 1980 U.S.App. LEXIS 15192 (5th Cir. 1980). Absence of prejudice does not by itself preclude a finding of a speedy trial violation, but balanced against factors that themselves only weakly support a speedy trial violation, the absence of prejudice is dispositive. Glidewell v. Burden, 822 F.2d 1027, 1987 U.S. App. LEXIS 9929 (11th Cir. 1987), cert. denied, 484 U.S. 1018, 108 S. Ct. 727, 98 L. Ed. 2d 676, 1988 U.S. LEXIS 47 (1988).
Effect of delay depends on circumstances.
Whether a delay between indictment and trial violates the constitutional right to a speedy trial depends on the circumstances. Hughes v. State, 228 Ga. 593, 187 S.E.2d 135, 1972 Ga. LEXIS 858 (1972). Defendant is required to show more than a mere claim of prejudice in the right to a speedy trial. Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509, 1980 Ga. App. LEXIS 2327 (1980). Denial of speedy trial may work to a defendant’s advantage, and therefore there is no per se prejudice to a defendant from delay. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1, 1976 Ga. LEXIS 885 (1976); Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64, 1976 Ga. App. LEXIS 1362 (1976); Natson v. State, 242 Ga. 618, 250 S.E.2d 420, 1978 Ga. LEXIS 1303 (1978), cert. denied, 441 U.S. 925, 99 S. Ct. 2036, 60 L. Ed. 2d 399, 1979 U.S. LEXIS 1667 (1979); State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980).
Kinds of prejudice which may result from delay.
A defendant might be prejudiced by a delay in being brought to trial by lengthy pretrial incarceration, by a substantial impairment of the defendant’s defense, and by being subjected to public scorn and personal anxiety. United States v. Dyson, 469 F.2d 735, 1972 U.S. App. LEXIS 6828 (5th Cir. 1972); United States v. Hill, 622 F.2d 900, 1980 U.S.App. LEXIS 15192 (5th Cir. 1980). Constitutional right of defendant charged with vehicular homicide and hit and run to a speedy trial was violated when defendant was not indicted for three years, without explanation, and two additional years of delay between defendant’s indictment and a possible trial were attributable to the state, as defendant showed actual prejudice due to the intervening death of an exculpatory witness, and the trial court’s ruling that the preservation of this witness’s statement in writing eliminated any prejudice ignored the dry impact of such written testimony as compared to a live witness. Hester v. State, 268 Ga. App. 94, 601 S.E.2d 456, 2004 Ga. App. LEXIS 856 (2004), cert. denied, No. S04C1830, 2004 Ga. LEXIS 875 (Ga. Sept. 27, 2004). Death of a witness impacting
speedy trial rights.
There was no abuse of the superior court’s discretion in denying the defendant’s motion to dismiss based on alleged violations of the defendant’s constitutional right to a speedy trial because the defendant failed to show that the superior court was in error in finding that the defendant made no showing of actual prejudice to the defense due to the death of the doctor who performed the autopsy on the victim; any impact on the case by the doctor’s death existed prior to the attachment of the defendant’s constitutional rights to a speedy trial, and the state was willing to stipulate to the admission of the doctor’s autopsy report. Higgenbottom v. State, 290 Ga. 198, 719 S.E.2d 482, 2011 Ga. LEXIS 944 (2011). Substantial actual prejudice must
be shown as to postarrest, preindictment delay.
While postarrest, preindictment delay is within the scope of the speedy trial guarantee, a substantial showing of actual prejudice is required to establish a violation of U.S. Const., amend. 6. United States v. Zane, 489 F.2d 269, 1973 U.S. App. LEXIS 6380 (5th Cir. 1973), cert. denied, 416 U.S. 959, 94 S. Ct. 1975, 40 L. Ed. 2d 310, 1974 U.S. LEXIS 468 (1974); United States v. Traylor, 578 F.2d 108, 1978 U.S. App. LEXIS 9652 (5th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S. Ct. 848, 59 L. Ed. 2d 41, 1979 U.S. LEXIS 333 (1979). Delay must be shown to be purpose-
ful, oppressive, or prejudicial.
To sustain a prisoner’s contention that there was a violation of the constitutional right to a speedy trial, not only must delay be shown, but that such delay was purposeful, oppressive, or prejudicial. Johnson v. Smith, 227 Ga. 611, 182 S.E.2d 101, 1971 Ga. LEXIS 796 (1971); Hughes v. State, 228 Ga. 593, 187 S.E.2d 135, 1972 Ga. LEXIS 858 (1972); Crapse v. State, 180 Ga. App. 321, 349 S.E.2d 190, 1986 Ga. App. LEXIS 2728 (1986). Incarceration during the delay was oppressive and produced debilitating
anxiety.
Dismissal of malice murder and arson case for a constitutional speedy trial violation was affirmed because, in the four-year delay in bringing the case to trial after earlier convictions were reversed on appeal, the defendant’s eight-month incarceration during the delay was oppressive and produced debilitating anxiety, because two defense witnesses had died during the delay, because another defense witness, the defendant’s parent, had developed dementia and other ailments related to age, because the burned house had been destroyed, and where the defendant’s failure to assert the defendant’s speedy trial right earlier was due to the representations of the state concerning a new arson expert. State v. Carr, 278 Ga. 124, 598 S.E.2d 468, 2004 Ga. LEXIS 527 (2004). Unexcused denial of assertion of speedy trial right is prejudice per se. — Upon defendant’s bona fide assertion of the right to a speedy trial, the unexcused denial of it by the state is generally prejudice per se. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980).
Prejudice must be shown.
Since mere delay, even if unexcused, does not alone prejudice the defendant’s ability to defend, and since the defendant may be only too delighted to have the trial delayed, before the defendant is held deprived of the right to a speedy trial and there ensues the unsatisfactorily severe remedy of dismissal of the indictment with the serious consequence that a defendant who may be guilty of a serious crime will go free, without having been tried, the defendant must show some actual substantial prejudice to the defendant. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980). Claim that defense counsel was ineffective for failing to prevent a letter written by a jailhouse informant from going into the jury room during deliberations failed because the defendant failed to show that there was a reasonable probability that the outcome of the trial would have been different since the contents of the letter were not particularly harmful to the defendant. Young v. State, 292 Ga. 443, 738 S.E.2d 575, 2013 Ga. LEXIS 148 (2013). Even assuming counsel’s failure to object to testimony that a photo lineup made Speedy and Public Trial (Cont’d) 4. Prejudice from Delay (Cont’d) up of photos of persons who had been arrested constituted deficient performance, the defendant failed to show prejudice because there was other testimony of the defendant’s bad character admitted without objection. Thornton v. State, 292 Ga. 796, 741 S.E.2d 641, 2013 Ga. LEXIS 328 (2013). Pretermitting whether trial counsel was deficient for failing to object to a question propounded by the prosecutor in which the defendant contended the prosecutor stated the prosecutor’s opinion of the defendant’s guilt, because an objection to the prosecutor’s question as posed would not have changed the outcome of the case given the substantial evidence of the defendant’s guilt, the defendant’s ineffective assistance of counsel claim was without merit. Thompson v. State, 294 Ga. 693, 755 S.E.2d 713, 2014 Ga. LEXIS 173 (2014). Unexcused delay is prima facie
prejudicial.
Where the delay in bringing a defendant to trial is not only excessive, but the result of unexcused inaction or misconduct by the government, it is prima facie prejudicial, and the burden then shifts to the government to demonstrate that defendant has not been prejudiced by the delay. United States v. Dyson, 469 F.2d 735, 1972 U.S. App. LEXIS 6828 (5th Cir. 1972). To constitute prejudice, faded memory must affect material fact in
issue.
Although faded memory may result in prejudice, in order to prejudice the defense to the extent necessary to constitute a speedy trial violation, the faded memory must substantially relate to a material fact in issue. United States v. Edwards, 577 F.2d 883, 1978 U.S. App. LEXIS 9854 (5th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 458, 58 L. Ed. 2d 427, 1978 U.S. LEXIS 3851 (1978). For one already in custody, the event triggering scrutiny is the indictment. The defendant demonstrates a violation of the right to a speedy trial only if the defendant can show that the delay prior to accusal caused substantial prejudice to the right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. United States v. Manetta, 551 F.2d 1352, 1977 U.S. App. LEXIS 13418 (5th Cir. 1977). Extraordinary delay, without reason shown by the record, is overcome when no prejudice is shown and the petitioner did not want a speedy trial. Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839, 1975 Ga. LEXIS 1206 (1975). Where delay primarily caused by
defendant, speedy trial rights not violated.
There is no violation of due process in respect to a speedy trial when substantially all of the delay in bringing the defendant to trial appears to be directly or indirectly attributable to the conduct of the defendant. Mays v. State, 229 Ga. 609, 193 S.E.2d 825, 1972 Ga. LEXIS 699 (1972).
Delay caused by negligence or overcrowding of courts.
Under U.S. Const., amend. 6, reasons for delay, such as negligence or overcrowded courts, should be weighed less heavily against the government than deliberate delay for the purpose of hampering the defense. State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829, 1976 Ga. App. LEXIS 2585 (1976). While a deliberate attempt by the prosecution to delay the trial in order to hamper the defense is weighed heavily against the government, an overcrowded docket is considered to be a more neutral reason although it cannot be overlooked. Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509, 1980 Ga. App. LEXIS 2327 (1980). Dead docket device may not be used to delay the trial over the defendant’s objection. Where mere lapse of time, less than that set out in the statute of limitations, is involved, and the defendant has not objected to the case being dead docketed, and has made no demand for early trial, it will take a showing of prejudice to the defendant’s interests or oppressive and harassing tactics by the government to justify a finding of encroachment on the constitutional right to a speedy trial. Three such interests have been identified: prevention oppressive pretrial incarceration; minimizing anxiety and concern of the accused; and limiting the possibility that the defense will be impaired. Underhill v. State, 129 Ga. App. 65, 198 S.E.2d 703, 1973 Ga. App. LEXIS 879 (1973). Right to a speedy trial has not been abridged where the delay is not excessive, the delay was not deliberate so as to hamper the defense, defendant did not assert right to a speedy trial during the delay, and where defendant’s interest has not been prejudiced. State v. Weeks, 136 Ga. App. 637, 222 S.E.2d 117, 1975 Ga. App. LEXIS 1447 (1975). Where the defendant is not in confinement, does not demand trial, has shown no actual prejudice, and the record does not demonstrate the delay is deliberate or taken for purpose of tactical advantage over the defendant, a delay of approximately 23 months between arrest and indictment did not violate defendant’s right to a speedy trial. State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638, 1980 Ga. App. LEXIS 3016 (1980). Delay attributable to hiring four
different counsel.
Defendant’s right to a speedy trial was not violated, where although the delay was approximately 22 months, much of that was attributable to the defendant’s hiring and discharging four different counsel prior to the final appointment, the defendant did not assert the defendant’s demand for trial until almost a year after indictment, and trial commenced ten months thereafter. Lynott v. State, 198 Ga. App. 688, 402 S.E.2d 747, 1991 Ga. App. LEXIS 265 (1991). Trial court did not abuse the court’s discretion in denying the defendant’s motion to dismiss an indictment on constitutional speedy trial grounds because the court applied the proper framework for analyzing the speedy trial issue, and the evidence supported the trial court’s findings that the two years prior to indictment were used for investigation and that the defendant did not experience any unusual anxiety and concern beyond that which necessarily accompanied serious pending charges; the trial court’s finding of no oppressive pretrial incarceration was correct because the defendant was released on bond less than three weeks after the defendant’s arrest, and the delay, though long, was reasonable under the circumstances and in light of the scientific evidence involved. Sweatman v. State, 287 Ga. 872, 700 S.E.2d 579, 2010 Ga. LEXIS 636 (2010).
Indictment sealed beyond limitations period not automatically prejudicial.
The court improperly dismissed the indictment, which was returned against the defendant in October, 1982, but which remained sealed beyond the limitations period, until February 1984, when the defendant was taken into custody. Although the government did not seriously attempt to find the defendant, the defendant was not impaired in asserting the right to a speedy trial and, consequently, had to show actual prejudice. That the indictment was sealed beyond the limitation period could be figured into the prejudice decision, but that fact alone did not dictate a finding of prejudice. United States v. Mitchell, 769 F.2d 1544, 1985 U.S. App. LEXIS 21497 (11th Cir. 1985), cert. denied, 474 U.S. 1066, 106 S. Ct. 819, 88 L. Ed. 2d 792, 1986 U.S. LEXIS 2455 (1986), cert. denied, 475 U.S. 1028, 106 S. Ct. 1230, 89 L. Ed. 2d 339, 1986 U.S. LEXIS 476 (1986); 475 U.S. 1028, 106 S. Ct. 1230, 89 L. Ed. 2d 339 (1986).
Dismissal of indictment for preindictment delay.
Since an applicable statute of limitations does not fully define accused’s rights with respect to the events occurring prior to indictment, due process would require dismissal of the indictment if it were shown at trial that preindictment delay caused substantial prejudice to accused’s rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. State v. Hight, 156 Ga. App. 246, 274 S.E.2d 638, 1980 Ga. App. LEXIS 3016 (1980). Dismissal is required for prearrest or preindictment delay under the due process clause when it is shown that the delay caused actual substantial prejudice to defendant’s right to a fair trial and that the delay was an intentional device to gain a tactical advantage. Hammond v. State, 157 Ga. App. 647, 278 S.E.2d 188, 1981 Ga. App. LEXIS 1951 (1981).
Reason for delay.
Because of extreme delay (seven years) in bringing case to trial, state’s lack of any apparent, ar-Speedy and Public Trial (Cont’d) 4. Prejudice from Delay (Cont’d) ticulable reason for delay, and consequent impairment of appellant’s case, appellant’s sixth amendment due process right was violated by deprivation of a speedy trial. Lett v. State, 164 Ga. App. 584, 298 S.E.2d 541, 1982 Ga. App. LEXIS 3329 (1982). Defendant was denied the right to counsel of defendant’s own choosing and obtained a reversal of defendant’s conviction for aggravated assault, aggravated battery, and possession of a firearm, as a result of the trial court judge denying defendant’s motion for a continuance, which was grounded on the fact that defendant’s retained counsel was hospitalized the trial court failed to make an inquiry as to whether the absence of defense counsel was attributable to defendant and merely stated that because appointed counsel was in the courtroom, defendant was adequately represented. Turman v. State, 272 Ga. App. 570, 613 S.E.2d 126, 2005 Ga. App. LEXIS 237 (2005). When defendant was one of the people indicted in a multiple-murder case in which the state sought capital punishment, defendant did not show that a 38month delay between defendant’s indictment and trial was “presumptively prejudicial,” because it was necessary for each co-indictee to be tried separately, and this triggered the state’s statutory right, under O.C.G.A. § 17-8-4, to elect which defendant to try first; therefore, when the state elected to try defendant co-indictee first, defendant’s case was prosecuted with the promptness customary for death penalty cases involving multiple defendants, and the trial court did not have to balance the factors considered in deciding whether defendant’s right to a speedy trial was violated, given the lack of presumptive prejudice. Wimberly v. State, 279 Ga. 65, 608 S.E.2d 625, 2005 Ga. LEXIS 109 (2005). When defendant, who was initially indicted for the burglary of victims who died when their house burned down, later admitted involvement in their deaths, resulting in a new indictment for murder, arson, and other offenses, as well as the original burglary, while a 62-month delay after the new indictment was presumptively prejudicial, as was the delay of another year after the original indictment, the lack of the state’s deliberate act causing the delay, defendant’s withdrawal of defendant’s speedy trial demand, and the lack of a showing that defendant’s defense was impaired by the delay indicated that it was not error to deny defendant’s motion to dismiss the indictments. Williams v. State, 279 Ga. 106, 610 S.E.2d 32, 2005 Ga. LEXIS 135 (2005). Trial court properly denied defendant’s motion to dismiss the indictment against him because defendant never filed an effective statutory demand for a speedy trial and, as to defendant’s constitutional right to a speedy trial, the 68-month delay was presumed prejudicial, but defendant prolonged the proceedings due to defendant’s own issues with retaining counsel, including defendant’s original counsel obtaining various leaves of absences due to illness and defendant’s unsuccessful efforts to retain other private counsel. Henderson v. State, 290 Ga. App. 427, 662 S.E.2d 652, 2008 Ga. App. LEXIS 328 (2008), cert. denied, No. S08C1274, 2008 Ga. LEXIS 610 (Ga. June 16, 2008). Defendant’s constitutional right to a speedy trial was not violated even though delay was for two years, three months, and ten days, of which the defendant was incarcerated, where there was no evidence that a deliberate attempt to delay the trial in order to hamper the defense was shown, to a considerable extent the delay was attributable to the defense, the defendant did not assert in the criminal case the constitutional right to a speedy trial, and the defendant’s only assertion of prejudice was the death of a character witness. Perry v. Mitchell, 253 Ga. 593, 322 S.E.2d 273, 1984 Ga. LEXIS 1019 (1984). Vague assertions of faded memory and lost witnesses without connecting the loss to any material fact in issue will not satisfy the requirement that actual prejudice be demonstrated to establish a violation of the right to a speedy trial. United States v. Burke, 673 F. Supp. 1574, 1986 U.S. Dist. LEXIS 28482 (N.D. Ga. 1986), aff’d, 856 F.2d 1492, 1988 U.S. App. LEXIS 13983 (11th Cir. 1988), cert. denied, 492 U.S. 908, 109 S. Ct. 3222, 106 L. Ed. 2d 571, 1989 U.S. LEXIS 3245 (1989). Denial of defendant’s motion to dismiss for an alleged violation of defendant’s speedy trial right based on a more than three-year delay after defendant’s initial arrest was proper where there was no deliberate attempt to delay the trial to hamper the defense, where defendant was incarcerated for a few days and then released on bond, where defendant’s burdens of mental anguish and defendant’s claim that the case hurt defendant economically fell short of establishing an unusual showing that balanced this factor significantly in defendant’s favor, where, since, in criminal cases, a child was automatically competent to testify as to molestation, defendant showed no prejudice by defendant’s assertion that the child victims were more vulnerable to a competency challenge when they were younger, where defendant’s speculation that the people who had moved out of state might have been alibi witnesses fell short of “specific evidence” to weight this factor in defendant’s favor, and where defendant failed to assert timely speedy trial rights and failed to show that defendant’s defense was impaired. Watkins v. State, 267 Ga. App. 684, 600 S.E.2d 747, 2004 Ga. App. LEXIS 760 (2004). Presumption of prejudice raised by the state’s 25-month delay in bringing defendant’s case to trial was sufficiently rebutted as the loss of a witness did not prevent defendant from asserting an alibi defense and defendant was partially responsible for the loss of the witness as defendant waited 15 months after the indictment to assert defendant’s speedy trial rights. Salahuddin v. State, 277 Ga. 561, 592 S.E.2d 410, 2004 Ga. LEXIS 65 (2004). Trial court’s denial of defendant’s motion for discharge and acquittal on constitutional speedy trial grounds was proper because, while the first two Barker factors weighed in favor of defendant, defendant did not assert constitutional rights until trial was imminent, despite ample time to do so, defendant did not show that the defense was impaired by the 29-month delay between arrest and trial, defendant did not show any prejudice from the delay, there was no evidence that the delay was the result of a deliberate attempt by the state to hamper the defense, and defendant had been released on bond on the same day as the arrest. Nusser v. State, 275 Ga. App. 896, 622 S.E.2d 105, 2005 Ga. App. LEXIS 1139 (2005). Because the short delay attributable to the state did not have any demonstrable harmful effect on the defense against two murder charges and because defendant was dilatory in formally asserting the right to a speedy trial under the sixth amendment and the Georgia Constitution, the trial court correctly denied defendant’s motion to dismiss the indictments. Scandrett v. State, 279 Ga. 632, 619 S.E.2d 603, 2005 Ga. LEXIS 511 (2005). Trial court did not err by denying a defendant’s motion to dismiss based on an alleged violation of the defendant’s constitutional right to a speedy trial because the various appeals by the defendant and the state constituted valid reasons for significant periods of delay in the trial, part of the delay was inherent since the case involved a death penalty prosecution, there was no evidence of a deliberate attempt by the state to delay the trial in order to hamper the defense, and the trial court was authorized to conclude that there had not been any impairment to the defense. Griffin v. State, 282 Ga. 215, 647 S.E.2d 36, 2007 Ga. LEXIS 482 (2007), overruled in part, Garza v. State, 284 Ga. 696, 670 S.E.2d 73, 2008 Ga. LEXIS 865 (2008).
Speedy trial rights not violated.
Three defendants failed to carry the burden of establishing that a 14-month delay in bringing defendants to trial was presumptively prejudicial and, therefore, violated defendants’ right to a speedy trial, because the peculiar circumstances of the case authorized a finding that the case was being prosecuted with the promptness customary for a complex drug trafficking case involving multiple defendants. Defendants failed to show that such a delay was presumptively prejudicial under the circumstances of the case: (1) the case was more akin to a complex conspiracy charge, as opposed to an ordi-Speedy and Public Trial (Cont’d) 4. Prejudice from Delay (Cont’d) nary street crime, since the indictment charged 11 people with the serious offense of trafficking in cocaine; (2) defendants acknowledged in the trial court and in appellate briefs that there was a massive amount of evidence for discovery, including thousands of documents, thousands of telephone records, and hundreds of hours of taped conversations; and (3) there was a also a federal investigation of the drug operation going on at the same time as the state investigation. Lawrence v. State, 289 Ga. App. 698, 658 S.E.2d 144, 2008 Ga. App. LEXIS 132 (2008), cert. denied, No. S08C1086, 2008 Ga. LEXIS 467 (Ga. June 2, 2008), cert. denied, No. S08C1084, 2008 Ga. LEXIS 486 (Ga. June 2, 2008). With regard to defendant’s convictions for theft by taking and on two counts of violation of oath by a public officer, the trial court properly denied defendant’s motion to dismiss based on a violation of defendant’s constitutional right to a speedy trial as no violation was established since some delay was attributable to defendant and defendant never filed a statutory demand for a speedy trial; defendant did not show any evidence that the state deliberately delayed the trial in order to hamper the defense; and defendant did not show that the delay impaired the defense. Brandeburg v. State, 292 Ga. App. 191, 663 S.E.2d 844, 2008 Ga. App. LEXIS 748 (2008), cert. denied, No. S08C1796, 2008 Ga. LEXIS 921 (Ga. Oct. 6, 2008). Defendant’s motion to dismiss an indictment based on a violation of the defendant’s constitutional right to a speedy trial was properly denied as the defendant failed to show prejudice. There was no evidence that the defendant was subjected to substandard conditions in jail before release on bond, and the defendant failed to make any real showing of harm to the defense due to alleged changes in a defense witness’s testimony and the destruction of certain physical evidence. Bowling v. State, 285 Ga. 43, 673 S.E.2d 194, 2009 Ga. LEXIS 47 (2009). Trial court did not abuse the court’s discretion by concluding that the presumption of prejudice arising from any delay in bringing the defendant to trial was insufficient for the defendant to prevail on the defendant’s speedy trial claim because the defendant never filed a statutory speedy trial demand and only raised the speedy trial issue in defendant’s October 24, 2008 motion to dismiss the indictment, and the defendant did not show anything oppressive relating to the defendant’s pretrial incarceration or release on bond; there is no abuse of discretion in the trial court’s determination that there was no prejudice caused by the unavailability of witnesses after the trial court specifically found that the witnesses’ recorded sworn testimony from the first trial is still available, and there was a thorough and sifting cross-examination done at the first trial. Jakupovic v. State, 287 Ga. 205, 695 S.E.2d 247, 2010 Ga. LEXIS 385 (2010). Trial court did not abuse the court’s discretion when the court denied the first defendant’s motion to dismiss the indictment on speedy trial grounds when although the delay in the instant case triggered a threshold finding of presumptive prejudice, while the final few weeks of delay could have been avoided had the state alerted the court to the fact that the victim was subject to a federal subpoena in Florida, the state did not deliberately attempt to hamper the defense in that regard. Moreover, the first defendant waited more than three years after the defendant’s arrest to assert the defendant’s demand, and the first defendant’s alibi defense was not impaired as a result of the delay because defendant’s alleged alibi witness was still available and capable of giving testimony. Brown v. State, 287 Ga. 892, 700 S.E.2d 407, 2010 Ga. LEXIS 629 (2010). Although defendant contended the trial court should have dismissed the charges against the defendant because the defendant was denied the defendant’s constitutional right to a speedy trial under U.S. Const., amend. 6 and Ga. Const. 1983,Art. I, Sec. I, Para. XI, the record revealed no basis for granting such a motion because the record showed that any delay in bringing the case to trial was primarily attributable to defendant and that any resulting prejudice worked to the defendant’s benefit, factors which weighed against defendant and defeated any contention that the defendant was deprived of the defendant’s constitutional right to a speedy trial. Zeger v. State, 306 Ga. App. 474, 702 S.E.2d 474, 2010 Ga. App. LEXIS 969 (2010).
Prejudice shown.
Trial court erred in denying defendant’s motion to dismiss which alleged a speedy trial violation, as the delay in bringing defendant to trial was prejudicial, especially when, after an assertion of the right, a trial did not immediately ensue, but an additional seven months had passed before a ruling on the claim, and in the interim, an alleged material defense witness died. Hardeman v. State, 280 Ga. App. 168, 633 S.E.2d 595, 2006 Ga. App. LEXIS 783 (2006), cert. denied, No. S06C1840, 2006 Ga. LEXIS 918 (Ga. Oct. 30, 2006). Renewed motion for discharge and acquittal by the defendant was properly granted upon a determination that the defendant’s constitutional speedy trial rights were violated under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XI, as the delay of almost four years in bringing the defendant to trial was presumptively prejudicial, and the remaining Barker-Doggett factors weighed in the defendant’s favor; only a small portion of the delay was attributable to the defendant and the defendant timely asserted the right to a speedy trial. State v. Reid, 298 Ga. App. 235, 679 S.E.2d 802, 2009 Ga. App. LEXIS 646 (2009). Defendant was denied defendant’s constitutional right to a speedy trial and to due process based on the state’s intentional act of trading discovery responses for a speedy trial right, and the resulting prejudice from the disappearance of a material witness. The trial court therefore abused the court’s discretion in denying the defendant’s motion for discharge and acquittal. Ditman v. State, 301 Ga. App. 187, 687 S.E.2d 155, 2009 Ga. App. LEXIS 1342 (2009), cert. denied, No. S10C0539, 2010 Ga. LEXIS 243 (Ga. Mar. 15, 2010). Trial court abused the court’s discretion by concluding that the defendant did not show sufficient prejudice from the delay to support a constitutional speedy trial claim because 33 months of a 35-month delay in trial was attributable to the state, and because the defendant established that during the delay witnesses with material testimony had become unavailable by leaving the country. Davis v. State, 301 Ga. App. 155, 687 S.E.2d 180, 2009 Ga. App. LEXIS 1348 (2009). Speedy trial rights were violated when the defendant was brought to trial more than 53 months after being indicted, an uncommonly long delay that weighed against the state. The delay occasioned by the prosecuting attorney’s announcement that the state intended to seek the death penalty, made on the day the case was set for trial for the tenth time, weighed more heavily against the state; while the defendant did not assert the right to a speedy trial until almost four years after the indictment, the defendant’s late assertion was somewhat mitigated by the defendant’s repeated insistence that the state comply with the state’s discovery obligations; and the defendant suffered actual prejudice as a result of the defendant’s inability to show the extent to which evidence tampering occurred, due to an officer’s inability to recall important details of the investigation. State v. Buckner, 292 Ga. 390, 738 S.E.2d 65, 2013 Ga. LEXIS 109 (2013).
Sentencing compliant with Sentencing Guidelines.
A defendant’s due process rights are violated only when a judge-decided fact actually increases a defendant’s sentence beyond the prescribed statutory maximum penalty for the convicted crime and has no application to, or effect on, cases where a defendant’s sentence falls at or below that maximum penalty; thus, there can be no due process violation in connection with either mandatory minimum sentences or Sentencing Guidelines calculations, when in either case the ultimate sentence imposed does not exceed the prescribed statutory maximum penalty. United States v. Sanchez, 269 F.3d 1250, 2001 U.S. App. LEXIS 22406 (11th Cir. 2001), cert. denied, 535 U.S. 942, 122 S. Ct. 1327, 152 L. Ed. 2d 234, 2002 U.S. LEXIS 1763 (2002). 5. Waiver
Determination of waiver generally.
Speedy and Public Trial (Cont’d) 5. Waiver (Cont’d) — In the context of U.S. Const., amend. 6 waiver must be determined by applying federal constitutional law. Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49, 1981 Ga. LEXIS 681 (1981). Determination of voluntariness of
waiver.
While the Constitution requires that the record indicate the voluntariness of any waiver of the rights of jury trial, confrontation, and against self-incrimination, it does not require that a district judge go beyond these constitutional minima to ask the specific questions that F.R.Cr.P. 11(c)(3) imposes as a prophylactic procedure. United States v. Caston, 615 F.2d 1111, 1980 U.S. App. LEXIS 18304 (5th Cir.), cert. denied, 449 U.S. 831, 101 S. Ct. 99, 66 L. Ed. 2d 36, 1980 U.S. LEXIS 2760 (1980).
Factors bearing on waiver of constitutional rights.
Mental deficiency, age, and lack of familiarity with the criminal process are important factors to be considered in determining whether there has been a waiver of constitutional rights. Cooper v. Griffin, 455 F.2d 1142, 1972 U.S. App. LEXIS 11426 (5th Cir. 1972).
Form of waiver of trial unimportant.
Defendant’s consent to waive the right to trial need not be in a particular, ritualistic form, since form is unimportant. Griggs v. State, 159 Ga. App. 219, 283 S.E.2d 77, 1981 Ga. App. LEXIS 2553 (1981). 6. Length of Delay
Delay measured from time of arrest.
For purposes of speedy trial the Supreme Court begins to count from the date of arrest, if that precedes indictment. The time from arrest to indictment is added to time from indictment to trial. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1, 1976 Ga. LEXIS 885 (1976). As a defendant’s motion for discharge and acquittal complained of a 15-month delay that occurred after the date that the defendant was arrested, a speedy trial analysis had to be conducted based on standards pursuant to U.S. Const., amend. 6. State v. Thaxton, 311 Ga. App. 260, 715 S.E.2d 480, 2011 Ga. App. LEXIS 689 (2011).
Delay measured from date of indictment if no prior arrest.
Under U.S. Const., amend. 6, the clock begins to tick upon indictment, when no prior arrest on the alleged offense is involved. In particular, the date of the indictment is the crucial date for a prisoner already incarcerated on a prior offense. United States v. Hill, 622 F.2d 900, 1980 U.S.App. LEXIS 15192 (5th Cir. 1980). Mere passage of time is not enough, without more, to constitute a denial of speedy trial due process. Hughes v. State, 228 Ga. 593, 187 S.E.2d 135, 1972 Ga. LEXIS 858 (1972); Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597, 1974 Ga. App. LEXIS 1749 (1974); State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829, 1976 Ga. App. LEXIS 2585 (1976); Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64, 1976 Ga. App. LEXIS 1362 (1976); Fleming v. State, 240 Ga. 142, 240 S.E.2d 37, 1977 Ga. LEXIS 1424 (1977); Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634, 1979 Ga. App. LEXIS 2388 (1979); Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509, 1980 Ga. App. LEXIS 2327 (1980). There is no specific number of days or months within which a defendant must be tried. Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1, 1976 Ga. LEXIS 885 (1976); Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64, 1976 Ga. App. LEXIS 1362 (1976); Natson v. State, 242 Ga. 618, 250 S.E.2d 420, 1978 Ga. LEXIS 1303 (1978), cert. denied, 441 U.S. 925, 99 S. Ct. 2036, 60 L. Ed. 2d 399, 1979 U.S. LEXIS 1667 (1979); State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980). For purposes of determining when the right to speedy trial attaches the basis for the arrest is critical. United States v. Nixon, 634 F.2d 306, 1981 U.S. App. LEXIS 20934 (5th Cir.), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 103, 1981 U.S. LEXIS 3238 (1981). An eight-month delay between accusation and arrest and trial is insufficient to merit a sixth amendment speedy trial violation inquiry. A preaccusation delay approaching one year is the point at which courts deem the delay presumptively prejudicial and unreasonable enough to trigger the sixth amendment inquiry. United States v. Derose, 74 F.3d 1177, 1996 U.S. App. LEXIS 2198 (11th Cir.), modified, No. 94-8730 (11th Cir. 1996).
Nine-month delay.
The Supreme Court determined that defendant was not prejudiced by a seven-year trial delay and the subsequent nine month delay in bringing defendant to trial and the consequential inability to locate witnesses did not justify granting defendant’s motion to dismiss since defendant lacked diligence in finding the witnesses and no prejudice resulted. Brannen v. State, 262 Ga. App. 719, 586 S.E.2d 383, 2003 Ga. App. LEXIS 992 (2003). Nine-month delay between a defendant’s indictment for murder and the defendant’s filing of a motion to dismiss the indictment on constitutional grounds was not a speedy trial violation under the sixth amendment as the defendant filed no demand for a speedy trial under O.C.G.A. § 17-7-171; did not raise the speedy trial issue for nine months; was imprisoned on other charges during those nine months; and showed no prejudice from the delay. Jones v. State, 284 Ga. 320, 667 S.E.2d 49, 2008 Ga. LEXIS 751 (2008). Nine-month delay between arrest and trial cannot be dismissed as trivial, but this length of delay cannot alone constitute a speedy trial violation. Glidewell v. Burden, 822 F.2d 1027, 1987 U.S. App. LEXIS 9929 (11th Cir. 1987), cert. denied, 484 U.S. 1018, 108 S. Ct. 727, 98 L. Ed. 2d 676, 1988 U.S. LEXIS 47 (1988). The passage of nine months between the date a speeding charge was made and the date of trial was not alone sufficient to establish a violation of the right to a speedy trial where there was no evidence that the state delayed the trial to gain a tactical advantage, five months passed between the charge and the defendant’s assertion of the right to a speedy trial, and, since the defendant was not incarcerated, there was no prejudice to the defendant. Nairon v. State, 215 Ga. App. 76, 449 S.E.2d 634, 1994 Ga. App. LEXIS 1104 (1994), cert. denied, No. S95C0361, 1995 Ga. LEXIS 288 (Ga. Feb. 17, 1995). Ten-month delay between arrest
and dismissal of charges.
Ten-month delay between the defendant’s arrest for child molestation and the dismissal of the charges, did not violate the defendant’s right to a speedy indictment, because the defendant had not filed a demand for a speedy indictment, and did not claim or demonstrate that the defense was impaired by the delay. State v. Auerswald, 198 Ga. App. 183, 401 S.E.2d 27, 1990 Ga. App. LEXIS 1569 (1990).
11-month delay.
Defendant’s plea in bar, wherein the defendant claimed that the defendant was denied the defendant’s constitutional right to a speedy trial, pursuant to Ga. Const. 1983, Art. I, Sec. I, Para. XI and U.S. Const., amend. 6, was properly denied since the trial court found that the delay of 11 months from the time that the accusation was filed until the parties were ready for trial was not excessive, some of the delay was attributable to the defendant, and the state had provided adequate explanations for its delay, and further, there was no prejudice shown. The court noted that although the state nol prossed the charges by accusation just hours before the defendant filed a demand for a speedy trial, such put the state on notice and therefore, it was not significant that the defendant did not file another demand for a speedy trial after charges were filed by grand jury indictment against the defendant. Shuler v. State, 263 Ga. App. 124, 587 S.E.2d 269, 2003 Ga. App. LEXIS 1134 (2003), cert. denied, No. S04C0142, 2004 Ga. LEXIS 97 (Ga. Jan. 20, 2004). Delay of twelve months and ten
days.
Trial court did not err when the court denied the defendant’s motion to dismiss based on a purported violation of defendant’s constitutional right to a speedy trial because the circumstances of the case warranted a finding that the twelve-month, ten-day delay between the defendant’s indictment and the filing of defendant’s motion to dismiss was not presumptively prejudicial. The defendant was serving a sentence on an unrelated charge in Mississippi when the indictment was returned, a requisition warrant had to be obtained from the Mississippi governor, which process was initiated within a month of the defendant’s indictment and took three months before the warrant was issued, and the defendant Speedy and Public Trial (Cont’d) 6. Length of Delay (Cont’d) was brought to Georgia two months after the warrant issued and was arraigned approximately two months later. Rogers v. State, 286 Ga. 387, 688 S.E.2d 344, 2010 Ga. LEXIS 68 (2010).
13-month delay.
Trial court properly denied a murder defendant’s motion to dismiss an indictment on speedy trial grounds. Although the court found that the 13-month delay was caused by the state’s negligence, the court also found that the defendant had not timely asserted the defendant’s speedy trial right and that the defendant had not shown that the delay impaired the defense. Hassel v. State, 284 Ga. 861, 672 S.E.2d 627, 2009 Ga. LEXIS 28 (2009). ment before trial does not represent a denial of speedy trial, absent evidence of prejudice to defendant from delay, and absent any purposeful or oppressive delay on the part of the prosecution, particularly, in the absence of a demand for trial. Sassoon v. State, 138 Ga. App. 172, 225 S.E.2d 732, 1976 Ga. App. LEXIS 2096 (1976).
Passage of 16 months after indict17-month delay.
Trial court did not err in refusing to dismiss defendant’s case for a speedy trial violation as: (1) five to six months of the 17-month delay was due to defendant’s motion for a continuance; (2) the state gave reasons for the remaining 11 or 12 months of the delay and reasons for the decision to reindict defendant; (3) there was no proof that the state intentionally delayed prosecution to impair the defense; (4) defendant did not file a speedy trial demand until 14 months after defendant’s arrest; and (5) defendant did not present any evidence that defendant’s defense was impaired due to the delay, nor did defendant show that defendant had to endure some burden beyond those that necessarily attended imprisonment. Lopez v. State, 267 Ga. App. 178, 598 S.E.2d 898, 2004 Ga. App. LEXIS 563 (2004). Seventeen-month delay in the defendant’s trial did not violate the defendant’s constitutional rights because the defendant failed to assert either the defendant’s statutory or constitutional right to a speedy trial and there was no evidence of a lengthy pretrial incarceration. Jernigan v. State, 239 Ga. App. 65, 517 S.E.2d 370, 1999 Ga. App. LEXIS 711 (1999).
No undue prejudice shown from 20-month delay.
Defendant’s sixth amendment speedy trial rights were not violated as the 20-month delay between defendant’s arrest and the assertion of defendant’s speedy trial right was not presumptively prejudicial because the case was a multi-defendant prosecution for the murder of a police officer 24 years earlier involving vigorous litigation of a broad range of defense motions, which was less than a complex conspiracy charge, but more than an ordinary street crime further, the reasons for the delay were essentially neutral, the timeliness of the assertion of the right to a speedy trial weighed against defendant, and no undue prejudice associated with the delay was shown. Jackson v. State, 279 Ga. 449, 614 S.E.2d 781, 2005 Ga. LEXIS 436 (2005). 23-month delay presumptively
prejudicial.
Pursuant to U.S. Const., amend. 6, a delay from the defendant’s arrest until the grant of the defendant’s speedy trial motion was approximately 23 and a half months, such that it was presumptively prejudicial, which triggered the application of the Barker balancing test. State v. Thaxton, 311 Ga. App. 260, 715 S.E.2d 480, 2011 Ga. App. LEXIS 689 (2011). stitutional where defendant did not
Two-year undeliberate delay conassert right and defense unimpaired.
— There is no denial of the sixth amendment right to a speedy trial where the length of delay between arrest and trial is almost two years, but the defendant has not shown that the prosecution deliberately delayed the trial for tactical advantage, that the defendant asserted the defendant’s statutory right prior to trial, that the defendant asserted the defendant’s constitutional right prior to appeal, or that the defendant’s defense was impaired by the delay. Getz v. State, 251 Ga. 462, 306 S.E.2d 918, 1983 Ga. LEXIS 858 (1983).
Two year delay not prejudicial.
Trial court did not abuse the court’s discretion when the court denied the second defendant’s motion to dismiss on constitutional speedy trial grounds because although the two-year delay was presumptively prejudicial, the majority of the delay was due to the circumstances of the case, the second defendant’s two-year delay in asserting the defendant’s right to a speedy trial weighed heavily against the defendant, and the defendant offered no specific evidence of any prejudice to the defendant’s defense resulting from the delay. Brown v. State, 287 Ga. 892, 700 S.E.2d 407, 2010 Ga. LEXIS 629 (2010). A 25-month delay from arrest to
trial.
was troubling; however, the prejudice to defendant was not of constitutional magnitude where the defendant failed to show that undue anxiety or concern was suffered attendant to defendant’s incarceration and offered no evidence as to the specific manner in which defendant’s defense was impaired. Mullinax v. State, 273 Ga. 756, 545 S.E.2d 891, 2001 Ga. LEXIS 312 (2001).
Delay of more than two years.
With regard to a defendant being indicted for malice murder and other crimes, the trial court did not abuse the court’s discretion by denying the defendant’s motion to dismiss the indictment on speedy trial grounds as, although the delay of two years, two months, and 23 days in bringing the defendant to trial was presumptively prejudicial, the record supported the trial court’s factual conclusion that the defendant failed to establish oppressive pretrial incarceration or anxiety and concern beyond that which necessarily attended confinement in a penal institution, and the defendant failed to present any specific evidence that the defendant’s ability to defend had been impaired. Ruffin v. State, 284 Ga. 52, 663 S.E.2d 189, 2008 Ga. LEXIS 550 (2008), cert. denied, 555 U.S. 1181, 129 S. Ct. 1330, 173 L. Ed. 2d 603, 2009 U.S. LEXIS 1551 (2009).
26-month delay.
A defendant’s constitutional right to a speedy trial was not violated despite a 26-month delay between the defendant’s arrest and the filing of a motion to dismiss the indictment for aggravated battery and aggravated assault, because the defendant did not assert the speedy trial right for 26 months, was free on bond the whole time, and showed no prejudice from the delay, despite the razing of the crime scene. Williams v. State, 300 Ga. App. 797, 686 S.E.2d 407, 2009 Ga. App. LEXIS 1275 (2009). A 27-month delay did not violate defendant’s right to a speedy trial because of defendant’s own delay in asserting the right and defendant’s failure to show prejudice to the defense. McKinney v. State, 250 Ga. App. 22, 549 S.E.2d 164, 2001 Ga. App. LEXIS 561 (2001), cert. denied, No. S01C1453, 2001 Ga. LEXIS 954 (Ga. Nov. 30, 2001). A 27-month delay between the defendant’s arrest and the date the defendant filed a motion to dismiss did not violate the right to a speedy trial where the state’s primary reason for delay was to wait for several significant appellate court decisions, the defendant did not assert the defendant’s statutory or constitutional right during the period of the delay, the defendant did not demonstrate any isolated or distinct oppressiveness, anxiety, or concern the defendant suffered due to incarceration, and the sole example of impairment of evidence, the memory lapses of police officers, worked to the defendant’s advantage. Howard v. State, 215 Ga. App. 343, 450 S.E.2d 824 (1994). Where the delay is 27 months since arrest and 24 months since indictment, this is too long to amount to a speedy trial. State v. King, 137 Ga. App. 26, 222 S.E.2d 859, 1975 Ga. App. LEXIS 1196 (1975).
28-month delay.
Defendant’s late assertion of defendant’s constitutional right to a speedy trial weighed heavily against the defendant as did the defendant’s failure to show prejudice from the 28-month delay, which was not attributable to any improper motive by the state as an investigator died and the prosecutor had 10 weeks’ maternity leave; thus, defendant’s motion to dismiss was properly denied. Ferguson v. State, 303 Ga. App. 341, 693 S.E.2d 578, 2010 Ga. App. LEXIS 355 (2010). A thirty-month delay in the trial of the defendant’s case did not violate the defendant’s constitutional right where, even though the delay was partly attributable to the state’s negligence, defendant Speedy and Public Trial (Cont’d) 6. Length of Delay (Cont’d) did not assert the defendant’s rights until trial was imminent, and failed to show prejudice. Thomas v. State, 233 Ga. App. 224, 504 S.E.2d 59, 1998 Ga. App. LEXIS 932 (1998).
30-month delay.
Trial court did not abuse the court’s discretion in rejecting the defendant’s speedy-trial claim under the sixth amendment based on the court’s careful application of the relevant factors, which included determinations that the defendant was responsible for some portion of the 30-month delay, the defendant did not assert a right to a speedy trial promptly, and the defendant failed to establish any actual prejudice resulting from the delay. Davis v. State, 315 Ga. 252, 882 S.E.2d 210, 2022 Ga. LEXIS 323 (2022).
32-month delay.
With regard to charges of aggravated child molestation, child molestation, and rape, a trial court did not err in denying a defendant’s motion for discharge and acquittal since although the 32 month passage of time between the defendant’s arrest and the filing of the motion for discharge was presumed prejudicial and more than half of the delay was attributable to the state, the defendant waited 32 months to file the motion and failed to show any prejudice arising from the delay. The defendant failed to explain what physical evidence was affected by the passage of time and merely made a generalized statement that memories fade over time. Wofford v. State, 299 Ga. App. 129, 682 S.E.2d 125, 2009 Ga. App. LEXIS 518 (2009). Length of delay was at least two
years but less than three years.
There was no violation of the defendant’s speedy trial rights under U.S. Const., amend. 6, where there was a 26-month delay between the defendant’s arrest and the defendant’s motion to dismiss; the delay was mostly attributable to the defendant; the defendant did not assert the defendant’s right to a speedy trial until 26 months after the defendant was arrested, and the defendant failed to make a specific showing that the defense was prejudiced by the delay. Williams v. State, 260 Ga. App. 290, 581 S.E.2d 326, 2003 Ga. App. LEXIS 354 (2003).
Three year delay.
There was no speedy trial violation under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a). Although the delay of over three years was presumptively prejudicial, it was primarily attributable to the defendant; the defendant delayed in asserting the constitutional right to a speedy trial; and the defendant’s generalized statements, along with the fact that the record did not show that trial counsel attempted to locate the physician who examined the victim, did not suffice to show prejudice. Robinson v. State, 298 Ga. App. 164, 679 S.E.2d 383, 2009 Ga. App. LEXIS 636 (2009).
40-month delay was not prejudicial.
— In a defendant’s motion for acquittal based upon a speedy trial violation under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), although the delay of 40 months raised a presumption of prejudice, no evidence supported defendant’s claim of anxiety and concern over the charges nor the defendant’s claims that the defendant was unable to produce two witnesses who would have provided information material to the defendant’s defense. In the absence of prejudice, the defendant’s motion for acquittal was properly denied. Lynch v. State, 300 Ga. App. 723, 686 S.E.2d 268, 2009 Ga. App. LEXIS 1174 (2009).
Forty-one-month delay.
Denial of defendant’s motion to dismiss the indictment against defendant was not an abuse of discretion since defendant suffered no impairment to defendant’s defense and defendant waited 41 months before asserting defendant’s federal and state constitutional rights to a speedy trial. Coney v. State, 259 Ga. App. 525, 578 S.E.2d 193, 2003 Ga. App. LEXIS 180 (2003).
45-month delay.
While a majority of the delay in bringing defendant to trial was attributable to the state, and defendant did not assert any right to a speedy trial until approximately 45 months after the date of arrest, after balancing all four factors set out in Barker v. Wingo, any delay in bringing defendant to trial did not violate the right to a speedy trial, no actual anxiety or concern on defendant’s part was shown, and the testimony that two alleged material defense witnesses would have presented would have either been cumulative or not material. Ingram v. State, 280 Ga. App. 467, 634 S.E.2d 430, 2006 Ga. App. LEXIS 773 (2006), cert. denied, No. S06C2016, 2006 Ga. LEXIS 915 (Ga. Oct. 30, 2006), cert. denied, 552 U.S. 1009, 128 S. Ct. 531, 169 L. Ed. 2d 371, 2007 U.S. LEXIS 11971 (2007). 45-month delay presumptively
prejudicial.
For purposes of U.S. Const., amend. 6 and Ga. Const. 1983,Art. I, Sec. I, Para. XI(a), a delay of three years and nine months from the date of the defendant’s arrest and the date of the defendant’s scheduled trial was presumptively prejudicial. State v. Reid, 298 Ga. App. 235, 679 S.E.2d 802, 2009 Ga. App. LEXIS 646 (2009).
Three year and nine month delay.
Defendant’s indictment for armed robbery was properly dismissed on speedy trial grounds after a delay of three years and nine months because the defendant’s ability to prepare defendant’s defense was impaired by lost hospital records, missing 9-1-1 calls, and other missing evidence. State v. Ivory, 304 Ga. App. 859, 698 S.E.2d 340, 2010 Ga. App. LEXIS 623 (2010).
Four year delay.
State’s four-year delay in bringing a cocaine trafficking case against the defendant violated a defendant’s constitutional speedy trial right. The state’s investigation was complete at the time of the indictment, and the trial court found that the state delayed the trial to gain a tactical advantage and to harass the defendant. State v. Shirley, 311 Ga. App. 141, 714 S.E.2d 636, 2011 Ga. App. LEXIS 572 (2011).
54-month delay.
Trial court erred by denying a defendant’s motion to dismiss the indictment on speedy trial grounds, which charged the defendant with the crimes of aggravated assault, aggravated battery, and cruelty to children, as the 54-month delay at issue was substantial and longer than delays that the Georgia Supreme Court has described as egregious and deplorable; the evidence showed that the delay resulted from a deliberate, strategic decision by the state since the state chose to dead-docket the case; and the defendant asserted the right to a speedy trial in due course. The trial court erred in several respects in the court’s legal analysis of the defendant’s constitutional speedy trial claim, namely: by failing to weigh the length of the delay as part of the court’s balancing analysis and by failing to adequately address the reasons for that delay; by abusing the court’s discretion in finding that the defendant’s three-to-four month delay in asserting the right to a speedy trial should be weighed against the defendant; and by finding that the defendant was required to present additional evidence of actual prejudice caused by the state’s conduct. Hayes v. State, 298 Ga. App. 338, 680 S.E.2d 182, 2009 Ga. App. LEXIS 703 (2009), cert. denied, No. S09C1736, 2009 Ga. LEXIS 540 (Ga. Sept. 8, 2009).
Five year delay.
Court of appeals erred in determining, apparently from the court’s own review of the record, that the speedy trial factor of whether, in due course, the defendant asserted his or her right to a speedy trial would be weighed against the defendant based on the more than five year delay from the defendant’s arrest to the defendant’s assertion of the right; a delay of over five years typically would warrant the speedy trial factor of whether, in due course, the defendant asserted his or her right to a speedy trial being weighed heavily against the defendant, and if the factor is to be weighed differently based on the particular circumstances of the case, that exercise of discretion is committed to the trial court, not the appellate courts. State v. Pickett, 288 Ga. 674, 706 S.E.2d 561, 2011 Ga. LEXIS 142 (2011).
Five year delay not prejudicial.
Trial court did not abuse its discretion in finding that a defendant failed to show a constitutional violation of the defendant’s right to a speedy trial and by denying the defendant’s motion for discharge and acquittal with regard to the defendant’s convictions for sexual assault as the defendant never filed a speedy trial demand; there was no evidence nor finding by the trial court that the state intentionally delayed the trial to impair the defendant’s defense; the defendant’s failure to assert either a statutory or constitutional right Speedy and Public Trial (Cont’d) 6. Length of Delay (Cont’d) to a speedy trial was entitled to strong evidentiary weight against the defendant; and the fact that the defendant never filed a speedy trial demand suggested that the defendant was not suffering anxiety or stress from the delay. The reviewing court noted that the five year delay in bringing the defendant to trial was solely based on requests from defense counsel due to illness, death in the family, or death of an expert witness. Disharoon v. State, 288 Ga. App. 1, 652 S.E.2d 902, 2007 Ga. App. LEXIS 1123 (2007). A nearly 5 ½ year delay between tively prejudicial and warranted inquiry into the other factors that go into determining whether a criminal defendant has been deprived of the defendant’s right to a speedy trial. Crapse v. State, 180 Ga. App. 321, 349 S.E.2d 190, 1986 Ga. App. LEXIS 2728 (1986). Prosecutorial neglect in five and a
indictment and trial was presumphalf year delay.
Where reason for five and one-half year delay in trial is simple prosecutorial neglect, but the only prejudice shown by the defendant is that one of two alibi witnesses, whose testimony would be merely cumulative, has died, and the defendant, although the defendant has filed a motion to dismiss the indictment, never asked for a trial, the defendant is not denied the constitutional right to a speedy trial. State v. Lively, 155 Ga. App. 402, 270 S.E.2d 812, 1980 Ga. App. LEXIS 2602 (1980). Presumptive prejudice that arose from a delay of over five years in a defendant’s trial was insufficient for the defendant to prevail on a sixth amendment speedy trial claim, and the denial of the defendant’s motion to dismiss was proper because there was no demonstrable prejudice to the defense and the defendant was dilatory in asserting the right to a speedy trial. Harris v. State, 284 Ga. 455, 667 S.E.2d 361, 2008 Ga. LEXIS 750 (2008).
Six-year delay.
While the nearly six year delay in bringing the defendant to trial was presumptively prejudicial, the defendant’s speedy trial rights were not violated because the defendant waited over four years to assert the right and failed to show prejudice due to the delay. Gray v. State, 347 Ga. App. 235, 817 S.E.2d 723, 2018 Ga. App. LEXIS 479 (2018), cert. denied, No. S19C0214, 2019 Ga. LEXIS 271 (Ga. Apr. 15, 2019).
Seven-year delay.
Defendant’s speedy trial right was violated by the seven-year delay between arrest and the time the case was called for a final hearing, even though defendant was released on bond at the preliminary hearing and did not assert a speedy trial right until after the case was called for a final plea hearing. State v. Sutton, 273 Ga. App. 84, 614 S.E.2d 206, 2005 Ga. App. LEXIS 416 (2005). Speedy trial right was not violated dant’s indictment and trial, after the court weighed a number of factors, including the fact that the defendant had left for India at the time of the indictment and the government did not know of the defendant’s location but made reasonable efforts to find the defendant. United States v. Bagga, 782 F.2d 1541, 1986 U.S. App. LEXIS 22516 (11th Cir. 1986).
by seven-year delay between defen-Eight year delay.
Trial court did not err in determining that the defendant’s right to a speedy trial was violated as the eight-year passage of time before the case was restored to the trial calendar raised a presumption of prejudice, most of the delay was attributable to the state, the defendant’s delay in asserting the right was mitigated by the fact that the defendant had no counsel and a limited education, and the delay impaired the ability to put on a defense. State v. Alexander, 295 Ga. 154, 758 S.E.2d 289, 2014 Ga. LEXIS 351 (2014).
Nine-year delay.
Trial court did not abuse the court’s discretion when the court denied the defendant’s claim that the defendant’s constitutional right to a speedy trial was violated because neither the defendant nor the defendant’s initial attorney made themselves aware of the actual status of the case between 1998 and 2005, and the defendant failed to keep the defendant’s address up to date with the trial court such that the court was unable to send the notice for the arraignment to the defendant’s home address; the defendant never made a speedy trial demand during the nine years that passed between the arrest and trial, the defendant was not subjected to oppressive pretrial incarceration and did not suffer any unusual anxiety or concern because the defendant was not actually incarcerated for most of the nine years in question, and the defendant also was not prejudiced by lost evidence. Rafi v. State, 289 Ga. 716, 715 S.E.2d 113, 2011 Ga. LEXIS 674 (2011). Ten year delay between trial and
appeal.
Defendant’s due process rights were not violated by the ten-year delay between trial and appeal because the errors the defendant allegedly would have raised on appeal were without merit. Whitaker v. State, 291 Ga. 139, 728 S.E.2d 209, 2012 Ga. LEXIS 493 (2012). rest and trial for murder did not violate the defendant’s right to a speedy trial where the defendant’s liberty had not been restrained nor was the defendant’s life disrupted, and where case was decided on superseding due process grounds. Wooten v. State, 262 Ga. 876, 426 S.E.2d 852, 1993 Ga. LEXIS 305, cert. denied, 510 U.S. 853, 114 S. Ct. 156, 126 L. Ed. 2d 117, 1993 U.S. LEXIS 5505 (1993). Failure to consider entire time of
Fourteen-year delay between ardelay.
Trial court abused the court’s discretion in denying the defendant’s plea in bar because the trial court considered only 19 of the 55 months of delay between the defendant’s arrest and the denial of the defendant’s plea in bar, with the result that the court could not properly exercise the court’s discretion as to whether the defendant’s constitutional right to a speedy trial was violated. Singleton v. State, 317 Ga. App. 637, 732 S.E.2d 312, 2012 Ga. App. LEXIS 784 (2012). Trial by Jury 1. In General Impartial jury is the cornerstone of the fairness of trial by jury. Logue v. State, 155 Ga. App. 476, 271 S.E.2d 42, 1980 Ga. App. LEXIS 2626 (1980). Statutes for selecting jurors, and drawing and summoning them, form no part of a system to procure an impartial jury to parties but are intended to distribute jury duties among citizens. Obviously, however, a disregard of the essential and substantial provisions of former Code 1933, § 59-112 (see O.C.G.A. § 15-12-1) will have the effect of vitiating the array. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666, 1980 Ga. LEXIS 721, cert. denied, 447 U.S. 930, 100 S. Ct. 3029, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2103 (1980). United States Const., amend. 14, guarantees the right of trial by jury in all state nonpetty criminal cases. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234, 1978 U.S. LEXIS 68 (1978). Penalty determines when right to
jury trial attaches.
Right to jury trial attaches where the maximum penalty for an offense exceeds six months imprisonment. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234, 1978 U.S. LEXIS 68 (1978). Right to jury trial attaches in both
felony and misdemeanor cases.
Only in cases concerning truly petty crimes, where the deprivation of liberty is minimal, does the defendant have no constitutional right to trial by jury. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234, 1978 U.S. LEXIS 68 (1978). fenses for purpose of gaining right to
Cumulation of multiple petty ofjury trial.
That the cumulative punishment which can be inflicted upon a defendant is in excess of six months imprisonment and that the defendant is tried at one time on multiple charges does not operate to convert the multiple offenses with which the defendant is charged from multiple petty offenses to one serious offense, thus placing the trial within the constitutional guarantee of the right to a jury trial. Key v. Stewart, 228 Ga. 516, 186 S.E.2d 739, 1972 Ga. LEXIS 822 (1972). No right to jury trial exists for a contempt proceeding brought for violation of a restraining order. Sumbry v. Land, 127 Ga. App. 786, 195 S.E.2d 228, 1972 Ga. App. LEXIS 1022 (1972), cert. denied, 414 U.S. 1079, 94 S. Ct. 598, 38 L. Ed. 2d 486, 1973 U.S. LEXIS 1717 (1973). Absence of mental retardation is not the functional equivalent of an of-Trial by Jury (Cont’d) 1. In General (Cont’d) fense such that determining its absence or presence in a criminal matter requires a jury trial under Ring v. Arizona, 536 U.S. 584 (2002), based on constitutional principles under Ga. Const. 1983, Art. I, Sec. I, Para. XI and U.S. Const., amend. 6. Head v. Hill, 277 Ga. 255, 587 S.E.2d 613, 2003 Ga. LEXIS 850 (2003), overruled in part, Young v. State, 312 Ga. 71, 860 S.E.2d 746, 2021 Ga. LEXIS 490 (2021). Defendant cannot compel court to
try the defendant without a jury.
A defendant who is charged with a felony and who waives the right for a jury trial and demands trial by the court without a jury, cannot compel the court to so try the defendant. It is not error for the court to overrule such demand. Palmer v. State, 195 Ga. 661, 25 S.E.2d 295, 1943 Ga. LEXIS 546 (1943). Before a defendant could effectively waive the right to a jury trial and demand a bench trial, the state’s consent had to be obtained, in addition to the trial court’s agreement to conduct a bench trial pursuant to the defendant’s demand. Zigan v. State, 281 Ga. 415, 638 S.E.2d 322, 2006 Ga. LEXIS 1032 (2006).
Purposes which govern size of jury.
— U.S. Const., amend. 6 mandates a jury only of sufficient size to promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross section of the community. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234, 1978 U.S. LEXIS 68 (1978). Jury of fewer than six persons deprives a defendant of the right to trial by jury. Ballew v. State, 145 Ga. App. 829, 245 S.E.2d 169, 1978 Ga. App. LEXIS 2153, cert. denied, 436 U.S. 962, 98 S. Ct. 3083, 57 L. Ed. 2d 1129, 1978 U.S. LEXIS 2251 (1978). Requiring only nine votes of a 12member jury to convict in a felony trial does not violate due process guarantee by diluting the reasonable doubt standard. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234, 1978 U.S. LEXIS 68 (1978). Nothing in the federal Constitution requires states to provide a jury of 12 in the trial of criminal cases, though it does require federal courts to have that number. Trial by jury in a federal court means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted. Among those elements was a jury composed of 12 persons, neither more nor less. Coates v. Lawrence, 46 F. Supp. 414, 1942 U.S. Dist. LEXIS 2548 (D. Ga.), aff’d, 131 F.2d 110, 1942 U.S. App. LEXIS 2727 (5th Cir. 1942). States have wide leeway in dividing responsibility between judge and
jury in criminal cases.
If a state concludes that jury sentencing is preferable, nothing in the due process clause of U.S. Const., amend. 14 intrudes upon that choice. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714, 1973 U.S. LEXIS 66 (1973).
Sentencing by court after conviction by jury.
If the jury finds the appellant was guilty of the offense charged, the fact that the trial court fixed the sentence does not deprive the appellant of the right to trial by jury. Bowman v. State, 231 Ga. 220, 200 S.E.2d 880, 1973 Ga. LEXIS 650 (1973). tence on retrial, although this may force the defendant either to waive a jury trial in the second trial or to plead guilty so that the trial judge could not increase the sentence without violating the right under U.S. Const., amend. 6 to a jury trial. Chaffin v. Stynchcombe, 455 F.2d 640, 1972 U.S. App. LEXIS 11400 (5th Cir. 1972), aff’d, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714, 1973 U.S. LEXIS 66 (1973). Trial by jury in a criminal case may be waived. Brown v. Zerbst, 99 F.2d 745, 1938 U.S. App. LEXIS 2977 (5th Cir. 1938), cert. denied, 305 U.S. 661, 59 S. Ct. 365, 83 L. Ed. 429, 1939 U.S. LEXIS 905 (1939). Constitutional right to a jury trial may be waived by proceeding to trial without demanding a jury. Clarke v. Cobb, 195 Ga. 633, 24 S.E.2d 782, 1943 Ga. LEXIS 531 (1943). Defendant in a misdemeanor case
Jury is permitted to increase sencan waive trial by jury.
There is no reason why a prisoner in a case of this kind should not have the right to be tried by a conscientious and intelligent judge, if he prefers it, as well as the right to be tried by a jury. Clarke v. Cobb, 195 Ga. 633, 24 S.E.2d 782, 1943 Ga. LEXIS 531 (1943).
Trial of misdemeanor traffic offenses in municipal court.
The power of municipal courts to try and dispose of misdemeanor traffic offenses is conditioned upon the defendant’s waiver of the right to a jury trial. Kolker v. State, 260 Ga. 240, 391 S.E.2d 391, 1990 Ga. LEXIS 177 (1990). Defendant’s waiver need not be in a particular, ritualistic form. Little v. Smith, 347 F. Supp. 427, 1971 U.S. Dist. LEXIS 11928 (N.D. Ga. 1971).
Personal waiver of jury trial.
It is not necessary for the preservation of due process that a defendant personally waive the right to a jury trial. Little v. Stynchcombe, 227 Ga. 311, 180 S.E.2d 541, 1971 Ga. LEXIS 683 (1971). Although a jury trial may constitutionally be waived, the defendant must personally and intelligently participate in the waiver. Griggs v. State, 159 Ga. App. 219, 283 S.E.2d 77, 1981 Ga. App. LEXIS 2553 (1981) (but see Little v. Stynchcombe, 227 Ga. 311, 180 S.E.2d 541 (1971). Defendant’s waiver of the right to trial by jury was knowingly made by the defendant and with the defendant’s personal and intelligent participation, where it could be inferred from the joint participation in the waiver by both the defendant and the defendant’s counsel that this was a matter that they had discussed. White v. State, 197 Ga. App. 162, 398 S.E.2d 35, 1990 Ga. App. LEXIS 1222 (1990). Defendant waived the right to a jury trial, where the defendant consulted with the defendant’s attorney and made an intelligent and knowing decision to waive the right and made no objection to the proceeding until after the defendant received an unfavorable verdict. McCollum v. State, 201 Ga. App. 493, 411 S.E.2d 328, cert. denied, 1991 LEXIS 1015 (1991), 507 U.S. 916, 113 S. Ct. 1271, 122 L. Ed. 2d 666 (1993), overruled on other grounds, 282 Ga. App. 482, 654 S.E.2d 628 (2007). A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. Payne v. State, 217 Ga. App. 386, 460 S.E.2d 297, 1995 Ga. App. LEXIS 423 (1995). A trial court did not err by finding that defendant made a personal, knowing, and intelligent waiver of the right to a jury trial with regard to defendant’s convictions for aggravated child molestation and two counts of child molestation after a bench trial because, before trial began, defense counsel stated that defendant wished to waive the jury trial right and proceed with a bench trial, and the trial court questioned defendant, who confirmed that defendant wanted a bench trial and that defendant understood the choice. Further, at the hearing on defendant’s motion for a new trial, defendant testified that defendant discussed the matter at length with defense counsel before trial and stated that defendant wanted the judge, not a jury, to decide defendant’s fate. Brumbelow v. State, 289 Ga. App. 520, 657 S.E.2d 603, 2008 Ga. App. LEXIS 141 (2008). Absence of written assent signed by the defendant and of categorical oral
assent will not invalidate waiver.
Little v. Smith, 347 F. Supp. 427, 1971 U.S. Dist. LEXIS 11928 (N.D. Ga. 1971). Waiver must be deliberately and sent of the prosecution and the court. Irvin v. Zerbst, 97 F.2d 257, 1938 U.S. App. LEXIS 3754 (5th Cir.), cert. denied, 303 U.S. 637, 58 S. Ct. 527, 82 L. Ed. 1098, 1938 U.S. LEXIS 246 (1938), cert. denied, 305 U.S. 597, 59 S. Ct. 97, 83 L. Ed. 379, 1938 U.S. LEXIS 706 (1938). fendant intelligently agreed to a trial without jury in determining validity of waiver. Little v. Smith, 347 F. Supp. 427, 1971 U.S. Dist. LEXIS 11928 (N.D. Ga. 1971). When the purported waiver of the right is questioned, the state bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the Trial by Jury (Cont’d) 1. In General (Cont’d) waiver was knowingly and voluntarily made. Pahnke v. State, 203 Ga. App. 88, 416 S.E.2d 324, 1992 Ga. App. LEXIS 394 (1992), cert. denied, No. S92C0722, 1992 Ga. LEXIS 337 (Ga. Apr. 24, 1992), cert. denied, 506 U.S. 895, 113 S. Ct. 273, 121 L. Ed. 2d 201, 1992 U.S. LEXIS 6187 (1992); 506 U.S. 895, 113 S. Ct. 273, 121 L. Ed. 2d 201 (1992). Defendant’s waiver was knowing
understandingly made with the con-Court must decide whether the deand intelligent.
Because the record affirmatively showed that the defendant was aware of the right to a jury trial because the defendant personally filed a written pro se demand for trial by jury reciting that right and the trial judge reminded the defendant that the defendant was entitled to a trial by jury and asked the defendant if the defendant wanted a jury or nonjury trial and the defendant elected to have a nonjury trial, the defendant personally made a knowing and intelligent waiver of the right to a jury trial. Pahnke v. State, 203 Ga. App. 88, 416 S.E.2d 324, 1992 Ga. App. LEXIS 394 (1992), cert. denied, No. S92C0722, 1992 Ga. LEXIS 337 (Ga. Apr. 24, 1992), cert. denied, 506 U.S. 895, 113 S. Ct. 273, 121 L. Ed. 2d 201, 1992 U.S. LEXIS 6187 (1992); 506 U.S. 895, 113 S. Ct. 273, 121 L. Ed. 2d 201 (1992). Evidence supported a trial court’s finding that a defendant knowingly and voluntarily waived the defendant’s right to a jury trial as the defense counsel testified that: (1) the defense counsel explained to the defendant on several occasions the defendant’s right to a jury trial and the ramifications of that right; (2) the counsel explained the difference between a jury trial and a bench trial and recommended that the defendant waive that right in favor of a bench trial and take the defendant’s chances with an appeal of the denial of a motion to suppress; and (3) the defendant indicated to the counsel that the defendant understood the defendant’s rights and the strategy and affirmatively agreed to go forward with a bench trial. Fleming v. State, 282 Ga. App. 373, 638 S.E.2d 769, 2006 Ga. App. LEXIS 1282 (2006). ligently, and voluntarily waive jury
Defendant did not knowingly, inteltrial.
Upon a withdrawal of opposition by the state, because an inmate was not advised of the constitutional right to a jury trial, and the court could find no extrinsic evidence in the record to conclude that the inmate knowingly, intelligently, and voluntarily waived the right to a jury trial on the state drug charges at issue, an order denying habeas relief was reversed, and the case was remanded. Sutton v. Sanders, 283 Ga. 28, 656 S.E.2d 796, 2008 Ga. LEXIS 42 (2008), overruled in part, Green v. State, 318 Ga. 610, 898 S.E.2d 500, 2024 Ga. LEXIS 49 (2024). There is no requirement of an “in court” waiver of right of jury trial. Wooten v. State, 162 Ga. App. 719, 293 S.E.2d 11, 1982 Ga. App. LEXIS 3161 (1982). Defendant’s right to risk greater
sentence in jury trial.
Where the government has not voluntarily reduced the charges, it is unfair to the defendant, who prefers to risk a potentially greater sentence in order to be tried by a jury of peers, to deny the defendant the right to a jury trial. United States v. O’Connor, 660 F. Supp. 955, 1987 U.S. Dist. LEXIS 4432 (N.D. Ga. 1987). Effect of possibility of consecutive
sentences.
Where defendant has been charged with “driving under the influence” and “reckless driving,” each of which is a “petty” offense as that term is defined in 18 U.S.C. § 1(3), but, because a magistrate is authorized to impose consecutive sentences pursuant to 18 U.S.C. § 3584(a), the defendant is exposed to a potential penalty of one year’s imprisonment, a $1,000.00 fine, and two $25.00 assessments, as the defendant faces a potential sentence of over six months’ imprisonment and over a $500.00 fine under these circumstances, the defendant has a constitutional right to a jury trial. United States v. O’Connor, 660 F. Supp. 955, 1987 U.S. Dist. LEXIS 4432 (N.D. Ga. 1987). No right to jury trial in equal em-
ployment opportunity cases.
There is no right to a jury trial in cases arising under the equal employment opportunity provisions of the Civil Rights Act of 1964. Mitchell v. Alex Foods, Inc., 572 F. Supp. 825, 1983 U.S. Dist. LEXIS 12656 (N.D. Ga. 1983). No right to jury trial on issues of
back pay and lost benefits.
There is no right to a jury trial on the issue of back pay under 42 U.S.C. § 1981 or for the recovery of “lost pension, social security, experience and training opportunities and other lost benefits”; such relief is equitable in nature. Mitchell v. Alex Foods, Inc., 572 F. Supp. 825, 1983 U.S. Dist. LEXIS 12656 (N.D. Ga. 1983).
Probate court.
Probate court did not err by failing to conduct a jury trial on the construction of a decedent’s will as the decedent’s will was unambiguous and no issues of fact remained; further, the corporation challenging the construction was not authorized under Georgia law to serve as a corporate trustee. Chattowah Open Land Trust, Inc. v. Jones, 281 Ga. 97, 636 S.E.2d 523, 2006 Ga. LEXIS 839 (2006).
Test for fair trial.
To support a finding that the petitioner did not receive a fair trial, the petitioner must show: (1) that setting of trial was inherently prejudicial; or (2) that jury selection process showed actual prejudice to degree that rendered fair trial impossible. Kesler v. State, 249 Ga. 462, 291 S.E.2d 497, 1982 Ga. LEXIS 1147 (1982). Impanelling of fair and impartial jurors, when demonstrated on voir dire, makes it particularly difficult to show that setting of trial was inherently prejudicial. Kesler v. State, 249 Ga. 462, 291 S.E.2d 497, 1982 Ga. LEXIS 1147 (1982). Trial court did not deprive the defendant of a fair and impartial jury pursuant to Ga. Const. 1983, Art. I, Sec. I, Para. XI and U.S. Const., amend. 6 in refusing to transfer venue of the murder case due to pretrial publicity; many of the prospective jurors were unaware of the publicity surrounding the crimes due to the 14-year gap between the crimes and trial, and no remaining venire persons expressed a fixed opinion regarding the defendant’s guilt based upon exposure to media coverage. Denny v. State, 281 Ga. 114, 636 S.E.2d 500, 2006 Ga. LEXIS 842 (2006). Shock sleeve use did not impact
fair trial.
Defendant’s sixth amendment right to a fair trial was not violated by the trial court’s order that the defendant appear at trial wearing an electronic shock device as a security measure because there was no evidence that the shock sleeve was apparent to the jury; the defendant failed to show that the defendant suffered any harm arising from adverse jury partiality created by the shock sleeve or that the trial court abused the court’s discretion in finding a necessity for the sleeve to be worn; and at no time during the course of the trial did the defendant claim that the defendant feared that the defendant would be shocked by accident and that the defendant’s fear interfered with the defendant’s ability to focus on the trial. Weldon v. State, 297 Ga. 537, 775 S.E.2d 522, 2015 Ga. LEXIS 537 (2015).
Remand to trial court.
Where record indicated that valid waiver of the right to jury trial may have occurred but did not reflect whether defendant personally, knowingly, voluntarily, and intelligently participated in such waiver, case was remanded to trial court for hearing on that issue. Wooten v. State, 162 Ga. App. 719, 293 S.E.2d 11, 1982 Ga. App. LEXIS 3161 (1982). Right not violated in death penalty
case.
O.C.G.A. § 17-10-30, enumerating the statutory aggravating factors in a death penalty case, was not unconstitutional under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XI as applied in defendant’s case; the jury found beyond a reasonable doubt the existence of the statutory aggravating circumstances, there was no requirement that the jury find non-statutory aggravating factors beyond a reasonable doubt, and the non-statutory aggravating evidence presented by the state was reliable and admissible. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778, 2005 Ga. LEXIS 523 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671, 2006 U.S. LEXIS 3608 (2006).
No violation found.
On appeal, the defendant failed to show an entitlement to a new trial based on the actions of a dismissed juror, as the juror did not participate in the verdicts, and the everwatchful trial judge, by conducting individual voir dire of the jurors who did Trial by Jury (Cont’d) 1. In General (Cont’d) return the guilty verdicts, properly determined that the dismissed juror had no effect on the jury’s deliberations. Inman v. State, 281 Ga. 67, 635 S.E.2d 125, 2006 Ga. LEXIS 569 (2006), cert. denied, 552 U.S. 828, 128 S. Ct. 42, 169 L. Ed. 2d 40, 2007 U.S. LEXIS 9143 (2007).
Unanimous verdict required.
Under U.S. Const., amend. 6 a criminal defendant has a right to a unanimous jury verdict, but there can be a waiver by the defendant of this right. Glass v. State, 250 Ga. 736, 300 S.E.2d 812, 1983 Ga. LEXIS 1028 (1983). Improper excusal of lone juror
holding out for acquittal.
The trial judge’s failure to make a reliable determination of whether, in the final moments of jury deliberations, the lone juror to reserve a reasonable doubt as to the defendant’s guilt, who was reported by the jury foreman to be “extremely nervous,” was actually incapacitated, the judge’s failure to ensure that the juror understood the juror’s right to adhere to the juror’s view that the defendant should be acquitted, and the juror’s failure, upon excusing that juror and replacing the juror with an alternate juror, to instruct the reconstituted jury to begin anew deprived the defendant of the constitutional right to a trial by a fair and impartial jury and deprived the defendant of the due process right to a fair trial. Peek v. Kemp, 746 F.2d 672, 1985 U.S. App. LEXIS 28171 (11th Cir. 1985). Improper judicial determination in prosecution for failure to file tax re-
turn.
In a prosecution for willful failure to file income tax returns, trial court erred in directing the jury that, as a matter of law, the documents filed by the defendant were not returns. United States v. Goetz, 746 F.2d 705, 1984 U.S. App. LEXIS 16787 (11th Cir. 1984). Juror misconduct by driving to
crime scene.
Habeas court did not err by concluding that the defendant showed that the juror’s improper drive test during deliberations, conducted to see whether the defendant could have been physically present at the time and place the victim was shot, caused the defendant actual prejudice because the evidence at trial called into question whether the defendant could have been physically present when the victim was shot, the day after the drive test the jury voted to convict the defendant of felony murder and other crimes, and the drive test “proved” to at least the juror who conducted the test that the defendant could have been physically present when the victim was shot. Ballinger v. Watkins, 315 Ga. 369, 882 S.E.2d 312, 2022 Ga. LEXIS 318 (2022). Juror may impeach verdict based
on juror misconduct.
One recognized exception to the rule that a juror may not impeach the verdict is juror misconduct where the jurors, in effect, become unsworn witnesses against the defendant in violation of U.S. Const., amend. 6. Moore v. State, 179 Ga. App. 125, 345 S.E.2d 631, 1986 Ga. App. LEXIS 2594 (1986).
Statutory aggravating circumstances.
Georgia death penalty statutes were not unconstitutional under the sixth amendment, as the jury had to find beyond a reasonable doubt the statutory aggravating circumstances necessary to make a defendant eligible for the death penalty, pursuant to O.C.G.A. § 17-10-30; there was no requirement that non-statutory aggravating evidence be proven beyond a reasonable doubt. Nance v. State, 280 Ga. 125, 623 S.E.2d 470, 2005 Ga. LEXIS 855 (2005), cert. denied, 549 U.S. 868, 127 S. Ct. 168, 166 L. Ed. 2d 119, 2006 U.S. LEXIS 6966 (2006). 2. Selection of Jurors a. In General Constitution requires that grand and petit juries be selected at random from a fair cross section of the community in the district or division wherein the court convenes. United States v. Rosenthal, 482 F. Supp. 867, 1979 U.S. Dist. LEXIS 8450 (M.D. Ga. 1979). Grand jury must be drawn from fair
cross section.
The right to trial by an impartial jury includes the right to be indicted by a grand jury composed of members drawn from a source representing a fair cross section of the community. United States v. Cross, 516 F. Supp. 700, 1981 U.S. Dist. LEXIS 14241 (M.D. Ga. 1981), rev’d, 708 F.2d 631, 1983 U.S. App. LEXIS 26231 (11th Cir. 1983). There is no requirement that the jury list include the name of every citizen of the county eligible for jury service. This list must include a fair cross-section of the eligible members of the community, not every eligible member of the community. Lipham v. State, 257 Ga. 808, 364 S.E.2d 840, 1988 Ga. LEXIS 58, cert. denied, 488 U.S. 873, 109 S. Ct. 191, 102 L. Ed. 2d 160, 1988 U.S. LEXIS 3422 (1988). U.S. Const., amend. 6 guarantees a defendant’s right to a jury selected from a representative cross-section of the community. This requirement does not, however, extend to petit juries. United States v. Rodriquez-Cardenas, 866 F.2d 390, 1989 U.S. App. LEXIS 1798 (11th Cir. 1989), cert. denied, 493 U.S. 1069, 110 S. Ct. 1110, 107 L. Ed. 2d 1017, 1990 U.S. LEXIS 1021 (1990). Fair cross-section representation requirement not applicable to grand
jury foreperson.
Although the composition of a grand jury or petit jury venire may be challenged under the sixth amendment’s guarantee of a right to be tried by a group drawn from a source representing a fair cross-section of the community, this requirement does not extend to the office of grand jury foreperson because one person alone cannot represent the divergent views, experience, and ideas of the distinct groups which form a community. United States v. Sneed, 729 F.2d 1333, 1984 U.S. App. LEXIS 23511 (11th Cir. 1984). Right to have a jury venire represent a fair cross section of the community is protected by U.S. Const., amend. 6’s guarantee of trial by an impartial jury. Gibson v. Zant, 705 F.2d 1543, 1983 U.S. App. LEXIS 27257 (11th Cir. 1983); Davis v. Zant, 721 F.2d 1478, 1983 U.S. App. LEXIS 14182 (11th Cir. 1983), cert. denied, 471 U.S. 1143, 105 S. Ct. 2689, 86 L. Ed. 2d 706, 1985 U.S. LEXIS 2147 (1985).
No constitutional guarantee of representative cross-section in particular case.
The fact that the jury panel in a particular case actually contained a lower percentage of black persons is not especially significant. There is no constitutional guarantee that the grand or petit juries impanelled in a particular case will constitute a representative cross-section of the entire community. Truitt v. State, 212 Ga. App. 286, 441 S.E.2d 800, 1994 Ga. App. LEXIS 265 (1994). Unified Appeal Procedure ensuring
fair cross section.
Unified Appeal Procedure provides a statewide procedure for creating and evaluating jury source lists, and that method was designed to promote adequate representation of cognizable groups through the use of a comprehensive and objective standard. Although in some instances, that procedure may create temporary, self-rectifying anomalies as Decennial Census reports grow old, the ill done by those temporary anomalies is outweighed by the other benefits of the procedure. Thus, a continued adherence to the requirements of the Unified Appeal Procedure regarding the balancing of cognizable groups to match the most-recent Decennial Census is justified by a sufficiently-significant state interest. Finally, a fair cross-section is also guaranteed by O.C.G.A. § 15-12-40 under standards “comparable if not identical” to sixth amendment standards. Williams v. State, 287 Ga. 735, 699 S.E.2d 25, 2010 Ga. LEXIS 482 (2010), superseded by statute as stated in Ellington v. State, 292 Ga. 109, 735 S.E.2d 736, 2012 Ga. LEXIS 965 (2012). Motion to dismiss a murder indictment on the ground that the grand jury was drawn from a grand jury pool that systematically underrepresented blacks and overrepresented whites, in violation of the sixth and fourteenth amendments, based on the selection process known as “forced balancing” the grand jury pool to the most recent decennial census for the county, was properly denied under the law in effect as of November 2010, before the Jury Composition Reform Act of 2011, Ga. L. 2011, p. 59, § 1-1/HB 415, took effect. Franklin v. State, 303 Ga. 165, 810 S.E.2d 118, 2018 Ga. LEXIS 135 (2018). sentation of a claimed cognizable
Failure to show actual under-repregroup.
Supreme Court of Georgia found no need to address the trial court’s finding regarding whether Hispanic per-Trial by Jury (Cont’d) 2. Selection of Jurors (Cont’d) a. In General (Cont’d) sons were a cognizable group in Cobb County in order to decide the defendant’s jury composition claim, because: (1) the defendant failed to show any actual under-representation of Hispanic persons; (2) a slight over-representation of Hispanic persons who were citizens, in comparison to the total county population, was shown by the evidence; and (3) the defendant’s own expert belied the defendant’s claim of under-representation. Rice v. State, 281 Ga. 149, 635 S.E.2d 707, 2006 Ga. LEXIS 600 (2006). Defendant’s argument that Hispanic persons were misrepresented in the composition of the grand and traverse jury pools in violation of the Sixth and Fourteenth Amendments and O.C.G.A. § 15-12-40 was rejected because the defendant failed to show any actual misrepresentation of this group: defendant’s own expert witness testified that when using 2000 Census data, absolute disparity figures for Hispanics were under the five percent threshold, although when adjusted to account for the citizenship rate of Hispanic persons, the absolute disparity figure showed over-representation by 6.12 percent for the grand jury list. Thus, the absolute disparity figures were well within constitutional requirements of 10 percent. Foster v. State, 288 Ga. 98, 701 S.E.2d 189, 2010 Ga. LEXIS 814 (2010). Defendant failed to show that the master list used to summon jurors violated the fair cross-section requirement in that African-Americans were under-represented because defendant failed to show any under-representation, as defendant’s expert testified that the expert could not provide the data needed regarding racial disparity in order to make a constitutional claim. Moody v. State, 316 Ga. 490, 888 S.E.2d 109, 2023 Ga. LEXIS 98 (2023), cert. denied, 144 S. Ct. 697, 217 L. Ed. 2d 391, 2024 U.S. LEXIS 490 (2024). Due process limits apply even
where jury not constitutionally required.
If a state chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition of that jury. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83, 1972 U.S. LEXIS 33 (1972). Whether class is identifiable and
distinct is threshold question.
A threshold question that must be answered by the defendant is whether the particular class constitutes an identifiable and distinct class for purposes of a jury challenge based on the U.S. Const., amend. 14. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768, 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800, 1976 U.S. LEXIS 1657 (1976), superseded by statute as stated in Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806, 1983 Ga. LEXIS 938 (1983), superseded by statute as stated in State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670, 2012 Ga. LEXIS 338 (2012). State precluded from deliberate
and systematic exclusion.
Constitution requires that the state not deliberately and systematically exclude identifiable and distinct groups from its jury lists. Campbell v. State, 240 Ga. 352, 240 S.E.2d 828, 1977 Ga. LEXIS 1498 (1977), cert. denied, 439 U.S. 882, 99 S. Ct. 219, 58 L. Ed. 2d 194 (1978); 439 U.S. 882, 99 S. Ct. 218, 58 L. Ed. 2d 194 (1978).
Violation requires systematic exclusion or discrimination opportunity.
The defendant’s allegations that the venire from which the grand and petit juries were drawn was unconstitutionally composed because both women and African-Americans were underrepresented did not establish a prima facie violation of either the sixth amendment or the fourteenth amendment, because there was no showing that the underrepresentation was due to systematic exclusion of the groups in the jury-selection process or that the venire was selected under a practice providing an opportunity for discrimination. Cunningham v. Zant, 928 F.2d 1006, 1991 U.S. App. LEXIS 4864 (11th Cir. 1991). Selection procedures, not actual
composition, determine constitutionality.
In determining whether there has been a denial of the defendant’s right under U.S. Const., amend. 6 to have jury venires selected from fairly representative cross sections of the community, and in determining whether the defendant’s rights under the equal protection clause of U.S. Const., amend. 14 have been violated because members of the defendant’s race have been deliberately excluded from the jury lists, the inquiry concerns the procedures for compiling the jury lists and not the actual composition of the grand or traverse jury in a particular case. Patterson v. Balkcom, 245 Ga. 563, 266 S.E.2d 179, 1980 Ga. LEXIS 855 (1980). It is the pool of jurors from which the jury sent to be voir dired is drawn that must be representative of the community, not the individual panel sent to a courtroom for voir dire purposes. Prine v. State, 237 Ga. App. 679, 515 S.E.2d 425, 1999 Ga. App. LEXIS 443 (1999). sel’s use of peremptory challenges was proper since the trial court was authorized to disbelieve the facially race-neutral reasons for striking certain jurors, or to conclude that the stated grounds, some being whimsical or fanciful, were not neutrally applied. McKibbons v. State, 216 Ga. App. 389, 455 S.E.2d 293, 1995 Ga. App. LEXIS 173 (1995), cert. denied, No. S95C0997, 1995 Ga. LEXIS 739 (Ga. May 25, 1995). Mere geographical imbalance, absent evidence that an identifiable and cognizable segment of the community has been systematically excluded or underrepresented by reason of such imbalance, does not violate the statutory and constitutional requirements that the jury panel represent a fair cross section of the community. United States v. Rosenthal, 482 F. Supp. 867, 1979 U.S. Dist. LEXIS 8450 (M.D. Ga. 1979). Defendant entitled to panel of qualified jurors, not panel of preferred jurors. Smith v. State, 245 Ga. 205, 264 S.E.2d 15, 1980 Ga. LEXIS 743 (1980). titled to venire or jury roll of any particular composition. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768, 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800, 1976 U.S. LEXIS 1657 (1976), superseded by statute as stated in Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806, 1983 Ga. LEXIS 938 (1983), superseded by statute as stated in State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670, 2012 Ga. LEXIS 338 (2012); Campbell v. State, 240 Ga. 352, 240 S.E.2d 828, 1977 Ga. LEXIS 1498 (1977), cert. denied, 439 U.S. 882, 99 S. Ct. 219, 58 L. Ed. 2d 194 (1978); Mann v. Cox, 487 F. Supp. 147, 1979 U.S. Dist. LEXIS 9894 (S.D. Ga. 1979).
State’s challenge of defense coun-Defendant not constitutionally en-Deliberate and systematic exclusion not permitted.
Equal protection and due process clauses of U.S. Const., amend. 14 and U.S. Const., amend. 6 require that the state not deliberately and systematically exclude identifiable and distinct groups from their jury lists. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768, 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800, 1976 U.S. LEXIS 1657 (1976), superseded by statute as stated in Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806, 1983 Ga. LEXIS 938 (1983), superseded by statute as stated in State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670, 2012 Ga. LEXIS 338 (2012). Representative cross section in a
particular case not guaranteed.
There is no constitutional guarantee that grand or petit juries, impaneled in a particular case, will constitute a representative cross section of the entire community. Campbell v. State, 240 Ga. 352, 240 S.E.2d 828, 1977 Ga. LEXIS 1498 (1977), cert. denied, 439 U.S. 882, 99 S. Ct. 219, 58 L. Ed. 2d 194 (1978); Smith v. State, 151 Ga. App. 697, 261 S.E.2d 439, 1979 Ga. App. LEXIS 2754 (1979). Gross and unexplained disparity strate discrimination. Talley v. State, 120 Ga. App. 365, 170 S.E.2d 444, 1969 Ga. App. LEXIS 781 (1969). cial groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. Julian v. State, 134 Ga. App. 592, 215 S.E.2d 496, 1975 Ga. App. LEXIS 2099 (1975). tional categories from jury service on the bona fide ground that it is for the good of the community that their regular work Trial by Jury (Cont’d) 2. Selection of Jurors (Cont’d) a. In General (Cont’d) should not be interrupted. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83, 1972 U.S. LEXIS 33 (1972). Use of voter registration lists for
may alone be sufficient to demon-Restricting jury service to only spe-State may exclude certain occupajury selection.
Voter registration lists may be used as the sole source of names for jury duty unless it results in the systematic exclusion of a cognizable group or class of qualified citizens. However, those who do not choose to register, such as Jehovah’s Witnesses, cannot be considered a cognizable group. United States v. Dangler, 422 F.2d 344, 1970 U.S. App. LEXIS 5706 (5th Cir. 1970). clusion from the jury of a distinct class to which the defendant does not belong. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768, 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800, 1976 U.S. LEXIS 1657 (1976), superseded by statute as stated in Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806, 1983 Ga. LEXIS 938 (1983), superseded by statute as stated in State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670, 2012 Ga. LEXIS 338 (2012). Exclusion of discernible class from jury service injures not only those defendants who belong to excluded class, but other defendants as well, in that it destroys the possibility that the jury will reflect a representative cross section of the community. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83, 1972 U.S. LEXIS 33 (1972).
Defendant may complain of the ex-Right to challenge improperly composed jury.
Criminal defendants in state courts have the right to challenge, under U.S. Const., amend. 6, petit juries not selected from a fair cross section of the community. Wilson v. State, 250 Ga. 630, 300 S.E.2d 640, 1983 Ga. LEXIS 1019, cert. denied, 464 U.S. 865, 104 S. Ct. 199, 78 L. Ed. 2d 174, 1983 U.S. LEXIS 5341 (1983). Test for an attack on a traverse jury is two-fold: first, the defendant must prove that the group is a cognizable group; and, second, the defendant must show that the group has been consistently under-represented. Potts v. State, 259 Ga. 812, 388 S.E.2d 678, 1990 Ga. LEXIS 54 (1990).
Reindictment not required for certain grand juries declared unconstitutional.
States do not have to reconstitute grand juries and reindict prisoners who have been indicted by a grand jury drawn prior to Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975), which declared that Georgia’s “opt-out” law for women rendered its juries unconstitutional. Young v. Zant, 727 F.2d 1489, 1984 U.S. App. LEXIS 24727 (11th Cir. 1984), cert. denied, 470 U.S. 1009, 105 S. Ct. 1371, 84 L. Ed. 2d 390, 1985 U.S. LEXIS 1222 (1985). Jurors who appeared in panel for
previous trial of defendant.
The fact that a panel of jurors may have included the names of certain jurors who had appeared in a panel presented in a previous trial of the defendant and who had been peremptorily challenged by the defendant does not constitute a good ground of challenge to the array. Cady v. State, 198 Ga. 99, 31 S.E.2d 38, 1944 Ga. LEXIS 367 (1944). If a juror is impaneled to try a defendant for a criminal offense and is peremptorily challenged by the defendant, the juror is not so disqualified that the juror can not again be impanelled at a subsequent trial for the same offense under the same indictment, on the grounds that the defendant would thereby be deprived of the defendant’s full 20 strikes, or because it would deny the defendant’s constitutional right of a fair and impartial trial and equal protection of the laws. Cady v. State, 198 Ga. 99, 31 S.E.2d 38, 1944 Ga. LEXIS 367 (1944).
Reinstatement of improperly challenged jurors.
When a Batson challenge results in a finding that jury selection was not racially neutral and when the jurors remain unaware of the party who struck them, reinstating improperly challenged jurors does not abridge the defendant’s right to a fair and impartial jury. Brown v. State, 218 Ga. App. 469, 462 S.E.2d 420, 1995 Ga. App. LEXIS 759 (1995). Right to conduct private voir dire
on sensitive issues.
Defendant’s right to a public trial was not violated by the trial court’s conduct of certain portions of voir dire in a private jury room rather than in open court because the defendant’s counsel agreed that jurors should have a private opportunity to answer questions of a sensitive nature, including jurors’ attitudes toward homosexuality and jurors’ prior arrests, and the right to a public trial gave way to the right for a fair trial. State v. Abernathy, 289 Ga. 603, 715 S.E.2d 48, 2011 Ga. LEXIS 550 (2011). Juvenile defendant not entitled to jury determination of life without
possibility of parole.
Georgia defendant convicted of murder committed when the defendant was a juvenile did not have a federal constitutional right under the sixth amendment to have a jury make the determination required by the eighth amendment of whether the defendant was irreparably corrupt or permanently incorrigible before the defendant was sentenced to serve life without the possibility of parole. Raines v. State, 309 Ga. 258, 845 S.E.2d 613, 2020 Ga. LEXIS 473 (2020), cert. denied, 141 S. Ct. 2676, 210 L. Ed. 2d 836, 2021 U.S. LEXIS 2720 (2021).
Necessity of prejudice from unconstitutionally composed jury pool.
If challenged prior to trial, a movant is not required to demonstrate prejudice flowing from an unconstitutionally composed jury pool because prejudice is presumed. Birt v. Montgomery, 709 F.2d 690, 1983 U.S. App. LEXIS 24721 (11th Cir. 1983). On collateral attack in federal court, when the challenge has been waived under state law, the burden of demonstrating prejudice resulting from underrepresentation is much greater than the presumption accorded the violation when raised prior to trial. Birt v. Montgomery, 709 F.2d 690, 1983 U.S. App. LEXIS 24721 (11th Cir. 1983). Burden is on defendant to prove
discrimination.
The burden is upon the defendant to demonstrate that a particular class was the subject of discrimination in the jury selection procedures. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768, 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800, 1976 U.S. LEXIS 1657 (1976), superseded by statute as stated in Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806, 1983 Ga. LEXIS 938 (1983), superseded by statute as stated in State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670, 2012 Ga. LEXIS 338 (2012). Disparity between representation in population and juries insufficient
where bias in selection not shown.
Absent proof that selection procedures are biased, proof of disparity between racial percentages in the population and on the juries is not sufficient to shift the burden of explanation to the state. Wright v. Smith, 474 F.2d 349, 1973 U.S. App. LEXIS 11616 (5th Cir.), cert. denied, 414 U.S. 853, 94 S. Ct. 149, 38 L. Ed. 2d 102, 1973 U.S. LEXIS 672 (1973). The trial court did not err by ruling that the composition of the grand and traverse jury pools did not violate the Constitution, O.C.G.A. § 15-12-40, and the Unified Appeal Procedure where, in a comparison of the 1990 Census numbers for Hispanics in the county with the percentage of Hispanics on the jury lists, it was shown that the absolute disparities were within the legal limit. Morrow v. State, 272 Ga. 691, 532 S.E.2d 78, 2000 Ga. LEXIS 492 (2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1408, 149 L. Ed. 2d 350, 2001 U.S. LEXIS 2523 (2001). To establish a prima facie case of jury discrimination the complainant must show that an opportunity for discrimination existed from the source of the jury list and that use of the infected source produced a significant disparity between the percentages found present in the source and those actually appearing on the grand and traverse jury panels. Campbell v. State, 240 Ga. 352, 240 S.E.2d 828, 1977 Ga. LEXIS 1498 (1977), cert. denied, 439 U.S. 882, 99 S. Ct. 219, 58 L. Ed. 2d 194 (1978); 439 U.S. 882, 99 S. Ct. 218, 58 L. Ed. 2d 194 (1978). In order to establish a prima facie violation of the fair cross section requirement, the defendant must show that the group alleged to be excluded is a distinctive group in the community; that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and that this underrepresentation is due to systematic exclusion of the group in the Trial by Jury (Cont’d) 2. Selection of Jurors (Cont’d) a. In General (Cont’d) jury selection process. United States v. Rosenthal, 482 F. Supp. 867, 1979 U.S. Dist. LEXIS 8450 (M.D. Ga. 1979); United States v. Butler, 611 F.2d 1066, 1980 U.S. App. LEXIS 20486 (5th Cir.), cert. denied, 449 U.S. 830, 101 S. Ct. 97, 66 L. Ed. 2d 35, 1980 U.S. LEXIS 2748 (1980). lowing elements to demonstrate a prima facie violation of the fair cross-section requirement: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. United States v. Tuttle, 729 F.2d 1325, 1984 U.S. App. LEXIS 23513 (11th Cir. 1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 968, 83 L. Ed. 2d 972, 1985 U.S. LEXIS 736 (1985). Defendant had burden of showing discrimination based on fair cross
Defendant must establish the folsection requirement.
Although the defendant argued that the defendant was denied a fair trial because the jury array was selected in a manner that deprived the defendant of a fair cross-section of the community, the defendant failed to meet the defendant’s burden because the defendant did not present any evidence of systematic or purposeful discrimination as the lack of information regarding the race of the jurors did not show that the composition of the array amounted to discrimination by random process; and because the state did not fail to show a fair cross-section as the defendant, not the state, bore the burden of proof on that issue; thus, the lack of information upon which the defendant relied proved nothing, and the defendant could not prevail. Grant v. State, 305 Ga. 170, 824 S.E.2d 255, 2019 Ga. LEXIS 102 (2019), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020).
Factors for determining discrimination in jury selection.
There is a progression of legal exercises leading to the conclusion of discrimination in jury selection: The first is the right to rely on the fact that peremptory strikes offer the prosecution a potential tool for discrimination. Second, the defendant must show membership in a racially cognizable group and that the prosecution used peremptory strikes to remove persons of the defendant’s race from the jury. Then the defendant is burdened with showing that these facts and other relevant circumstances raise an inference of the prosecution’s racial motive in the use of peremptory strikes. Aldridge v. State, 258 Ga. 75, 365 S.E.2d 111, 1988 Ga. LEXIS 149 (1988). Disparities insufficient to support
inference of purposeful discrimination.
An absolute disparity of less than 5 percent between the black percentage of the jury pools and the black percentage of the community and a comparative disparity (absolute disparity divided by the black percentage of the community) of 28 percent was insufficient to support an inference of purposeful discrimination, where the jurors were randomly selected from the list of registered voters. Cook v. State, 255 Ga. 565, 340 S.E.2d 843, 1986 Ga. LEXIS 607, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4139 (1986). Where the testimony was that blacks were underrepresented by 1.9 percent absolute and 47.9 percent comparative on the grand jury list, and by 1.2 percent absolute and 30.9 percent comparative on the traverse jury list, the comparative disparities shown, although not irrelevant, were insufficient to establish any constitutional violation. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, 1987 Ga. LEXIS 634 (1987); 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994). Recent and long-time registered voters not distinct and identifiable
groups.
Defendant failed to establish prima facie that those who were more recently registered voters and those who had been registered for a longer period were distinct and identifiable groups in the community. Larmon v. State, 256 Ga. 228, 345 S.E.2d 587, 1986 Ga. LEXIS 757 (1986). Fact that jurors’ names were in alphabetical order or their residences were on the same street did not cause substantial underrepresentation of any distinct and identifiable group in the community. Larmon v. State, 256 Ga. 228, 345 S.E.2d 587, 1986 Ga. LEXIS 757 (1986). Fact that the names on the master jury list were originally obtained from geographical voting districts would not result in a nonrandom geographical pattern. Larmon v. State, 256 Ga. 228, 345 S.E.2d 587, 1986 Ga. LEXIS 757 (1986). It would be desirable if jury lists
contained no alphabetical, geographical, or numerical patterns.
Therefore, it is strongly suggested that trial courts take steps to totally randomize the juror selection process. Larmon v. State, 256 Ga. 228, 345 S.E.2d 587, 1986 Ga. LEXIS 757 (1986). Where there was no challenge to the initial programmed randomness of selecting jurors from a scan of the entire list of registered voters, defendant was not entitled to an additional final computer printout comprised of another entirely random arrangement of the previously randomly selected individuals. Larmon v. State, 177 Ga. App. 763, 341 S.E.2d 237, 1986 Ga. App. LEXIS 2462 (1986). To assert a trial jury composition challenge collaterally in federal court when such right has been waived under state law, requires the petitioner to demonstrate both cause for the failure to challenge and actual prejudice. Birt v. Montgomery, 709 F.2d 690, 1983 U.S. App. LEXIS 24721 (11th Cir. 1983).
Replacement of ill juror not unconstitutional.
Although the erroneous replacement of a juror may under some circumstances deprive a defendant of the right to have the trial completed by a particular tribunal, the sixth amendment right to a fair, impartial and representative jury, and the due process rights grounded in the entitlement to procedures mandated by state law, the defendant was not denied any such rights as a result of the replacement of a juror who, the record showed, was too ill to continue in the deliberations. Peek v. Kemp, 784 F.2d 1479, 1986 U.S. App. LEXIS 22736 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371, 1986 U.S. LEXIS 4608 (1986). Ill defendant during voir defendant
and subsequent waiver of rights.
Trial court did not abuse the court’s discretion by denying a defendant’s motion for a new trial based on the defendant vomiting in front of the jury during voir dire when the trial was commenced after a two day delay that was granted to the defendant after indicating an illness prevented the defendant’s presence at trial. The trial court properly found that the alleged ill defendant waived the right to be present by repeatedly delaying the start of trial with the malingering conduct and by failing to object when defense counsel, in the defendant’s presence, specifically requested that the trial court remove the defendant from the courtroom before bringing the jury panel back. Smith v. State, 284 Ga. 599, 669 S.E.2d 98, 2008 Ga. LEXIS 866 (2008). Presence of defendant during voir
dire of jury.
Defendant’s absence during the voir dire of prospective jurors did not violate defendant’s sixth amendment right to confront and cross-examine witnesses. Goodroe v. State, 224 Ga. App. 378, 480 S.E.2d 378, 1997 Ga. App. LEXIS 82 (1997), cert. denied, No. S97C0791, 1997 Ga. LEXIS 489 (Ga. May 2, 1997).
Disruptive outbursts affecting defendant’s right to be present.
Since defendant continued with disruptive, vocal outbursts after twice being removed from the trial court during jury selection, the third and final removal of defendant for the remainder of the jury selection process was not error because defendant failed to heed the trial court’s warnings to control oneself and, thereby, waived defendant’s right to be present during jury selection. Lovelace v. State, 262 Ga. App. 690, 586 S.E.2d 386, 2003 Ga. App. LEXIS 991 (2003), cert. denied, No. S03C1862, 2004 Ga. LEXIS 47 (Ga. Jan. 12, 2004). Right to public trial not denied when jurors questioned in chambers
in presence of defendant and counsel.
— Defendant’s sixth amendment right to a public trial was not violated when a number of potential jurors were ques-Trial by Jury (Cont’d) 2. Selection of Jurors (Cont’d) a. In General (Cont’d) tioned privately in chambers during voir dire because the potential jurors were questioned in the presence of the defendant and defense counsel. Johnson v. State, 293 Ga. 641, 748 S.E.2d 896, 2013 Ga. LEXIS 716 (2013).
Improper voir dire examination restricted.
The trial court did not violate Uniform Superior Court Rule 10.1, O.C.G.A. § 15-12-133, the sixth and fourteenth amendments, or Ga. Const. 1983, Art. I, Sec. I, Para. I and XI, by restricting improper voir dire examination of prospective jurors concerning racial bias, pretrial publicity, and self-defense. Walker v. State, 258 Ga. 443, 370 S.E.2d 149, 1988 Ga. LEXIS 304 (1988), overruled in part, Carter v. State, 298 Ga. 867, 785 S.E.2d 274, 2016 Ga. LEXIS 257 (2016).
Batson challenge not preserved.
Defendant failed to preserve defendant’s Batson claim for review where, following the initial Batson challenge, defendant and the state agreed to the seating on the jury of a woman and an African-American, and defendant did not object when the African-American was later removed due to the African-American’s failure to disclose a recent arrest. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637, 2004 Ga. App. LEXIS 702 (2004).
Race-neutral explanation for peremptory strikes.
Appeals court rejected the defendant’s claim that the state committed a Batson violation in peremptorily striking two jurors, as: (1) the state’s reasons in striking the first juror appeared concrete and race-neutral and any question of doubt was decided in favor of the state, given the great deference to the determination that the state’s reason was not so wholly fantastic as to be pretextual; and (2) a second juror was properly stricken based on evidence that the juror worked nights, appeared to be extremely fatigued, and actually slept through portions of the voir dire. Woolfolk v. State, 282 Ga. 139, 644 S.E.2d 828, 2007 Ga. LEXIS 359 (2007). Standard of review of trial courts’
rulings.
Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L.Ed.2d 841 (1985) is not controlling authority as to the standard of review to be applied by state appellate courts reviewing trial courts’ rulings on jury selection. Greene v. Georgia, 519 U.S. 145, 117 S. Ct. 578, 136 L. Ed. 2d 507, 1996 U.S. LEXIS 7648 (1996). Although defendant contended that defendant’s sixth amendment right to trial by an impartial jury was violated, to establish a denial of the defendant’s right to an impartial jury, a defendant had to show either actual juror partiality or circumstances inherently prejudicial to that right. Such a showing could not be made by speculation, and the record reflected that voir dire was not transcribed because there were no objections and no motions; therefore, defendant waived the right to complain on appeal about any purported irregularity during voir dire. Bynum v. State, 300 Ga. App. 163, 684 S.E.2d 330, 2009 Ga. App. LEXIS 1111 (2009), cert. denied, No. S10C0225, 2010 Ga. LEXIS 300 (Ga. Mar. 29, 2010), overruled in part, Martin v. McLaughlin, 298 Ga. 44, 779 S.E.2d 294, 2015 Ga. LEXIS 793 (2015). Trial counsel did not render ineffective assistance by failing to raise a Batson challenge because the defendant failed to show that a Batson challenge would have been successful since the defendant neither called the state’s prosecutors to testify at the motion for new trial hearing nor sought out or attempted to introduce their notes regarding the striking of jurors prior to trial; only the state attempted to elicit that information during the state’s cross-examination of trial counsel, and the resulting testimony indicated that the state did have race-neutral reasons for using the state’s peremptory strikes. Stokes v. State, 289 Ga. 702, 715 S.E.2d 81, 2011 Ga. LEXIS 670 (2011). b. Race Representation of defendant’s race
or other groups not guaranteed.
The proposition that a defendant in a criminal case is entitled to a proportionate number of the defendant’s race on the jury that tries the defendant, or that the venire or jury lists accurately reflect the proportionate strength of every identifiable group is not law, since the challenger must establish by satisfactory evidence purposeful racial discrimination, even if the figures are not proportionate. Talley v. State, 120 Ga. App. 365, 170 S.E.2d 444, 1969 Ga. App. LEXIS 781 (1969). Defendant in a criminal case is not constitutionally entitled to demand a proportionate number of the defendant’s race on the jury that tries the defendant nor on the venire or jury roll from which petit jurors are drawn, and neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. United States v. Rosenthal, 482 F. Supp. 867, 1979 U.S. Dist. LEXIS 8450 (M.D. Ga. 1979). Whatever a criminal defendant’s race, the defendant has standing to challenge the system used to select the grand or petit jury, on the ground that it arbitrarily excludes from service the members of any race, and thereby denies the defendant due process of law. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83, 1972 U.S. LEXIS 33 (1972). vice injures not only defendants, but also other members of the excluded class. It denies the class of potential jurors the privilege of participating equally in the administration of justice, and it stigmatizes the whole class, even those who do not wish to participate. Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83, 1972 U.S. LEXIS 33 (1972). In order to make a prima facie showing of systematic exclusion of blacks from juries, a defendant has the burden of proving, first, that the opportunity for racial discrimination existed by reason of the use of a racially biased source of potential jurors, and, second, that the use of such an infected source produced a significant disparity between the percentages of blacks in the source and the percentage on the grand jury and petit jury panels. Wright v. Smith, 474 F.2d 349, 1973 U.S. App. LEXIS 11616 (5th Cir.), cert. denied, 414 U.S. 853, 94 S. Ct. 149, 38 L. Ed. 2d 102, 1973 U.S. LEXIS 672 (1973). In order to establish a prima facie case of discrimination, the defendant must demonstrate that there exists a substantial disparity between the proportion of blacks chosen for jury duty and the proportion of blacks in the eligible population, and that the selection procedures themselves are not racially neutral. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768, 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800, 1976 U.S. LEXIS 1657 (1976), superseded by statute as stated in Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806, 1983 Ga. LEXIS 938 (1983), superseded by statute as stated in State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670, 2012 Ga. LEXIS 338 (2012). Statistical evidence establishing that blacks are underrepresented, together with evidence that the jury selection procedures are not racially neutral, establishes a prima facie case of invidious racial discrimination thus shifting the burden of proof to the state. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768, 1975 Ga. LEXIS 899 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800, 1976 U.S. LEXIS 1657 (1976), superseded by statute as stated in Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806, 1983 Ga. LEXIS 938 (1983), superseded by statute as stated in State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670, 2012 Ga. LEXIS 338 (2012). Random selection producing no
Exclusion of blacks from jury serblack jurors.
The fact that no blacks were on the grand jury that indicted the defendant did not raise a prima-facie case of discrimination where only two percent of the residents of the county were black and the county clerk testified that 15 of the 727 (2%) names placed in the grand jury box were black, but that none of those 15 names were randomly drawn by the Superior Court in open court. Wigfall v. State, 257 Ga. 585, 361 S.E.2d 376, 1987 Ga. LEXIS 954 (1987). Both black persons and women constitute recognizable, distinct classes for purposes of challenges based on allegations of discriminatory selection of juries and that jury venires do not represent a fair cross section of the community. Gibson v. Zant, 705 F.2d 1543, Trial by Jury (Cont’d) 2. Selection of Jurors (Cont’d) b. Race (Cont’d) 1983 U.S. App. LEXIS 27257 (11th Cir. 1983).
Use of peremptory strikes to exclude blacks.
The defendant was not denied due process of the law on the ground that the state used all of its peremptory strikes to exclude blacks from a petit jury. Avery v. State, 174 Ga. App. 116, 329 S.E.2d 276, 1985 Ga. App. LEXIS 2698 (1985). Where all of the juries relied on by defendant show a systematic exclusion of blacks from petit juries were composed of at least 25 percent black jurors with the exception of one jury which had only one black juror, the state used all of its peremptory challenges in only four of the ten cases, and there were no cases involving all-white juries, defendant failed to establish a constitutional denial of due process and the right to a fair trial through the discriminatory use of peremptory challenges. Patterson v. State, 176 Ga. App. 784, 338 S.E.2d 283, 1985 Ga. App. LEXIS 2911 (1985). When a prosecutor uses peremptory challenges to strike all black veniremen from a jury, the defendant is deprived of equal protection; and, unless the prosecutor can present a racially neutral explanation for the elimination of racially discrete jurors through peremptory challenges, a “guilty” verdict arrived at by the jury is subject to reversal and remand. Hamilton v. State, 181 Ga. App. 279, 351 S.E.2d 705, 1986 Ga. App. LEXIS 2823 (1986). Trial court did not abuse the court’s discretion in ruling that the defendant failed to establish a case of unconstitutional race-based discrimination by the prosecution using three of the prosecution’s eight peremptory strikes against African-Americans. The reasons offered for the three strikes were race neutral and not pretextual. Watkins v. State, 289 Ga. 359, 711 S.E.2d 655, 2011 Ga. LEXIS 474 (2011). Use of “comparative disparity”
standard to show underrepresentation of blacks and women.
The defendant, who relied on the “comparative disparity” standard to show unconstitutional underrepresentation of blacks and women, as opposed to white males, on the grand and traverse juries, and not on the “absolute disparity” produced by the jury selection process, in relation to the number of such persons in the community, failed to carry this burden of proof. Godfrey v. Francis, 613 F. Supp. 747, 1985 U.S. Dist. LEXIS 18352 (N.D. Ga. 1985), aff’d, 836 F.2d 1557, 1988 U.S. App. LEXIS 453 (11th Cir. 1988). Systematic exclusion of blacks and
women indicated.
For purposes of U.S. Const., amend. 6’s right to a jury composed of a representative segment of the community, the disparities of blacks and women on county traverse jury lists over a period of time indicates a systematic exclusion of these two groups. Birt v. Montgomery, 709 F.2d 690, 1983 U.S. App. LEXIS 24721 (11th Cir. 1983). tack the systematic exclusion of black persons from grand and petit jury service. Gibbs v. State, 235 Ga. 480, 220 S.E.2d 254, 1975 Ga. LEXIS 908 (1975), cert. denied, 424 U.S. 924, 96 S. Ct. 1134, 47 L. Ed. 2d 333, 1976 U.S. LEXIS 625 (1976).
White person has standing to at-Underrepresentation of whites.
Because defense counsel put forward no evidence of the racial composition of the population of the county in which the defendant was tried, other than to state, “my client, being white, and we only have one white female juror out of the entire panel, I think it’s just not a good cross section and it’s not representative,” the defendant failed to meet the defendant’s burden to establish prima facie that a distinct and identifiable group in the community was substantially under represented on the jury venire being challenged. Prine v. State, 237 Ga. App. 679, 515 S.E.2d 425, 1999 Ga. App. LEXIS 443 (1999). Defendant’s use of peremptory
strikes to exclude Caucasians.
Trial court’s finding that defense counsel’s explanation for a prima facie racially discriminatory peremptory strike was pretextual was not clear error based on defense counsel’s demeanor while explaining the strike, counsel’s misstating what the juror’s response was during voir dire, counsel’s failure to excuse similarly situated jurors, and counsel’s exercise of 11 of 12 strikes against Caucasians. Nelson v. State, 271 Ga. App. 870, 611 S.E.2d 147, 2005 Ga. App. LEXIS 192 (2005). c. Sex
Exclusion of women as a class.
It is not tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male. Zirkle v. State, 235 Ga. 289, 219 S.E.2d 389, 1975 Ga. LEXIS 857 (1975).
Exclusion of women.
In county where by tradition the grand jurors had selected their forepersons, fact that no woman had served as a foreperson of a county grand jury during the preceding ten years did not prove discrimination in selection of grand jurors and forepersons. Moss v. State, 250 Ga. 368, 297 S.E.2d 459, 1982 Ga. LEXIS 1253 (1982). Trial court did not abuse the court’s discretion in ruling that the defendant failed to establish a prima facie case of discriminatory purpose based on gender by the prosecution using seven of the prosecution’s eight peremptory strikes against women. Watkins v. State, 289 Ga. 359, 711 S.E.2d 655, 2011 Ga. LEXIS 474 (2011).
Underrepresentation of women.
Petitioner established a violation of the Sixth Amendment’s fair-cross-section requirement, notwithstanding jury commissioners’ good faith belief that 39.36 percent representation of women on the master jury list “was in the ballpark guidelines that the Supreme Court would allow.” Berryhill v. Zant, 858 F.2d 633, 1988 U.S. App. LEXIS 13498 (11th Cir. 1988). Both black persons and women constitute recognizable, distinct classes for purposes of challenges based on allegations of discriminatory selection of juries and that jury venires do not represent a fair cross section of the community. Gibson v. Zant, 705 F.2d 1543, 1983 U.S. App. LEXIS 27257 (11th Cir. 1983). Use of “comparative disparity”
standard to show underrepresentation of blacks and women.
The defendant, who relied on the “comparative disparity” standard to show unconstitutional underrepresentation of blacks and women, as opposed to white males, on the grand and traverse juries, and not on the “absolute disparity” produced by the jury selection process, in relation to the number of such persons in the community, failed to carry this burden of proof. Godfrey v. Francis, 613 F. Supp. 747, 1985 U.S. Dist. LEXIS 18352 (N.D. Ga. 1985), aff’d, 836 F.2d 1557, 1988 U.S. App. LEXIS 453 (11th Cir. 1988). Systematic exclusion of blacks and
women indicated.
For purposes of U.S. Const., amend. 6’s right to a jury composed of a representative segment of the community, the disparities of blacks and women on county traverse jury lists over a period of time indicates a systematic exclusion of these two groups. Birt v. Montgomery, 709 F.2d 690, 1983 U.S. App. LEXIS 24721 (11th Cir. 1983). d. Age Exclusion of homemakers with children 14 years of age or under. — Former Code 1933, § 59-112 (see O.C.G.A. § 15-12-1), which authorizes the trial judge to excuse a juror who is a homemaker with children 14 years of age or under does not violate U.S. Const., amend. 6 or U.S. Const., amend. 14, since a state may have an important interest in assuring that those members of the family responsible for the care of children are available to do so. Willis v. State, 243 Ga. 185, 253 S.E.2d 70, 1979 Ga. LEXIS 847, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).
Eighteen-to-21-year-olds not distinct group.
Assuming that 18-to-21year-olds were excluded from the jury pool in a criminal case, this does not establish even a prima facie violation of the fair-cross-section requirement, because persons falling into this age range do not constitute a “distinctive” or cognizable group. House v. Balkcom, 562 F. Supp. 1111, 1983 U.S. Dist. LEXIS 17753 (N.D. Ga. 1983), rev’d, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir. 1984). 18-to-23-year-olds not distinct
group.
Defendant failed to demonstrate that persons between ages of 18 Trial by Jury (Cont’d) 2. Selection of Jurors (Cont’d) d. Age (Cont’d) and 23 constituted “distinct and identifiable group in the community” for purposes of challenge to composition of jury. See Mincey v. State, 251 Ga. 255, 304 S.E.2d 882, 1983 Ga. LEXIS 768, cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983). Young persons age 18 to 24 were not a cognizable group which had to be represented on defendant’s jury for sixth amendment purposes. Potts v. State, 259 Ga. 812, 388 S.E.2d 678, 1990 Ga. LEXIS 54 (1990). The defendant was not entitled to have the indictment quashed because the list of potential grand jurors was drawn from the 1980 census instead of the 1990 census, notwithstanding defendant’s assertion that the use of the 1980 census resulted in the underrepresentation of the 18 to 24 age group in the grand jury pool, since such group was not cognizable for purposes of grand jury selection. Swanson v. State, 248 Ga. App. 551, 545 S.E.2d 713, 2001 Ga. App. LEXIS 339 (2001), cert. denied, No. S01C0997, 2001 Ga. LEXIS 651 (Ga. Sept. 7, 2001).
Eighteen-to-29-year-olds not cognizable group.
Petitioner failed to establish that young adults aged 18 to 29 constituted a cognizable group in the petitioner’s attempt to show underrepresentation of young adults in the jury pool, because the group was not defined and the petitioner did not prove that the views held by adults aged 18 to 29 could not be represented by other members of the community. Willis v. Kemp, 838 F.2d 1510, 1988 U.S. App. LEXIS 1792 (11th Cir. 1988), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596, 1989 U.S. LEXIS 1184 (1989).
Overrepresentation of persons under 25.
Defendant’s challenge of the jury array based on overrepresentation of persons under 25 years of age failed to establish the significant underrepresentation of persons 25 and over and failed to show that the underrepresented group was cognizable. Anthony v. State, 213 Ga. App. 303, 444 S.E.2d 393, 1994 Ga. App. LEXIS 581 (1994). sons on grand jury list did not violate the requirement that the grand jury be drawn from a fair cross section of the community; the underrepresentation was explained by the jury commissioner’s compliance with the legal requirement that only a limited number of the most experienced persons on the traverse jury list be selected for inclusion on the grand jury list. Parks v. State, 254 Ga. 403, 330 S.E.2d 686, 1985 Ga. LEXIS 711 (1985). Eighteen-to-30-year-old persons are not a cognizable class for the purpose of a challenge to the array of the traverse jury. Davis v. State, 241 Ga. 376, 247 S.E.2d 45, 1978 Ga. LEXIS 1363 (1978). Lowering of minimum jury service
Underrepresentation of young perage to 18 not constitutionally required.
Jury list which excludes all people 18 to 21 years of age does not deny defendant the right to a public trial and due process of law, despite the lowering of the minimum age for federal jurors to 18 by 26 U.S.C. § 1865. United States v. Dukes, 479 F.2d 324, 1973 U.S. App. LEXIS 9697 (5th Cir. 1973). 3. Jurors Views on Death Penalty “Death-qualified” jury procedure does not violate the constitutional right to a jury trial. Chenault v. Stynchcombe, 581 F.2d 444, 1978 U.S. App. LEXIS 8655 (5th Cir. 1978). When the defendant received a sentence of life without parole, not a death sentence, the defendant could not complain of the death-penalty qualification of the jurors; moreover, the death penalty qualification of prospective jurors was clearly authorized. Stokes v. State, 281 Ga. 825, 642 S.E.2d 82, 2007 Ga. LEXIS 174 (2007), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). nents does not violate due process
Exclusion of death penalty oppoclause of U.S. Const., amend. 14.
Questioning of jurors and exclusion of those opposed to the death penalty does not violate the due process clause of U.S. Const., amend. 14. Corn v. State, 240 Ga. 130, 240 S.E.2d 694, 1977 Ga. LEXIS 1423 (1977), cert. denied, 436 U.S. 914, 98 S. Ct. 2255, 56 L. Ed. 2d 415 (1978). ment case is whether the juror’s views on capital punishment would prevent or substantially impair the performance of the juror’s duties as a juror in accordance with the juror’s instructions and the juror’s oath. Alderman v. State, 254 Ga. 206, 327 S.E.2d 168, 1985 Ga. LEXIS 651, cert. denied, 474 U.S. 911, 106 S. Ct. 282, 88 L. Ed. 2d 245, 1985 U.S. LEXIS 5001 (1985). Juror excused because of capital
Standard for disqualifying a prospective juror in a capital punishpunishment views.
Where defendant argues that the exclusion of certain venire-persons from the jury panel for cause violated the sixth amendment right to be tried before an impartial jury, the appropriate standard is that a juror can be excluded for cause because of his or her views on capital punishment if the juror’s views would prevent or substantially impair the performance of the juror’s duties as a juror in accordance with the juror’s instructions and the juror’s oath. Stephens v. Kemp, 846 F.2d 642, 1988 U.S. App. LEXIS 5265 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189, 102 L. Ed. 2d 158, 1988 U.S. LEXIS 3631 (1988). Trial court’s disqualification of a juror for cause based upon the juror’s opposition to the imposition of the death penalty was not an abuse of discretion as: (1) the juror initially indicated that the juror was open to considering the death penalty as a sentencing option, but almost immediately into voir dire the juror vacillated and repeatedly stated that the juror did not know whether the juror could vote for the death penalty; (2) after extensive questioning by the trial court, the juror stated that the death penalty was against the juror’s nature and indicated that the juror did not think the juror could vote for it, regardless of the circumstances; and (3) in finding the juror unqualified, the trial court relied in large part on the juror’s demeanor, noting the juror’s “body language” and the fact that, although the juror had indicated a couple of times that the juror might consider the death penalty, the juror “seemed to struggle with it.” Walker v. State, 281 Ga. 157, 635 S.E.2d 740, 2006 Ga. LEXIS 652 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50, 2007 U.S. LEXIS 9247 (2007). stitute a recognizable class, representation of which is necessary on the guilt phase to grant a valid cross section of the community. Porter v. State, 237 Ga. 580, 229 S.E.2d 384, 1976 Ga. LEXIS 1310 (1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1603, 51 L. Ed. 2d 806, 1977 U.S. LEXIS 1395 (1977). Defendant has no right to have capital punishment objectors serve in the guilt determination phase of trial as part of the cross section of the community to which the defendant is entitled. Corn v. State, 240 Ga. 130, 240 S.E.2d 694, 1977 Ga. LEXIS 1423 (1977), cert. denied, 436 U.S. 914, 98 S. Ct. 2255, 56 L. Ed. 2d 415 (1978). Exclusion of capital punishment objectors does not deprive defendant
Death-scrupled jurors do not conof fair cross section.
Exclusion of jurors opposed to capital punishment from the guilt-innocence phase of the trial does not deprive the defendant of a trial by a jury reflecting a fairly representative cross section of the community. Hawes v. State, 240 Ga. 327, 240 S.E.2d 833, 1977 Ga. LEXIS 1496 (1977). The exclusion of jurors who indicated that they would not under any circumstances impose the death penalty did not violate the defendant’s right to an impartial, community-representative jury. McCleskey v. Kemp, 753 F.2d 877, 1985 U.S. App. LEXIS 28073 (11th Cir. 1985), aff’d, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262, 1987 U.S. LEXIS 1817 (1987). ity to impose death penalty under
Excusing jurors who profess inabilany circumstances.
Where an interrogation of venire persons revealed that each candidate could not have, under any circumstances conceivable at that time, imposed the death penalty upon the defendant, they were permissibly dismissed from the venire. Johnson v. Kemp, 585 F. Supp. 1496, 1984 U.S. Dist. LEXIS 17338 (S.D. Ga. 1984), aff’d in part, vacated in part, 759 F.2d 1503, 1985 U.S. App. LEXIS 29570 (11th Cir. 1985). No error in failure to dismiss juror not irrevocably committed to death
penalty.
It is not error for the court to fail to dismiss a juror where the juror is not so biased or irrevocably committed to Trial by Jury (Cont’d) 3. Jurors Views on Death Penalty (Cont’d) the death penalty that the juror would ignore the court’s instructions pertaining to the jury’s sentence recommendation and impose the death penalty under all circumstances in which a murder conviction would be returned. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806, 1983 Ga. LEXIS 938 (1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475, 1984 U.S. LEXIS 232 (1984). Jury improperly selected where persons not irrevocably committed to
death penalty systematically excluded.
A jury is improperly selected where persons who do not make it unmistakably clear that they will automatically vote against capital punishment are systematically excluded from the jury, in violation of the sixth, eighth and fourteenth amendments. Potts v. Zant, 575 F. Supp. 374, 1983 U.S. Dist. LEXIS 20217 (N.D. Ga. 1983), aff’d, 734 F.2d 526, 1984 U.S. App. LEXIS 22119 (11th Cir. 1984). Juror may not be excused for mere general scruples or opposition to the
death penalty.
The venireman who is excused must make it unmistakably clear that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. Mason v. Balkcom, 487 F. Supp. 554, 1980 U.S. Dist. LEXIS 12269 (M.D. Ga. 1980), rev’d, 669 F.2d 222, 1982 U.S. App. LEXIS 21374 (5th Cir. 1982). Inquiry on voir dire as to opposi-
tion to death penalty not unconstitutional.
Allowing prospective jurors to be asked on voir dire whether they are conscientiously opposed to capital punishment does not deny a defendant an impartial jury in violation of U.S. Const., amend. 6 and U.S. Const., amend. 14. Collins v. State, 243 Ga. 291, 253 S.E.2d 729, 1979 Ga. LEXIS 893 (1979), vacated in part, 446 U.S. 961, 100 S. Ct. 2936, 64 L. Ed. 2d 820 (1980). Failure to determine juror’s beliefs
as to death penalty.
A trial judge’s failure, during voir dire, to determine whether a prospective juror harbors not only an abstract belief against capital punishment, but also beliefs that would preclude the juror from voting the death penalty under any circumstances does not violate U.S. Const., amend. 6 and U.S. Const., amend. 14, where the juror is an alternate who never participates in any phase of the trial. Smith v. Whisman, 431 F.2d 1051, 1970 U.S. App. LEXIS 7315 (5th Cir. 1970). Excuse of death-scrupled jurors
from murder and rape proceedings.
— The right of an accused to a trial by an impartial jury, guaranteed by the state and federal Constitutions, means the right to a jury impartial as between the state and the accused on the question of the guilt or innocence of the accused. The crime of rape in this state may be punished by death, and a person accused of such crime has no constitutional right to have jurors trying the case who have conscientious scruples against the infliction of a punishment prescribed by the law. Massey v. State, 222 Ga. 143, 149 S.E.2d 118, 1966 Ga. LEXIS 421 (1966). Where jurors are disqualified in a murder and rape proceeding because of their reservations about capital punishment, they are properly excused for cause, and the defendant is not deprived of the right to a jury selected from a representative cross section of the community. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855, 1979 Ga. LEXIS 1308 (1979), cert. denied, 446 U.S. 970, 100 S. Ct. 2952, 64 L. Ed. 2d 831 (1980). Juror’s inability fairly to consider a life sentence is just as disqualifying as an inability fairly to consider a death sentence. Skipper v. State, 257 Ga. 802, 364 S.E.2d 835, 1988 Ga. LEXIS 66 (1988). 4. Impartiality of Jurors
Unlike U.S. Const., amend. 6, U.S.
Const., amend. 5 does not expressly
require impartiality.
U.S. Const., amend. 6 expressly provides that the trial jury in a criminal case must be impartial. No such requirement in respect to grand juries is found in U.S. Const., amend. 5, which contains the guaranty against prosecutions for infamous crimes unless on a presentment or indictment of a grand jury. Creamer v. State, 150 Ga. App. 458, 258 S.E.2d 212, 1979 Ga. App. LEXIS 2259 (1979). finder should be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print. A conviction secured, in whole or in part, by use of information secured from nonjudicial sources obviously constitutes a denial of due process of law in its most rudimentary conception. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). The requirement that a jury’s verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Juror’s conversation with a state’s witness did not prejudice defendant’s right to a fair trial such that the jury’s verdict should be set aside where the witness asked the juror what time the trial was to resume, and the juror testified that the juror did not form an opinion as to defendant’s guilt or innocence due to the conversation. Terrell v. State, 268 Ga. App. 173, 601 S.E.2d 500, 2004 Ga. App. LEXIS 866 (2004). After one prospective juror made a comment that the defendant killed redheads and that juror was later excused, the trial court did not violate the defendant’s right to an impartial jury under Ga. Const. 1983, Art. I, Sec. I, Para. XI and U.S. Const., amend. 6 in refusing to excuse other prospective jurors. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778, 2005 Ga. LEXIS 523 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671, 2006 U.S. LEXIS 3608 (2006).
Conclusions reached by the fact-Jury free of external influences especially important in capital cases.
In capital cases, the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate unbiased judgment. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). tion from massive and prejudicial
Accused has right to expect protecpublicity.
While the government has no authority to restrain the reporting of the press, nor to dictate what it does or does not report, a person accused of crime has the right to expect the government and its judicial officers to protect the defendant from massive and prejudicial publicity surrounding the case. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975).
Government has burden of providing protection.
Although the right of a free press embodied in U.S. Const., amend. 1 is guaranteed, the individual’s right to a fair trial guaranteed by the due process clause of U.S. Const., amend. 5 and in the other individual provisions of the Bill of Rights is absolute, and if prejudicial news coverage is present, the burden is on the government to protect the rights of the defendant. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975).
Doctrine of inherent prejudice.
The doctrine of inherent prejudice, in regard to the accused’s right to a fair trial applies if, because of the circumstances, there is such a high probability that prejudice will result so that the procedure is deemed inherently lacking in due process, and in such cases, no showing of identifiable prejudice is necessary. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). sured in terms of totality of circum-
Extrajudicial knowledge is meastances.
Juror’s extrajudicial knowledge regarding an appellant’s present crime represents a serious potential for prejudice to that appellant’s right to an impartial jury, but such potential can be discounted under U.S. Const., amend. 6 if Trial by Jury (Cont’d) 4. Impartiality of Jurors (Cont’d) review of the pretrial publicity and total voir dire fails to demonstrate that the totality of the circumstances were inherently prejudicial. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379, 1979 Ga. LEXIS 1338 (1979), vacated in part, 446 U.S. 961, 100 S. Ct. 2937, 64 L. Ed. 2d 821 (1980).
Extrajudicial knowledge impeached verdict.
Defendant’s right to confrontation was violated when a juror gathered extra-judicial information on a key issue in the case and relayed it to the other jurors; since the verdict became unanimous only after the introduction of the improper evidence, there was a reasonable possibility that the juror’s misconduct contributed to defendant’s conviction. Hammock v. State, 277 Ga. 612, 592 S.E.2d 415, 2004 Ga. LEXIS 69 (2004). Qualified jurors need not be totally ignorant of facts and issues involved in order to guarantee that a defendant has a panel of impartial, indifferent jurors. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Preconceived notion as to guilt or innocence, without more, does not
rebut presumption of impartiality.
The mere existence of a preconceived notion as to the guilt or innocence of an accused, without more, is not sufficient to rebut the presumption of a prospective juror’s impartiality. Rather, a juror’s impartiality is sufficient if the juror can lay aside this impression or opinion and render a verdict based on the evidence presented in court. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975); Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, 1979 Ga. LEXIS 910, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116, 1979 U.S. LEXIS 3232 (1979).
No evidence prospective juror prejudged case.
When a prospective juror indicated that the prospective juror would expect a defendant to testify and would do the juror’s best to follow the law if the court instructed the jury that no inference was to be drawn from the fact that the defendant chose not to testify, there was no error in the trial court’s refusal to strike the prospective juror for cause, because nothing showed that the prospective juror had prejudged any issue in the case. Johnson v. State, 291 Ga. 621, 732 S.E.2d 266, 2012 Ga. LEXIS 744 (2012). tion of impartiality does not foreclose inquiry as to whether, in a given case, the application of the rule works as a deprivation of liberty without due process. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Constitutional test of impartiality tions of individual jurors. Hutcheson v. State, 246 Ga. 13, 268 S.E.2d 643, 1980 Ga. LEXIS 1000 (1980). cial to right to impartial jury can impeach a juror’s declaration of impartiality. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379, 1979 Ga. LEXIS 1338 (1979), vacated in part, 446 U.S. 961, 100 S. Ct. 2937, 64 L. Ed. 2d 821 (1980). Juror’s assertion of impartiality
General rule regarding presumpdoes not turn on subjective declara-Circumstances inherently prejudidoes not close inquiry.
The rule that it is sufficient for the juror to state that the juror can lay aside the juror’s impressions and render a verdict based only on the evidence does not close inquiry to determine whether, in a given case, the application of the rule deprives a defendant of due process. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Juror’s assurances that the juror is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, 1979 Ga. LEXIS 910, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116, 1979 U.S. LEXIS 3232 (1979). Excuse of jurors for partiality as measure of prejudice from pretrial
publicity.
Corroboration for a court’s belief that pretrial publicity has not been inherently prejudicial can be found in the percentage of prospective jurors excused for partiality regarding the accused’s guilt. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379, 1979 Ga. LEXIS 1338 (1979), vacated in part, 446 U.S. 961, 100 S. Ct. 2937, 64 L. Ed. 2d 821 (1980). Where only 4 percent of prospective jurors are excused for partiality regarding the defendant’s guilt, pretrial publicity surrounding the defendant’s case has not created a community bias inherently prejudicial to the appellant’s right to an impartial jury. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379, 1979 Ga. LEXIS 1338 (1979), vacated in part, 446 U.S. 961, 100 S. Ct. 2937, 64 L. Ed. 2d 821 (1980).
Precautions taken to minimize effect of pretrial publicity.
Where in a publicized murder case, in light of the possibility of prejudice, the trial court grants extensive individual voir dire of prospective jurors outside the presence of the others, and grants each of defendant’s motions to strike jurors for cause, leaving a panel of 50 prospective jurors, some of whom admitted to a vague knowledge of the crimes, but none could recall details and each specifically stated an ability to weigh the evidence impartially, there is no prejudicial pretrial publicity which would outweigh the stated impartiality of the prospective jurors. Gates v. State, 244 Ga. 587, 261 S.E.2d 349, 1979 Ga. LEXIS 1340 (1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980).
Statement in indictment as to previous convictions.
Defendant is not denied a fair trial by an impartial jury by listing in the indictment a number of previous convictions of burglary and other crimes. Croker v. Smith, 225 Ga. 529, 169 S.E.2d 787, 1969 Ga. LEXIS 555 (1969). Presence of a bereaved parent at the prosecutor’s table during trial of ent’s child surely must have an impact on a jury and cannot be said to be harmless with regard to the defendant’s right to have a fair trial. Walker v. State, 132 Ga. App. 476, 208 S.E.2d 350, 1974 Ga. App. LEXIS 1722 (1974).
one accused of murdering the par-Jurors exposed to anti-drunk driving poster during DUI trial.
Defendant, charged with driving under the influence, was not deprived of a fair trial, where the six empaneled jurors who were exposed to an anti-drunk driving poster responded affirmatively when they were asked by defense counsel, “can you dismiss that poster from your minds and say to me with absolute certainty that it has no bearing on your minds and would have no bearing on this case?” Bryant v. State, 201 Ga. App. 305, 410 S.E.2d 778, 1991 Ga. App. LEXIS 1321 (1991), cert. denied, No. S92C0095, 1991 Ga. LEXIS 897 (Ga. Nov. 1, 1991). Reseating jurors who are aware of
striking party.
Since the jurors who were reseated had previously been struck in their presence, and there had been no waiver of the right to object to the reseating of such jurors, it was improper to reseat these jurors who were aware of the party who struck them. As such, the convictions of the defendants must be reversed and a new trial ordered. Gaines v. State, 258 Ga. App. 902, 575 S.E.2d 704, 2002 Ga. App. LEXIS 1551 (2002), cert. denied, No. S03C0635, 2003 Ga. LEXIS 465 (Ga. Apr. 29, 2003). nate after out-of-court contact between the juror and defense counsel did not violate a murder defendant’s constitutional rights to due process and trial by an impartial jury, where the trial court had a sound basis for exercising its discretion to discharge the juror. Miller v. State, 261 Ga. 679, 410 S.E.2d 101, 1991 Ga. LEXIS 939 (1991).
Replacing one juror with an alter-Juror communication with witnesses.
Where a juror in the course of a criminal trial improperly communicates to a witness that the defendant is going to be acquitted unless the state shores up its case in a certain manner, and this information is relayed to the prosecution, the defendant has been denied the fundamental right to a fair trial. Jones v. State, 247 Ga. 268, 275 S.E.2d 67, 1981 Ga. LEXIS 690, cert. denied, 454 U.S. 817, 102 S. Ct. 94, 70 L. Ed. 2d 86, 1981 U.S. LEXIS 3120 (1981). “Chit chat” between jurors, but not
pre-determination of decision, allowed.
A jury instruction at the beginning of the trial concerning the delibera-Trial by Jury (Cont’d) 4. Impartiality of Jurors (Cont’d) tion process, which stated that “there’s nothing wrong with chit chat” between the jurors, coupled with a lengthy admonition by the court that the jurors should refrain from reaching a decision until all the evidence was submitted, closing arguments concluded, and after the charge of the court, did not constitute plain error requiring a reversal of the conviction. United States v. Meester, 762 F.2d 867, 1985 U.S. App. LEXIS 30160 (11th Cir.), cert. denied, 474 U.S. 1024, 106 S. Ct. 579, 88 L. Ed. 2d 562, 1985 U.S. LEXIS 4827 (1985). Examination of jurors on actions of
one juror.
Defendant’s claim that the defendant’s trial counsel rendered ineffective assistance by failing to request that the trial court examine the remaining jurors whether the jurors had been affected by a juror after the juror had been removed was unsupported, and the defendant could not show prejudice or harm because there was no error on which to premise the claim of ineffective assistance; the defendant did not request that the trial court question the remaining jurors, and the juror’s responses clearly indicated that the juror’s statement to the other jurors about the juror’s conflict was exceedingly minimal and that the others had no reaction to the statement. Sharpe v. State, 288 Ga. 565, 707 S.E.2d 338, 2011 Ga. LEXIS 276 (2011). Fact that two or more jurors visited the crime scene and related information about their observations to the rest of the jurors during their deliberations did not constitute reversible error where there was nothing to indicate that any of the jurors changed their minds because of the extra-record information. Moore v. State, 179 Ga. App. 125, 345 S.E.2d 631, 1986 Ga. App. LEXIS 2594 (1986). Right to impartial jury violated where significant possibility of juror
prejudice.
The trial court’s failure to conduct a voir dire (or to allow defense counsel to make relevant inquiries to the panel members) after the events of the weekend preceding the trial, involving a protest march against the death penalty, prison conditions and the indictment of six black inmates for mutiny and murder, counter protests, and extensive publicity, all of which raised a significant possibility of juror prejudice, violated the defendant’s right to an impartial jury. Jordan v. Lippman, 763 F.2d 1265, 1985 U.S. App. LEXIS 30697 (11th Cir. 1985). Because an average person in a juror’s position as the spouse of a volunteer worker at the district attorney’s office would have been partial to the prosecutor’s case, although the spouse was replaced by an alternate juror after only three state witnesses had testified, the possibility of a taint already created in the jury panel was not cured; the petition for writ of habeas corpus was granted. Nichols v. Thomas, 788 F. Supp. 570, 1992 U.S. Dist. LEXIS 4156 (N.D. Ga. 1992). Where bias appears low despite publicity and defendant’s confession
admitted, prejudice may be discounted.
In a murder trial, a two and one-half month period between the publicity and the trial, a low level of community bias as reflected in the total voir dire, and the admission into evidence of the defendant’s confessions permit a court to discount the potential for prejudice admittedly present in the extrajudicial knowledge of the selected jurors in the case, and to find that the totality of circumstances surrounding the defendant’s trial are not inherently prejudicial to the defendant’s right to an impartial jury. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379, 1979 Ga. LEXIS 1338 (1979), vacated in part, 446 U.S. 961, 100 S. Ct. 2937, 64 L. Ed. 2d 821 (1980). Actual or inherent prejudice must
be shown.
Under U.S. Const., amend. 6, in order for an appellant to establish the denial of the right to an impartial jury, the appellant must show either actual juror partiality or circumstances inherently prejudicial to that right. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379, 1979 Ga. LEXIS 1338 (1979), vacated in part, 446 U.S. 961, 100 S. Ct. 2937, 64 L. Ed. 2d 821 (1980); Jones v. State, 157 Ga. App. 163, 276 S.E.2d 674, 1981 Ga. App. LEXIS 1753 (1981).
Elements of proof of pretrial publicity.
Under the decisions of the Supreme Court of the United States, where pretrial publicity is at issue, to find that the defendant did not receive a fair trial, the defendant must show that the setting of the trial was inherently prejudicial or that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. Harris v. State, 237 Ga. 718, 230 S.E.2d 1, 1976 Ga. LEXIS 1370 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977); Young v. State, 237 Ga. 852, 230 S.E.2d 287, 1976 Ga. LEXIS 1421 (1976); Taft v. State, 154 Ga. App. 566, 269 S.E.2d 69, 1980 Ga. App. LEXIS 2287 (1980). Burden of proof of prejudice from
prejudicial publicity.
The general rule is that a defendant has the burden on appeal of proving actual jury prejudice if a conviction is to be reversed on grounds of prejudicial publicity. The requirement of showing actual prejudice may not be necessary in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable. Calley v. Callaway, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760, 1976 U.S. LEXIS 851 (1976). To find the existence of actual prejudice from pretrial publicity, two basic prerequisites must be satisfied. First, it must be shown that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty. Second, these jurors, it must be determined, could not have laid aside these performed opinions and rendered a verdict based on the evidence presented in court. Coleman v. Zant, 708 F.2d 541, 1983 U.S. App. LEXIS 26880 (11th Cir. 1983). trial publicity when: (1) pretrial publicity is sufficiently prejudicial and inflammatory; and (2) the prejudicial pretrial publicity saturated the community where the trials were held. Coleman v. Zant, 708 F.2d 541, 1983 U.S. App. LEXIS 26880 (11th Cir. 1983).
Prejudice is presumed from pre-Media access to evidence.
Until the appeal process is completed, the media may not have access to the electronically produced evidence that the police acquired during their investigation and trial of the case, such as a videotaped statement by the defendant, as this may prejudice defendant’s future rights to a fair trial. In re Pac. & S. Co., 257 Ga. 484, 361 S.E.2d 159, 1987 Ga. LEXIS 941 (1987).
Prejudicial pretrial publicity requires change of venue.
When prejudicial pretrial publicity or an inflamed community atmosphere precludes seating an impartial jury, due process requires the trial court to grant a defendant’s motion for a change of venue. Coleman v. Zant, 708 F.2d 541, 1983 U.S. App. LEXIS 26880 (11th Cir. 1983). Pretrial publicity did not require
change of venue.
Trial counsel’s failure to seek a change of venue on the ground of pretrial publicity as ineffective assistance of counsel failed since the only pretrial publicity shown in the record was a single newspaper article published the week before trial since there was no evidence that the trial’s setting was inherently prejudicial or that the jury selection process showed actual prejudice. Williams v. State, 277 Ga. 853, 596 S.E.2d 597, 2004 Ga. LEXIS 412 (2004). Defendant may ask jurors whether
family members worked for law enforcement agencies.
The trial court errs in limiting voir dire of the jurors by refusing to allow the defendant to ask the panel whether members of the jurors’ immediate families had ever worked for law enforcement agencies. Henderson v. State, 251 Ga. 398, 306 S.E.2d 645, 1983 Ga. LEXIS 830 (1983).
Presence of guards at trial.
Although a defendant is entitled to trial free of the partiality which the presence of an excessive number of guards may create, special circumstances may make the presence of a number of guards necessary. Zant v. Gaddis, 247 Ga. 717, 279 S.E.2d 219, 1981 Ga. LEXIS 841, cert. denied, 454 U.S. 1037, 102 S. Ct. 579, 70 L. Ed. 2d 483, 1981 U.S. LEXIS 4458 (1981).
Employee of jail as juror.
An employee of the jail where the defendant was housed pending trial should have been stricken as a juror for cause because of the employee’s special knowledge. Kier v. State, 263 Ga. App. 347, 587 S.E.2d 841, Trial by Jury (Cont’d) 4. Impartiality of Jurors (Cont’d) 2003 Ga. App. LEXIS 1209 (2003), overruled in part, Willis v. State, 304 Ga. 686, 820 S.E.2d 640, 2018 Ga. LEXIS 685 (2018), overruled in part as stated in Crawford v. State, 371 Ga. App. 507, 901 S.E.2d 340, 2024 Ga. App. LEXIS 177 (2024).
Court’s threat to remove unruly defendant.
No rights under the fifth and Sixth Amendments to the Constitution of the United States were violated where after several outbursts on the defendant’s part, the trial court informed the defendant, outside the jury’s presence, that the defendant would be removed from the courtroom if the defendant again engaged in such unseemly behavior. Russell v. State, 181 Ga. App. 665, 353 S.E.2d 565, 1987 Ga. App. LEXIS 2564 (1987).
Admonition of counsel did not deprive defendant of fair trial.
Because there was no evidence that the jury heard the trial court’s comment to trial counsel during a bench conference or was influenced by the comment, the defendant failed to prove that the admonition deprived the defendant of a fair trial. Newkirk v. State, 290 Ga. 581, 722 S.E.2d 760, 2012 Ga. LEXIS 196 (2012). As matter of public policy, juror cannot be heard to impeach the verdict, either by way of disclosing the incompetency or misconduct of fellow jurors, or by showing the juror’s own misconduct or disqualification from any cause. The only exception to the firm application of this rule is if protections provided a criminal defendant by the sixth amendment are applicable. Lozynsky v. Hairston, 168 Ga. App. 276, 308 S.E.2d 605, 1983 Ga. App. LEXIS 2749 (1983).
Failure to discredit inmate witness.
— Defendant’s trial counsel was not ineffective for failing to discredit the veracity of an inmate witness who testified to the defendant’s jailhouse confession because at trial, the inmate witness appeared in prison clothes, and the state elicited testimony from the inmate that the inmate was a convicted felon; since the evidence was properly before the jury, it could not be shown that the omission was an unreasonable tactical move that no competent attorney in the same situation would have made. Brown v. State, 289 Ga. 259, 710 S.E.2d 751, 2011 Ga. LEXIS 376, cert. denied, 565 U.S. 989, 132 S. Ct. 524, 181 L. Ed. 2d 368, 2011 U.S. LEXIS 7832 (2011).
Outside research shared with fellow jurors.
Defendant’s rights to be present and to trial by a fair and impartial jury were violated when, during deliberations, a juror shared with fellow jurors legal definitions, which the juror found by using the Internet search engine Google®, and at least one such definition was incompatible with an affirmative defense the defendant pursued at trial, the defense of habitation, as it pertained to motor vehicles. Chambers v. State, 321 Ga. App. 512, 739 S.E.2d 513, 2013 Ga. App. LEXIS 316 (2013), cert. denied, No. S13C1181, 2013 Ga. LEXIS 747 (Ga. Sept. 23, 2013). hood of nondeath-qualified juries to
No evidentiary hearing as to likeliconvict.
A defendant is not entitled to an evidentiary hearing with regard to the contention that death-qualified juries are more likely to convict than nondeath-qualified juries. Mincey v. State, 251 Ga. 255, 304 S.E.2d 882, 1983 Ga. LEXIS 768, cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983). Rebuttal of prejudice presumed
from publicity.
Prejudice presumed by evidence of inflammatory pretrial publicity was rebutted by an examination of the voir dire which showed that the jury actually empaneled was not so infected by the publicity that the jurors could not lay aside any preconceived opinions about the case and render a verdict solely upon the evidence. Buttrum v. Black, 721 F. Supp. 1268, 1989 U.S. Dist. LEXIS 11272 (N.D. Ga. 1989), aff’d, 908 F.2d 695, 1990 U.S. App. LEXIS 12655 (11th Cir. 1990).
When jury’s verdict may be impeached.
The rule that jurors cannot impeach their own verdict is inapplicable where jurors intentionally gather extrajudicial evidence that is highly prejudicial to the accused, and then communicate that information to other jurors in a closed jury room, since, under these circumstances, the juror making such statements essentially becomes an unsworn witness against the defendant in violation of the sixth amendment. Satterwhite v. State, 235 Ga. App. 687, 509 S.E.2d 97, 1998 Ga. App. LEXIS 1465 (1998), cert. denied, No. S99C0460, 1999 Ga. LEXIS 415 (Ga. Apr. 30, 1999). Counsel was not ineffective for not attempting to strike for cause a juror who worked as a security officer and who had twice been a robbery victim. As the juror stated that the juror could be fair and impartial, the circumstances did not require the trial court to strike the prospective juror for cause, and the defendant did not demonstrate that the trial court would have struck the prospective juror had counsel so moved. Crane v. State, 294 Ga. App. 321, 670 S.E.2d 123, 2008 Ga. App. LEXIS 1178 (2008). Nature and Cause of Accusation Statutes should sufficiently warn of
proscribed conduct.
So as not to be vague, indefinite and uncertain so that U.S. Const., amend. 6 is violated, the language of a statute should convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. United States v. Fabro, Inc., 206 F. Supp. 523, 1962 U.S. Dist. LEXIS 3766 (M.D. Ga. 1962). U.S. Const., amend. 6 provides that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation. Sutton v. United States, 157 F.2d 661, 1946 U.S. App. LEXIS 2766 (5th Cir. 1946); United States v. Contris, 592 F.2d 893, 1979 U.S. App. LEXIS 15556 (5th Cir. 1979). Validity of an indictment to be determined by reading it as a whole. United States v. Contris, 592 F.2d 893, 1979 U.S. App. LEXIS 15556 (5th Cir. 1979). Trial court did not err by denying a defendant’s motion to quash an indictment, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), because the face of the indictment did not contain the statutory aggravators for the death penalty; the state was not required to list the statutory aggravators in the indictment. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639, 2006 Ga. LEXIS 927 (2006). Whether an indictment sufficiently charges a crime is question of law, not of fact. United States v. Contris, 592 F.2d 893, 1979 U.S. App. LEXIS 15556 (5th Cir. 1979). Where the language of the indictment did not track the exact language of the assault statute, but did allege that the defendant “maliciously” struck the victim, it properly alleged the necessary element of intent since, given the circumstances of the case whereby the victim did not see the defendant strike the victim, it would have been difficult to conclude that the victim was placed in reasonable apprehension of being injured violently. Gamble v. State, 235 Ga. App. 777, 510 S.E.2d 69, 1998 Ga. App. LEXIS 1558 (1998), cert. denied, No. S99C0524, 1999 Ga. LEXIS 339 (Ga. Apr. 9, 1999). Indictments are read for their clear meaning, and convictions will not be reversed because of minor deficiencies which do not prejudice the accused. United States v. Contris, 592 F.2d 893, 1979 U.S. App. LEXIS 15556 (5th Cir. 1979). Sufficiency of an indictment is to be nical considerations, and the test of sufficiency is not whether the indictment could have been more artfully or precisely drawn, but whether it states the elements of the offense intended to be charged and adequately apprises the defendant of that which the defendant must be prepared to meet. United States v. Contris, 592 F.2d 893, 1979 U.S. App. LEXIS 15556 (5th Cir. 1979). Criteria for testing sufficiency of
tested by practical rather than techindictment.
The two criteria by which the sufficiency of an indictment is to be tested are whether the facts stated show the essential elements of the offense and whether the facts alleged are sufficient to permit the defendant to plead former jeopardy in a subsequent prosecution. Sutton v. United States, 157 F.2d 661, 1946 U.S. App. LEXIS 2766 (5th Cir. 1946); Marshall v. State, 127 Ga. App. 805, 195 S.E.2d 469, 1972 Ga. App. LEXIS 1024 (1972); Calley v. Callaway, 519 F.2d 184, Nature and Cause of Accusation (Cont’d) 1975 U.S. App. LEXIS 12794 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760, 1976 U.S. LEXIS 851 (1976); United States v. Contris, 592 F.2d 893, 1979 U.S. App. LEXIS 15556 (5th Cir. 1979). Introduction of a nontestifying joint offender’s confession to show the defendant’s involvement in the crimes violates the defendant’s constitutional right to confrontation. Brooks v. State, 271 Ga. 698, 523 S.E.2d 866, 1999 Ga. LEXIS 960 (1999). Use in indictment of trade name which does not designate individual
nor import a corporation.
An indictment containing a trade name which does not designate an individual nor import a corporation is not void where it satisfies the requisites of informing the defendant with reasonable certainty of the nature of the accusation for defense purposes and does not subject defendant to possibility of double jeopardy, particularly where the trade name is unique to the area and the accused’s dealings have been in such trade name. Marshall v. State, 127 Ga.App. 805, 195 S.E.2d 469, 1972 Ga. App. LEXIS 1024 (1972). Effect of error in indictment as to
date of offense.
A defendant is not deprived of any constitutional right by reason of the fact that the indictment charged one date, whereas the crime actually occurred shortly before midnight on the date before, where no alibi evidence is offered, nor any continuance requested on the ground of surprise that the evidence showed the commission of the crime on a date different from that shown in the indictment, and that additional time would be needed to procure alibi testimony to account for the appellant’s whereabouts on that date. Carmichael v. State, 228 Ga. 834, 188 S.E.2d 495, 1972 Ga. LEXIS 926 (1972). Omission of the word “criminal” in a notice of contempt proceeding is not fatal where the notice fully describes the conduct charged, where there is no showing that the contemnor is prejudiced by the failure to clearly denominate the nature of the contempt proceeding, and where the contemnor is accorded all rights due a defendant in a criminal contempt proceeding. Schiselman v. Trust Co. Bank, 246 Ga. 274, 271 S.E.2d 183, 1980 Ga. LEXIS 1078 (1980). Contempt motion seeking other sanctions and relief “as may be ap-
propriate”.
Where a person is on notice that the person is being tried for contempt and the movant seeks such other sanctions as are appropriate to ensure the enforcement and the observance of the court’s order or seeks such other relief as may be appropriate, the contemnor is on notice that the proceeding is both civil and criminal in nature and that criminal sanctions may be imposed in an appropriate case. Schiselman v. Trust Co. Bank, 246 Ga. 274, 271 S.E.2d 183, 1980 Ga. LEXIS 1078 (1980).
Purpose of commitment hearing.
The purpose of a commitment hearing is simply to determine whether there is probable cause to believe the accused guilty of the crime charged, and if so, to bind the accused over for indictment by the grand jury. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114, 1974 Ga. App. LEXIS 1790 (1974).
Hearing unnecessary once indictment returned.
Once an indictment has been returned, the necessity for a commitment hearing has been eliminated. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114, 1974 Ga. App. LEXIS 1790 (1974). Holding of a commitment hearing is not a requisite to a trial for commission of a felony. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114, 1974 Ga. App. LEXIS 1790 (1974).
When failure to hold hearing harmless.
Since the purpose of the commitment hearing is to determine whether there is probable cause to hold the accused for trial, the subsequent indictment, trial and conviction of the accused render the omission of the hearing harmless. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114, 1974 Ga. App. LEXIS 1790 (1974). sioned by the failure to conduct a commitment hearing is not a legally recognizable basis for reversal. Williams v. State, 157 Ga. App. 168, 276 S.E.2d 852, 1981 Ga. App. LEXIS 1756 (1981). Criminal Procedure Discovery Act
Alleged loss of discovery occaconstitutional.
Pretrial discovery provisions of the Criminal Procedure Discovery Act (O.C.G.A. § 17-16-1 et seq.) do not implicate or infringe upon the confrontation clause that guarantees only the right to confront and cross-examine those individuals called to testify against a defendant at trial. State v. Lucious, 271 Ga. 361, 518 S.E.2d 677, 1999 Ga. LEXIS 587 (1999). Confrontation of Witnesses
Rights guaranteed to defendant.
The confrontation clause of U.S. Const., amend. 6, as applicable to the states through the due process clause of U.S. Const., amend. 14, guarantees the defendant in a criminal trial both the general right to cross-examine witnesses against the defendant and the more specific right to cross-examine a key state’s witness concerning pending criminal charges against the witness. Hines v. State, 249 Ga. 257, 290 S.E.2d 911, 1982 Ga. LEXIS 1133 (1982); Byrd v. State, 262 Ga. 426, 420 S.E.2d 748, 1992 Ga. LEXIS 770 (1992); Beam v. State, 265 Ga. 853, 463 S.E.2d 347, 1995 Ga. LEXIS 891 (1995). The state has no right to ask leading questions of a co-indictee who has refused to testify, since such questioning is tantamount to the state testifying on behalf of a recalcitrant witness and serves to abrogate a defendant’s fundamental right to confront, question and secure answers from the defendant’s accusers. Alexander v. State, 236 Ga. App. 142, 511 S.E.2d 249, 1999 Ga. App. LEXIS 77 (1999). Where deceased murder victim’s hearsay statements were not remotely similar to prior testimony at a preliminary hearing or police interrogation, because they were made in a conversation with a friend, before the commission of any crime, and without any reasonable expectation that they would be used at a later trial, the hearsay statements were not “testimonial,” and indicia of reliability other than the opportunity for cross-examination were constitutionally permissible considerations in applying the necessity exception to Georgia’s hearsay rule. Demons v. State, 277 Ga. 724, 595 S.E.2d 76, 2004 Ga. LEXIS 274 (2004). Confrontation in a criminal trial really means the right to ask questions and secure answers from the witness confronted. Lingerfelt v. State, 235 Ga. 139, 218 S.E.2d 752, 1975 Ga. LEXIS 806 (1975). No confrontation violation when
statements not testimonial.
Admission of statements that the victim made to a police investigator regarding the victim’s fear of the defendant on the day that the victim was murdered did not violate the defendant’s right to confrontation because the statements were not testimonial when the victim was not reporting a crime to the police officer or building a case against the defendant, the victim was merely seeking advice from a knowledgeable friend, who happened to be a police officer. Breedlove v. State, 291 Ga. 249, 728 S.E.2d 643, 2012 Ga. LEXIS 579 (2012). Statement by a deceased accomplice to a witness regarding the accomplice’s cell phone service was properly admitted into evidence because the statement was not testimonial in nature and, thus, not barred by the Confrontation Clause. Marchman v. State, 299 Ga. 534, 787 S.E.2d 734, 2016 Ga. LEXIS 421 (2016). ments to a fellow inmate to get advice about the co-defendant’s false alibi did not violate the defendant’s right to confrontation because the statements were not made to establish evidence for use in a future prosecution. Hampton v. State, 308 Ga. 797, 843 S.E.2d 542, 2020 Ga. LEXIS 356 (2020). Admission of a murder victim’s and the victim’s fiancee’s statements to police as the victim lay bleeding in the street after a shooting was not prohibited by the Confrontation Clause, although the victim died, because the statements were nontestimonial in that the statements were not intended to prove a past fact but to describe current circumstances that required immediate police action. The statements were admissible under the excited utterance and present sense impression exceptions to the hearsay rule. Varner v. Confrontation of Witnesses (Cont’d) State, 306 Ga. 726, 832 S.E.2d 792, 2019 Ga. LEXIS 593 (2019).
Co-defendant’s jailhouse state-Co-defendant’s statement not offered for the truth.
Defendant’s confrontation clause challenge to a co-defendant’s affidavit that was found in his cell was rejected because the co-defendant’s attempt to establish an alibi for himself in the affidavit was not presented to show its truth but rather to show that the codefendant was shifting his story and creating a new narrative to exculpate himself. Campbell v. State, 320 Ga. 333, 907 S.E.2d 871, 2024 Ga. LEXIS 247 (2024). Right is to confront witnesses, not
accusor.
The defendant’s constitutional right under U.S. Const., amend. 6 is the right to be confronted with the witnesses testifying against the defendant, not by the accusor, which in criminal cases, is the state or the people. Brown v. State, 147 Ga. App. 638, 249 S.E.2d 689, 1978 Ga. App. LEXIS 2878 (1978). Applicability of confrontation of
witnesses provision.
When a buyer claiming that the buyer was fraudulently sold real estate argued, on appeal, that the trial court’s summary dismissal of the buyer’s complaint under O.C.G.A. §§ 9-11-12(b)(6) and 9-11-56 deprived the buyer of the right to confront witnesses, this claim had no merit because the right to confront witnesses only applied to criminal proceedings. Crane v. Samples, 267 Ga. App. 895, 600 S.E.2d 624, 2004 Ga. App. LEXIS 680 (2004), cert. denied, No. S04C1719, 2004 Ga. LEXIS 781 (Ga. Sept. 7, 2004), cert. denied, No. S04C1719, 2004 Ga. LEXIS 789 (Ga. Sept. 8, 2004). Admission of witness’s prior statements to police identifying defendant as the shooter of a victim did not violate defendant’s right to confront the witnesses under the sixth amendment; despite the fact that the witnesses claimed at trial that they did not recall many of the facts surrounding the incident and did not identify defendant as the shooter at trial, defendant was not precluded from cross-examining them. Robinson v. State, 271 Ga. App. 584, 610 S.E.2d 194, 2005 Ga. App. LEXIS 109 (2005). Because a life estate claimant filed a civil action which resulted in summary judgment against the claimant, the argument on appeal that the claimant’s sixth amendment confrontation rights were violated lacked merit, as the sixth amendment only applied to criminal actions. Crane v. Poteat, 275 Ga. App. 669, 621 S.E.2d 501, 2005 Ga. App. LEXIS 1000 (2005), cert. denied, No. S06C0260, 2006 Ga. LEXIS 180 (Ga. Feb. 27, 2006), cert. denied, 549 U.S. 830, 127 S. Ct. 52, 166 L. Ed. 2d 51, 2006 U.S. LEXIS 5965 (2006). Because a hearsay statement made by the defendant’s late sibling to the defendant’s spouse about the defendant’s conduct and statements made immediately after the shooting at issue was not testimonial in nature, it did not implicate the confrontation clause of the federal and state constitution. Holton v. State, 280 Ga. 843, 632 S.E.2d 90, 2006 Ga. LEXIS 450, cert. denied, 549 U.S. 1078, 127 S. Ct. 737, 166 L. Ed. 2d 563, 2006 U.S. LEXIS 9266 (2006). Because a preliminary hearing was ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function was the more limited one of determining whether probable cause exists to hold the accused for trial, an accused did not have a constitutional right to confrontation, as said right applied only to trials. Gresham v. Edwards, 281 Ga. 881, 644 S.E.2d 122, 2007 Ga. LEXIS 303 (2007), overruled in part, Brown v. Crawford, 289 Ga. 722, 715 S.E.2d 132, 2011 Ga. LEXIS 658 (2011). Statements a deceased witness made to police at a murder scene were to assist the police in an ongoing emergency and were nontestimonial; therefore, the confrontation clause was not applicable. Although 20 minutes had elapsed between the witness’s discovery of the body and the statements to police, the statements were admissible under the excited utterances exception to the hearsay rule, O.C.G.A. § 24-8-803(2), because the witness was still traumatized. McCord v. State, 305 Ga. 318, 825 S.E.2d 122, 2019 Ga. LEXIS 141 (2019). No plain error from non-testifying
witnesses.
Defendant failed to show that the trial court plainly erred and violated the defendant’s confrontation clause rights by admitting testimony that police got information critical to their investigation from two non-testifying witnesses because the defendant did not show that the alleged error in admitting testimony implying statements from non-testifying witnesses was clear and obvious under controlling precedent. Burke v. State, 320 Ga. 706, 911 S.E.2d 575, 2025 Ga. LEXIS 16 (2025). fended by testimony from
Confrontation clause is not ofphysician.
Defendant’s right of confrontation was not violated when a physician was allowed to testify about the testing and evaluation of defendant conducted by two resident trainees and was then permitted to testify that defendant did not exhibit signs of brain damage or disorder because the physician used the facts contained in the trainees’ testing and evaluation, including factual data they collected, to inform his expert opinion as to whether defendant had malingered on the state’s tests and to inform his opinions regarding the defendant’s mental conditions. Moody v. State, 316 Ga. 490, 888 S.E.2d 109, 2023 Ga. LEXIS 98 (2023), cert. denied, 144 S. Ct. 697, 217 L. Ed. 2d 391, 2024 U.S. LEXIS 490 (2024).
Confrontation Clause does not apply to inanimate things.
Trial court did not violate the defendant’s right to confront the defendant’s accusers by admitting the shell casing recovered from the back seat of the silver car in the driveway that ballistics testing showed was fired from the gun used to shoot the victim because the Confrontation Clause applied only to testimonial statements, not to inanimate things. Walker v. State, 308 Ga. 749, 843 S.E.2d 561, 2020 Ga. LEXIS 354 (2020), overruled in part, Johnson v. State, 315 Ga. 876, 885 S.E.2d 725, 2023 Ga. LEXIS 62 (2023).
Allowing testimony by video-conference not plain error.
Defendant failed to show plain error in allowing the medical examiner to testify remotely via video-conference, alleging deprivation of the right to a face-to-face confrontation in violation of the defendant’s right to confrontation, because the record showed that the error alleged was affirmatively waived when the defendant consented to the medical examiner’s remote testimony. Holloway v. State, 320 Ga. 668, 911 S.E.2d 554, 2025 Ga. LEXIS 13 (2025). Video of drug transaction with no audio did not contain testimonial
statements.
Video recording presumed to have no discernible audio, which depicted a now-deceased confidential informant purchasing a small bag of suspected methamphetamine from the defendant, did not contain testimonial statements prohibited by the Confrontation Clause because the recording, which depicted a person handing money to another and taking possession of a physical object in return, did not depict any nonverbal statements and was not intended to be an assertion. State v. Gilmore, 312 Ga. 289, 862 S.E.2d 499, 2021 Ga. LEXIS 592 (2021).
O.C.G.A. § 16-5-9 violated confrontation right.
O.C.G.A. § 16-15-9 was declared unconstitutional on the statute’s face under the Sixth Amendment’s confrontation clause to the extent that the statute authorized the admission of the convictions of non-testifying non-parties as evidence of a criminal street gang; the exclusion of other alleged gang members’ convictions in the defendant’s trial was upheld. State v. Jefferson, 302 Ga. 435, 807 S.E.2d 387, 2017 Ga. LEXIS 931 (2017). No right to confront co-defendants
during their plea hearings.
Defendant’s constitutional right to confront and cross-examine the co-defendants was not violated because the co-defendants were giving testimony in their own plea colloquies; the defendant did not have the right to confront the co-defendants during their plea hearings; and the defendant was advised that the defendant would have the right to confront and cross-examine the co-defendants during the defendant’s trial. Houston v. State, 302 Ga. 35, 805 S.E.2d 34, 2017 Ga. LEXIS 777 (2017), overruled in part, Collier v. State, 307 Ga. 363, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (2019). Introduction of extrinsic evidence that did not raise inference of defen-
dant’s innocence.
When the defendant was convicted of malice murder and Confrontation of Witnesses (Cont’d) other crimes in the shooting death of a 13-month-old child and the shooting of the child’s mother, the defendant’s rights to confront the witnesses against the defendant and to present a defense were not violated by barring the defendant from introducing extrinsic evidence about the parents’ history of addiction and family violence because the extrinsic evidence would have cast only a bare suspicion on the child’s parents or raised a conjectural inference that one or both of them might be the guilty parties; and the evidence would not have raised a reasonable inference that the defendant was innocent. Elkins v. State, 306 Ga. 351, 830 S.E.2d 217, 2019 Ga. LEXIS 451 (2019).
Limited scope to relevant evidence.
— The confrontation clause does not confer upon criminal defendants a right to impeach a witness for an out-of-court statement never introduced into evidence. Jones v. Goodwin, 982 F.2d 464, 1993 U.S. App. LEXIS 847 (11th Cir. 1993). The Sixth Amendment’s confrontation clause allows for appropriate limitations on defendant’s right to inquire into an adverse witness’s potential bias. Trial courts have considerable latitude to reasonably limit such cross-examination out of concerns about harassment, prejudice, confusion of the issues, witness safety, or questioning that is repetitive or only marginally relevant. Hewitt v. State, 277 Ga. 327, 588 S.E.2d 722, 2003 Ga. LEXIS 955 (2003). With regard to a defendant’s trial and ultimate conviction on charges of malice murder, armed robbery, and possession of a firearm during the commission of a felony, the trial court did not abuse its discretion in limiting the scope of the defendant’s cross-examination of the testifying victims regarding the immigration status of the victims; the immigration status of the victims was not an issue relevant to the matter being tried, namely whether the defendant committed the crimes charged. Junior v. State, 282 Ga. 689, 653 S.E.2d 481, 2007 Ga. LEXIS 853 (2007).
Purpose.
The mission of the confrontation clause is to advance a practical concern for the accuracy of the truthdetermining process in criminal trials by assuring that the trier of fact has a satisfactory basis for evaluating the truth of a statement. Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213, 1970 U.S. LEXIS 2 (1970). The accused’s right to confront the witnesses against the accused is essential for three basic reasons: (1) it ensures that the witness will give statements under oath, thus impressing the witness with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) it forces the witness to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth; and (3) it permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making the statement, thus aiding the jury in assessing the witness’s credibility. Harrell v. State, 241 Ga. 181, 243 S.E.2d 890, 1978 Ga. LEXIS 915 (1978). The exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Hines v. State, 249 Ga. 257, 290 S.E.2d 911, 1982 Ga. LEXIS 1133 (1982). Main and essential purpose of confrontation is to provide the opportunity for cross-examination. Hawkins v. State, 175 Ga. App. 606, 333 S.E.2d 870, 1985 Ga. App. LEXIS 2165 (1985). Confrontation rights are personal to the accused. State v. Phillips, 247 Ga. 246, 275 S.E.2d 323, 1981 Ga. LEXIS 669 (1981).
Right is fundamental and obligatory on the states.
Right of an accused under U.S. Const., amend. 6 to confront the witnesses against the defendant is a fundamental right made obligatory on the states by U.S. Const., amend. 14. Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213, 1970 U.S. LEXIS 2 (1970); Lingerfelt v. State, 235 Ga. 139, 218 S.E.2d 752, 1975 Ga. LEXIS 806 (1975); Park v. Huff, 506 F.2d 849, 1975 U.S. App. LEXIS 16511 (5th Cir.), cert. denied, 423 U.S. 824, 96 S. Ct. 38, 46 L. Ed. 2d 40, 1975 U.S. LEXIS 2328 (1975). Government need not immunize
witnesses for defense.
The government has no duty under the sixth amendment or otherwise to immunize witnesses for the benefit of the defense. Rather, the government’s power to grant immunity is a discretionary matter which a defendant has no right to subject to judicial review. United States v. Georgia Waste Sys., 731 F.2d 1580, 1984 U.S. App. LEXIS 22534 (11th Cir. 1984).
Appearance of immunized witness.
— Defendants were not deprived of their right to effective cross-examination on the basis of the state’s creation of an “unfavorable inference” through the appearance on the witness stand of a witness who had been granted immunity pursuant to O.C.G.A. § 24-9-28(a) and who refused to testify. Willard v. State, 244 Ga. App. 469, 535 S.E.2d 820, 2000 Ga. App. LEXIS 743 (2000). Although a trial court erred in allowing the prosecution, in the presence of the jury, to propound a series of leading questions to a murder and armed robbery co-indictee who remained mute even though the co-indictee was granted immunity, the error was harmless in light of the testimony from three eyewitnesses and other direct and circumstantial evidence; in light of the evidence and the fact that the prosecutor’s questioning itself was not evidence and the fact that it added nothing of material value to the evidence properly presented, the state carried its burden of showing beyond a reasonable doubt that the error did not contribute to the verdict against the defendant. Horne v. State, 281 Ga. 799, 642 S.E.2d 659, 2007 Ga. LEXIS 240 (2007).
Defendant must see witnesses testify.
When a defendant complained that the trial court did not allow defendant to sit where defendant could view witnesses against defendant as they were testifying, it was error to hold that defendant’s right to confrontation did not require that defendant be able to see witnesses as they testified. Richardson v. State, 276 Ga. 639, 581 S.E.2d 528, 2003 Ga. LEXIS 544 (2003). Defendant has no right to appear
before grand jury.
A court does not err in refusing to allow the defendant or defense counsel to appear before the grand jury to present evidence and to cross-examine witnesses. The defendant is not on trial at this stage of the proceedings and therefore this refusal denies the defendant neither the right of confrontation, nor equal protection of the laws. Jackson v. State, 225 Ga. 790, 171 S.E.2d 501, 1969 Ga. LEXIS 647 (1969), rev’d, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
Exclusion of defendant from evidentiary hearing.
Defendant’s exclusion from an evidentiary hearing on a motion for new trial did not violate defendant’s right to confrontation or due process. United States v. Boyd, 131 F.3d 951, 1997 U.S. App. LEXIS 35641 (11th Cir. 1997), cert. denied, 525 U.S. 892, 119 S. Ct. 211, 142 L. Ed. 2d 173, 1998 U.S. LEXIS 5923 (1998). The right to confrontation at a parole revocation hearing is less stringent than the sixth amendment’s confrontation guarantee in a criminal trial. Evidence that would violate the sixth amendment or would be inadmissible hearsay if presented at a criminal trial may, in proper circumstances, be considered at a parole or probation revocation hearing without violating the due process right to confrontation. Williams v. Lawrence, 273 Ga. 295, 540 S.E.2d 599, 2001 Ga. LEXIS 37 (2001). tion may not be overridden by the right of confrontation. United States v. Brown, 634 F.2d 819, 1981 U.S. App. LEXIS 20902 (5th Cir. 1981). Remedy where confrontation right
Privilege against self-incriminamust yield to privilege against self-incrimination.
If a witness validly claims the privilege against self-incrimination, the defendant’s only relief is a motion to strike that portion of the direct testimony with regard to which the confrontation right is lost. United States v. Brown, 634 F.2d 819, 1981 U.S. App. LEXIS 20902 (5th Cir. 1981).
No right to pretrial disclosure.
The confrontation clause only protects a defendant’s trial rights, and does not compel the pretrial production of information that might be useful in preparing for trial. Aguilar v. State, 202 Ga. App. 62, 413 S.E.2d 245, 1991 Ga. App. LEXIS 1656 (1991). Confrontation of Witnesses (Cont’d)
State’s witness not required to submit to a pre-trial interview.
The state may not deny defendant access to a witness material to the defense, but a witness cannot be compelled to submit to a pre-trial interview. Sosebee v. State, 190 Ga. App. 746, 380 S.E.2d 464, 1989 Ga. App. LEXIS 411, cert. denied, 493 U.S. 933, 110 S. Ct. 323, 107 L. Ed. 2d 313, 1989 U.S. LEXIS 5002 (1989). When the witness is a child, it is permissible for the legal custodian to decide whether the child will be made available to defense counsel for a pre-trial interview. Kelly v. State, 197 Ga. App. 811, 399 S.E.2d 568, 1990 Ga. App. LEXIS 1480 (1990). cluded in the right of a criminal defendant to confront the witnesses against the defendant. Lingerfelt v. State, 235 Ga. 139, 218 S.E.2d 752, 1975 Ga. LEXIS 806 (1975).
Right of cross-examination is in-Harmless error in admission of codefendant’s statement.
Although the trial court erred by admitting a codefendant’s statement to police, that error was harmless because the statement was cumulative of other properly admitted evidence; the defendant’s own taped statement established the same set of facts set forth in the codefendant’s statement, and the defendant admitted to exchanging angry words with the victim and to shooting the victim. Jackson v. State, 291 Ga. 22, 727 S.E.2d 106, 2012 Ga. LEXIS 365 (2012). Codefendant’s trial should have
been severed for exculpatory statements.
Trial court erred in denying a codefendant’s motion to sever the trial from the defendant’s trial because the codefendant was not allowed to introduce the exculpatory portions of the statements that explained the excerpted admissions introduced by the state, which supported the codefendant’s antagonistic defense that the codefendant was present at the robberies due to coercion by the defendant. To avoid potential Bruton issues, the state introduced only those portions of the codefendant’s 9-1-1 calls or custodial statements made establishing that the codefendant was at the scene of two robberies, that the codefendant’s vehicles were used, and that the codefendant sent police to a motel room to investigate the robberies, but refused the additional portions of the statements that tended to support the codefendant’s defense that the codefendant was coerced into participating in the crimes. Bowe v. State, 288 Ga. App. 376, 654 S.E.2d 196, 2007 Ga. App. LEXIS 1202 (2007), cert. dismissed, No. S08C0548, 2008 Ga. LEXIS 318 (Ga. Mar. 31, 2008). Although the admission of a victim’s statements to a deputy violated the defendant’s sixth amendment rights as the defendant was not able to cross-examine the victim, the error was harmless as to the defendant’s aggravated assault and battery convictions in light of the photographs of the victim’s injuries and the defendant’s admission that the defendant grabbed the victim around the neck and that the defendant might have hit the victim in the face. Miller v. State, 273 Ga. App. 761, 615 S.E.2d 843, 2005 Ga. App. LEXIS 612 (2005). Admission of a victim’s statements to a deputy violated the defendant’s sixth amendment rights as the defendant was not able to cross-examine the victim; as the victim’s statements were the only real evidence supporting the terroristic threats and obstructing a person making an emergency call convictions, those convictions were reversed. Miller v. State, 273 Ga. App. 761, 615 S.E.2d 843, 2005 Ga. App. LEXIS 612 (2005).
Right of cross-examination inherent in right of confrontation.
Inherent in the right of confrontation, and in the compulsory process concomitant therewith, is the right to cross-examine the witnesses against the accused. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Defendant should have been allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias in favor of the state resulting from the witness’s probationary status as a juvenile delinquent, notwithstanding that such impeachment would conflict with the state’s asserted interest in preserving the confidentiality of juvenile delinquency proceedings. Since defendant was denied the sixth amendment right of confrontation, defendant was entitled to a new trial. Mangum v. State, 274 Ga. 573, 555 S.E.2d 451, 2001 Ga. LEXIS 897 (2001). Trial court did not plainly err in granting the state’s motion to exclude evidence of the victim’s drug dealing and drug use as the jury heard testimony from multiple witnesses and the defendant that the victim tended toward violence and frequently directed that violence at the defendant; and, whether the victim’s drug use exacerbated such violence would be of marginal value to a jury that was aware of the victim’s violence toward the defendant. Thus, the trial court did not violate the defendant’s right to present a full and fair defense by excluding evidence of the victim’s drug use and related criminal history. Martin v. State, 306 Ga. 747, 833 S.E.2d 122, 2019 Ga. LEXIS 604 (2019).
Former jurors as witnesses.
Testimony, in the defendant’s second murder trial, given by two witnesses who had been jurors in the defendant’s first murder trial, that the jurors heard the defendant make an admission of guilt while exiting the courtroom during the first trial, did not offend the confrontation clause; the trial court did not limit or restrict the defendant in cross-examination of the witnesses in any way, and the testimony did not suggest that there was a prior trial on the merits or that the witnesses had participated in such a trial. Slakman v. State, 280 Ga. 837, 632 S.E.2d 378, 2006 Ga. LEXIS 454 (2006), cert. denied, 549 U.S. 1218, 127 S. Ct. 1273, 167 L. Ed. 2d 95, 2007 U.S. LEXIS 2249 (2007).
Restriction of cross-examination.
The trial court did not impermissibly restrict cross-examination of a witness where the jury heard counsel’s direct question on whether the witness’s testimony at trial was related to the pending charges against the witness and barring inquiry into the nature of the pending charges did not impair the defense from providing the jury with sufficient information on the witness’s motives and biases. Watkins v. State, 276 Ga. 578, 581 S.E.2d 23, 2003 Ga. LEXIS 486 (2003). Because a witness had no specific bias and the witness’s history of past speeding tickets was irrelevant, the trial court did not abuse its discretion by restricting defendant’s cross-examination of the witness. Brittian v. State, 274 Ga. App. 863, 619 S.E.2d 376, 2005 Ga. App. LEXIS 851 (2005). Trial court did not abuse the court’s discretion by refusing to allow any cross-examination of an investigator as to that part of the defendant’s custodial statement in which the defendant identified a codefendant as the individual to whom the defendant rented a panel van used as a methamphetamine lab. Inasmuch as the defendant did not testify, the admission of the defendant’s custodial statement implicating the codefendant was barred by Bruton. Boone v. State, 293 Ga. App. 654, 667 S.E.2d 880, 2008 Ga. App. LEXIS 1041 (2008). Trial court did not violate the appellant’s confrontation rights by preventing cross-examination of a witness about unrelated pending felony charges as the record showed no such violation given the trial court’s ruling declining to prohibit the appellant from asking any questions about the pending charges, and the questions that defense counsel and the prosecutor then asked about those charges. Carston v. State, 310 Ga. 797, 854 S.E.2d 684, 2021 Ga. LEXIS 19 (2021). Restriction of cross-examination
was not harmless error.
Witness who was under commitment to the Department of Juvenile Justice was subject to the allegation that the witness was shading testimony in favor of the state; the trial court’s restriction of defendant’s cross-examination of two state’s witnesses was not a harmless error where the state’s case relied primarily on these witnesses. Wright v. State, 279 Ga. 498, 614 S.E.2d 56, 2005 Ga. LEXIS 414 (2005). Cross examination of surrogate
medical examiner adequate.
Trial court did not err in allowing a surrogate medical examiner to testify about the post-mortem examination of the victim because under a plain error standard of review there was no Confrontation Clause violation since the complaining defendant was permitted to cross-examine the medi-Confrontation of Witnesses (Cont’d) cal examiner. Kemp v. State, 303 Ga. 385, 810 S.E.2d 515, 2018 Ga. LEXIS 107 (2018).
Counsel adequately prepared defendant for cross examination.
Defendant failed to support the claim that trial counsel did not adequately prepare the defendant to be cross-examined at trial because counsel testified that counsel met with the defendant in jail and discussed what the defendant was going to say on the stand and how to deal with “troublesome areas”; the defendant admitted that counsel told the defendant that the defendant would be cross-examined by the district attorney. Funes v. State, 289 Ga. 793, 716 S.E.2d 183, 2011 Ga. LEXIS 713 (2011). To deny the accused the right to impugn a witness’s testimony is to deny the accused cross-examination, and the denial of the right to cross-examine denies the accused due process. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). It is reversible error to preclude cross-examination of an accomplice regarding the deal the accomplice has reached with the state, including the disparity between the sentence the state will recommend in exchange for the accomplice’s cooperation and the sentence the accomplice would have received without that cooperation. Vogleson v. State, 250 Ga. App. 555, 552 S.E.2d 513, 2001 Ga. App. LEXIS 822 (2001), aff’d, 275 Ga. 637, 571 S.E.2d 752, 2002 Ga. LEXIS 967 (2002). Cross-examination as to general
propensity for truthfulness.
U.S. Const., amend. 6 does not guarantee the defendant a right to inquire on cross-examination into incidents that would impeach the witness’s general propensity for truthfulness. United States v. Brown, 634 F.2d 819, 1981 U.S. App. LEXIS 20902 (5th Cir. 1981). Right to confrontation not violated
by limiting cross-examination on former charges.
In a case in which defendant was on trial for, inter alia, an aggravated assault against the girlfriend of defendant’s friend and the malice murder of another resident of the friend’s home, the trial court did not err or violate defendant’s sixth amendment right of confrontation by preventing defendant from cross-examining the victim about a warrant for the victim’s arrest, which, although outstanding at the time of the murder, was no longer pending at the time of trial, as the charge was no longer relevant to show the victim’s possible bias. George v. State, 276 Ga. 564, 580 S.E.2d 238, 2003 Ga. LEXIS 367 (2003). In the defendant’s murder trial, the trial court did not err in excluding an eyewitness’s first offender plea to forgery because the eyewitness had completed the eyewitness’s probation and been discharged; even if a first offender plea was probative of bias in favor of the state, the defendant made no proffer explaining a relationship between the witness’s prior discharge and the eyewitness’s testimony in the defendant’s case. Jones v. State, 305 Ga. 653, 827 S.E.2d 254, 2019 Ga. LEXIS 235 (2019). Indictment not competent method
for impeaching a witness.
The trial court did not err when it refused to allow an indictment against the victim for a crime allegedly committed subsequent to the crime at issue to go to the jury room with the rest of the exhibits since an indictment generally is not a competent method for impeaching a witness. Medina v. State, 247 Ga. App. 821, 545 S.E.2d 366, 2001 Ga. App. LEXIS 131 (2001), cert. denied, No. S01C0832, 2001 Ga. LEXIS 563 (Ga. June 25, 2001). “Forgetful witness.” — The sixth amendment is satisfied if a defendant is given the opportunity to cross-examine a forgetful witness about the witness’s bias, the witness’s lack of care and attentiveness, and even the very fact that the witness has a bad memory. Brown v. State, 266 Ga. 723, 470 S.E.2d 652, 1996 Ga. LEXIS 246 (1996). Prior thorough cross-examination of a witness unavailable at a trial adequately satisfies the confrontation requirement of U.S. Const., amend. 6. United States v. Mobley, 421 F.2d 345, 1970 U.S. App. LEXIS 11182 (5th Cir. 1970). Defendant’s right to cross-examine a witness at trial was not abridged where the witness testified at the defendant’s preliminary hearing, but was subsequently killed and unavailable to testify at the defendant’s trial. The record showed that the defense counsel extensively cross-examined the witness at the preliminary hearing with regard to the issue of identification. Hosick v. State, 262 Ga. 432, 421 S.E.2d 65, 1992 Ga. LEXIS 776 (1992). Although the defendant’s opportunity to cross-examine a witness who later died was not ideal, given that the defendant had only six days’ notice of the hearing, sufficient opportunity to cross-examine the witness was afforded, and any lack of cross-examination was the result of a waiver of that opportunity; thus, the witness’s deposition was properly admitted at trial. Rice v. State, 281 Ga. 149, 635 S.E.2d 707, 2006 Ga. LEXIS 600 (2006).
Waiver by earlier guilty plea.
Officers who interviewed the defendant’s earlier victims within hours after they had been raped, properly testified from reports from these initial interviews, since the defendant, by pleading guilty to the earlier crimes, waived the earlier opportunity to cross-examine those victims. Moore v. State, 207 Ga. App. 412, 427 S.E.2d 779, 1993 Ga. App. LEXIS 200 (1993), cert. denied, No. S93C0856, 1993 Ga. LEXIS 579 (Ga. Apr. 15, 1993). Where defendant in a prosecution for rape and aggravated sodomy pled guilty to a prior charge of aggravated sexual assault, it was not error to admit evidence of the prior victim’s testimony and the testimony of a witness who arrived shortly after that assault. McBee v. State, 228 Ga. App. 16, 491 S.E.2d 97, 1997 Ga. App. LEXIS 1026 (1997), cert. denied, No. S97C2024, 1998 Ga. LEXIS 227 (Ga. Feb. 6, 1998), overruled on other grounds, George v. State, 312 Ga. 801, 865 S.E.2d 127, 2021 Ga. LEXIS 679 (2021). Because the defendant admitted the commission of armed robbery of a witness as described in the indictment, the defendant waived the right to challenge the witness’s statements regarding the incident; therefore, the admission of the evidence did not violate the right of confrontation, and there was no error in admitting the statements under the necessity exception of O.C.G.A. § 24-3-1(b). Johnson v. State, 247 Ga. App. 157, 543 S.E.2d 439, 2000 Ga. App. LEXIS 1446 (2000), overruled in part, Owens v. State, 271 Ga. App. 365, 609 S.E.2d 670, 2005 Ga. App. LEXIS 44 (2005).
Confrontation claim waived.
Defendant waived any claim that the state’s explanation of the absence of an expected witness infringed the defendant’s sixth amendment right to confront the witnesses against the defendant as the defendant failed to raise the issue either at trial or on appeal. Clemons v. State, 265 Ga. App. 825, 595 S.E.2d 530, 2004 Ga. App. LEXIS 148 (2004), cert. denied, No. S04C1128, 2004 Ga. LEXIS 505 (Ga. June 7, 2004). Because defendant objected to the introduction of the codefendant’s statement to police on relevance and impermissible character evidence grounds but not based on a sixth amendment violation, defendant waived the argument that introduction of the statement deprived defendant of the sixth amendment confrontation right. Vincent v. State, 276 Ga. App. 415, 623 S.E.2d 255, 2005 Ga. App. LEXIS 1265 (2005). Defendant failed to make a contemporaneous objection on confrontation grounds to a state forensic biologist’s testimony regarding the biologist’s comparison of DNA profiles prepared by another lab to conclude that defendant’s blood matched blood found at the scene of a murder and robbery; therefore, the error was not preserved for review. Moore v. State, 294 Ga. 682, 755 S.E.2d 703, 2014 Ga. LEXIS 169 (2014).
Rationale for exception.
An exception to the confrontation requirement is where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant, which witness was subject to cross-examination by that defendant. This exception has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. United States v. Confrontation of Witnesses (Cont’d) Mobley, 421 F.2d 345, 1970 U.S. App. LEXIS 11182 (5th Cir. 1970). Where testimony of now-deceased witness from another trial is introduced, the rights of the accused to confrontation and the opportunity to have a jury assess the demeanor and credibility of a witness are satisfied where in a former trial, the witness was under oath and thoroughly examined on both direct and cross-examination. United States v. Mobley, 421 F.2d 345, 1970 U.S. App. LEXIS 11182 (5th Cir. 1970). Because defendant had no opportunity to confront a deceased witness at an accomplice’s trial, the trial court erred in admitting the witness’s statements at defendant’s trial pursuant to O.C.G.A. § 24-3-10; in addition, the statements were testimonial and violated defendant’s confrontation rights. Willingham v. State, 279 Ga. 886, 622 S.E.2d 343, 2005 Ga. LEXIS 849 (2005). Right to Confrontation Out of court statement by deceased
individual.
Trial court did not err in denying the state’s motion in limine to admit a witness’s out-of-court statement by reason of necessity based on the witness now being dead as admission of the witness’s statement would violate the Confrontation Clause because the witness’s statement was testimonial and the defendants had no prior opportunity for cross-examination — both of the qualities of a statement that entitled the defendants to confront the witness. State v. Stephens, 307 Ga. 615, 837 S.E.2d 830, 2020 Ga. LEXIS 12 (2020). Admission of deceased witness’s
prior testimony.
Trial court did not abuse its discretion by admitting the deceased witness’s prior testimony because the witness was unavailable and defendant had a prior opportunity for cross-examination during his first trial. Kennebrew v. State, 317 Ga. 324, 893 S.E.2d 96, 2023 Ga. LEXIS 199 (2023).
No prejudice due to deceased witness.
Trial court did not err by rejecting the defendant’s claim that the state violated the defendant’s sixth amendment right to a speedy trial because the length of delay between entry of the order granting the defendant a new trial and the start of the defendant’s fourth trial was one year and seven months, the record did not suggest any deliberate delay to hamper the defense, the reasons for the delay were the filing of numerous defense motions and the recusal of two judges, and prejudice due to the death of a witness could not be attributed to the delay as the witness died 11 months before the new trial was granted. Palmer v. State, 318 Ga. 511, 899 S.E.2d 192, 2024 Ga. LEXIS 61 (2024).
Victim’s non-testimonial statement.
— Admission of a hearsay statement made by a murder victim before the victim’s death, in which, upon seeing the defendant at the victim’s home, the victim said to the victim’s friend, “What is he doing here? He’s not supposed to know where we live,” did not violate the defendant’s right to confront the absent declarant because the statement in question was not a “testimonial” statement. Griffin v. State, 280 Ga. 683, 631 S.E.2d 671, 2006 Ga. LEXIS 455 (2006), superseded by statute as stated in Ash v. State, 312 Ga. 771, 865 S.E.2d 150, 2021 Ga. LEXIS 680 (2021). In a malice murder prosecution, the victim’s statement to a friend that the defendant said that the defendant was going to kill the victim was admissible under the necessity exception to the hearsay rule as the victim was unavailable and the statements had sufficient indicia of reliability. As the statements were not testimonial, there was no Confrontation Clause violation. Smith v. State, 284 Ga. 304, 667 S.E.2d 65, 2008 Ga. LEXIS 753 (2008). Trial court properly admitted hearsay statements made by a murder victim to the victim’s mother and to the victim’s friend regarding prior physical abuse by the defendant in defendant’s murder trial because none of the out-of-court statements by the victim recounted at trial were even arguably testimonial as the United States Supreme Court had used that term in the court’s recent confrontation clause jurisprudence. Brown v. State, 288 Ga. 364, 703 S.E.2d 609, 2010 Ga. LEXIS 824 (2010), cert. denied, 563 U.S. 994, 131 S. Ct. 2454, 179 L. Ed. 2d 1221, 2011 U.S. LEXIS 3708 (2011). Defendant’s right to confrontation was not violated because an officer responded to the prior victim’s 9-1-1 call within a few minutes and found the prior victim to still be “shaken up” from the prior victim’s confrontation with the burglar, and the burglar, who had just left the scene armed with a knife, was still in the immediate vicinity. Thus, while the prior victim was no longer being immediately threatened, the armed perpetrator was still on the loose, and thus continued to pose a serious potential threat to the prior victim and the neighbors. When a court must determine whether the Confrontation Clause bars the admission of a statement at trial, the court should seek to ascertain, if possible, the primary purpose of the interrogation by objectively evaluating the statements and actions of the parties to the encounter in light of the circumstances in which the interrogation occurs. Philpot v. State, 309 Ga. App. 196, 709 S.E.2d 831, 2011 Ga. App. LEXIS 246 (2011), cert. denied, No. S11C1258, 2011 Ga. LEXIS 751 (Ga. Oct. 3, 2011). Similar transaction hearing was sufficient even though, instead of calling a witness to testify, the state merely proffered a summary of a witness’s testimony; the state introduced no hearsay evidence during trial, and the defendant had ample opportunity to cross-examine the similar transaction witness then. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729, 2006 Ga. App. LEXIS 1217 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (Ga. Jan. 22, 2007), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Use of transcript from preliminary
hearing where witness at hearing unavailable.
Where witness from preliminary hearing was not available at time of trial, having had escaped from prison, defendant’s right of confrontation is not violated by admission of transcript of witness’s testimony at defendant’s preliminary hearing, at which defendant was represented by counsel and witness was cross-examined. Stidem v. State, 246 Ga. 637, 272 S.E.2d 338, 1980 Ga. LEXIS 1232 (1980).
Admission of videotape of unavailable witness permitted.
Trial court’s admission of part of a videotape involving the defendant’s interview with a detective who was unavailable at trial, which the trial court earlier had said it would exclude, was not an abuse of discretion and did not violate the defendant’s right to confrontation; the trial court admitted it because defense counsel “opened the door” to its admission by asking about it on direct examination, and any error in admitting it was harmless because the detective’s comments about a theory that the spouse might have committed suicide were favorable to the defendant and any inference that the defendant shot the defendant’s spouse was supported by other evidence. Rowe v. State, 276 Ga. 800, 582 S.E.2d 119, 2003 Ga. LEXIS 549 (2003). Admission of a victim’s videotaped statement did not violate the Confrontation Clause as defense counsel posed no questions after the victim testified about the video, only questioning the victim about other topics. Pierce v. State, 302 Ga. 389, 807 S.E.2d 425, 2017 Ga. LEXIS 940 (2017). Admission of videotape harmless
error.
Trial court’s admission of the videotaped testimony of a witness who could not be located for defendant’s criminal trial was a violation of the rights under the confrontation clause because it constituted impermissible testimonial evidence; however, the error was harmless because there was no reasonable probability that it contributed to the verdict, as the testimony was cumulative of other properly admitted evidence. Copprue v. State, 279 Ga. 771, 621 S.E.2d 457, 2005 Ga. LEXIS 723 (2005).
Admission of 9-1-1 call.
Defendant’s motion in limine to exclude evidence of a 9-1-1 call and the defendant’s motion for a directed verdict were properly denied as the 9-1-1 call was not testimonial since it was not premeditated and was made to prevent or stop a crime; under Georgia law, 9-1-1 statements were admissible as part of the res gestae or as an excited utterance and the confrontation clause and Crawford v. Washington, 541 U.S. 36 (2004), were inapplicable. Kimbrell v. State, 280 Ga. Right to Confrontation (Cont’d) App. 867, 635 S.E.2d 237, 2006 Ga. App. LEXIS 964 (2006). In defendant’s convictions on one count of simple assault and two counts of battery, trial court properly determined that audiotape of 9-1-1 call made by the victim was nontestimonial in nature as the caller advised that the caller had been hit, had a swollen face, was experiencing serious bleeding and the call was made with such immediacy after the attack that, upon the officer’s arrival, the caller was scared and crying, and blood was running down the caller’s chin, shirt, and pants; thus, trial court properly found that the call was nontestimonial in nature in that it was made to seek assistance in a situation involving immediate danger. Thompson v. State, 291 Ga. App. 355, 662 S.E.2d 135, 2008 Ga. App. LEXIS 446 (2008), cert. denied, No. S08C1547, 2008 Ga. LEXIS 710 (Ga. Sept. 8, 2008). Allowing a jury to hear an audiotape of two 9-1-1 calls made by bystanders to report a shooting was proper because, inter alia, as the calls were made while the incident was ongoing, the perpetrator was at large, and the nature of the operator’s questions were to assist the police in meeting an ongoing emergency, the statements were nontestimonial, and the confrontation clause was not implicated. Glover v. State, 285 Ga. 461, 678 S.E.2d 476, 2009 Ga. LEXIS 289 (2009). Detective’s recorded statements of
interview with defendant.
Trial court did not err in admitting the detective’s recorded statements from an interview with the defendant and by denying the defendant’s motion for a mistrial because the detective’s references to two witnesses who identified the defendant did not violate the Confrontation Clause as the detective’s statements were not hearsay because the statements clearly were not meant to establish as true that others had implicated the defendant, but were simply a part of an interrogation technique as the detective’s statements were clearly designed to convince the defendant to speak, rather than to provide the defendant — or the jury — true accounts of witness statements. Myrick v. State, 306 Ga. 894, 834 S.E.2d 542, 2019 Ga. LEXIS 669 (2019).
Admission of hearsay.
Because hearsay testimony was cumulative of other properly admitted evidence, its admission, even if erroneous, was harmless; thus, defendant’s contention of a Crawford violation lacked merit. Buttram v. State, 280 Ga. 595, 631 S.E.2d 642, 2006 Ga. LEXIS 405 (2006). The admission of an informant’s testimony regarding knowledge of the defendant’s participation in the victim’s murder did not amount to inadmissible hearsay and did not violate the Confrontation Clause, as the hearsay was cumulative of admissible evidence adduced at trial and, in light of the overwhelming evidence of the defendant’s guilt, there was no reasonable possibility that the confrontation violation contributed to the guilty verdict. Warren v. State, 283 Ga. 42, 656 S.E.2d 803, 2008 Ga. LEXIS 28 (2008).
Admission of testimonial statements.
Statements of the victim and the victim’s friend were testimonial under Crawford and thus were inadmissible hearsay because the defendant had not had the prior opportunity to cross-examine the victim or the friend, who did not testify at trial. The primary purpose of the victim’s identification of the defendant at the crime scene was to establish past facts with a view to future prosecution, and the friend was effectively being a witness against the defendant when the friend said that a knife was in the yard and that the defendant was the one who stabbed the victim. Cuyuch v. State, 284 Ga. 290, 667 S.E.2d 85, 2008 Ga. LEXIS 732 (2008), superseded by statute as stated in Rosser v. State, 308 Ga. 597, 842 S.E.2d 821, 2020 Ga. LEXIS 338 (2020). Supreme court cautioned the trial court regarding hearsay statements of an alleged victim because the statements the alleged victim made to a police officer complaining of an alleged attack by the defendant were inadmissible if the defendant objected to them, and the affidavit testimony the alleged victim gave in connection with the victim’s judicial complaint of domestic abuse was also hearsay, was testimonial in nature, and was inadmissible if objected to by the defendant; statements alleging that a criminal act has been committed that are made in response to a police officer’s questions during a time when there is no longer an ongoing emergency are testimonial in nature, and it is a violation of the confrontation clause of the sixth amendment to admit hearsay accounts of them over a defendant’s objection where the defendant has had no previous opportunity for cross-examination. Pope v. State, 286 Ga. 1, 685 S.E.2d 272, 2009 Ga. LEXIS 628 (2009). Sixth amendment rights of the defendants to confront the witnesses against the defendants were violated when the trial court allowed a Florida judge to testify as to the contents of three petitions for temporary protective injunctions that were filed in the judge’s court when two of the petitions were filed by the decedent before the decedent’s death and one of the petitions was filed by one of the defendants. This constituted reversible error as to the defendant who was implicated in the petitions, but constituted harmless error as to the other defendant who was not mentioned in the petitions. Miller v. State, 289 Ga. 854, 717 S.E.2d 179, 2011 Ga. LEXIS 827 (2011). Trial court erred in admitting testimony relating to the codefendant’s initial, noncustodial statement to police on the day of the murder because the statement was testimonial in nature and the defendant had no opportunity to examine the codefendant. Colton v. State, 292 Ga. 509, 739 S.E.2d 380, 2013 Ga. LEXIS 199 (2013). Counsel not ineffective for failing
to object to nontestimonial statements.
Trial counsel was not ineffective for failing to object to the testimony of a former girlfriend of the first defendant and the first defendant’s mother in which they recounted statements the first defendant made to them that implicated the second defendant because the statements did not violate the second defendant’s right to confrontation as the statements were not testimonial in nature because the statements were not a product of interrogation by law enforcement officers during an investigation intended to produce evidence for a criminal prosecution. Haney v. State, 305 Ga. 785, 827 S.E.2d 843, 2019 Ga. LEXIS 322 (2019). lar transactions allegedly involving
Questioning of witness about simidefendant.
It violated the Sixth Amendment’s confrontation clause to ask a witness about a statement that the witness had made that implicated the defendant in two similar-transaction robberies. Despite the fact that limiting instructions were given, the procedure placed before the jury the content of the witness’s statement, allowing the jury to infer that since the defendant committed the other robberies with the witness, the defendant committed the one at issue; furthermore, the error was not harmless because the witness was the only person who could connect the defendant to the two previous armed robberies. Deloatch v. State, 296 Ga. App. 65, 673 S.E.2d 576, 2009 Ga. App. LEXIS 123 (2009). Control of the cross-examination of a witness is to a great degree within the discretion of the trial court and will not be controlled unless abused. Eades v. State, 232 Ga. 735, 208 S.E.2d 791, 1974 Ga. LEXIS 1075 (1974). Trial court did not err when it limited the cross-examination of one detective concerning the other detective’s interview with the defendant about how the other detective formed opinions and impressions regarding the other detective’s theory regarding how defendant’s spouse was killed, as the defendant’s sixth amendment right to cross-examine the detective was not abridged by the limitation since the defendant was trying to ask about matters that were beyond the detective’s knowledge. Rowe v. State, 276 Ga. 800, 582 S.E.2d 119, 2003 Ga. LEXIS 549 (2003). Defendant’s cross-examination of an arresting officer was not unduly restricted when defendant was not allowed to ask the officer at trial if the officer’s testimony at a suppression hearing satisfied the requirements for establishing the admissibility of the fruits of a pat-down search, as that legal determination was the province of the court, had previously been addressed by the court, and was not an issue for the jury. Mohamed v. State, 276 Ga. 706, 583 S.E.2d 9, 2003 Ga. LEXIS 604 (2003). Because the trial court did not abuse the court’s discretion in regulating cross-Right to Confrontation (Cont’d) examination by instructing defense counsel to be clear with counsel’s question, the defendant’s constitutional right of confrontation was not violated. Baker v. State, 293 Ga. 811, 750 S.E.2d 137, 2013 Ga. LEXIS 858 (2013). amination should be too free than too restricted, this right to a thorough and sifting cross-examination must be tempered and restricted so as not to infringe on privileged areas or wander into the realm of irrelevant testimony. Eades v. State, 232 Ga. 735, 208 S.E.2d 791, 1974 Ga. LEXIS 1075 (1974). tion is within the discretion of the trial judge, this discretionary authority to limit cross-examination comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy U.S. Const., amend. 6. United States v. Elliott, 571 F.2d 880, 1978 U.S. App. LEXIS 11547 (5th Cir.), cert. denied, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344, 1978 U.S. LEXIS 3715 (1978), cert. denied, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344 (1978). Abuse of discretion in preventing
Although it is better that cross-ex-While the scope of cross-examinaall inquiry on subject.
While the extent of cross-examination is within the sound discretion of the trial court, cutting off all inquiry on a subject with respect to which the defense was entitled to a reasonable cross-examination is an abuse of discretion. Byrd v. State, 262 Ga. 426, 420 S.E.2d 748, 1992 Ga. LEXIS 770 (1992). Limitation of cross-examination must not prejudice right to test truth-
fulness.
A defendant’s right under U.S. Const., amend. 6 to confront the witnesses against the defendant is not violated in all cases in which cross-examination is limited. The question in each case must finally be whether the defendant’s inability to make the inquiry creates a substantial danger of prejudice by depriving the defendant of the ability to test the truth of the witness’s direct testimony. If the defendant has, so much of the direct testimony as cannot be subjected to sufficient inquiry must be struck. United States v. Brown, 634 F.2d 819, 1981 U.S. App. LEXIS 20902 (5th Cir. 1981). Confrontation clause is not offended when the defendant at trial waives objection to the use of prior sworn testimony of an inaccessible state witness and therefore cannot claim the waiver was error for the first time on appeal. Riley v. State, 237 Ga. 124, 226 S.E.2d 922, 1976 Ga. LEXIS 1170 (1976), overruled in part, Clark v. State, 315 Ga. 423, 883 S.E.2d 317, 2023 Ga. LEXIS 13 (2023). In a criminal trial with regard to a defendant’s contention on appeal that a Crawford violation occurred as a result of the trial court refusing to sever the defendant’s trial from the codefendant’s trial, no reversible error was shown as the out-of-court statement at issue, namely that the codefendant called and said that the codefendant’s vehicle had been used in an armed robbery, did not implicate the defendant as the state offered that evidence to show that the codefendant was involved, but that statement did not implicate the defendant’s guilt. Further, on cross examination, the defendant’s attorney asked the officer if that phone call directed police to the motel room where the defendant was found and arrested, which the officer answered in the affirmative, therefore, the defendant elicited the testimony and, likewise, two other complained of statements were either elicited by the defendant or never objected to at trial. Bowe v. State, 288 Ga. App. 376, 654 S.E.2d 196, 2007 Ga. App. LEXIS 1202 (2007), cert. dismissed, No. S08C0548, 2008 Ga. LEXIS 318 (Ga. Mar. 31, 2008). Where a co-indictee’s confession implicating the defendant in armed robberies was corroborated by a number of witnesses who positively identified the defendant as the perpetrator of each armed robbery, the defendant had the opportunity to challenge the reliability of the co-indictee’s effort to implicate the defendant in the crimes through leading questions posed by defense counsel’s cross-examination, and thus to the extent that the co-indictee’s refusal to respond to questioning deprived the defendant of the constitutional right to confront the co-indictee, the constitutional violation was harmless beyond a reasonable doubt. Alexander v. State, 236 Ga. App. 142, 511 S.E.2d 249, 1999 Ga. App. LEXIS 77 (1999). Note-passing inmate was properly permitted to relate to the jury statements made by other inmates when they were discussing what to do about the possibility the victim was going to tell the authorities about their effort to escape as the coconspiratorial statements were made during the pendency of the conspiracy and they were presumed to be sufficiently reliable to satisfy the confrontation clause’s requirement of trustworthiness; the admission of the statements was not at odds with Crawford v. Washington, 541 U.S. 36 (2004), because statements admissible pursuant to the hearsay exception permitting the use of statements made in furtherance of a conspiracy were not testimonial. McKinney v. State, 281 Ga. 92, 635 S.E.2d 153, 2006 Ga. LEXIS 582 (2006). Murder victim’s statements to neighbors, paramedics, and an officer identifying the defendant as the shooter were nontestimonial as the statements were made while the incident was still ongoing and the perpetrator was at large. Thus, the confrontation clause was not implicated, and the admission of the statements under former O.C.G.A. § 24-3-3 (see now O.C.G.A. § 24-8-803), the res gestae exception to the hearsay rule, did not violate the defendant’s sixth amendment rights. Thomas v. State, 284 Ga. 540, 668 S.E.2d 711, 2008 Ga. LEXIS 850 (2008). Trial court did not err by admitting incriminating statements a codefendant made to witnesses because the codefendant’s statements were made during the pendency of the conspiracy and were admissible against the defendant under the coconspirator exception to the hearsay rule, former O.C.G.A. § 24-3-5 (see now O.C.G.A. § 24-8-801); the admission of the codefendant’s statements to lay witnesses during the concealment phase of the conspiracy did not violate the confrontation clause because the codefendant’s statements were not testimonial. Allen v. State, 288 Ga. 263, 702 S.E.2d 869, 2010 Ga. LEXIS 891 (2010), cert. denied, 563 U.S. 1038, 131 S. Ct. 2973, 180 L. Ed. 2d 256, 2011 U.S. LEXIS 4254 (2011). Right to cross-examine witness as
to recent arrest.
Even though the trial court erred in refusing to allow defendant to pursue the topic of the witness’s recent arrest, the error was harmless where the witness otherwise was subjected to a thorough and sifting cross-examination. Garcia v. State, 267 Ga. 257, 477 S.E.2d 112, 1996 Ga. LEXIS 906 (1996). Trial court did not abuse its discretion or deny the defendant the right of confrontation guaranteed by U.S. Const., amend. 6 by precluding the defendant from cross-examining a witness offered by the state regarding the facts underlying criminal charges that were pending against the witness, as there was no indication in the record that those underlying facts were relevant or would have exposed any bias or motive of the witness; even if the limitation on such cross-examination were erroneous, any error was harmless, as the witness did not implicate the defendant or otherwise show bias for the state, and the evidence of the defendant’s guilt was overwhelming. Brown v. State, 276 Ga. 192, 576 S.E.2d 870, 2003 Ga. LEXIS 121 (2003). Cross-examination with over-age
convictions.
Based on the slight probative value of over-age convictions, the fact that former O.C.G.A. § 24-9-84.1(b) (see now O.C.G.A. § 24-6-609) permits use of such convictions on a showing of specific facts and circumstances establishing the probative value of the particular conviction, and the fact that former § 24-9-84.1 (see now O.C.G.A. § 24-6-609) does not preclude all inquiry on a subject with respect to which a defendant is entitled to a reasonable cross examination, that section is not unconstitutional as a violation of the confrontation clause. Hinton v. State, 280 Ga. 811, 631 S.E.2d 365, 2006 Ga. LEXIS 390 (2006). Cross-examination as to agreement
between witness and state.
There was no denial of due process or confrontation rights where the trial court ruled improper a question by defense counsel on cross-examination that presumed the ex-Right to Confrontation (Cont’d) istence of an unprovable “deal” between the state and the witness; the court did not preclude all inquiry on a subject with respect to which the defendant was entitled to reasonable cross-examination. Watkins v. State, 264 Ga. 657, 449 S.E.2d 834, 1994 Ga. LEXIS 898 (1994). Where defendant failed to prove either that there had been a deal or that the witness had any expectation of a deal, the trial court did not impermissibly abridge defendant’s sixth amendment rights by limiting defendant’s cross-examination concerning charges against the witness. Wright v. State, 266 Ga. 887, 471 S.E.2d 883, 1996 Ga. LEXIS 485 (1996). Defendant was denied the constitutional right to confrontation when a case agent was allowed to state that no deal had been reached with a confidential informant without being cross-examined; however, the error was not reversible because no prejudice was shown where the confidential informant testified at trial and was thoroughly cross-examined concerning the motives for testifying against defendant and where no evidence was presented regarding a deal with the confidential informant. Garrison v. State, 260 Ga. App. 788, 581 S.E.2d 357, 2003 Ga. App. LEXIS 489 (2003). A defendant’s right to cross-examine an accomplice witness regarding parole was irrelevant on the question of the witness’s potential bias in testifying favorably for the state because there was no evidence of any deal between the witness and the state regarding parole. In addition, the authority to grant parole rested with the State Board of Pardons and Paroles, and not the office of the district attorney. Hewitt v. State, 277 Ga. 327, 588 S.E.2d 722, 2003 Ga. LEXIS 955 (2003). Trial court violated the defendant’s sixth amendment right of confrontation because it granted the state’s motion in limine and restricted the defendant’s cross-examination of the defendant’s accomplice as to the accomplice motivation in testifying for the state, including the accomplice’s recommended sentence if the accomplice cooperated with the state and the accomplice’s sentence without that cooperation. The error was harmless beyond a reasonable doubt, however, in light of the overwhelming evidence of the defendant’s guilt, even without the accomplice’s testimony, including a victim’s identification of the defendant as the person who robbed and abducted the victim, personal papers at the apartment where the victim was held belonged to the defendant and a first victim, and the recovery of the first victim’s jacket from the defendant’s friend’s home, in the location disclosed by the defendant. Thompson v. State, 266 Ga. App. 29, 596 S.E.2d 205, 2004 Ga. App. LEXIS 290 (2004). Trial court did not abuse its discretion in precluding the defendant from asking the defendant’s cousin, who was jointly indicted with the defendant and testified against the defendant, about the specific sentences the cousin would face if convicted because the cousin had no deal regarding the cousin’s charges or sentences with the state in exchange for testimony; the trial court permitted a sweeping cross-examination, limiting only questions about the specific sentences that the cousin could face, and the defendant was allowed to elicit that the cousin was charged with the same murder, the same aggravated assault, and the same attempted armed robbery as the defendant and that those charges were still pending. The defendant also cross-examined the cousin regarding whether the cousin hoped to gain favorable treatment on the charges due to the testimony, and in response, the cousin admitted several times that although there was no deal with the state, the cousin hoped the charges would be dismissed because of the cousin’s testimony, which was a benefit far greater than any sentence reduction. Howard v. State, 286 Ga. 222, 686 S.E.2d 764, 2009 Ga. LEXIS 729 (2009). Trial court did not abuse the court’s discretion in prohibiting the defendant’s cross-examination of a witness regarding the witness’s first offender plea in order to show bias and a motive to testimony favorable to the state because there was no evidence showing the connection between the witness’s first offender status and the witness’s desire to shade the witness’s testimony to curry favor with the state; the defendant had to present facts in addition to the existence of two first offender pleas to support the defendant’s efforts to impeach the witness for bias. Sanders v. State, 290 Ga. 445, 721 S.E.2d 834, 2012 Ga. LEXIS 13 (2012). Following a guilty verdict that two defendants participated in criminal street gang activity, the trial court erred in denying the defendants’ motion for new trial under Brady v. Maryland, 373 U.S. 83 (1963), based on the state’s failure to disclose evidence of payments to the state’s chief witness; the witness was the only witness to testify that one defendant was the shooter and that the defendant was a member of the gang. McClendon v. State, 347 Ga. App. 542, 820 S.E.2d 167, 2018 Ga. App. LEXIS 557 (2018). Cross-examination as to potential
bias of state’s witness.
The sixth amendment does not afford the defendant in a criminal proceeding an absolutely unfettered right to cross-examine the state’s witnesses as to their potential bias. Shaw v. State, 201 Ga. App. 456, 411 S.E.2d 537, 1991 Ga. App. LEXIS 1436 (1991), overruled in part, Green v. State, 254 Ga. App. 881, 564 S.E.2d 731, 2002 Ga. App. LEXIS 414 (2002). A trial court’s restriction of the pursuit of cross examination as to the potential bias of a state’s witness, even if erroneous, may yet be harmless. Shaw v. State, 201 Ga. App. 456, 411 S.E.2d 537, 1991 Ga. App. LEXIS 1436 (1991), overruled in part, Green v. State, 254 Ga. App. 881, 564 S.E.2d 731, 2002 Ga. App. LEXIS 414 (2002). Precluding a line of questioning by defense counsel purporting to show motive for false testimony on behalf of the government witness erroneously limited defendant’s right to cross-examine guaranteed by the Sixth Amendment since the witness may have been motivated by an effort to prevent an investigation into the witness’s child’s arrest in another case. United States v. Lankford, 955 F.2d 1545, 1992 U.S. App. LEXIS 5256 (11th Cir. 1992). Cross-examination of victim-witness’s pending criminal charges was needed to inquire of any desire to influence their disposition by assisting the state in prosecution. Hurston v. State, 206 Ga. App. 570, 426 S.E.2d 196, 1992 Ga. App. LEXIS 1694 (1992). Although the trial court erred in refusing to allow the defense to cross-examine the defendant’s friend concerning possible bias in favor of the state based on the friend’s first-offender status, the error was harmless given the overwhelming evidence against defendant. Melson v. State, 263 Ga. App. 647, 588 S.E.2d 822, 2003 Ga. App. LEXIS 1283 (2003). Trial court erred by denying codefendants any chance to proffer evidence that the victim’s friend was aware of the disparity in the sentence the friend received under a plea agreement and the sentence the friend would have received if the friend had been convicted of murder and by summarily excluding any evidence of the friend’s parole because the disparity, eligibility for parole after 30 years of incarceration versus two years served before eligibility, could have provided the friend with bias in favor of or motivation to assist the state; however, the error was harmless because the defendant and the codefendants were allowed to extensively cross-examine the friend about potential bias flowing from the plea deal with the state. Manley v. State, 287 Ga. 338, 698 S.E.2d 301, 2010 Ga. LEXIS 317 (2010). Because parole eligibility is not irrelevant to a witness’s potential bias, to the extent that Hewitt v. State, 277 Ga. 327 (2003), Mikell v. State, 286 Ga. 434 (2010) or other cases which rely on them, can be read to state that a trial court will never err by prohibiting cross-examination on parole eligibility because it is irrelevant to the question of a witness’s potential bias, they are hereby overruled. Manley v. State, 287 Ga. 338, 698 S.E.2d 301, 2010 Ga. LEXIS 317 (2010).
Confrontation of medical examiner.
— Trial court did not violate the defendant’s right to confrontation when the court restricted the defendant’s questioning of the medical examiner who conducted the victim’s autopsy because evidence that the medical examiner was disciplined for telling an inappropriate joke was, at best, marginally relevant to the issue of the medical examiner’s potential bias in favor of the state. Summerville Right to Confrontation (Cont’d) v. State, 320 Ga. 60, 907 S.E.2d 604, 2024 Ga. LEXIS 240 (2024). Defendant’s right to a thorough and sifting cross-examination of the state’s key witness was not violated, where the trial court appropriately exercised its sound discretion to determine the extent of cross-examination when the questions left the area of the witness’s belief of personal benefit and went to the fact underlying a pending charge against the witness. Baptiste v. State, 190 Ga. App. 451, 379 S.E.2d 165, 1989 Ga. App. LEXIS 276 (1989).
Government informant.
Where the accused makes a credible initial showing that the informant may have been mistaken as to the name of the person selling drugs to undercover police officers on the occasion in question, the police privilege against revealing the name of its informant must yield to a defendant’s fundamental right to a fair trial. Wilson v. State, 209 Ga. App. 436, 433 S.E.2d 703, 1993 Ga. App. LEXIS 899 (1993). Refusal to order the identification of a reliable confidential informant did not violate defendant’s right to confrontation because the informant was not a witness to the crime for which defendant was charged. Brown v. State, 229 Ga. App. 87, 493 S.E.2d 230, 1997 Ga. App. LEXIS 1354 (1997). Defendant was not denied the right to confront defendant’s accusers when the state was not required to reveal the identity of the confidential informant since the identity of the confidential informant bore no relation to defendant’s guilt or innocence. Baggs v. State, 265 Ga. App. 282, 593 S.E.2d 734, 2004 Ga. App. LEXIS 90 (2004). Admission of detective’s testimony
regarding statements made by a police informant.
Defendant’s right to confrontation was not violated by admission of the testimony of a narcotics detective regarding statements made by a police informant and which the detective heard via an audio transmitter during a drug buy, although the informant died prior to trial, because the testimony was not hearsay; the statements were incriminating admissions, and the informant’s statements were not testimonial in nature because, although overheard by the police, the statements were not made to the police. Smith v. State, 302 Ga. App. 128, 690 S.E.2d 449, 2010 Ga. App. LEXIS 55 (2010), cert. denied, No. S10C0870, 2010 Ga. LEXIS 438 (Ga. June 1, 2010). Curtailing of cross-examination
where insufficient foundation laid.
Where the defendant fails in the defendant’s efforts to lay a foundation for a specific defense theory and this line of questioning is overruled, the trial court does not err in sustaining the state’s objection to the defendant’s question to a witness regarding the alleged homosexuality of the victim. Cofield v. State, 247 Ga. 98, 274 S.E.2d 530, 1981 Ga. LEXIS 633 (1981). Affidavits of absent witnesses cannot be admitted in evidence at criminal trials because doing so violates the right of defendants to confront witnesses against them. Adams v. State, 217 Ga. App. 706, 459 S.E.2d 182, 1995 Ga. App. LEXIS 598 (1995), cert. denied, No. S95C1707, 1995 Ga. LEXIS 1094 (Ga. Oct. 13, 1995). U.S. Const., amend. 6 does not require admission of all character evidence probative of truthfulness of witness even though evidence may be of help to jury. United States v. Cohen, 631 F.2d 1223, 1980 U.S. App. LEXIS 11723 (5th Cir. 1980). Denial of cross-examination where exhibits constitute highest and best
evidence.
Because defense counsel attempted to cross-examine the state’s witnesses as to whether certain accusations or traffic citations which had been admitted in evidence contained a driving under the influence charge, and because each time the state successfully objected that the exhibits themselves would be the highest and best evidence, the defendant was not denied due process, equal protection or the right to cross-examine witnesses. Ferrell v. State, 149 Ga. App. 405, 254 S.E.2d 404, 1979 Ga. App. LEXIS 1873 (1979), cert. denied, 444 U.S. 1021, 100 S. Ct. 679, 62 L. Ed. 2d 653, 1980 U.S. LEXIS 365 (1980).
Indicia of reliability must be present where no confrontation of declarant.
In cases involving a defendant’s right under U.S. Const., amend. 6 to confrontation, the focus of concern is to ensure that there are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant, and to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, 1979 Ga. LEXIS 910, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116, 1979 U.S. LEXIS 3232 (1979). What indicia of reliability viewed
as determinative.
Those indicia of reliability which have been viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant are that the statement was nonnarrative; that the declarant is shown by the evidence to know whereof the declarant speaks; that the witness is not apt to be proceeding on faulty recollection; and that the circumstances show that declarant had no apparent reason to lie to the witness. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, 1979 Ga. LEXIS 910, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116, 1979 U.S. LEXIS 3232 (1979). Admission of hearsay where indicia
of reliability present.
Where three of the indicia of reliability are present, the admission of hearsay testimony concerning the individual’s statements incriminating both the individual and the defendant does not violate the defendant’s confrontation rights under the state and federal Constitutions. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, 1979 Ga. LEXIS 910, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116, 1979 U.S. LEXIS 3232 (1979). Admission of the defendants’ hearsay statements as statements made by coconspirators under O.C.G.A. § 24-3-5 did not violate the confrontation clause of U.S. Const., amend. 6, as the statements were reliable, and the statements were not testimonial in nature; each statement corroborated the other statements and the physical evidence, and each of the defendants implicated himself or herself in their statement. Brooks v. State, 281 Ga. 14, 635 S.E.2d 723, 2006 Ga. LEXIS 603 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266, 167 L. Ed. 2d 91, 2007 U.S. LEXIS 2212 (2007). tims’ out-of-court statements did not violate right to confrontation, where the statements bore sufficient “indicia of reliability.” Smith v. State, 199 Ga. App. 378, 405 S.E.2d 78, 1991 Ga. App. LEXIS 487 (1991), cert. denied, No. S91C1010, 1991 Ga. LEXIS 761 (Ga. May 15, 1991). With regard to defendant’s trial and conviction for child molestation, the trial court did not err by allowing the admission of the victim’s hearsay statements as defense counsel had subpoenaed the victim and announced that defense counsel intended to call the victim as a trial witness; although the victim ultimately was not called to testify, the record established that the victim was present and available for cross-examination, and therefore, there was no Crawford v. Washington, 541 U. S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), violation presented in the case. Williams v. State, 290 Ga. App. 841, 660 S.E.2d 740, 2008 Ga. App. LEXIS 228 (2008), overruled in part, Hatley v. State, 290 Ga. 480, 722 S.E.2d 67, 2012 Ga. LEXIS 137 (2012), overruled in part as stated in Wadley v. State, 317 Ga. App. 333, 730 S.E.2d 536, 2012 Ga. App. LEXIS 658 (2012). Non-testifying victim’s statements
Admission of child molestation vicpertinent to medical treatment.
With regard to a defendant’s trial and conviction for aggravated sodomy and simple battery involving the sexual assault of an inmate upon an inmate, the trial court did not violate the defendant’s rights under the Confrontation Clause by admitting the statements made by the victim to the physician and the nurse who treated the victim for the injuries received because the statements were admissible under former O.C.G.A. § 24-3-4 (see now O.C.G.A. § 24-8-803), the medical diagnosis or treatment exception, and did not fall within any class of testimonial statement. In particular, no objective witness would reasonably conclude that the statements were made under such circumstances that the statement would be available for use at a later trial. Right to Confrontation (Cont’d) Thomas v. State, 288 Ga. App. 602, 654 S.E.2d 682, 2007 Ga. App. LEXIS 1259 (2007), cert. denied, No. S08C0725, 2008 Ga. LEXIS 471 (Ga. May 19, 2008). Review of psychiatric records of
witness.
Defendant’s Sixth Amendment rights were not violated by a trial court’s failure to conduct an in camera review of psychiatric records relating to an eyewitness to the defendant’s crimes because defense counsel admitted to the trial court that there were no known psychiatric records pertaining to the eyewitness. Byrum v. State, 282 Ga. 608, 652 S.E.2d 557, 2007 Ga. LEXIS 780 (2007). Blood test results in defendant’s
medical records were not testimonial.
In the defendant’s vehicular homicide prosecution, the admission of testimony regarding the defendant’s bloodtest results contained in the defendant’s medical records did not violate the Confrontation Clause; the medical records were not testimonial in nature because the circumstances surrounding their creation objectively indicated that the records were prepared with a primary purpose of facilitating the defendant’s medical care after the defendant was struck by the same vehicle that killed the victim. Hartzler v. State, 332 Ga. App. 674, 774 S.E.2d 738, 2015 Ga. App. LEXIS 379 (2015). tion does not require that all hearsay nal cases. Littles v. Balkcom, 245 Ga. 285, 264 S.E.2d 219, 1980 Ga. LEXIS 767 (1980); Ewald v. State, 156 Ga. App. 68, 274 S.E.2d 31, 1980 Ga. App. LEXIS 2881 (1980). A witness can testify as to what the witness has heard without violating the confrontation clause if subject to cross-examination. Littles v. Balkcom, 245 Ga. 285, 264 S.E.2d 219, 1980 Ga. LEXIS 767 (1980); Ewald v. State, 156 Ga. App. 68, 274 S.E.2d 31, 1980 Ga. App. LEXIS 2881 (1980). Hearsay exceptions must comport
Constitutional right to confrontabe excluded from evidence in crimiwith right of confrontation.
While U.S. Const., amend. 6 does not prevent creation of new exceptions to the hearsay rule based upon real necessity and adequate guarantees of trustworthiness, it does embody those requirements as essential to all exceptions to the rule, present or future. To hold otherwise would be to hold that Congress could abolish the right of confrontation by making unlimited exceptions to the hearsay rule. Matthews v. United States, 217 F.2d 409, 1954 U.S. App. LEXIS 3136 (5th Cir. 1954).
Hearsay exception satisfied confrontation clause.
Hospital record showing blood test results was properly admitted as a business records exception to the hearsay rule and bore an “indicia of reliability” sufficient to satisfy the confrontation clause. Dixon v. State, 227 Ga. App. 533, 489 S.E.2d 532, 1997 Ga. App. LEXIS 841 (1997). Trial court did not err in admitting two statements the victim made regarding defendant’s kidnapping of the victim, pursuant to the res gestae exception to the hearsay rule, as the victim was still under the influence of defendant’s criminal act, and the state and federal courts have previously determined that admission of res gestae evidence did not violate a defendant’s right to confront defendant’s accuser. White v. State, 265 Ga. App. 117, 592 S.E.2d 905, 2004 Ga. App. LEXIS 27 (2004). In a defendant’s prosecution for, inter alia, felony murder, the introduction of a second inmate’s statement that the defendant and the second inmate did not mean to kill a third inmate did not violate the defendant’s Sixth Amendment confrontation rights because the voluntary statement, which was made shortly after the third inmate was found in the defendant’s cell, was admissible pursuant to the res gestae exception to the rule against hearsay under former O.C.G.A. § 24-3-3 (see now O.C.G.A. § 24-8-803). Butler v. State, 284 Ga. 620, 669 S.E.2d 118, 2008 Ga. LEXIS 856 (2008). Trial court did not err in allowing the victim’s cousin and the cousin’s girlfriend to testify at trial about prior difficulties between the victim and the defendant pursuant to the necessity exception to the rule excluding hearsay, and the testimony did not violate the defendant’s right to confrontation because the trial court concluded the proffered testimony of the witnesses was reliable and trustworthy as it found the victim was like a sibling to the witnesses; and because any alleged harm from the admission of that testimony was mitigated by the fact that both witnesses testified that the victim and the defendant continued to be friends in spite of their prior difficulties. Thompson v. State, 294 Ga. 693, 755 S.E.2d 713, 2014 Ga. LEXIS 173 (2014). Admission of hearsay evidence not
harmless error.
Because the evidence against the defendant was not overwhelming, admission of the officer’s testimony that the witness told the officer that defendant sold the witness drugs was hearsay that violated the defendant’s right to a fair trial, and was therefore not harmless error. Welch v. State, 231 Ga. App. 74, 498 S.E.2d 555, 1998 Ga. App. LEXIS 330 (1998). Admission of prior inconsistent statements as affirmative evidence does not violate the confrontation clause of U.S. Const., amend. 6, because the declarant is testifying as a witness at the trial and therefore subject to full and effective cross-examination. United States v. Hill, 481 F.2d 929, 1973 U.S. App. LEXIS 8651 (5th Cir.), cert. denied, 414 U.S. 1115, 94 S. Ct. 847, 38 L. Ed. 2d 742, 1973 U.S. LEXIS 1895 (1973).
Out-of-court statements.
The confrontation clause is not violated by admitting a declarant’s out-of-court statement as long as the declarant is testifying as a witness and subject to full cross-examination. Durham v. State, 240 Ga. 203, 240 S.E.2d 14, 1977 Ga. LEXIS 1446 (1977); Andrews v. State, 156 Ga. App. 734, 275 S.E.2d 782, 1980 Ga. App. LEXIS 3185 (1980). Because defendant was provided a full opportunity for confrontation regarding the victim’s prior out-of-court statements, the trial court did not err in admitting a police investigator’s hearsay evidence. Gartrell v. State, 272 Ga. App. 726, 613 S.E.2d 226, 2005 Ga. App. LEXIS 376 (2005). As a witness’s statement in response to police questioning was testimonial and the defendant did not have a prior opportunity to cross-examine the witness about the contents of the statement, the statement’s admission erroneously infringed upon the defendant’s right to confront the witnesses against the defendant; however, the witness was located and brought to court the day after the statement was read and the defendant chose not to cross-examine the witness. Thus, the error in admitting the statement was cured and the error was not grounds for reversal. Lott v. State, 281 Ga. App. 373, 636 S.E.2d 102, 2006 Ga. App. LEXIS 1106 (2006).
Cellmate’s testimony.
Cellmate’s testimony regarding incriminating statements the defendant allegedly made did not violate the defendant’s Sixth Amendment right to counsel because the cellmate did not have any agreement with the lead detective and had not been promised any payment, lenient treatment, or other help in return for any evidence that the cellmate could produce; what the cellmate hoped to get for the testimony went to the cellmate’s credibility, not to the admissibility of the cellmate’s testimony, and there was no evidence that the cellmate deliberately elicited the incriminating statements from the defendant. Higuera-Hernandez v. State, 289 Ga. 553, 714 S.E.2d 236, 2011 Ga. LEXIS 560 (2011). Defendant’s confrontation clause challenge to a co-defendant’s statement to the defendant’s cellmate about one of the murders was rejected because the statement was not testimonial as the cellmate described the conversation as the co-defendant trying to feel the cellmate out to see what the cellmate could tell the defendant. Campbell v. State, 320 Ga. 333, 907 S.E.2d 871, 2024 Ga. LEXIS 247 (2024).
Codefendant’s custodial statement.
— Introduction of a codefendant’s custodial statement, which was redacted to eliminate the defendant’s name and was read into evidence at trial, violated the defendant’s Sixth Amendment right to confrontation because despite the redaction, the codefendant’s statement, taken in context, obviously referred to the defendant; there was no instruction given for the jury to consider the statement only against the statement’s maker, and because the defendant had no opportunity to Right to Confrontation (Cont’d) cross-examine the defendant’s inculpatory statements against the defendant, the defendant’s Sixth Amendment rights were violated. Ardis v. State, 290 Ga. 58, 718 S.E.2d 526, 2011 Ga. LEXIS 862 (2011). Victim’s statements to officer and
paramedic.
The admission of statements by the deceased victim to an officer and to a paramedic that the defendant had struck the victim in the head did not violate the Confrontation Clause. The primary purpose of the officer’s interrogation was to meet an ongoing emergency, and the statement to the paramedic was made during an initial examination and was not testimonial. Hester v. State, 283 Ga. 367, 659 S.E.2d 600, 2008 Ga. LEXIS 297 (2008). Provision of O.C.G.A. § 24-3-16 permitting evidence of a victim’s out-of-court statements does not violate the confrontation clause. Fuller v. State, 211 Ga. App. 104, 438 S.E.2d 183, 1993 Ga. App. LEXIS 1442 (1993). Violation of due process of law in conducting a confrontation depends on the totality of the surrounding circumstances. Baier v. State, 124 Ga. App. 334, 183 S.E.2d 622, 1971 Ga. App. LEXIS 913 (1971). On-the-scene confrontations and
identifications.
Although a conventional line-up viewing is normally the appropriate procedure, nevertheless, prompt, on-the-scene confrontations and identifications, though inherently suggestive because of the representation of a single suspect, are permissible in aiding a speedy police investigation and that where possible doubts as to identification need to be resolved promptly, such on-thespot identifications promote fairness by enhancing the accuracy and reliability of identification, thereby permitting expeditious release of innocent subjects. Bennefield v. Brown, 228 Ga. 705, 187 S.E.2d 865, 1972 Ga. LEXIS 890 (1972); Flores v. State, 228 Ga. App. 152, 491 S.E.2d 86, 1997 Ga. App. LEXIS 983 (1997). Suggestive pretrial identification
procedures taint courtroom identification.
Pretrial identification procedures which include an impermissibly suggestive photographic confrontation, followed by a suggestive in person confrontation at a critical stage of the proceedings conducted without counsel, disclose an inextricably related identification process making it impossible to determine that the courtroom identification is untainted thereby and had an independent origin in the face-to-face confrontation by the eyewitness at the scene of the burglary. Baier v. State, 124 Ga. App. 334, 183 S.E.2d 622, 1971 Ga. App. LEXIS 913 (1971). Per se exclusionary rule does not cial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414, 1972 Ga. LEXIS 773 (1972). Videotape statements admissible
apply to confrontations occurring before the initiation of adversary judisince testifying.
Since both of defendant’s accomplices testified and were cross-examined at trial, any Sixth Amendment right to confrontation concerns regarding the admission into evidence at trial of the statements defendant and one accomplice made on a videotape while being arrested were satisfied. Heard v. State, 257 Ga. App. 505, 571 S.E.2d 524, 2002 Ga. App. LEXIS 1200 (2002). Defendant’s right of confrontation was not violated by the admission of a videotaped statement of a witness, who did not remain silent at the trial, and completely denied making any statement to the police regarding the murder. Wilson v. State, 277 Ga. 114, 587 S.E.2d 9, 2003 Ga. LEXIS 777 (2003). Use of a photo suggestive of criminal conduct during an investigation does not make identification testimony possibly affected by the photo per se inadmissible. United States v. Axtman, 589 F.2d 196, 1979 U.S. App. LEXIS 17083 (5th Cir. 1979). Where the suspect is already in custody for other reasons, and only three pictures are used for the witness to choose from, two of which depict the suspect, and one which has been altered in a manner which might suggest that it depicted the suspect, the photographic identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Baier v. State, 124 Ga. App. 334, 183 S.E.2d 622, 1971 Ga. App. LEXIS 913 (1971). Exhibition of pictures of members of a line-up, including that of the defendant, to a witness for identification purposes does not violate the defendant’s rights under U.S. Const., amend. 6 and work a per se exclusion of the identification. Creamer v. State, 229 Ga. 704, 194 S.E.2d 73, 1972 Ga. LEXIS 744 (1972). In-court identification admissible if independent from illegal pretrial
identification.
Notwithstanding any illegality in the pretrial identification procedures, in-court identification by a witness may nevertheless be admitted so long as it has an independent origin from the illegal identification procedure. Foster v. State, 156 Ga. App. 672, 275 S.E.2d 745, 1980 Ga. App. LEXIS 3166 (1980). Conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification; furthermore, even if a pre-trial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. Taylor v. State, 203 Ga. App. 210, 416 S.E.2d 554, 1992 Ga. App. LEXIS 470 (1992). Where the victim observed defendant at the scene and gave a detailed description to the police immediately following the robbery, the victim’s identification had an independent origin other than the photo identification; therefore, the court found no error with the trial court’s admission of the photographic identification. Taylor v. State, 203 Ga. App. 210, 416 S.E.2d 554, 1992 Ga. App. LEXIS 470 (1992). Per se rule applies to illegal line-up
identification itself.
While an illegality in the pretrial identification procedure does not automatically prevent the witness from also identifying the defendant during the trial, a per se rule of exclusion does apply to evidence of the illegal line-up identification itself. Foster v. State, 156 Ga. App. 672, 275 S.E.2d 745, 1980 Ga. App. LEXIS 3166 (1980). sible where codefendant does not
Codefendant’s confession inadmistake stand.
Evidence of the confession of one codefendant, which confession implicates another, cannot be admitted where the confessor does not take the stand and is not available for cross-examination. Collins v. State, 144 Ga. App. 102, 240 S.E.2d 597, 1977 Ga. App. LEXIS 2597 (1977); Cape v. State, 144 Ga. App. 193, 240 S.E.2d 736, 1977 Ga. App. LEXIS 2631 (1977); Munford v. Seay, 241 Ga. 223, 244 S.E.2d 857, 1978 Ga. LEXIS 990 (1978); Sewell v. State, 153 Ga. App. 177, 264 S.E.2d 708, 1980 Ga. App. LEXIS 1732 (1980). Defendant was deprived of right to confrontation by admission into evidence of the codefendant’s confession implicating the defendant where the codefendant did not take the stand, and where evidence against the defendant was not so overwhelming as to render any error harmless. Hamilton v. State, 162 Ga. App. 620, 292 S.E.2d 473, 1982 Ga. App. LEXIS 3152 (1982).
Admission of co-conspirator’s statement.
In cases involving a co-conspirator exception to the hearsay rule, the admission of the statement of a co-conspirator does not violate the confrontation clause if the statement and the circumstances surrounding it contain sufficient “indicia of reliability.” Castell v. State, 250 Ga. 776, 301 S.E.2d 234, 1983 Ga. LEXIS 1026 (1983); Castell v. State, 250 Ga. 776, 301 S.E.2d 234, 1983 Ga. LEXIS 1026 (1983); Hunter v. State, 179 Ga. App. 368, 347 S.E.2d 2, 1986 Ga. App. LEXIS 2631 (1986). Where the four factors indicative of reliability identified by the United States Supreme Court are present in the case, a demonstration of the unavailability of the co-conspirator is not required and the defendant’s Sixth Amendment confrontation rights are not violated by introduction of testimony regarding the co-conspirator’s declarations. Hunter v. State, 179 Ga. App. 368, 347 S.E.2d 2, 1986 Ga. App. LEXIS 2631 (1986). Testimony by an undercover police officer as to a statement made by a co-con-Right to Confrontation (Cont’d) spirator during the pendency of the criminal project was not inadmissible simply because the co-conspirator was not available for cross-examination since, after the fact of conspiracy is proved, the declarations of any one of the conspirators during the pendency of the project is admissible against all. Clark v. State, 236 Ga. App. 153, 510 S.E.2d 907, 1999 Ga. App. LEXIS 37 (1999), cert. denied, No. S99C0722, 1999 Ga. LEXIS 404 (Ga. Apr. 30, 1999). Admission of codefendant’s statements made during the concealment phase of a conspiracy did not violate the confrontation clause as there were sufficient indicia of reliability because the codefendant had personal knowledge of the identities and roles of the participants, the possibility that codefendant’s statements were based on faulty recollection was remote because the statements concerned direct involvement in a murder, it was unlikely that codefendant misrepresented defendant’s involvement in the crimes, and the statements were against codefendant’s penal interest. Shelton v. State, 279 Ga. 161, 611 S.E.2d 11, 2005 Ga. LEXIS 232 (2005). Statements by the defendant’s co-conspirator to a third person regarding the defendant’s actions during the criminal project and during the concealment phase bore sufficient indicia of reliability to be admissible in defendant’s criminal trial, pursuant to O.C.G.A. § 24-3-5, and any objection on the grounds of the confrontation clause under U.S. Const., amend. 6 or on hearsay grounds would have lacked merit; reliability factors included that there was no express statement of past facts and the declarant spoke of matters based on first had knowledge on the same day that they had occurred. Redwine v. State, 280 Ga. 58, 623 S.E.2d 485, 2005 Ga. LEXIS 863 (2005). Statement by a co-conspirator to a witness had sufficient indicia of reliability, and its admission did not violate the confrontation clause; while the statement was an assertion of past facts, by the co-conspirator’s admission that the co-conspirator committed the crime, the co-conspirator had personal knowledge of the other perpetrators, the possibility that the co-conspirator’s recollection of the incident was faulty was remote in light of the heinousness of the crime and the co-conspirator’s description that it was the best time the co-conspirator had ever had, and there was no reason for the co-conspirator to misrepresent the defendants’ involvement in the crime, because the co-conspirator and the other defendants were friends; furthermore, two of the co-conspirator’s statements were against the co-conspirator’s own penal interest, which also weighed in favor of reliability. Dickerson v. State, 280 Ga. App. 29, 633 S.E.2d 367, 2006 Ga. App. LEXIS 739 (2006), cert. denied, No. S06C1876, 2006 Ga. LEXIS 860 (Ga. Oct. 16, 2006). Admission of a co-conspirator’s hearsay statement that defendant was the “triggerman” in a robbery violated the confrontation clause, and could not be deemed harmless error, where the hearsay lacked sufficient indicia of reliability: The statement was not res gestae, was not given under oath, was not against penal interest, and was exculpatory. Horton v. Zant, 941 F.2d 1449, 1991 U.S. App. LEXIS 20577 (11th Cir. 1991), cert. denied, 503 U.S. 952, 112 S. Ct. 1516, 117 L. Ed. 2d 652, 1992 U.S. LEXIS 1943 (1992). fendant’s statement with the names of codefendants redacted and replaced by blanks violated Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). McDonald v. State, 210 Ga. App. 689, 436 S.E.2d 811, 1993 Ga. App. LEXIS 1307 (1993). Admission into evidence of codefendant’s prior videotaped statement as a prior inconsistent statement or under the necessity exception to the hearsay rule was error where the codefendant was present at the trial, but refused to testify. Barksdale v. State, 265 Ga. 9, 453 S.E.2d 2, 1995 Ga. LEXIS 69 (1995). In defendant’s trial on charges alleging that defendant and two codefendants robbed and killed a person in 1986, the trial court did not violate defendant’s rights under the confrontation clause by admitting statements which defendant’s codefendants made, even though the codefendants did not testify, because those statements were properly redacted before they were admitted and the jury was properly instructed on their use. Ingram v. State, 277 Ga. 46, 586 S.E.2d 221, 2003 Ga. LEXIS 724 (2003). Admission of a statement by codefendant to the police investigator violated defendant’s right to confrontation because defendant and codefendant were jointly tried, codefendant’s statement was used to implicate defendant in the crime, and codefendant did not take the stand to face cross-examination. Sharber v. State, 268 Ga. App. 365, 601 S.E.2d 732, 2004 Ga. App. LEXIS 849 (2004). Admission of a nontestifying codefendant’s statement did not violate defendant’s right to confrontation because the statement was redacted to remove any reference to defendant; as nothing in the statement pointed directly at defendant as a participant in the crime, the statement was not inculpatory, and the court did not err in admitting it. Dunbar v. State, 271 Ga. App. 753, 610 S.E.2d 702, 2005 Ga. App. LEXIS 161 (2005). With regard to the defendant’s conviction for malice murder, the trial court violated a defendant’s right to confrontation by admitting two prior inconsistent statements of a codefendant after the codefendant refused to testify and shut down during direct examination, therefore, the defendant was unable to cross-examine the codefendant. However, the error were harmless beyond a reasonable doubt based on the defendant’s admission to assisting in the killing and being with the codefendant at the time of the killing. Soto v. State, 285 Ga. 367, 677 S.E.2d 95, 2009 Ga. LEXIS 172 (2009). Admission of a nontestifying codefendant’s statement that listed all the other participants in the crime and substituted “a fourth person” and similar references obviously referred to the defendant and implicated the defendant in the crimes, and therefore admission of the statement was error. The error was harmless, however, because most of the statement was entirely cumulative of the defendant’s own testimony and the defendant’s statement to police. Laye v. State, 312 Ga. App. 862, 720 S.E.2d 233, 2011 Ga. App. LEXIS 1021 (2011), cert. denied, No. S12C0534, 2012 Ga. LEXIS 280 (Ga. Mar. 5, 2012). Admission of a statement by the defendant’s brother at a joint trial did not violate the defendant’s right to confrontation because the jury was instructed only to consider the statement against the brother and the statement did not mention or implicate the defendant. Teasley v. State, 293 Ga. 758, 749 S.E.2d 710, 2013 Ga. LEXIS 794 (2013).
Admission of a nontestifying code-Nontestifying codefendant’s statement.
Unless the statement is otherwise directly admissible against the defendant, the confrontation clause is violated by the admission of a nontestifying codefendant’s statement which inculpates the defendant by referring to the defendant’s name or existence, regardless of the existence of limiting instructions. Collins v. State, 242 Ga. App. 450, 529 S.E.2d 412, 2000 Ga. App. LEXIS 155 (2000). In a joint trial where neither defendant testified, the second defendant was entitled to a new trial based on the admission of the first defendant’s statement against the second defendant because a Bruton violation occurred and the only evidence directly identifying the second defendant as one of the people at the victim’s door in a shooting incident was the first defendant’s statement. Meadows v. State, 264 Ga. App. 160, 590 S.E.2d 173, 2003 Ga. App. LEXIS 1426 (2003). No Bruton violation if statements
not inculpatory.
Defendant’s custodial statements that the defendant was not present and that the defendant had an alibi did not inculpate codefendants. It followed that the trial court did not abuse the court’s discretion in denying motions for mistrial on Bruton grounds. Metz v. State, 284 Ga. 614, 669 S.E.2d 121, 2008 Ga. LEXIS 861 (2008), overruled in part, State v. Kelly, 290 Ga. 29, 718 S.E.2d 232, 2011 Ga. LEXIS 860 (2011).
Any Bruton violation harmless.
Evidence that the first defendant’s statement about not knowing the accomplice was false was overwhelming because the defendant eventually admitted to knowing the accomplice, and a witness testified about the first defendant’s and the accomplice’s roles in the shootings, including Right to Confrontation (Cont’d) instances in which the two were together; thus, the prejudicial effect of the accomplice’s statement to the police was minimal by comparison, and the Bruton violation was harmless. Pender v. State, 311 Ga. 98, 856 S.E.2d 302, 2021 Ga. LEXIS 87 (2021). Trial court’s admission of the redacted diagram or the detective’s limited testimony about the second defendant’s statements avoided a Bruton violation because neither the diagram nor the second defendant’s statements, considered in total, directly implicated the first defendant in any crime or placed the first defendant in the truck during the first victim’s shooting. Pender v. State, 311 Ga. 98, 856 S.E.2d 302, 2021 Ga. LEXIS 87 (2021).
Confession of co-indictee.
The admission of evidence of a co-indictee’s confession, made outside the defendant’s presence to a police officer after the defendant’s arrest was error. It violated the defendant’s Sixth Amendment right to confront and cross-examine witnesses against the defendant, as well as the provision of O.C.G.A. § 24-3-52. Crawford v. State, 203 Ga. App. 215, 416 S.E.2d 820, 1992 Ga. App. LEXIS 472 (1992). Where the statement of a coactor after a crime occurs is merely cumulative of other undisputed evidence in the case and does not directly incriminate the defendant, any error in its admission in high probability does not affect the verdict and is harmless beyond a reasonable doubt. Harris v. State, 168 Ga. App. 458, 309 S.E.2d 431, 1983 Ga. App. LEXIS 2812 (1983). Accomplice’s conversation with
witness.
Where a police officer testified as to a conversation with the alleged accomplice and what the officer did as a result of that conversation but did not testify as to what the accomplice in fact specifically told the officer about the defendant, there was no violation of the defendant’s Sixth Amendment right to confrontation. Goff v. State, 165 Ga. App. 79, 299 S.E.2d 149, 1983 Ga. App. LEXIS 3113 (1983). Since substantial risk exists that instructions to jury will not be effec-
tive.
Because of the substantial risk, despite instructions to the contrary, that a jury shall look to incriminating extrajudicial statements in determining a defendant’s guilt, admission of the confession of a codefendant in a joint trial violates the defendant’s right of cross-examination secured by the confrontation clause of U.S. Const., amend. 6. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475, 1981 Ga. LEXIS 638 (1981).
Admission of codefendant’s confession is harmful error.
The admission of the confession of codefendant who did not take the stand in the joint trial is harmful error under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The admission of the confession without an opportunity for cross-examination violated defendant’s guarantee of confrontation of witnesses against the defendant under U.S. Const., amend. 6. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475, 1981 Ga. LEXIS 638 (1981). Right of confrontation not violated where defendant’s own confession
supports it.
Although evidence of the confession of the codefendant implicating the defendant cannot be admitted against that defendant at joint trial where the codefendant does not take stand and is not available for cross-examination, where the testimony presented in the codefendant’s confession is supported by the complaining defendant’s own confession, there is no violation of the appellant’s right of confrontation. Butler v. State, 156 Ga. App. 89, 274 S.E.2d 104, 1980 Ga. App. LEXIS 2889 (1980). Where the defendant’s own pre-trial statement admitting the defendant’s own guilt was identical to the codefendant’s statement, the defendant failed to show how the denial of the motion to sever was a denial of due process. Dennard v. State, 263 Ga. 453, 435 S.E.2d 26, 1993 Ga. LEXIS 658 (1993), overruled in part, Sanders v. State, 281 Ga. 36, 635 S.E.2d 772, 2006 Ga. LEXIS 638 (2006).
Admission of codefendant’s statement harmless.
Because the appellant had also confessed, making the incriminating statement of the codefendants merely cumulative, its admission in violation of the Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), rule was harmless. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475, 1981 Ga. LEXIS 638 (1981). Admission of codefendant’s statement to the fellow prisoners referring to a robbery and a shooting by “one of the guys” did not violate defendant’s federal or state rights to confront witnesses and did not mandate that defendant be tried separately as the statement did not inculpate defendant. Sampson v. State, 279 Ga. 8, 608 S.E.2d 621, 2005 Ga. LEXIS 107 (2005). ment is harmless where defendant
Admission of codefendant’s statenot inculpated by it.
Where the confession of the codefendant was found to inculpate only the declarant and not the defendant, its admission in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), is harmless. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475, 1981 Ga. LEXIS 638 (1981).
Severance of defendants.
Neither codefendant was entitled to a severance where Bruton v. United States, 391 U.S. 123 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) did not apply, since the codefendants’ statements did not directly incriminate each other, and the trial court gave limiting instructions as to the use of such evidence. Bruton only excludes statements by a non-testifying codefendant that directly inculpate the defendant, and Bruton is not violated if a codefendant’s statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial. Moss v. State, 275 Ga. 96, 561 S.E.2d 382, 2002 Ga. LEXIS 245 (2002). Defendant lacked standing to complain of a trial court’s decision to sever defendant’s trial from defendant’s co-indictees at the request of the state based on the fact that defendant’s statement to police could not have been redacted so as to delete defendant’s implication of the other offenders, and the admission of the statement would have been precluded if the other offenders were tried jointly with defendant; defendant also failed to show harm, as defendant was acquitted of the charges to which the statements of the co-indictees related. Rhodes v. State, 267 Ga. App. 673, 601 S.E.2d 139, 2004 Ga. App. LEXIS 754 (2004). When a defendant charged with malice murder, felony murder, and cruelty to children argued that the trial court violated the Sixth Amendment confrontation rights by not severing the defendant’s trial from that of a codefendant, the court held that even if admission of the codefendant’s statements was error, it was harmless; some of the complained-of statements were cumulative of other properly admitted evidence, and other statements were not an important element in the state’s case, given the showing that the victim never suffered unusual injuries before moving in with the defendant and that the victim’s severe injuries occurred when the defendant was the victim’s sole adult caretaker. Collum v. State, 281 Ga. 719, 642 S.E.2d 640, 2007 Ga. LEXIS 229 (2007). As neither defendant implicated the other in their statements to police, the trial court did not abuse the court’s discretion in denying their motions to sever their cases on grounds of a violation of Bruton v. United States, 391 U.S. 123 (1968). Carter v. State, 285 Ga. 394, 677 S.E.2d 71, 2009 Ga. LEXIS 167 (2009). Where the evidence contained in the confession is found to be merely cumulative, its admission in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), is harmless. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475, 1981 Ga. LEXIS 638 (1981). When codefendant’s inculpatory
statement admissible.
An admission of an inculpatory statement made by accused’s codefendant did not violate the accused’s right of confrontation where the statement was not received until all references to the accused were deleted, and where the accused had a full opportunity to cross-examine codefendant when the codefendant took the stand to deny making the inculpatory statement. United States v. Sims, 434 F.2d 258, 1970 U.S. App. LEXIS 6476 (5th Cir. 1970). Right to Confrontation (Cont’d) Evidence of a codefendant’s statements did not violate defendant’s rights under the confrontation clause since it was not admitted for its truth, but for the limited purpose of showing context and voluntariness. Cargill v. Turpin, 120 F.3d 1366, 1997 U.S. App. LEXIS 22315 (11th Cir. 1997), cert. denied, 523 U.S. 1080, 118 S. Ct. 1529, 140 L. Ed. 2d 680, 1998 U.S. LEXIS 2642 (1998). Codefendant’s statement meets the standard for admissibility under the confrontation clause when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing codefendant. Rooks v. State, 238 Ga. App. 177, 518 S.E.2d 179, 1999 Ga. App. LEXIS 763 (1999). Trial court did not err in allowing the state to introduce a codefendant’s out-of-court statement without redacting the statement, and in allowing the state to cross-examine the codefendant using the name of the defendant’s two alleged accomplices because, once the codefendant took the stand and answered questions concerning the codefendant’s statement, even if the codefendant denounced or recanted that statement, the codefendant was subject to cross-examination. Boone v. State, 250 Ga. App. 133, 549 S.E.2d 713, 2001 Ga. App. LEXIS 540 (2001).
Codefendant’s inculpatory statement inadmissible.
In a trial against three alleged co-conspirators the introduction in evidence of two defendants’ incriminating statements denied the third defendant the right to be confronted by these persons and to subject them to cross-examination, where the statements are crucial to the case against the third defendant, their impact is devastating, and there is not sufficient indicia of reliability to excuse confrontation by the declarants. Knowles v. State, 246 Ga. 378, 271 S.E.2d 615, 1980 Ga. LEXIS 1116 (1980). Admissibility of co-conspirator’s declarations under former Code 1933,
§ 38-306 (see O.C.G.A. § 24-3-5).
Even though an alleged accomplice does not appear at the defendant’s trial, the accomplice’s statement can be placed before the jury under former Code 1933, § 38-306 (see O.C.G.A. § 24-3-5) without violating the due process or confrontation clauses, if the statement meets certain indicia of reliability, including the fact that it was offered spontaneously and was against the accomplice’s penal interest. Spivey v. State, 138 Ga. App. 298, 226 S.E.2d 104, 1976 Ga. App. LEXIS 2139, cert. denied, 429 U.S. 921, 97 S. Ct. 317, 50 L. Ed. 2d 288, 1976 U.S. LEXIS 3317 (1976). The duration of the conspiracy includes its concealment phase, and the application of former Code 1933, § 38-306 (see O.C.G.A. § 24-3-5) is not subject to objection as a denial of confrontation. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, 1979 Ga. LEXIS 910, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116, 1979 U.S. LEXIS 3232 (1979).
Admission of co-conspirator’s statement against defendant after conspiracy has ended.
Where the statement of the codefendant is made in front of the defendant, the defendant has been arrested, the fact of the choate crime has been revealed, and there is absolutely no showing by the state that a conspiracy to cover up the crime still exists, the criminal project is not still pending, it has been completed, and the introduction of the statements of the codefendant through the testimony of the detective before whom the statement is made violates former Code 1933, § 38-414 (see O.C.G.A. § 24-3-52) and violates the defendant’s right under U.S. Const., amend. 6 to confrontation. Price v. State, 239 Ga. 439, 238 S.E.2d 24, 1977 Ga. LEXIS 1199 (1977).
Admission of non-testifying coindictee’s refusal to testify harmless error as no prejudice shown.
With regard to defendant’s trial for felony murder and other crimes, trial court did not commit reversible error by holding co-indictee in contempt for refusing to testify after invoking the Fifth Amendment and then recalling the jurors and informing them that co-indictee had pled guilty to various offenses, refused to cooperate with state despite an offer of immunity, and that co-indictee had been held in contempt for that refusal. Hendricks v. State, 283 Ga. 470, 660 S.E.2d 365, 2008 Ga. LEXIS 351 (2008).
Statements made to witness by defendant’s co-conspirator in defendant’s presence.
Where a witness and defendant visited incarcerated co-conspirator and where the co-conspirator gave witness a message written down on a pad which read “don’t identify him” (allegedly referring to the defendant), the written message and testimony were admissible and did not violate defendant’s confrontation rights. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, 1979 Ga. LEXIS 910, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116, 1979 U.S. LEXIS 3232 (1979). Testimony of witness whose name
is not on indictment.
Constitutional right of accused to be confronted with witnesses is not violated because a witness, whose name does not appear on the indictment, is sworn as a witness for the state and testifies against the accused, where there is no demand for a list of the witnesses whose names appear on the indictment, and no objection is made to the witness testifying. McCoy v. State, 74 Ga. App. 889, 41 S.E.2d 830, 1947 Ga. App. LEXIS 726 (1947). Failure of witness to appear where defendant seeks neither subpoena
nor continuance.
Where a witness for the prosecution does not appear, apparently for medical reasons, the failure of this witness to appear does not violate the defendant’s right to confront witnesses where there is nothing in the record to show that the defendant ever placed the witness under subpoena or that, if the defendant did, a continuance or other relief from the failure to appear was requested. Glover v. State, 149 Ga. App. 369, 254 S.E.2d 492, 1979 Ga. App. LEXIS 1852 (1979). Failure to subpoena witnesses as
ineffective assistance.
Defendant failed to establish that trial counsel rendered ineffective assistance by failing to subpoena a witness because the defendant failed to carry the burden of showing that if the witness had testified at trial, there was a reasonable probability the result of the trial would have been different; the defendant did not specify which witnesses counsel failed to subpoena. Glass v. State, 289 Ga. 542, 712 S.E.2d 851, 2011 Ga. LEXIS 557 (2011). Failure to produce informant to
testify.
A defendant is not unconstitutionally deprived of the right to confront a witness against the defendant because the state does not produce an informant to testify. The informant, unless called, cannot be termed a “witness” against the defendant. McAllister v. Brown, 555 F.2d 1277, 1977 U.S. App. LEXIS 12440 (5th Cir. 1977). State’s failure to call witness on its list did not deny the defendant’s sixth amendment rights because, under O.C.G.A. § 17-7-191, the defendant could have subpoenaed the witness if deemed necessary to the defendant for impeachment purposes. Johnson v. State, 232 Ga. App. 717, 503 S.E.2d 603, 1998 Ga. App. LEXIS 830 (1998). No right of confrontation as to tipster who neither participates in nor
witnesses offense.
Where the state proves to the court’s satisfaction that the informer is a pure tipster, who neither participated in nor witnessed the offense, any evidence the informer might offer would be hearsay and inadmissible. Thus the trial court’s ruling that the jury could not hear the officer’s recitation of the tipster’s information, does not violate the defendant’s civil rights under 42 U.S.C. § 1983 nor the constitutional right to confront witnesses against the defendant. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, 1979 Ga. LEXIS 910, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116, 1979 U.S. LEXIS 3232 (1979). Identification of state “decoy” used
to purchase contraband.
When the state uses a “decoy” (the purchaser in an illegal sale of contraband), the decoy is a material witness to the offense and the decoy’s testimony would be pertinent to the defense of entrapment, but, by disclosing the decoy’s identity to the defendant, the state fulfilled its obligation of confrontation. Wilson v. Hopper, 234 Ga. 859, 218 S.E.2d 573, 1975 Ga. LEXIS 1307 (1975).
Failure to disclose identity of intermediary between informer and government.
Refusal to disclose the identity of an intermediary or messenger Right to Confrontation (Cont’d) whose sole mission was to inform the government agent of the informer’s wish to talk with the agent is not a violation of the right to confrontation under U.S. Const., amend. 6. United States v. Newsome, 432 F.2d 51, 1970 U.S. App. LEXIS 7136 (5th Cir. 1970). Recording of victim’s radio voice
transmission.
The appellant’s constitutional right of cross-examination and confrontation of witnesses under U.S. Const., amend. 6, Ga. Const. 1945, Art. I, Sec. I, Para. III (see Ga. Const. 1983, Art. I, Sec. I, Para. I), and Ga. Const. 1945, Art. I, Sec. I, Para. V (see Ga. Const. 1983, Art. I, Sec. I, Para. XI, XIV), are not violated where a court allows as evidence the recorded radio voice transmission of a deceased victim made while proceeding to the scene of the homicide, where it is allowed only for the purposes of explaining conduct to the satisfaction of the jury and not for the purpose of proving any fact. Callahan v. State, 229 Ga. 737, 194 S.E.2d 431, 1972 Ga. LEXIS 760 (1972). Business record exception is an exception to the hearsay rule, and not a general exception to the confrontation clause. Adams v. State, 217 Ga. App. 706, 459 S.E.2d 182, 1995 Ga. App. LEXIS 598 (1995), cert. denied, No. S95C1707, 1995 Ga. LEXIS 1094 (Ga. Oct. 13, 1995). cords and counsel’s objection without
Telephone records as business remerit.
Although the defendant claimed that trial counsel was ineffective in permitting the admission of certain phone records, trial counsel did object to admission of the records, but the trial court overruled the objection; the evidence showed that the records were maintained in computer storage as business records, and the trial court therefore did not err in admitting the records under the business records exception to the hearsay rule. The defendant thus failed to demonstrate deficient performance and, in any event, due to the overwhelming evidence of the defendant’s guilt, no prejudice was shown. Washington v. State, 285 Ga. 541, 678 S.E.2d 900, 2009 Ga. LEXIS 311 (2009).
Summary of business records.
In a case where a summary of business records is properly admitted and the figures so introduced are relied upon by another witness, there is ordinarily no violation of defendant’s right of confrontation. Stewart v. State, 246 Ga. 70, 268 S.E.2d 906, 1980 Ga. LEXIS 970 (1980).
Admissibility of inspection certificates on breath testing devices.
O.C.G.A. § 40-6-392 does not offend a defendant’s right of confrontation because the admissibility of inspection certificates on breath testing devices, as provided by subsection (f) of that section, is based on the hearsay exception for business records. Brown v. State, 268 Ga. 76, 485 S.E.2d 486, 1997 Ga. LEXIS 279 (1997); Jackson v. State, 233 Ga. App. 568, 504 S.E.2d 505, 1998 Ga. App. LEXIS 971 (1998), cert. denied, No. S98C1805, 1998 Ga. LEXIS 1235 (Ga. Dec. 4, 1998). Admitting into evidence inspection certificates for Intoxylizer 5000 without testimony from the individual who actually tested the machine was not a denial of defendant’s right to confrontation. Kollman v. State, 231 Ga. App. 630, 498 S.E.2d 745, 1998 Ga. App. LEXIS 82 (1998). Admission of self-authenticating certificates of inspection for the Intoxilyzer 5000 used to test defendant’s breath was proper, as the certificates were required by O.C.G.A. § 40-6-392(f), they qualified as business records under O.C.G.A. § 24-3-14, and they did not violate defendant’s confrontation rights under U.S. Const., amend. 6. Neal v. State, 281 Ga. App. 261, 635 S.E.2d 864, 2006 Ga. App. LEXIS 1068 (2006). In a defendant’s prosecution for driving under the influence under O.C.G.A. § 40-6-391, the inspection certificate for the instrument used to conduct the defendant’s breath test under O.C.G.A. § 40-6-392(f) was properly admitted because it was not testimonial hearsay and did not violate the defendant’s rights of confrontation; it was a business record that was not made in an investigatory or adversarial setting or generated in anticipation of the prosecution of a particular defendant. Rackoff v. State, 281 Ga. 306, 637 S.E.2d 706, 2006 Ga. LEXIS 978 (2006). Inspection certificates admissible
under Melendez-Diaz.
Testing certificates for a breath-testing machine were properly admitted into evidence in a defendant’s trial for driving under the influence (less safe and per se) under former O.C.G.A. § 24-3-14 (see now O.C.G.A. § 24-8-803) and O.C.G.A. § 40-6-392(f). The documents did not come within Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). Ritter v. State, 306 Ga. App. 689, 703 S.E.2d 8, 2010 Ga. App. LEXIS 888 (2010). Admission of breath test not in er-
ror.
There was adequate foundation to admit printouts of test results from defendant’s breath test as business records under O.C.G.A. § 24-3-14(b), in that it was in the regular course of the trooper’s business to perform such a test, and these printouts were the result of one of those tests conducted in the regular course of the trooper’s duties; consequently, there was no violation of defendant’s right of confrontation. Sisson v. State, 232 Ga. App. 61, 499 S.E.2d 422, 1998 Ga. App. LEXIS 574 (1998), overruled in part, State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865, 2019 Ga. LEXIS 320 (2019). Jury view in absence of defendant not a violation of confrontation
rights.
A jury view of the premises, relevant to a case, made for the purpose of enabling the jury to better understand the testimony and not made for the purpose of allowing the jury to see evidence introduced in the case, which view is conducted without the presence of the defendant, does not violate the defendant’s right of confrontation. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224, 1981 Ga. LEXIS 692 (1981). Jury view in absence of defendant
not a violation of due process.
A jury view of a crime scene in the absence of the accused is not a denial of due process under U.S. Const., amend. 14. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224, 1981 Ga. LEXIS 692 (1981). Jurors who made an unauthorized visit to the scene of the crime and then presented their findings to the other jurors became, in a real sense, unsworn witnesses against the appellant in violation of U.S. Const., amend. 6. Watkins v. State, 237 Ga. 678, 229 S.E.2d 465, 1976 Ga. LEXIS 1352 (1976). Waiver of confrontation rights is not necessarily precluded by the failure of the trial court to specifically inform the accused of the accused’s right to be present. State v. Phillips, 247 Ga. 246, 275 S.E.2d 323, 1981 Ga. LEXIS 669 (1981). Validity of counsel’s waiver of right
of confrontation.
In order for the waiver by counsel of defendant’s right of confrontation to be binding on the defendant, it must be made in the defendant’s presence or by the defendant’s express authority, or be subsequently acquiesced in by the defendant. State v. Phillips, 247 Ga. 246, 275 S.E.2d 323, 1981 Ga. LEXIS 669 (1981). Waiver by defendant absent from
trial while free on bail.
Confrontation rights are personal to the accused and are waived when the accused is free on bail and voluntarily absents oneself from the trial. Byrd v. Ricketts, 233 Ga. 779, 213 S.E.2d 610, 1975 Ga. LEXIS 1440, cert. denied, 422 U.S. 1011, 95 S. Ct. 2636, 45 L. Ed. 2d 675, 1975 U.S. LEXIS 2028 (1975). Defendant may waive the right to confrontation by voluntarily absenting oneself from the proceedings after the trial begins. The trial begins when jeopardy attaches. Pollard v. State, 175 Ga. App. 269, 333 S.E.2d 152, 1985 Ga. App. LEXIS 2795 (1985); Loper v. State, 191 Ga. App. 515, 382 S.E.2d 212, 1989 Ga. App. LEXIS 673 (1989).
Waiver of confrontation by defendant’s absence during cross-examination.
Adefendant in custody may waive the right to confrontation when the defendant removes self from the courtroom during cross-examination of a prosecution witness. State v. Phillips, 247 Ga. 246, 275 S.E.2d 323, 1981 Ga. LEXIS 669 (1981). Trial court erred in removing defendants from the courtroom during the testimony, out of the presence of the jury, of rebuttal witnesses for the state. Perry v. State, 216 Ga. App. 749, 456 S.E.2d 89, 1995 Ga. App. LEXIS 299 (1995). Loss of right to be present at trial
through disruptive behavior.
A defendant can lose the right to be present at Right to Confrontation (Cont’d) trial if, after being warned by the judge that the defendant will be removed if the defendant continues the disruptive behavior, the defendant nevertheless insists on acting in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with the defendant in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to act consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. State v. Phillips, 247 Ga. 246, 275 S.E.2d 323, 1981 Ga. LEXIS 669 (1981). Defendant lost the right to be present at trial when the defendant became so disorderly, disruptive, and disrespectful to the court that the trial could not be carried on with the defendant in the courtroom. Raymond v. State, 168 Ga. App. 487, 309 S.E.2d 669, 1983 Ga. App. LEXIS 3411 (1983). Although the defendant engages in flagrant acts of violence, disobedience and disruptive conduct, it is error to bar the defendant from the courtroom without giving the defendant the opportunity to remain, at the first instance, upon the defendant’s agreement to act in a proper manner and to refrain from any similar conduct. Fletcher v. State, 168 Ga. App. 521, 309 S.E.2d 824, 1983 Ga. App. LEXIS 3413 (1983), aff’d, 252 Ga. 498, 314 S.E.2d 888, 1984 Ga. LEXIS 743 (1984). Trial court did not abuse the court’s discretion in proceeding with the trial in the defendant’s absence because of the defendant’s bizarre and disruptive behavior during the trial. Weaver v. State, 288 Ga. 540, 705 S.E.2d 627, 2011 Ga. LEXIS 94 (2011).
Voluntarily absent defendant.
Defendant’s right to confront witnesses under U.S. Const., amend. 6 was violated after the trial judge ordered that the burglary trial proceed in defendant’s absence when defendant disappeared before jeopardy attached and before the jury was sworn. Stacey v. State, 254 Ga. App. 461, 562 S.E.2d 806, 2002 Ga. App. LEXIS 401 (2002). Inability to confront witnesses does not deny fair trial where no convic-
tion results.
Defendant was not denied a fair trial, where the defendant was unable to confront the witnesses against the defendant on the charges, because the defendant was not convicted of such charges and, therefore, it was difficult to envision how the defendant could have been harmed by the absence of the witnesses. Gilmore v. State, 157 Ga.App. 376, 277 S.E.2d 749, 1981 Ga. App. LEXIS 1826 (1981). Trial judges retain wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, or interrogation that is repetitive or only marginally relevant. Johnson v. State, 258 Ga. 504, 371 S.E.2d 651, 1988 Ga. LEXIS 370 (1988). ments of a witness are admissible where the witness is present in court, under oath, and subject to cross-examination. Tew v. State, 179 Ga. App. 369, 346 S.E.2d 833, 1986 Ga. App. LEXIS 2634 (1986). matic violation of confrontation
Prior out-of-court consistent state-Admission of hearsay not autoclause.
A finding that the admitted statements are hearsay does not necessarily require a finding that the confrontation clause has been violated. Williams v. Melton, 733 F.2d 1492, 1984 U.S. App. LEXIS 21768 (11th Cir.), cert. denied, 469 U.S. 1073, 105 S. Ct. 567, 83 L. Ed. 2d 508, 1984 U.S. LEXIS 4654 (1984). Admission of homicide victim’s
statements harmful error.
Habeas petitioner was granted a motion for a new trial based upon the trial court’s admission of a homicide victim’s statements to a physician because the statements fell under no exception to the hearsay rule and offered a noncumulative, unimpeachable account of central details of the incident, which could have resulted in the defendant’s conviction for murder without affording the defendant the right to properly confront the source of the statements. Howard v. Gavin, 810 F. Supp. 1269, 1993 U.S. Dist. LEXIS 432 (S.D. Ga. 1993).
Cross-examination improperly limited.
Trial judge’s exclusion of extrinsic evidence of important government witness’s prior inconsistent failure to implicate defendant was constitutional error warranting reversal as it impeded investigation of a witness’s credibility through the exposure of the witness’s potential bias and motivation. United States v. Sheffield, 992 F.2d 1164, 1993 U.S. App. LEXIS 13191 (11th Cir. 1993). Res gestae exception may violate
right to confrontation.
The res gestae exception can be applied in an unconstitutional manner; it is necessary to examine the indicia of reliability of evidence sought to be introduced under that exception to ensure that the defendant’s sixth amendment rights to confrontation will not be violated by introduction of the evidence. Williams v. Melton, 733 F.2d 1492, 1984 U.S. App. LEXIS 21768 (11th Cir.), cert. denied, 469 U.S. 1073, 105 S. Ct. 567, 83 L. Ed. 2d 508, 1984 U.S. LEXIS 4654 (1984).
Res gestae exception does not violate right to confrontation where indicia of reliability are established.
The admission of hearsay evidence if the witness is unavailable, under the res gestae exception (§ 24-3-3), did not violate the confrontation rights of the defendant because there was substantial circumstantial evidence that provided the indicia of reliability needed by the jury to evaluate the truth of hearsay declarations. Williams v. Melton, 733 F.2d 1492, 1984 U.S. App. LEXIS 21768 (11th Cir.), cert. denied, 469 U.S. 1073, 105 S. Ct. 567, 83 L. Ed. 2d 508, 1984 U.S. LEXIS 4654 (1984). U.S. Const., amend. 6 restricts the use of otherwise admissible hearsay in two ways. First, the prosecution must show that the out-of-court declarant is unavailable for trial. Second, where the declarant is shown to be unavailable, a hearsay statement may be used only if the circumstances provide sufficient indicia of reliability from which the jury can evaluate the truth. Williams v. Melton, 733 F.2d 1492, 1984 U.S. App. LEXIS 21768 (11th Cir.), cert. denied, 469 U.S. 1073, 105 S. Ct. 567, 83 L. Ed. 2d 508, 1984 U.S. LEXIS 4654 (1984). The confrontation clause does not require the exclusion of hearsay testimony if it is shown that the declarant is unavailable to testify and that the out-of-court statement bears adequate “indicia of reliability.” Williams v. State, 202 Ga. App. 82, 413 S.E.2d 256, 1991 Ga. App. LEXIS 1667 (1991). Amendment violated only when hearsay declarant unavailable at
trial.
U.S. Const., amend. 6 is violated only when the out-of-court hearsay statement is that of a declarant who is unavailable at trial for full and effective cross-examination. Campbell v. State, 158 Ga. App. 616, 281 S.E.2d 352, 1981 Ga. App. LEXIS 2338 (1981).
Calling of alleged child abuse victim to stand.
O.C.G.A. § 24-3-16 (admissibility of child-victim’s statement) is not constitutionally deficient. The defendant need not be placed in the position of calling the alleged victim to the stand in order to exercise the defendant’s rights under the sixth amendment. Rather, the court will call the alleged victim at the request of either party, informing the jury that it is the court that has called the child and that both parties will have an opportunity to examine the child. Eberhardt v. State, 257 Ga. 420, 359 S.E.2d 908, 1987 Ga. LEXIS 891 (1987), cert. denied, 484 U.S. 1069, 108 S. Ct. 1036, 98 L. Ed. 2d 999, 1988 U.S. LEXIS 934 (1988). Where the victim had been called by the state and defendant had an opportunity to cross-examine without having to call the victim to the stand, the application of O.C.G.A. § 24-3-16, governing testimony as to a child’s description of sexual contact or physical abuse did not violate the defendant’s right to due process to confront the witness. Lawhorn v. State, 257 Ga. 780, 364 S.E.2d 559, 1988 Ga. LEXIS 44 (1988).
Seating of child-molestation victims.
The mere fact that the trial court used its discretion in allowing child-molestation victims to sit at an angle where they would not have to directly face the defendant in no way violated the constitutional right to confrontation, because the defendant had the full opportunity to confront each victim with a thorough and sifting cross-examination and to expose each victim to the court and jury. Ortiz v. State, 188 Ga. App. 532, 374 S.E.2d 92, 1988 Ga. App. LEXIS 1125 (1988). Right to Confrontation (Cont’d) lestation victim’s tape recorded statement did not violate the confrontation clause of the sixth amendment to the United States Constitution where the victim’s veracity was put in issue by defendant’s denial that any molestation ever took place, by evidence contradicting the victim’s testimony and by cross-examination concerning prior conflicting testimony and statements. Patterson v. State, 180 Ga. App. 194, 348 S.E.2d 578, 1986 Ga. App. LEXIS 2694 (1986). The admission of videotapes in child molestation cases does not infringe upon a defendant’s sixth amendment right to confront witnesses, where the child victim testified. Frazier v. State, 195 Ga. App. 109, 393 S.E.2d 262, 1990 Ga. App. LEXIS 428 (1990), cert. denied, No. S90C1024, 1990 Ga. LEXIS 756 (Ga. May 16, 1990). Victim with multiple personality
Introduction in evidence of the modisorder.
The court rejected the defendant’s contention that the introduction of testimony by the victim’s alternate personalities constituted a violation of defendant’s right of confrontation where: (1) the trial court gave defense counsel the opportunity to cross-examine the victim’s host personality as well as the victim’s alternate personalities; (2) the court offered defense counsel the option of attempting to summon alternate personalities directly or of relying on the assistance of the prosecutor; and (3) with the exception of cross-examination of the host personality, each of these opportunities was strategically refused by defense counsel. Dorsey v. Chapman, 262 F.3d 1181, 2001 U.S. App. LEXIS 18749 (11th Cir. 2001), cert. denied, 535 U.S. 1000, 122 S. Ct. 1567, 152 L. Ed. 2d 489, 2002 U.S. LEXIS 2558 (2002).
Child victim’s statement or testimony.
Former Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), as construed by the supreme court in Sosebee v. State, 257 Ga. 298 (1987) and in other appellate cases, cannot pass constitutional muster because the statute failed to put the onus on the prosecution to put the child victim on the witness stand to confront the defendant, and any cases suggesting the contrary were hereby overruled; however, the statute could be construed to survive a Confrontation Clause attack because the right of confrontation could be satisfied by construing the statute to require pretrial notice of the state’s intent to use a child victim’s hearsay statements. Hatley v. State, 290 Ga. 480, 722 S.E.2d 67, 2012 Ga. LEXIS 137 (2012). Former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) required the prosecution to notify the defendant within a reasonable period of time prior to trial of the statute’s intent to use a child victim’s hearsay statements and to give the defendant an opportunity to raise a confrontation clause objection; if the defendant objects, and the state wishes to introduce hearsay statements under former O.C.G.A. § 24-3-16, the state must present the child witness at trial; if the defendant did not object, the state could introduce the child victim’s hearsay statements subject to the trial court’s determination that the circumstances of the statements provide sufficient indicia of reliability, and the trial court should take reasonable steps to ascertain, and put on the record, whether the defendant waived the defendant’s right to confront the child witness. Hatley v. State, 290 Ga. 480, 722 S.E.2d 67, 2012 Ga. LEXIS 137 (2012). Defendant’s right of confrontation was not violated by the introduction of the victim’s hearsay statements under the former Child Hearsay Statute, O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), because the victim’s statements to the victim’s mother were non-testimonial, whereas the victim’s statement to the forensic interviewer, made several weeks after the crimes, was testimonial; but even if the victim’s statement to the forensic examiner, and the statements made by the victim and the victim’s mother to the police were admitted erroneously, the errors were harmless beyond a reasonable doubt. The victim’s statement to the forensic interviewer was the same as the victim’s statement to the victim’s mother, and the statements made by the victim and the victim’s mother to police were cumulative of the victim’s statement to the victim’s mother, as well as the mother’s testimony and the forensic evidence properly admitted against the defendant. Hatley v. State, 290 Ga. 480, 722 S.E.2d 67, 2012 Ga. LEXIS 137 (2012).
Child’s description of sexual contact or physical abuse.
O.C.G.A. § 24-3-16, governing testimony as to a child’s description of sexual contact or physical abuse, does not violate the constitutional right to confrontation. Rayburn v. State, 194 Ga. App. 676, 391 S.E.2d 780, 1990 Ga. App. LEXIS 252 (1990), cert. denied, No. S90C0811, 1990 Ga. LEXIS 693 (Ga. Apr. 25, 1990), cert. denied, 498 U.S. 969, 111 S. Ct. 434, 112 L. Ed. 2d 417, 1990 U.S. LEXIS 5707 (1990). Child witness’s unresponsiveness to a number of questions as put by defendant did not constitute a deprivation of defendant’s constitutional confrontation right so as to require that the witness’s out-of-court statements be stricken, where defendant was not denied the right to a thorough and sifting cross-examination of a witness who appeared to answer as well as she was capable of answering. Bright v. State, 197 Ga. App. 784, 400 S.E.2d 18, 1990 Ga. App. LEXIS 1497 (1990). Child witness seated with back to
defendant.
Testimony by a six-year-old victim who was allowed to testify facing the jury with the victim’s back to the defendant so that the defendant could not look the victim in the eye did not violate the constitutional right to confront witnesses against the defendant because the defendant had the opportunity to, and did, thoroughly cross-examine the witness. Atwell v. State, 204 Ga. App. 187, 419 S.E.2d 77, 1992 Ga. App. LEXIS 740 (1992).
Not all witnesses need testify.
Defendant was not deprived of the sixth amendment right of confrontation by the state’s failure to call one of two police officers who had witnessed a drug offense, where the officer did not testify, nor was any reference made at trial to the contents of any prior statement made by the officer. Jacobs v. State, 201 Ga. App. 57, 410 S.E.2d 320, 1991 Ga. App. LEXIS 1182 (1991). Hearsay statement of defendant’s
former spouse properly admitted.
Admission of a Georgia Bureau of Investigation agent’s testimony regarding a statement by defendant’s former spouse implicating the defendant in a killing did not violate the defendant’s right of confrontation, because the former spouse remarried the defendant before refusing to testify at the trial, and there was a “necessity” that the finder of fact be acquainted with the statement of the only eyewitness to the homicide. Higgs v. State, 256 Ga. 606, 351 S.E.2d 448, 1987 Ga. LEXIS 541 (1987). Admission of a spouse’s hearsay
statement against the defendant improper.
In a murder trial, admission of a spouse’s out-of-court statement, ruled not to be a confession, violated the defendant’s rights under the confrontation clause; however, and since the remaining evidence against the defendant was so strong that the admission of the spouse’s statement was harmless error, the judge’s instruction to the jury to disregard the statement was sufficient to cure any error, so that the defendant’s motion for a new trial was properly denied. Ballard v. State, 252 Ga. 53, 311 S.E.2d 453, 1984 Ga. LEXIS 587 (1984). Testimony by codefendant which
favors defendant.
Where a codefendant takes the stand and denies making an alleged out-of-court statement implicating the other defendant, and proceeds to testify favorably to the codefendant, that defendant has been denied no rights protected by U.S. Const., amend. 6 and U.S. Const., amend. 14. Campbell v. State, 158 Ga. App. 616, 281 S.E.2d 352, 1981 Ga. App. LEXIS 2338 (1981). The application of former Code 1933, § 38-306 (see O.C.G.A. § 24-3-5) in that, at trial, witnesses were permitted, over a hearsay objection, to testify as to the statements made to them by a deceased person, did not deprive the defendant of the constitutional rights to confrontation under U.S. Const., amend. 6 because the state’s evidence was sufficient to prima facie show a conspiracy between the deceased and the defendant and because the statements made by the deceased were made during the concealment stage Right to Confrontation (Cont’d) of the conspiracy. Timberlake v. State, 158 Ga. App. 125, 279 S.E.2d 283, 1981 Ga. App. LEXIS 2102 (1981). Officer’s testimony explaining the
officer’s actions.
Police officer’s reference to an interview with a codefendant did not violate the defendant’s right to confrontation, because the reference merely explained the officer’s subsequent actions, and no evidence was presented of any statement or confession of the codefendant that implicated the defendant. McNeal v. State, 196 Ga. App. 244, 395 S.E.2d 660, 1990 Ga. App. LEXIS 893 (1990). Fact that the defendant and the defendant’s car matched an informant’s descriptions was not offered by the state to establish the truth of those matters, but, rather, it was offered for the limited purpose of explaining why the officer went to the specific parking lot and approached the defendant’s car; the officer’s testimony referenced the informant’s tip only to the extent necessary to provide context or background information, and thus there was no confrontation clause violation. Little v. State, 280 Ga. App. 60, 633 S.E.2d 403, 2006 Ga. App. LEXIS 749 (2006).
Detective’s statements.
Detective’s testimony about the existence of a codefendant’s statement as evidence against a defendant did not, standing alone, directly incriminate the defendant. Therefore, the defendant’s right to confrontation was not violated. Ham v. State, 303 Ga. App. 232, 692 S.E.2d 828, 2010 Ga. App. LEXIS 320 (2010), cert. denied, No. S10C1275, 2010 Ga. LEXIS 760 (Ga. Sept. 7, 2010), overruled in part, Willis v. State, 304 Ga. 686, 820 S.E.2d 640, 2018 Ga. LEXIS 685 (2018). Police detective’s testimony did not violate the defendant’s right to confrontation because the statement which the detective recounted was made by the defendant rather than by the codefendant as the defendant asserted. Herbert v. State, 288 Ga. 843, 708 S.E.2d 260, 2011 Ga. LEXIS 258 (2011).
Hearsay testimony of police officers.
Admission of hearsay testimony of police officers recounting the confessions of purported co-conspirators who did not testify violated defendant’s constitutional right to confront witnesses. Livingston v. State, 268 Ga. 205, 486 S.E.2d 845, 1997 Ga. LEXIS 421 (1997). Investigator’s testimony about information received from silent witnesses did not serve to implicate defendant in the crime and the admission of the testimony did not violate defendant’s confrontation rights. Jenkins v. Byrd, 103 F. Supp. 2d 1350, 2000 U.S. Dist. LEXIS 8944 (S.D. Ga. 2000), aff’d, 273 F.3d 397, 2001 U.S. App. LEXIS 28492 (11th Cir. 2001). The trial court properly rejected a pretrial detainee’s petition for habeas relief on grounds that the detainee’s constitutional right to confront witnesses was abridged when a detective investigating the charges was permitted to give hearsay testimony at the detainee’s preliminary hearing, as the detainee’s constitutional right to confrontation applied only to trials, and not to a preliminary hearing, and the hearing involved a more limited scope of determining whether probable cause existed to hold an accused for trial. Gresham v. Edwards, 281 Ga. 881, 644 S.E.2d 122, 2007 Ga. LEXIS 303 (2007), overruled in part, Brown v. Crawford, 289 Ga. 722, 715 S.E.2d 132, 2011 Ga. LEXIS 658 (2011). Even though a witness’s statements to an officer that the witness was afraid of defendant, to which the officer testified at trial, were testimonial in nature and thus were subject to exclusion pursuant to the Confrontation Clause protections set forth in Crawford v. Washington, 541 U.S. 36 (2004); admission of this testimony was harmless beyond a reasonable doubt because it was cumulative of other admissible evidence. Bell v. State, 294 Ga. 443, 754 S.E.2d 327, 2014 Ga. LEXIS 100 (2014). Trial counsel was not ineffective for failing to object to an agent’s hearsay testimony that the agent had talked to witnesses that had placed a gun in the defendant’s hand as the defendant did not show that the agent’s testimony likely affected the outcome of the trial because the eyewitnesses placed the defendant at the scene of the crime, and one saw the defendant with a gun shooting the victim; and the defendant admitted to being present at the scene of the crime and that the defendant lost items at the scene that matched items recovered next to the murdered victim. Grant v. State, 305 Ga. 170, 824 S.E.2d 255, 2019 Ga. LEXIS 102 (2019), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). nation of prosecution witnesses as to
Court cannot prohibit cross-examimotive.
The trial court errs in granting a motion in limine to prohibit the cross-examination of key prosecution witnesses on their motives in testifying. Owens v. State, 251 Ga. 313, 305 S.E.2d 102, 1983 Ga. LEXIS 766 (1983). Trial court abused its discretion when it did not permit defense counsel to question a state witness testifying in exchange for a prison time reduction about the witness’s belief on the time the witness was avoiding by testifying and such error was not harmless. State v. Vogleson, 275 Ga. 637, 571 S.E.2d 752, 2002 Ga. LEXIS 967 (2002).
Cross-examination of codefendants.
Trial court did not commit error by disallowing any testimony regarding the mandatory minimum sentence for armed robbery, thus restricting the defendant’s right to a full cross-examination of codefendants to reveal their motive to lie; the court merely restricted the defendant from asking questions couched in terms of mandatory minimum sentence and the defendant was free to question codefendants as to their understanding of the possible sentence as long as the jury was not informed of the mandatory minimum sentence. Ross v. State, 231 Ga. App. 506, 499 S.E.2d 351, 1998 Ga. App. LEXIS 377 (1998), cert. denied, No. S98C1147, 1998 Ga. LEXIS 775 (Ga. Sept. 8, 1998), overruled on other grounds, by Vogleson v. State, 250 Ga. App. 555, 552 S.E.2d 513, 2001 Ga. App. LEXIS 822 (2001).
Reference to “they” including codefendant.
Denial of a motion to sever was appropriate because the first defendant, in either of the defendant’s statements, did not name or inculpate the second defendant. A reference to “they,” standing alone, did not directly implicate the second defendant in the crimes and the remainder of the first defendant’s remarks referred only to the first defendant. Nelms v. State, 285 Ga. 718, 681 S.E.2d 141, 2009 Ga. LEXIS 448 (2009), cert. denied, 558 U.S. 1127, 130 S. Ct. 1089, 175 L. Ed. 2d 910, 2010 U.S. LEXIS 355 (2010). not require yielding of so valuable a constitutional right as effective cross-examination for bias of adverse witness. Arnold v. State, 163 Ga. App. 10, 293 S.E.2d 501, 1982 Ga. App. LEXIS 3180 (1982). Reference to unidentified person
Interest in protecting confidentiality of juvenile offender’s record canrather than defendant.
Admitting the co-defendant’s out-of-court statement did not violate the Confrontation Clause under Bruton v. United States, 391 U.S. 123 (1968), because it did not, standing alone, directly implicate the other co-defendant. Henderson v. State, 317 Ga. 66, 891 S.E.2d 884, 2023 Ga. LEXIS 179 (2023). Inability to conduct meaningful
cross-examination.
Calling a witness who had notified the court that the witness would not answer any questions to avoid self-incrimination and asking that witness leading questions suggesting the guilt of the defendant deprives the defendant of the right of confrontation as the defendant cannot conduct any meaningful or counteractive cross-examination. Lawrence v. State, 257 Ga. 423, 360 S.E.2d 716, 1987 Ga. LEXIS 938 (1987).
Discretion of trial court.
The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. Hines v. State, 249 Ga. 257, 290 S.E.2d 911, 1982 Ga. LEXIS 1133 (1982). The trial court may exercise a reasonable judgment in determining when the subject is exhausted, but, where the trial court cuts off in limine all inquiry on a subject with respect to which the defense is entitled to a reasonable cross-examination, this is an abuse of discretion and prejudicial error. Hines v. State, 249 Ga. 257, 290 S.E.2d 911, 1982 Ga. LEXIS 1133 (1982). Trial judges retain wide latitude insofar as the confrontation clause is concerned to Right to Confrontation (Cont’d) impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant. Shaw v. State, 201 Ga. App. 456, 411 S.E.2d 537, 1991 Ga. App. LEXIS 1436 (1991), overruled in part, Green v. State, 254 Ga. App. 881, 564 S.E.2d 731, 2002 Ga. App. LEXIS 414 (2002). No right to participate in post-trial
examination of confidential informant.
Defendant’s sixth amendment confrontation right was not violated by the defendant’s and/or defense counsel’s exclusion from a post-trial, in camera examination of a confidential informant. Ponder v. State, 197 Ga. App. 21, 397 S.E.2d 596, 1990 Ga. App. LEXIS 1170 (1990).
Error for court to prohibit cross-examination of warrant affiant.
At a hearing on a motion to suppress, where the state introduces the affidavit upon which a search warrant has been based, it is error for the trial court to totally prevent cross-examination of the affiant by defense counsel. Miller v. State, 169 Ga. App. 552, 314 S.E.2d 120, 1984 Ga. App. LEXIS 1634 (1984). Disclosure of evidence favorable to
defendant.
The Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), does not establish an inflexible principle that requires the disclosure of informants’ identities or of all evidence, but only that which is favorable to a defendant if the evidence is material to guilt or punishment. Henderson v. State, 162 Ga. App. 320, 292 S.E.2d 77, 1982 Ga. App. LEXIS 3122 (1982). Even absent a motion under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the prosecutor is under a duty to disclose clearly exculpatory evidence to the defense. Osborn v. State, 161 Ga. App. 132, 291 S.E.2d 22, 1982 Ga. App. LEXIS 3019 (1982). If the defense specifically requests disclosure of exculpatory evidence and then requests an in camera inspection because of dissatisfaction with the state’s response, the trial court is under a duty to conduct the inspection. Osborn v. State, 161 Ga. App. 132, 291 S.E.2d 22, 1982 Ga. App. LEXIS 3019 (1982). Because the defendant failed to present any evidence that the state was in possession of, and failed to disclose, exculpatory information from the telephone tip line, the defendant’s claim that the trial court violated the defendant’s rights under Brady and the sixth amendment failed. Reed v. State, 314 Ga. 534, 878 S.E.2d 217, 2022 Ga. LEXIS 237 (2022). formation for defendant. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), which proscribed the suppression of evidence favorable to an accused by the prosecution, does not impose an affirmative obligation on the prosecution to seek out information for the defense, even if such information is more accessible to the prosecution than to the defense. Hines v. State, 249 Ga. 257, 290 S.E.2d 911, 1982 Ga. LEXIS 1133 (1982). Where information as to prior convictions is not known to the prosecution nor in its file, denial of defendant’s motion for disclosure of state witness’s prior convictions does not amount to suppressing of evidence. Hines v. State, 249 Ga. 257, 290 S.E.2d 911, 1982 Ga. LEXIS 1133 (1982). Admission of interlocking confessions with proper limiting instructions conforms to requirements of U.S. Const., amends. 6 and 14. Tatum v. State, 249 Ga. 422, 291 S.E.2d 701, 1982 Ga. LEXIS 1152 (1982). Confessions or incriminating statements of codefendants must be interlocking to a substantial degree inasmuch as juries are expected to heed limiting instructions; slight disparities in statements of codefendants rarely, if ever, will be so prejudicial as to require exclusion. Tatum v. State, 249 Ga. 422, 291 S.E.2d 701, 1982 Ga. LEXIS 1152 (1982). Admission of custodial statements made by codefendants who did not testify at trial in which the phrase “another person” was substituted for the names of the defendants violated the right of confrontation. Kesler v. State, 215 Ga. App. 553, 451 S.E.2d 496, 1994 Ga. App. LEXIS 1305 (1994), cert. denied, No. S95C0592, 1995 Ga. LEXIS 398 (Ga. Mar. 17, 1995), cert. denied, No. S95C0590, 1995 Ga. LEXIS 400 (Ga. Mar. 17, 1995). But see Hanifa v. State, 269 Ga. 797, 505 S.E.2d 731, 1998 Ga. LEXIS 896 (1998), overruled in part, Clark v. State, 315 Ga. 423, 883 S.E.2d 317, 2023 Ga. LEXIS 13 (2023).
Prosecution need not seek out in-Victim’s statement to assistant D.A.
was testimonial.
Murder victim’s statement to an assistant district attorney, an officer of the state, was testimonial in nature; because the victim was unavailable, admission of the hearsay statement violated the defendant’s right to confrontation. Lindsey v. State, 282 Ga. 447, 651 S.E.2d 66, 2007 Ga. LEXIS 581 (2007). Verified petition seeking a protective order from the defendant, filed by the murder victim 11 days before the victim’s death, was testimonial in nature and the petition’s admission violated the defendant’s right to confrontation, but any error was harmless given the testimony of seven police officers regarding eight calls for domestic violence at the home of the defendant and the victim. Brown v. State, 288 Ga. 404, 703 S.E.2d 624, 2010 Ga. LEXIS 844 (2010).
Denial of access to witness’s letter.
— Where a letter contained nothing of an exculpatory or impeaching nature, the district court did not err in finding that the author’s “testimony at trial closely tracks the information divulged in the letter,” and it was evident from the record that the denial of access to the letter did not restrict the scope of defendant’s cross-examination of its author, the state was under no obligation to make the letter accessible to the defense, and the trial court’s refusal to order otherwise did not deprive defendant of a fair trial. Hardin v. Black, 845 F.2d 953, 1988 U.S. App. LEXIS 6862 (11th Cir. 1988).
Codefendant’s statement.
Admission of codefendant’s extrajudicial statement held not to be reversible error. See Hope v. State, 164 Ga. App. 665, 297 S.E.2d 88, 1982 Ga. App. LEXIS 3339 (1982). sible where codefendant is available
Codefendant’s confession admisfor cross-examination.
The rule enunciated in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), that admission of a codefendant’s confession violates the confrontation clause despite omitting instructions, is inapplicable where a codefendant, the declarant, testified at trial and was available for cross-examination. Fain v. State, 165 Ga. App. 188, 300 S.E.2d 197, 1983 Ga. App. LEXIS 3128 (1983). Admission of statements made by
codefendant to witnesses.
Where the defendant in a murder trial contended that there were two violations of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), i.e., a witness’s testimony that the codefendant told the witness, after the homicide, that “someone named Mark” committed the crime, and the police radio operator’s testimony that the codefendant had identified a third person as one who had helped with killing the codefendant’s spouse, it was held that the witness’s testimony was admissible because the witness was a co-conspirator and the statement was made during the concealment phase of the conspiracy, and the radio operator’s testimony was admissible because it made no reference whatsoever to the defendant, hence did not implicate the defendant in a Bruton sense. Langley v. State, 258 Ga. 251, 368 S.E.2d 316, 1988 Ga. LEXIS 224 (1988).
Testimony of polygraph examiner.
— Failure of the codefendant to take the stand could not block opinion testimony of a polygraph examiner that the examiner thought the codefendant was lying when the codefendant denied presence or assistance in robbery, and the witness was subject to cross-examination. Martin v. State, 162 Ga. App. 703, 292 S.E.2d 864, 1982 Ga. App. LEXIS 3160 (1982).
No right to cross-examine defendant’s own translator.
With regard to various drug-related convictions, defendant’s sixth amendment right to confrontation was not violated by the trial court refusing to allow defendant to cross-examine defendant’s Spanish translator after defendant’s tape-recorded statement was played before the jury and defendant as-Right to Confrontation (Cont’d) serted that certain statements were translated incorrectly as, under the language conduit rule, the translator’s statements were defendant’s own and, therefore, defendant had no right to, in essence, confront defendant. Hernandez v. State, 291 Ga. App. 562, 662 S.E.2d 325, 2008 Ga. App. LEXIS 573 (2008), cert. denied, No. S08C1631, 2008 Ga. LEXIS 763 (Ga. Sept. 22, 2008), overruled on other grounds, Williams v. Harvey, 311 Ga. 439, 858 S.E.2d 479, 2021 Ga. LEXIS 256 (2021). Trial court did not err in finding that the defendant failed to meet the defendant’s burden of showing that the performance of the defendant’s attorneys was deficient because the defendant’s counsel recognized the need for interpreters and secured the interpreters; the defendant, who spoke only Spanish, had ample opportunity to inform counsel or the trial court of any problems with the interpreters, and the fact that the defendant did not do so hampered the defendant in meeting the defendant’s burden to show that counsel’s performance in securing interpreters to assist the defendant was inadequate. Pineda v. State, 288 Ga. 612, 706 S.E.2d 407, 2011 Ga. LEXIS 154 (2011). Availability of drug samples where
notes as to test results destroyed.
In a prosecution for possession of a controlled substance, the testimony of a chemist about the nature of the substance involved was admissible despite the destruction of the witness’s notes because the drug samples were themselves available for the defendant to obtain the defendant’s own analysis. United States v. Vaughn, 736 F.2d 665, 1984 U.S. App. LEXIS 20452 (11th Cir. 1984).
Evidentiary prerequisite of certified record of witness’s prior conviction.
Trial court did not impermissibly limit defendant’s confrontation rights by holding that defendant could not submit evidence of or question a witness concerning a prior conviction without introducing a certified record of the conviction. Kimbrough v. State, 254 Ga. 504, 330 S.E.2d 875, 1985 Ga. LEXIS 804 (1985) (murder conviction); Mincey v. State, 257 Ga. 500, 360 S.E.2d 578, 1987 Ga. LEXIS 918 (1987) (armed robbery conviction). Waiver of the right to confrontation cannot be presumed from a silent record; the record must show a knowing, intelligent, and voluntary waiver made with the accused’s consent. Aaron v. State, 172 Ga. App. 700, 324 S.E.2d 564, 1984 Ga. App. LEXIS 3082 (1984).
Short absence of defendant not denial of right.
Defendant’s right to confrontation of witness was not violated during a short absence when the defendant went to the restroom, because there was no indication in the record that the defendant’s absence was of any significance and the defendant’s attorney were present at all times. Finney v. Zant, 709 F.2d 643, 1983 U.S. App. LEXIS 25936 (11th Cir. 1983), overruled in part, Peek v. Kemp, 784 F.2d 1479, 1986 U.S. App. LEXIS 22736 (11th Cir. 1986). Required procedure for ordering defendant from courtroom after an
initial disruptive incident.
Where a defendant, who had not been given a warning prior to being removed from the courtroom because of disruptive behavior, is subsequently brought before the court and evidences no disruptive behavior, the court must inquire as to the defendant’s state of mind or warn the defendant of the consequences of further misconduct and inform the defendant that by proper conduct the defendant can regain the right to be present. State v. Fletcher, 252 Ga. 498, 314 S.E.2d 888, 1984 Ga. LEXIS 743 (1984). Parents were denied due process in a termination of parental rights proceeding, where they were excluded from an observation room during an interview of their children, even though the parents’ attorneys were present in the room, from which location no one would have been seen or heard by the children. In re M.S., 178 Ga. App. 380, 343 S.E.2d 152, 1986 Ga. App. LEXIS 2532 (1986). In defendant’s prosecution for child cruelty, there was no sixth amendment violation because the mere fact that defendant was unable to ask a live-in paramour, who had not been charged in the case, about possible punishment for child cruelty on cross-examination did not diminish defendant’s attempt to show the paramour’s motive for testifying for the state. Bosnak v. State, 263 Ga. App. 313, 587 S.E.2d 814, 2003 Ga. App. LEXIS 1194 (2003).
Prejudice held to require new sentencing hearing.
Prejudice from admission of testimony in violation of murder defendant’s sixth amendment right of confrontation did not sufficiently infect the guilt-innocence phase to require a new trial but did require a new sentencing hearing, where the testimony portrayed the defendant not as a dominated follower of the defendant’s spouse in the crime, but as a willing participant in a plan of perverse sexual activity that ultimately led to the death of the victim. Buttrum v. Black, 721 F. Supp. 1268, 1989 U.S. Dist. LEXIS 11272 (N.D. Ga. 1989), aff’d, 908 F.2d 695, 1990 U.S. App. LEXIS 12655 (11th Cir. 1990). Defendant’s confrontation rights
not violated.
Preventing defense counsel from cross-examining a witness as to numerous allegedly unfounded 9-1-1 calls the witness made over the past several years did not violate defendant’s rights under the confrontation clause for effective cross-examination as there was no showing that these alleged 9-1-1 calls were relevant to any issue in the case. Phyfer v. State, 259 Ga. App. 356, 577 S.E.2d 56, 2003 Ga. App. LEXIS 96 (2003), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Trial court did not express an opinion in violation of O.C.G.A. § 17-8-57 or of an inmate’s rights to confrontation or a fair and impartial jury when it explained to those in the courtroom during jury deliberations in the inmate’s trial on drug and weapons offenses that it had received two notes from the jury describing a communication received by a juror that offered the juror a bribe in exchange for changing the juror’s vote to not guilty; the trial court’s comment did not suggest that the inmate had directed the bribery attempt because it merely reviewed the jurors’ notes and did not go beyond them, and it added nothing to that which the jurors already knew. Greer v. Thompson, 281 Ga. 419, 637 S.E.2d 698, 2006 Ga. LEXIS 983 (2006). Because a deceased witness was unavailable for trial, and the defendant was afforded an adequate opportunity to cross-examine the witness at a sentencing trial held before the defendant withdrew a guilty plea, the admission of the witness’s prior testimony at the defendant’s guilt/ innocence trial would not violate the confrontation clause. Martin v. State, 284 Ga. 504, 668 S.E.2d 685, 2008 Ga. LEXIS 845 (2008). There was no violation of a defendant’s sixth amendment right to confrontation when the defendant declined to cross-examine a codefendant who had refused to answer certain questions on direct examination. No effort was made by defense counsel to ascertain whether the codefendant would continue the codefendant’s refusal to answer certain questions or would offer testimony in explanation of the codefendant’s prior trial testimony or in exculpation of the defendant. Green v. State, 298 Ga. App. 17, 679 S.E.2d 348, 2009 Ga. App. LEXIS 566 (2009). Admitting testimony of a supervisor who did not do every step of DNA testing did not violate the defendants’ rights to confrontation because the supervisor performed every step of the test except for only being present when another technician only put test samples and controls into a scientific instrument used to complete a single step of the testing. Disharoon v. State, 291 Ga. 45, 727 S.E.2d 465, 2012 Ga. LEXIS 439, cert. denied, 568 U.S. 1052, 133 S. Ct. 767, 184 L. Ed. 2d 507, 2012 U.S. LEXIS 9236 (2012). Detectives’ statements in a video recording that the defendant’s co-conspirators had already given the defendant up were clearly not meant to establish as true that others had implicated the defendant, but were simply a part of an interrogation technique that did not violate the Confrontation Clause as the detectives did not identify the co-conspirators, and no substance of any supposed statements was placed before the jury by the detectives’ reference. Allen v. State, 296 Ga. 785, 770 S.E.2d 824, 2015 Ga. LEXIS 191 (2015). Trial counsel was not ineffective in failing to object to the admission of the codefendant’s statement on a Confrontation Clause ground because the co-defendant’s statement which was made to a witness who was a fellow jail inmate and incul-Right to Confrontation (Cont’d) pated the co-defendant as well as the defendant and a second co-defendant was clearly not intended for use in a future prosecution and thus could not be classified as testimonial. Franklin v. State, 298 Ga. 636, 784 S.E.2d 359, 2016 Ga. LEXIS 237 (2016). Defendant’s right to confrontation was not violated when the court allowed a medical examiner to testify about the results of a toxicology screen conducted by another individual as the report was not admitted into evidence but used by the examiner to develop an opinion that the victim died of the victim’s injuries. Taylor v. State, 303 Ga. 225, 811 S.E.2d 286, 2018 Ga. LEXIS 147 (2018). Trial counsel was not ineffective for failing to object that the admission of the adult son’s out-of-court statement violated the defendant’s rights under the confrontation clause as it was highly probable that the admission of the son’s statement through the officer did not contribute to the verdict based on the defendant’s actions of following the victim from room to room as the victim attempted to flee and firing a gun at least eight times, hitting the victim six times. Clarke v. State, 308 Ga. 630, 842 S.E.2d 863, 2020 Ga. LEXIS 331 (2020). Defendant’s claim that the trial court’s interjections interfered with the defendant’s sixth amendment right to confrontation and the defendant’s statutory right to a thorough and sifting cross-examination failed because the interjections did not hinder the defendant’s attempts to test a witness’s credibility and, thus, did not amount to an abuse of discretion. Barton-Smith v. State, 309 Ga. 799, 848 S.E.2d 384, 2020 Ga. LEXIS 597 (2020).
Harmless error.
In a prosecution for false imprisonment and battery of the defendant’s estranged spouse, because the spouse refused to testify at trial, the spouse’s statements given to deputies who had initially arrived at the crime scene in response to the spouse’s 9-1-1 calls were testimonial and their admission infringed upon the defendant’s right to confront the witness; however, the 9-1-1 calls themselves were not testimonial, were not prohibited by the confrontation clause, and were admissible as part of the res gestae or as an excited utterance, and since other evidence supported the conviction, admission of the statements given to the deputies was harmless error. Pitts v. State, 272 Ga. App. 182, 612 S.E.2d 1, 2005 Ga. App. LEXIS 50 (2005), aff’d, 280 Ga. 288, 627 S.E.2d 17, 2006 Ga. LEXIS 159 (2006). Admission of a first witness’s statement and audiotaped interview under the necessity exception to the hearsay rule violated the Confrontation Clause, but the error was harmless, as: (1) the jury was properly instructed on attempted impeachment; (2) the fact that a second witness told a police officer that the second witness knew nothing about the motel murder was not inconsistent with the second witness’s testimony that the defendant said the defendant had killed a man; (3) although a third witness testified that the events related in the third witness’s videotaped interview were fabricated, there was considerable reason not to credit that portion of the third witness’s testimony; (4) additional evidence demonstrated the defendant’s guilt, and corroborated the evidence that was the subject of the attempted impeachment; and (5) the defendant’s claim that the jury could have taken the first witness’s audiotape as corroboration of the “impeached” testimony was rejected. Richard v. State, 281 Ga. 401, 637 S.E.2d 406, 2006 Ga. LEXIS 936 (2006). Because the state’s evidence in support of its charges was overwhelming, even if the trial court erred in permitting a witness to testify regarding statements made to the witness by the victim, the error was harmless. Thus, no violation of the defendant’s confrontation rights occurred. Debro v. State, 282 Ga. 880, 655 S.E.2d 804, 2008 Ga. LEXIS 13 (2008). In a defendant’s prosecution for malice murder and cruelty to children, while the trial court erred in admitting evidence that the five-year-old victim on a prior occasion had stated to a military police officer that the defendant had caused a bruise on the victim’s face because such statements were testimonial and violated the defendant’s right to confrontation under U.S. Const., amend. 6, any error was harmless based on overwhelming evidence of the defendant’s guilt due to the defendant’s admission that the defendant shook the victim, striking the victim’s head on the railing of a bunk bed. Wright v. State, 285 Ga. 57, 673 S.E.2d 249, 2009 Ga. LEXIS 102 (2009). Even if the expert’s testimony that the expert’s work had been successfully peer reviewed violated the Confrontation Clause, the error was harmless because the evidence presented at trial identifying the first defendant as one of the assailants and detailing the first defendant’s involvement in the crimes was strong; and the identification of the caliber of bullets was not a significant issue in the first defendant’s case. Pender v. State, 311 Ga. 98, 856 S.E.2d 302, 2021 Ga. LEXIS 87 (2021).
Cumulative or harmless statement.
— Though testimony from an investigating agent relating to statements made by a murder victim’s step-parent shortly after the murder were improperly admitted at the defendant’s trial for malice murder, the trial court’s error in admitting the statements into evidence was harmless, because the hearsay portion of the agent’s testimony was cumulative of other admissible evidence. Gay v. State, 279 Ga. 180, 611 S.E.2d 31, 2005 Ga. LEXIS 238 (2005). While the Supreme Court of Georgia agreed with the defendant that the use of hearsay testimony denied the defendant’s right to confrontation, said error was harmless in light of the fact that the hearsay was cumulative of testimony already supplied by three other witnesses. Lynch v. State, 280 Ga. 887, 635 S.E.2d 140, 2006 Ga. LEXIS 587 (2006). In a defendant’s prosecution for, inter alia, felony murder, the defendant’s sixth amendment right to confrontation was violated by the prosecutor’s statement, after a demonstration during which the prosecutor poured bleach on the prosecutor’s hands, that the prosecutor’s hands were not stinging yet, made in response to the defendant’s claim that the defendant did not pour bleach on the defendant’s hands immediately after the shooting incident to remove gunshot residue. The defendant was not entitled to a new trial on that basis, however, because the improper bleach evidence was collateral and significant evidence of the defendant’s guilt, including an admission that the defendant did not mean to shoot the victim, had been presented. Sumlin v. State, 283 Ga. 264, 658 S.E.2d 596, 2008 Ga. LEXIS 253 (2008). Trial court did not err in allowing one of the state’s witnesses to testify that another state witness told him immediately before the shooting that the witness had seen the defendant get a gun from the car in which the defendant was a passenger that night because the admission of the statement did not violate the defendant’s sixth amendment right to confrontation since the statement was not testimonial in nature; because the statement was cumulative of other admissible evidence that the defendant had a gun at the time of the shooting, most significantly, the defendant’s own testimony that the defendant was in fact the shooter, admission of the statement, even if erroneous, was clearly harmless. Anderson v. State, 286 Ga. 57, 685 S.E.2d 716, 2009 Ga. LEXIS 676 (2009).
No violation of rule of sequestration.
Trial counsel was not ineffective for failing to request a jury charge on the violation of the rule of sequestration because there was no violation of the rule; even assuming that trial counsel’s failure to request such a charge constituted deficient performance, the defendant could not demonstrate prejudice in light of the overwhelming evidence substantiating the defendant’s guilt. Dockery v. State, 287 Ga. 275, 695 S.E.2d 599, 2010 Ga. LEXIS 472 (2010). Defendant failed to establish that trial counsel rendered ineffective assistance by failing to move for a mistrial regarding a violation of the rule of sequestration because there was no evidence as to which witnesses violated the rule and whether the witnesses actually testified or spoke about the witnesses’ testimony; the defendant did not show that the outcome of the trial would have been different if counsel called an expert to assist the jury in understanding eyewitness identifications. Glass v. State, 289 Ga. 542, 712 S.E.2d 851, 2011 Ga. LEXIS 557 (2011). Right to Confrontation (Cont’d)
Unavailable witnesses.
Defendant’s right to a speedy trial was not violated because the defendant made no challenge to the finding that the defense’s failed to show diligence in attempting to locate certain witnesses, i.e., that the witnesses were unavailable to the defendant. Williams v. State, 290 Ga. 24, 717 S.E.2d 640, 2011 Ga. LEXIS 865 (2011). Compulsory Process nesses and to compel their attendance is, in essence, the right to present a defense, and a fundamental element of due process of law. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Subpoena, if relevant on any issue,
Right to offer testimony of witis constitutionally mandated.
Once it is established that a defendant’s subpoena of a witness is relevant on any issue, it should be granted as mandated by the due process clause of U.S. Const., amend. 5, and the compulsory process provision of U.S. Const., amend. 6. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Right not violated when subpoenas
issued.
Defendant’s claim that the right to compulsory process was circumvented when the trial court granted the state’s motion to quash subpoenas issued to a judge, a probation officer, and a drugcourt coordinator failed because the subpoenas were issued and served on the witnesses who, in fact, appeared and whose testimony was proffered outside the presence of the jury. Poole v. State, 291 Ga. 848, 734 S.E.2d 1, 2012 Ga. LEXIS 858 (2012). Compulsory process applies to those witnesses who are relevant and material, and if the request is not frivolous in nature it should be granted. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). The right of a criminal defendant under U.S. Const., amend. 6 to compulsory process and the right under U.S. Const., amend. 5 to due process are sufficiently pervasive to require the presence of material witnesses in defendant’s behalf. Wingfield v. State, 159 Ga. App. 69, 282 S.E.2d 713, 1981 Ga. App. LEXIS 2492 (1981). Right of a defendant to have compulsory process may not be sidestepped merely because of inconvenience. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Right to have compulsory process may not be sidestepped because the mony cumulative. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Right to compulsory process is not a guarantee by the state that the witness requested will in fact appear at trial, but only relates to the issuance of the process. Mafnas v. State, 149 Ga. App. 286, 254 S.E.2d 409, 1979 Ga. App. LEXIS 1820 (1979), overruled on other grounds, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699, 2011 Ga. LEXIS 502 (2011).
court considers the witness’s testi-Out-of-state witnesses.
A party requesting the presence of an out-of-state witness does not have an absolute right to obtain the witness. Mafnas v. State, 149 Ga. App. 286, 254 S.E.2d 409, 1979 Ga. App. LEXIS 1820 (1979), overruled on other grounds, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699, 2011 Ga. LEXIS 502 (2011).
Out of state corporation.
Court of appeals erred when the court concluded that a request under the former Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, former O.C.G.A. § 24-10-90 et seq. (see now O.C.G.A. § 24-13-90), that an out-of-state corporation be required to produce purportedly material evidence in the corporation’s possession had to be accompanied by the identification as a material witness of the corporate agent through which the corporation was to act because if the certificate of materiality was issued by the Georgia court, it was for the Kentucky corporation to identify the human agent through whom the corporation would act, perhaps in conjunction with the hearing that would be held in Kentucky upon receipt of the Georgia certificate of materiality. Yeary v. State, 289 Ga. 394, 711 S.E.2d 694, 2011 Ga. LEXIS 501 (2011).
Use of federal convictions.
Trial court properly imposed recidivist punishment pursuant to O.C.G.A. § 17-10-7 based on the defendant’s prior federal conviction for conspiracy to transport stolen goods in interstate commerce, 18 U.S.C. §§ 371 and 2314, because the conviction’s elements matched felony conspiracy to commit a crime under Georgia law as defined in O.C.G.A. § 16-4-8. Nordahl v. State, 306 Ga. 15, 829 S.E.2d 99, 2019 Ga. LEXIS 389 (2019). Witnesses who cannot be located
within state’s jurisdiction.
Neither the state nor federal Constitution obligates the state to compel the attendance of witnesses who cannot be located within its jurisdiction. Mafnas v. State, 149 Ga. App. 286, 254 S.E.2d 409, 1979 Ga. App. LEXIS 1820 (1979), overruled on other grounds, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699, 2011 Ga. LEXIS 502 (2011).
Diligence in requesting witness.
Court’s refusal to issue a writ of habeas corpus ad testificandum to secure the presence of a witness imprisoned in another county constituted a denial of the appellant’s constitutional right to compulsory process because the evidence did not establish that appellant’s counsel failed to exercise due diligence in seeking issuance of the writ. Jackson v. State, 184 Ga. App. 133, 360 S.E.2d 907, 1987 Ga. App. LEXIS 2173 (1987). Continuance requested to obtain
witnesses.
Denial of a continuance requested by the defendant in order to obtain the presence at trial of a material witness was reversible error with respect to the defendant’s conviction for possession of a weapon where the defendant denied possession and the witness’s testimony was relevant to that issue. Jackson v. State, 184 Ga. App. 133, 360 S.E.2d 907, 1987 Ga. App. LEXIS 2173 (1987). Denial of a continuance requested by the defendant in order to obtain the presence at trial of a material witness was harmless error with respect to the defendant’s conviction for trafficking in cocaine where the defendant readily admitted that the defendant was in possession of cocaine. Jackson v. State, 184 Ga. App. 133, 360 S.E.2d 907, 1987 Ga. App. LEXIS 2173 (1987). Government is under no duty to call witnesses even if they are informers. United States v. Tatum, 496 F.2d 1282, 1974 U.S. App. LEXIS 7658 (5th Cir. 1974). lice to provide a defendant with all police investigatory work, and the mere possibility that an undisclosed item of information might have helped the defendant or might have affected the outcome of a trial, is not sufficient under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Whitaker v. State, 246 Ga. 163, 269 S.E.2d 436, 1980 Ga. LEXIS 1030 (1980).
Constitution does not require po-Subpoenas of informants not required where testimony neither exculpatory nor material.
A trial court’s refusal to require the state to identify and produce an informant does not wrongfully deprive a defendant of the right to cross-examine witnesses, when the defendant makes no showing of, and does not in any way call in issue, any favorability or materiality of the informant’s testimony to the defense. Bennett v. State, 153 Ga. App. 21, 264 S.E.2d 516, 1980 Ga. App. LEXIS 1656 (1980). Generalized assertion of privilege yields to a demonstrated, specific need for evidence in a pending criminal trial. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Materiality to defense must be
weighed against privilege.
The trial judge must conduct a hearing on the merits of the Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1962) motion and if the judge finds the evidence material under Brady, the judge must Compulsory Process (Cont’d) weigh it against the state’s privilege under Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1956). Davidson v. State, 156 Ga. App. 457, 274 S.E.2d 807, 1980 Ga. App. LEXIS 3066 (1980). Governmental privilege must not deny defendant of anything material
to the defense.
Since the government that prosecutes an accused also has the duty to protect the defendant’s constitutional rights, it may not undertake prosecution and then invoke its governmental privileges to deprive the accused of anything that might be material to the defense. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d on other grounds, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975), cert. denied 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed. 2d 760, (1976). sure in every case involving an informer is impermissible where a Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1962) motion is made, but this error can be cured by a post-trial hearing before the judge in the trial court. Davidson v. State, 156 Ga. App. 457, 274 S.E.2d 807, 1980 Ga. App. LEXIS 3066 (1980). tion of powers may not limit an individual’s right to a fair hearing and to present a defense. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). tained by Congress is to be governed by the same rules as applied to the other branches. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Legislative branch may not invoke the privilege of confidentiality at the expense of the accused’s right to evidence. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Competing public interests must be
Absolute privilege against disclo-Constitutional doctrine of separa-Duty of disclosure of evidence obaccommodated.
When a congressional inquiry and a criminal prosecution cross paths, congressional privilege is not absolute, and Congress must accommodate the public interest in legitimate legislative inquiry with the public interest in securing the witness a fair trial. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Assertion of presidential privilege must yield to the need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of justice. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). When presidential privilege must
yield.
Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the right under U.S. Const., amend. 6 to compulsory process and U.S. Const., amend. 5, right to due process of law require the presidential privilege as to confidential communications to give way where the district court determines after in camera inspection that the material is relevant and admissible in a criminal trial. United States v. Brown, 634 F.2d 819, 1981 U.S. App. LEXIS 20902 (5th Cir. 1981). Suppression by the prosecution of spite a request for it violates due process where the evidence is material either to guilt or to punishment. The evidence is material if it is of sufficient significance to result in the denial of the defendant’s right to a fair trial if not disclosed. Davidson v. State, 156 Ga. App. 457, 274 S.E.2d 807, 1980 Ga. App. LEXIS 3066 (1980). Right to testimony of immunized
evidence favorable to an accused dewitnesses.
It is difficult to extrapolate from the sixth amendment guarantee of compulsory process a right to the testimony of an immunized witness. Dampier v. State, 249 Ga. 299, 290 S.E.2d 431, 1982 Ga. LEXIS 1140 (1982). Denial of use immunity to defense
witnesses.
Defendant’s compulsory process rights under U.S. Const., amend. 6 and equal protection and due process rights under U.S. Const., amend. 5, were not violated by denial of use immunity to defense witnesses where such immunity was not requested by the defendant in the trial court for one of the witnesses and no prejudice would have resulted had a request been made and denied; and with regard to other witnesses, defendant failed to demonstrate that a grant of immunity was required to preserve fundamental fairness in the trial. United States v. Cohen, 631 F.2d 1223, 1980 U.S. App. LEXIS 11723 (5th Cir. 1980). Failure to grant immunity to a de-
fendant for exculpatory testimony.
Rights to compulsory process of other defendants are not violated by the trial court’s failure to grant immunity to a particular defendant for the defendant’s alleged exculpatory testimony. United States v. Herbst, 641 F.2d 1161, 1981 U.S. App. LEXIS 14501 (5th Cir.), cert. denied, 454 U.S. 851, 102 S. Ct. 292, 70 L. Ed. 2d 141, 1981 U.S. LEXIS 3506 (1981).
State statutes that violate U.S.
Const., amend. 6.
U.S. Const., amend. 6 is violated by a state statute that disqualifies persons charged as principals, accomplices or accessories in the same crime from testifying in behalf of one another, while permitting such persons to testify in behalf of the prosecution. United States v. Brown, 634 F.2d 819, 1981 U.S. App. LEXIS 20902 (5th Cir. 1981).
Common-law privilege for confidential marital communications.
U.S. Const., amend. 6 overrides the common-law privilege for confidential marital communications if the defendant seeks to introduce the testimony of the witness’s spouse to the effect that the witness had confessed to the crime. United States v. Brown, 634 F.2d 819, 1981 U.S. App. LEXIS 20902 (5th Cir. 1981). Testimony of witness who is in vio-
lation of sequestration rules.
Where witnesses in a criminal case have been sequestered, and the defendant thereafter seeks to call as a witness a person who has remained in the courtroom, the testimony of such witness is admissible over objection by the state. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224, 1981 Ga. LEXIS 692 (1981).
Admission of lie detector test results.
Requiring the defendant to obtain an express stipulation of the parties in order for lie detector test results to be admissible does not violate the defendant’s right under U.S. Const., amend. 6 to call witnesses in defense. Jones v. State, 156 Ga. App. 543, 275 S.E.2d 119, 1980 Ga. App. LEXIS 3117 (1980). Witness testimony based upon ex
parte statements.
It is error to make a determination that a prospective witness is incompetent to testify on the basis of ex parte statements. Cofield v. State, 247 Ga. 98, 274 S.E.2d 530, 1981 Ga. LEXIS 633 (1981). dant not diligent in securing witness
Denial of continuance where defenattendance.
A continuance requested by the defendant in order to obtain the presence at trial of a material witness is properly denied if the defendant has not been diligent in attempting to procure the attendance of the absent witness. Burney v. State, 244 Ga. 33, 257 S.E.2d 543, 1979 Ga. LEXIS 1093 (1979), cert. denied, 444 U.S. 970, 100 S. Ct. 463, 62 L. Ed. 2d 385, 1979 U.S. LEXIS 3895 (1979), superseded by statute as stated in Nelms v. Georgian Manor Condominium Asso., 253 Ga. 410, 321 S.E.2d 330, 1984 Ga. LEXIS 959 (1984). Evidence may not be excluded as a
discovery sanction.
The compulsory process clause of U.S. Const., amend. 6 forbids the exclusion of otherwise admissible evidence solely as a sanction to enforce discovery rules or orders against criminal defendants. United States v. Davis, 639 F.2d 239, 1981 U.S. App. LEXIS 19336 (5th Cir. 1981), overruled in part as stated in, United States v. Wills, 40 F.4th 330, 2022 U.S. App. LEXIS 19384 (5th Cir. 2022), overruled in part as stated in, United States v. Quintanilla, 114 F.4th 453, 2024 U.S. App. LEXIS 22154 (5th Cir. 2024). Exclusion of evidence or witnesses
as sanction against defendant.
The compulsory process clause forbids the exclusion of otherwise admissible evidence solely as a sanction to enforce discovery rules or orders against criminal defendants. United States v. Davis, 639 F.2d 239, 1981 U.S. App. LEXIS 19336 (5th Cir. Compulsory Process (Cont’d) 1981), overruled in part as stated in, United States v. Wills, 40 F.4th 330, 2022 U.S. App. LEXIS 19384 (5th Cir. 2022), overruled in part as stated in, United States v. Quintanilla, 114 F.4th 453, 2024 U.S. App. LEXIS 22154 (5th Cir. 2024). The exclusion of witnesses is an impermissible sanction for the violation of a pretrial discovery order when imposed upon a criminal defendant. United States v. Davis, 639 F.2d 239, 1981 U.S. App. LEXIS 19336 (5th Cir. 1981), overruled in part as stated in, United States v. Wills, 40 F.4th 330, 2022 U.S. App. LEXIS 19384 (5th Cir. 2022), overruled in part as stated in, United States v. Quintanilla, 114 F.4th 453, 2024 U.S. App. LEXIS 22154 (5th Cir. 2024). anced against right to compulsory
Exclusion of evidence must be balprocess.
The exclusion of otherwise admissible evidence or testimony sought to be presented by a criminal defendant must be weighed against the right under U.S. Const., amend. 6 to have compulsory process for obtaining witnesses in the defendant’s favor. United States v. Davis, 639 F.2d 239, 1981 U.S. App. LEXIS 19336 (5th Cir. 1981), overruled in part as stated in, United States v. Wills, 40 F.4th 330, 2022 U.S. App. LEXIS 19384 (5th Cir. 2022), overruled in part as stated in, United States v. Quintanilla, 114 F.4th 453, 2024 U.S. App. LEXIS 22154 (5th Cir. 2024). Exclusion of cumulative evidence
under Fed. R. Evid. 403.
Exclusion of otherwise admissible evidence or testimony sought to be presented by a criminal defendant, pursuant to Rule 403, Fed. R. Evid., pertaining to exclusion of cumulative evidence, must be weighed against the right under U.S. Const., amend. 6 to have compulsory process for obtaining witnesses in the defendant’s favor. United States v. Davis, 639 F.2d 239, 1981 U.S. App. LEXIS 19336 (5th Cir. 1981), overruled in part as stated in, United States v. Wills, 40 F.4th 330, 2022 U.S. App. LEXIS 19384 (5th Cir. 2022), overruled in part as stated in, United States v. Quintanilla, 114 F.4th 453, 2024 U.S. App. LEXIS 22154 (5th Cir. 2024). Technical violations of procedural
requirements for compulsory process.
It is not always necessary that the defense comply with every technical procedural requirement before being entitled to compulsory process. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Technical violations of procedure should not be allowed to emasculate the efficacy of the constitutionally required compulsory process. Calley v. Callaway, 382 F. Supp. 650, 1974 U.S. Dist. LEXIS 6592 (M.D. Ga. 1974), rev’d, 519 F.2d 184, 1975 U.S. App. LEXIS 12794 (5th Cir. 1975). Right to Counsel 1. In General Purpose of U.S. Const., amend. 6 is to protect an accused from conviction resulting from the accused’s own ignorance of the accused’s rights. Adkins v. Sanford, 120 F.2d 471, 1941 U.S. App. LEXIS 3494 (5th Cir. 1941); Kent v. Sanford, 121 F.2d 216, 1941 U.S. App. LEXIS 3189 (5th Cir. 1941), cert. denied, 315 U.S. 799, 62 S. Ct. 622, 86 L. Ed. 1200, 1942 U.S. LEXIS 965 (1942). The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 1938 U.S. LEXIS 896 (1938), overruled in part as stated in Wilkins v. Bowersox, 145 F.3d 1006, 1998 U.S. App. LEXIS 11798 (8th Cir. 1998), overruled in part as stated in United States v. Leon-Delfis, 203 F.3d 103, 2000 U.S. App. LEXIS 2259 (1st Cir. 2000), overruled in part as stated in United States v. Russell, 205 F.3d 768, 2000 U.S. App. LEXIS 3103 (5th Cir. 2000). The right to counsel embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect the defendant when brought before a tribunal with power to take the defendant’s life or liberty. McBryar v. McElroy, 510 F. Supp. 706, 1981 U.S. Dist. LEXIS 12844 (N.D. Ga. 1981). The purpose of the sixth amendment counsel guarantee, and hence the purpose of invoking it is to protec(t) the unaided layman at critical confrontations with an expert adversary, the government, after the adverse positions of government and defendant have solidified with respect to a particular alleged crime. Phillips v. State, 204 Ga. App. 698, 420 S.E.2d 316, 1992 Ga. App. LEXIS 954 (1992). Breakdown in the public defender
system.
Trial court’s finding that there had been a breakdown in the public defender system based on a lack of funding for the defense of a capital murder case was vacated because it did not address alternatives to funding and investigation costs and it did not employ the Barker v. Wingo speedy trial balancing test, of which a breakdown in the system, if found, was only one factor. Phan v. State, 287 Ga. 697, 699 S.E.2d 9, 2010 Ga. LEXIS 503 (2010).
Appointment of counsel for a motion to withdraw a guilty plea.
Habeas court properly denied an inmate’s motion to withdraw the inmate’s guilty plea based on the claim that the inmate’s sixth amendment right to counsel was violated when counsel was not appointed on the inmate’s behalf during the hearing on the inmate’s motion to withdraw the inmate’s guilty plea; the new criminal procedure rule imposing an obligation on the state to appoint counsel for a motion to withdraw a guilty plea merely clarified and extended the scope of a well-settled principle of criminal procedure, a defendant’s right to representation at critical stages of a prosecution. Accordingly, the rule could not be applied retroactively to the inmate. Carter v. Johnson, 278 Ga. 202, 599 S.E.2d 170, 2004 Ga. LEXIS 551 (2004). Presence of counsel is a necessity in criminal trials and is essential to fair trials. Lee v. Stynchcombe, 347 F. Supp. 1076, 1972 U.S. Dist. LEXIS 11943 (N.D. Ga. 1972). Persons charged with serious criminal offenses have a right under U.S. Const., amend. 6 and U.S. Const., amend. 14, to assistance of counsel in their defense. Shepherd v. Jordan, 425 F.2d 1174, 1970 U.S. App. LEXIS 9686 (5th Cir. 1970).
Indigency required.
Because the defendant was not indigent, the defendant had no right to court appointed counsel. Everman v. State, 203 Ga. App. 350, 416 S.E.2d 861, 1992 Ga. App. LEXIS 413 (1992). Defendant’s right to counsel is not superior to state’s right to try the defendant for a criminal offense and does not include the right to manipulate, whether consciously or capriciously, the state’s attempt in good course to prosecute the defendant. Mock v. State, 163 Ga. App. 320, 293 S.E.2d 525, 1982 Ga. App. LEXIS 3203 (1982).
No subversion of judicial process.
— The sixth amendment right to counsel does not give an accused the right to subvert the judicial process. United States v. Stuckey, 917 F.2d 1537, 1990 U.S. App. LEXIS 19937 (11th Cir. 1990), cert. denied, 498 U.S. 1091, 111 S. Ct. 972, 112 L. Ed. 2d 1058, 1991 U.S. LEXIS 1053 (1991). Comparison of right under fifth and
sixth amendments.
The events triggering the attachment of a right to counsel under the fifth amendment differ from those which trigger the attachment under the sixth amendment, but once attached, either right may be waived in an essentially identical manner, and subject to the same limitations. Housel v. State, 257 Ga. 115, 355 S.E.2d 651, 1987 Ga. LEXIS 745 (1987), cert. denied, 487 U.S. 1240, 108 S. Ct. 2915, 101 L. Ed. 2d 946, 1988 U.S. LEXIS 3189 (1988). The sixth amendment right to counsel does not depend upon a request by the defendant, although a request for counsel is an important fact if questions arise concerning whether a defendant has waived the right to counsel. State v. Simmons, 260 Ga. 92, 390 S.E.2d 43, 1990 Ga. LEXIS 138 (1990). Admission of defendant’s statement to a police officer concerning an attempted burglary was proper under the fifth amendment as defendant had only invoked the right to counsel under the sixth amendment in connection with unrelated charges in Fulton County; the defendant never invoked the fifth amendment right for counsel to be present during questioning in connection with the attempted burglary in Henry County. Smith v. State, 273 Ga. App. 107, 614 S.E.2d 219, 2005 Ga. App. LEXIS 423 (2005). Right to Counsel (Cont’d) 1. In General (Cont’d)
Denial of counsel violates U.S.
Const., amend. 14. Walker v. State, 194 Ga. 727, 22 S.E.2d 462, 1942 Ga. LEXIS 646 (1942), superseded by statute as stated in Carter v. State, 93 Ga. App. 12, 90 S.E.2d 672, 1955 Ga. App. LEXIS 462 (1955). Violation of right to counsel is not
harmless error.
The constitutional right to the assistance of counsel is a right so basic to a fair trial that its infraction cannot be treated as harmless error. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. Johnson v. Hopper, 639 F.2d 236, 1981 U.S. App. LEXIS 19339 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S. Ct. 548, 70 L. Ed. 2d 412, 1981 U.S. LEXIS 4351 (1981).
Right to counsel in all prosecutions.
Right to private counsel attached in all criminal prosecutions— not merely those resulting in imprisonment or fine; the defendant did not knowingly and intelligently waive the right to counsel because there was no evidence of relinquishment of the right. Barnes v. State, 261 Ga. App. 112, 581 S.E.2d 727, 2003 Ga. App. LEXIS 559 (2003). Right to counsel for misdemeanor
prosecutions.
Although the right to counsel extends to misdemeanor prosecutions where imprisonment may result (Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), the Georgia Supreme Court has interpreted Argersinger as requiring that a defendant in a misdemeanor criminal prosecution be entitled to counsel only where the defendant is sentenced to actual imprisonment. Capelli v. State, 203 Ga. App. 79, 416 S.E.2d 136, 1992 Ga. App. LEXIS 373 (1992), overruled in part, Barnes v. State, 275 Ga. 499, 570 S.E.2d 277, 2002 Ga. LEXIS 825 (2002). If the accused is on trial in federal court without counsel, unless the accused has waived the right to counsel, the trial is void. Bisson v. Howard, 224 F.2d 586, 1955 U.S.App. LEXIS 4125 (5th Cir.), cert. denied, 350 U.S. 916, 76 S. Ct. 201, 100 L. Ed. 803, 1955 U.S. LEXIS 80 (1955). Right not extended to participants
in civil disputes.
The constitution provides for effective assistance of counsel for one charged with a criminal offense, not participants in a civil dispute. Calhoun v. Maynard, 196 Ga. App. 219, 395 S.E.2d 645, 1990 Ga. App. LEXIS 845 (1990); Finch v. Brown, 216 Ga. App. 451, 454 S.E.2d 807, 1995 Ga. App. LEXIS 171 (1995); Bergmann v. McCullough, 218 Ga. App. 353, 461 S.E.2d 544, 1995 Ga. App. LEXIS 718 (1995), cert. denied, No. S95C1942, 1995 Ga. LEXIS 1195 (Ga. Nov. 9, 1995), cert. denied, 517 U.S. 1141, 116 S. Ct. 1433, 134 L. Ed. 2d 555, 1996 U.S. LEXIS 2517 (1996). Right not extended to deportation
hearing.
Although an alien has a statutory right to counsel at the alien’s own expense pursuant to 8 U.S.C. § 1252(b)(4), there is no sixth amendment right to appointed counsel at a deportation hearing. United States v. Qadeer, 953 F. Supp. 1570, 1997 U.S. Dist. LEXIS 830 (S.D. Ga. 1997). Right to counsel versus right to tes-
tify.
Because the federal district court presented the defendant with a choice: either to proceed with counsel with the caveat that the defendant could be kept off the witness stand, if the defendant’s attorney so desired, or to proceed pro se, the defendant was impermissibly forced to choose between two constitutional rights: the right to testify and the right to counsel. United States v. Scott, 909 F.2d 488, 1990 U.S. App. LEXIS 14361 (11th Cir. 1990). Defense counsel was not ineffective in resting the defense case without calling the defendant to the stand, despite the defendant’s repeated indications that the defendant wanted to testify, where the defendant was advised of the defendant’s right to testify, was advised that the defendant should not exercise that right, and did not protest. United States v. Teague, 953 F.2d 1525, 1992 U.S. App. LEXIS 2612 (11th Cir.), cert. denied, 506 U.S. 842, 113 S. Ct. 127, 121 L. Ed. 2d 82, 1992 U.S. LEXIS 4976 (1992). The district court committed no error in allowing the defendant to testify against the desires of defense counsel and in refusing to question the defendant at length about the defendant’s decision. United States v. Moody, 977 F.2d 1425, 1992 U.S. App. LEXIS 29012 (11th Cir. 1992), cert. denied, 507 U.S. 1052, 113 S. Ct. 1948, 123 L. Ed. 2d 653, 1993 U.S. LEXIS 3043 (1993). Allegation of mere lack of counsel
insufficient to show denial thereof.
In a habeas corpus petition, allegations to the effect that the defendant entered a plea of guilty to an indictment for a felony offense “without the advice of counsel” are insufficient to charge that the defendant was denied the constitutional right of the privilege and benefit of counsel, since the petition failed to allege that the defendant was unable to employ counsel or that the defendant desired or made any request for counsel or that the court declined to appoint counsel to represent the defendant. White v. Grimes, 216 Ga. 335, 116 S.E.2d 561, 1960 Ga. LEXIS 462 (1960). Right to counsel where liberty at
stake.
A defendant in a criminal prosecution that may result in deprivation of the defendant’s liberty is entitled to the assistance of counsel as guaranteed by U.S. Const., amend. 6. Blue v. State, 144 Ga. App. 378, 241 S.E.2d 36, 1977 Ga. App. LEXIS 2703 (1977). Right to adequate representation is
afforded to defendant, not counsel.
The right to adequate representation is a right afforded to the defendant and not a palliative afforded to counsel simply to allow counsel the highest and best opportunity to prepare a defense. Standridge v. State, 158 Ga. App. 482, 280 S.E.2d 850, 1981 Ga. App. LEXIS 2263 (1981). antee of “meaningful relationship” between accused and defense counsel. Turner v. State, 199 Ga. App. 836, 406 S.E.2d 512, 1991 Ga. App. LEXIS 716 (1991).
There is no sixth amendment guar-Relationship required for ineffective assistance claim.
Dismissal of a spouse’s legal malpractice claim against an attorney arising out of the attorney’s representation of the other spouse and their child in three appeals was proper under O.C.G.A. § 9-11-12(b)(6) and did not violate the spouse’s sixth and seventh amendment rights, as there was no attorney-client relationship between the spouse and the attorney. Crane v. Albertelli, 264 Ga. App. 910, 592 S.E.2d 684, 2003 Ga. App. LEXIS 1611 (2003), cert. denied, No. S04C0764, 2004 Ga. LEXIS 350 (Ga. Apr. 27, 2004), cert. denied, 543 U.S. 981, 125 S. Ct. 481, 160 L. Ed. 2d 359, 2004 U.S. LEXIS 7445 (2004). Denial of a requested continuance, after an attorney volunteered to assume the representation of an accused who had been told the accused was not eligible for appointed counsel, was a denial of assistance of counsel. Butler v. State, 198 Ga. App. 217, 401 S.E.2d 43, 1990 Ga. App. LEXIS 1576 (1990), cert. denied, No. S91C0518, 1991 Ga. LEXIS 455 (Ga. Jan. 31, 1991). No right to acquiesce in the ineffective assistance in order to build error. — There is no right, constitutional or otherwise, to acquiesce in the ineffective assistance of counsel at trial in order to build error into the record. Sliger v. State, 248 Ga. 316, 282 S.E.2d 291, 1981 Ga. LEXIS 967 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657, 1982 U.S. LEXIS 896 (1982).
Indigent defendant’s right to counsel.
An accused who is unable by reason of poverty to employ counsel is entitled to be defended in all the accused’s rights as fully and to the same extent as is an accused who is able to employ the accused’s own counsel to represent the accused. Bridwell v. Aderhold, 13 F. Supp. 253, 1935 U.S. Dist. LEXIS 1098 (D. Ga. 1935), aff’d, 92 F.2d 748, 1937 U.S. App. LEXIS 4689 (5th Cir. 1937). Lack of counsel for indigent persons being tried for crimes is a deprivation of their constitutional rights. Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766, 1964 Ga. LEXIS 432 (1964). The courts have uniformly adopted the practice of assigning counsel to represent indigent criminals in all cases when they were unable to employ counsel to represent them. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, 1966 Ga. App. LEXIS 1062, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304, 1966 U.S. LEXIS 196 (1966) (For comment, see 18 Mercer L. Rev. 477 (1967)). Right to Counsel (Cont’d) 1. In General (Cont’d) Indigent defendant in a criminal case is entitled to the assistance of an attorney. Phillips v. Smith, 300 F. Supp. 130, 1969 U.S. Dist. LEXIS 8396 (S.D. Ga. 1969). An impoverished defendant who is unable to employ or arrange for counsel must be afforded an attorney when the defendant requests it in order to meet the constitutional guarantee and to afford due process. Perry v. State, 120 Ga. App. 304, 170 S.E.2d 350, 1969 Ga. App. LEXIS 752 (1969). The right to counsel, guaranteed by U.S. Const., amend. 6 and applicable to the states by virtue of U.S. Const., amend. 14, includes the right to appointed counsel if the defendant is indigent. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339, 1975 Ga. LEXIS 1359 (1975). As to inadequacy of “Declaration of Indigency” form indirectly denying the defendant the right to appointed counsel, see Stapp v. State, 249 Ga. 289, 290 S.E.2d 439, 1982 Ga. LEXIS 1138 (1982). U.S. Const., amend. 6 guarantees to the nonindigent the right to the effec-
tive assistance of retained counsel.
Goodwin v. Smith, 439 F.2d 1180, 1971 U.S. App. LEXIS 11484 (5th Cir. 1971). Distinction between retained and court-appointed counsel as to the degree of protection due to criminal defendants has been abolished. Kemp v. Leggett, 635 F.2d 453, 1981 U.S. App. LEXIS 20661 (5th Cir. 1981).
Right to counsel in felony cases.
It is unconstitutional to try a person on a state felony charge unless the person has the assistance of counsel or has validly waived it. Wren v. United States Bd. of Parole, 389 F. Supp. 938, 1975 U.S. Dist. LEXIS 13700 (N.D. Ga. 1975). The right to appointed counsel in misdemeanor cases arises only when a defendant is actually sentenced to a term of imprisonment. Peters v. State, 210 Ga. App. 211, 435 S.E.2d 731, 1993 Ga. App. LEXIS 1122 (1993). Classification of offense as petty or
serious.
The length of the maximum sentence authorized by a statute proscribing criminal conduct determines the classification of an offense as petty or serious, and to do so all charges against an accused must be cumulated in measuring the possible sentence which could be imposed for the purpose of calculating whether the offense is petty or serious, and where an offense is classified as serious, counsel must be furnished. Shepherd v. Jordan, 425 F.2d 1174, 1970 U.S. App. LEXIS 9686 (5th Cir. 1970). Loss of jurisdiction through failure
to appoint counsel.
Unless an accused has intelligently and effectively waived the right to counsel, U.S. Const., amend. 6 stands as a jurisdictional bar to a valid conviction and sentence depriving the accused of the accused’s life or the accused’s liberty. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 1938 U.S. LEXIS 896 (1938), overruled in part as stated in Wilkins v. Bowersox, 145 F.3d 1006, 1998 U.S. App. LEXIS 11798 (8th Cir. 1998), overruled in part as stated in United States v. Leon-Delfis, 203 F.3d 103, 2000 U.S. App. LEXIS 2259 (1st Cir. 2000), overruled in part as stated in United States v. Russell, 205 F.3d 768, 2000 U.S. App. LEXIS 3103 (5th Cir. 2000); Boruff v. United States, 310 F.2d 918, 1962 U.S. App. LEXIS 3410 (5th Cir. 1962), superseded by statute as stated in Nelson v. Foti, 707 F.2d 170, 1983 U.S. App. LEXIS 26798 (5th Cir. 1983). A court’s jurisdiction at the beginning of trial may be lost in the course of the proceedings due to failure to complete the court, as U.S. Const., amend. 6 requires, by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of U.S. Const., amend. 6 is not complied with, the court no longer has jurisdiction to proceed. Reid v. Sanford, 42 F. Supp. 300, 1941 U.S. Dist. LEXIS 2427 (D. Ga. 1941). Lack of counsel is a fatal defect unless cured by a showing that the defendant intelligently and voluntarily waived the right thereto. Anything less is not waiver. Phillips v. Smith, 300 F. Supp. 130, 1969 U.S. Dist. LEXIS 8396 (S.D. Ga. 1969).
Psychiatric examination.
Defendant’s suppression motion was properly denied as to the defendant’s psychiatric examination by a state’s expert as the defendant’s counsel knew of the time, place, scope, and nature of the examination, but chose not to attend; the examination did not violate the defendant’s fifth or sixth amendment rights. Durham v. State, 281 Ga. 208, 636 S.E.2d 513, 2006 Ga. LEXIS 832 (2006).
Re-sentencing.
Defendant’s re-sentencing without court-appointed counsel to represent the defendant was affirmed as the trial court was simply instructed to merge the defendant’s armed robbery conviction into the defendant’s felony murder conviction; as the trial court had no discretion in the matter and its re-sentencing of the defendant was a ministerial act, the re-sentencing was proper. Robertson v. State, 280 Ga. 885, 635 S.E.2d 138, 2006 Ga. LEXIS 585 (2006).
Habeas corpus proceedings.
Georgia is not constitutionally required to provide counsel in death penalty habeas corpus proceedings in order to ensure the fundamental fairness of Georgia’s death penalty procedures and meaningful access to the courts. Gibson v. Turpin, 270 Ga. 855, 513 S.E.2d 186, 1999 Ga. LEXIS 170 (1999). Right to counsel if defendant is sen-
tenced to probation.
Rule announced in Alabama v. Shelton, 535 U.S. 654 (2002) that absent a knowing and intelligent waiver of the right to counsel, no indigent person may be sentenced to a probated or suspended prison term unless the person was represented by counsel at the person’s trial, was required to be applied retroactively to a habeas petitioner who had been sentenced to probation. Alford v. State, 287 Ga. 105, 695 S.E.2d 1, 2010 Ga. LEXIS 320 (2010). There is no right under U.S. Const., amend. 6 to be represented by a nonattorney. United States v. Bertolini, 576 F.2d 1133, 1978 U.S. App. LEXIS 10026 (5th Cir. 1978); United States v. Anderson, 577 F.2d 258, 1978 U.S. App. LEXIS 9933 (5th Cir. 1978); Pfeiffer v. State, 173 Ga. App. 374, 326 S.E.2d 562, 1985 Ga. App. LEXIS 2626 (1985); Lebrun v. State, 255 Ga. 406, 339 S.E.2d 227, 1986 Ga. LEXIS 551 (1986); Cruickshank v. State, 258 Ga. 544, 372 S.E.2d 223, 1988 Ga. LEXIS 391 (1988). While an accused has a right to representation by an attorney and to represent oneself, there is no right to be represented by a non-lawyer third party. Mercier v. State, 203 Ga. App. 494, 417 S.E.2d 430, 1992 Ga. App. LEXIS 532 (1992).
No right to chosen counsel.
Although the sixth amendment guarantees every defendant aid of an attorney, that attorney need not be counsel of defendant’s choosing. Kesler v. State, 249 Ga. 462, 291 S.E.2d 497, 1982 Ga. LEXIS 1147 (1982).
Qualified right to counsel of choice.
— The sixth amendment comprehends a qualified right to select and be represented by counsel of choice. The right to counsel of choice belongs solely to criminal defendants possessing legitimate, uncontested assets, and a defendant may not insist on representation by an attorney the defendant cannot afford. United States v. Bissell, 866 F.2d 1343, 1989 U.S. App. LEXIS 2490 (11th Cir.), cert. denied, 493 U.S. 876, 110 S. Ct. 213, 107 L. Ed. 2d 166, 1989 U.S. LEXIS 4311 (1989), cert. denied, 493 U.S. 849, 110 S. Ct. 146, 107 L. Ed. 2d 104, 1989 U.S. LEXIS 4355 (1989).
Standing.
Even if the Drug Enforcement Administration agents’ actions violated a co-conspirator’s right to counsel, defendant had no standing to assert this claim; defendants do not have standing to assert in their own defense the denial of constitutional rights to others. United States v. Sims, 845 F.2d 1564, 1988 U.S. App. LEXIS 7103 (11th Cir. 1988). Defendant may either represent self or have an attorney. That is all U.S. Const., amend. 6 requires. United States v. Anderson, 577 F.2d 258, 1978 U.S. App. LEXIS 9933 (5th Cir. 1978). No distinction between retained
and appointed counsel, where counsel is denied.
Unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish the system of justice, a serious risk of injustice infects the trial itself and, when a state obtains a criminal conviction through such a trial, it is the state that unconstitutionally deprives the defendant of the defendant’s liberty. Thus, since the Right to Counsel (Cont’d) 1. In General (Cont’d) state’s conduct of a criminal trial itself implicates the state in the defendant’s conviction, there is no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers. McBryar v. McElroy, 510 F. Supp. 706, 1981 U.S. Dist. LEXIS 12844 (N.D. Ga. 1981). cate with someone who will contact an attorney is not included in the right to counsel. Meyer v. State, 150 Ga. App. 613, 258 S.E.2d 217, 1979 Ga. App. LEXIS 2228 (1979), cert. denied, 445 U.S. 952, 100 S. Ct. 1602, 63 L. Ed. 2d 788, 1980 U.S. LEXIS 1341 (1980). Suspect in custody was required to be warned of rights prior to interrogation even though the interrogation involved an offense other than that for which the suspect was in custody. State v. Rogers, 173 Ga. App. 653, 327 S.E.2d 782, 1985 Ga. App. LEXIS 2664 (1985). Effect of request for attorney on
Right of an accused to communiinterrogation.
A sixth amendment right to counsel, like a fifth amendment right to counsel, may be waived by the accused; in either case, once a defendant requests an attorney, all police-initiated interrogation is prohibited, and any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid, but the defendant may initiate further communications with the police. Housel v. State, 257 Ga. 115, 355 S.E.2d 651, 1987 Ga. LEXIS 745 (1987), cert. denied, 487 U.S. 1240, 108 S. Ct. 2915, 101 L. Ed. 2d 946, 1988 U.S. LEXIS 3189 (1988). Law enforcement authorities violated the defendant’s right to counsel when they interrogated the defendant knowing that the defendant had previously requested and consulted with an attorney. Gissendaner v. State, 269 Ga. 495, 500 S.E.2d 577, 1998 Ga. LEXIS 565 (1998). While non-custodial and custodial statements were properly admitted, as not vitiating the defendant’s constitutional rights once defendant invoked the right to counsel, a subsequent interview initiated by police violated this right; as a result, cocaine seized through information obtained from the interview had to be suppressed as fruit of the poisonous tree. Vergara v. State, 283 Ga. 175, 657 S.E.2d 863, 2008 Ga. LEXIS 202 (2008), overruled in part, Clark v. State, 315 Ga. 423, 883 S.E.2d 317, 2023 Ga. LEXIS 13 (2023). A defendant signed a Miranda waiver, but then requested counsel. The defendant’s subsequent statements to another officer, who knew of the waiver but not of the defendant’s request for counsel, were inadmissible as the officer initiated the conversation by explaining the preliminary hearing process, and this conversation did not fall within the “booking exception” to Miranda or serve any other administrative function. State v. Darby, 284 Ga. 271, 663 S.E.2d 160, 2008 Ga. LEXIS 544 (2008).
Request must be clear.
Defendant’s statements, which did not clearly request counsel, did not prohibit defendant’s further questioning or the suppression of subsequent statements on sixth amendment grounds. Fitz v. State, 275 Ga. 349, 566 S.E.2d 668, 2002 Ga. LEXIS 587 (2002).
Statement obtained without violation of rights.
Defendant’s motion to suppress a videotaped statement was properly denied as the sixth amendment right to counsel was offense specific and counsel representing the defendant on unrelated charges did not have to be contacted prior to an interview about a murder; the defendant was advised of the defendant’s fifth amendment right to counsel at the initiation of the questioning about the murder and executed a waiver of that right, and at a Jackson-Denno hearing, the defendant’s inculpatory statement was found to have been made freely and voluntarily. McKinney v. State, 281 Ga. 92, 635 S.E.2d 153, 2006 Ga. LEXIS 582 (2006).
Sentencing guidelines.
United States Sentencing Guideline § 3 E1.1(b)(2), which instructs the court to reduce a defendant’s sentence for “timely notifying authorities of his intention to plead guilty,” is not unconstitutional on its face. United States v. McConaghy, 23 F.3d 351, 1994 U.S. App. LEXIS 15009 (11th Cir. 1994). Obtaining incriminating evidence through wired codefendant violates
constitution.
The defendant was denied the assistance of counsel guaranteed by the sixth amendment, where law enforcement officers sought to obtain incriminating information from the defendant through the use of a codefendant’s undisclosed body wire transmitter while the defendant was under indictment and after the defendant had exercised the sixth amendment right to counsel. Brown v. State, 199 Ga. App. 18, 404 S.E.2d 154, 1991 Ga. App. LEXIS 341 (1991). Applicable standard for ineffective assistance of counsel is found in the two-pronged Strickland analysis (Strickland v. State, 257 Ga. 230, 357 S.E.2d 85 (1987)); in the absence of one or both prongs, the federal and the Georgia Constitutions authorize a finding that a defendant’s sixth amendment right to counsel has not been abridged. Gordillo v. State, 255 Ga. App. 73, 564 S.E.2d 486, 2002 Ga. App. LEXIS 479 (2002).
Presumption as to discharge of duties regarding right to counsel.
If any presumption is to be indulged in as a result of silence regarding counsel for the defendant in the record of a state criminal offense, it should be presumed that the court discharged its state and federal duties to the defendant, including those relating to the defendant’s right, if any, to the assistance of counsel. White v. Grimes, 216 Ga. 335, 116 S.E.2d 561, 1960 Ga. LEXIS 462 (1960). Where the record of the trial does not affirmatively show in a felony case that the accused person of mature age was denied the benefit of counsel, it must be presumed that the trial judge did the judge’s duty and that the accused was not denied the right to counsel. White v. Grimes, 216 Ga. 335, 116 S.E.2d 561, 1960 Ga. LEXIS 462 (1960). Requiring defendant to indicate
lead counsel not error.
It was not error to require a defendant in a criminal case to designate either the defendant or the defendant’s attorney as lead counsel where the defendant was not denied the right to participate as co-counsel or required to elect whether to defend self or permit appointed counsel to defend the defendant. Garvey v. State, 176 Ga. App. 268, 335 S.E.2d 640, 1985 Ga. App. LEXIS 2854 (1985). Defendant not denied assistance of counsel where co-counsel present
and defendant uninjured.
Where none of the statutory requirements necessary for the granting of a continuance are put forth by co-counsel when the case was called, and there is no showing that the defendant was injured by the absence of the defendant’s lead counsel, there is no merit in the complaint that the trial court erred in denying the defendant’s motion for continuance because of the absence of counsel and that the defendant has been denied the defendant’s sixth amendment right to counsel and the defendant’s fifth amendment right to due process as guaranteed by the state and federal constitutions. Blair v. State, 166 Ga. App. 434, 304 S.E.2d 535, 1983 Ga. App. LEXIS 2201 (1983). Where the defendant moves for a continuance on the ground that the defendant’s lead counsel is absent, and the motion is denied, the defendant is not denied the right to counsel where the defendant is represented by another attorney, the defendant’s original counsel of record. Myrick v. State, 168 Ga. App. 223, 308 S.E.2d 563, 1983 Ga. App. LEXIS 2732 (1983). Defendant not denied assistance of
counsel where co-counsel disqualified by court.
Defendant was not deprived of the sixth amendment right to counsel of the defendant’s choice by the trial judge’s disqualification of the defendant’s co-counsel, where the defendant had told the judge that the defendant wanted to keep the defendant’s other counsel “because he’s familiar with me and my case.” United States v. Stuckey, 917 F.2d 1537, 1990 U.S. App. LEXIS 19937 (11th Cir. 1990), cert. denied, 498 U.S. 1091, 111 S. Ct. 972, 112 L. Ed. 2d 1058, 1991 U.S. LEXIS 1053 (1991). Collateral use in later trials of convictions obtained in violation of right
to counsel.
Prior convictions obtained in violation of a defendant’s right to ap-Right to Counsel (Cont’d) 1. In General (Cont’d) pointed counsel where the defendant is indigent cannot be introduced for collateral use in subsequent trials, such as for the purpose of imposing a recidivist sentence. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339, 1975 Ga. LEXIS 1359 (1975). Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), has a retroactive effect where records of prior convictions obtained in violation of its standards are introduced for collateral use in subsequent trials, and such convictions, even though obtained prior to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) cannot be used for the purpose of imposing a recidivist sentence. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339, 1975 Ga. LEXIS 1359 (1975). The sixth amendment prohibits the use for enhancement of a sentence of a conviction obtained in a proceeding in which defendant lacked the assistance of counsel. Greene v. United States, 880 F.2d 1299, 1989 U.S. App. LEXIS 12362 (11th Cir. 1989), cert. denied, 494 U.S. 1018, 110 S. Ct. 1322, 108 L. Ed. 2d 498, 1990 U.S. LEXIS 1233 (1990). No federal constitutional right to counsel exists at a pre-indictment lineup. Phillips v. State, 204 Ga. App. 698, 420 S.E.2d 316, 1992 Ga. App. LEXIS 954 (1992). Identification at post-indictment arraignment calendar was not a violation of defendant’s right to counsel where it was not a formal line-up, where the identification was incidental to the informal interview of a witness and where the in-court identification was reliable. Robinson v. State, 164 Ga. App. 379, 296 S.E.2d 225, 1982 Ga. App. LEXIS 3305 (1982). Defendant was not entitled to free counsel at the arraignment, where it appeared that the defendant was at liberty, employable and college-educated, and that there was ample time before the case would be set for trial. Boles v. State, 178 Ga. App. 508, 343 S.E.2d 729, 1986 Ga. App. LEXIS 2542 (1986).
Right of persons who plead guilty.
— The right to the assistance of counsel applies to an accused who must decide whether to plead guilty as well as to an accused who stands trial. Colson v. Smith, 438 F.2d 1075, 1971 U.S. App. LEXIS 12269 (5th Cir. 1971). The threshold right to the assistance of counsel is no less momentous to an accused who must decide whether to plead guilty than to an accused who stands trial. McBryar v. McElroy, 510 F. Supp. 706, 1981 U.S. Dist. LEXIS 12844 (N.D. Ga. 1981). Assistance of counsel in entry of
plea.
A defendant, who was sentenced as a recidivist to life imprisonment without the possibility of parole, failed to show that defense counsel was ineffective for failing to inform defendant that defendant would likely receive a mandatory sentence of life without parole if defendant rejected a plea offer because defendant failed to show that, when defendant rejected the plea, defendant was amenable to the offer made by the state. Carson v. State, 264 Ga. App. 763, 592 S.E.2d 161, 2003 Ga. App. LEXIS 1497 (2003), cert. denied, No. S04C0746, 2004 Ga. LEXIS 363 (Ga. Apr. 27, 2004). Court shall not accept a plea of guilty without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea. Purvis v. Connell, 227 Ga. 764, 182 S.E.2d 892, 1971 Ga. LEXIS 836 (1971), overruled on other grounds, Lejeune v. McLaughlin, 296 Ga. 291, 766 S.E.2d 803, 2014 Ga. LEXIS 938 (2014). Guilty plea freely and voluntarily
entered.
Because a trial judge informed defendant of the charges as well as the possible penalties for conviction on those charges, defendant’s guilty plea was freely and voluntarily entered. Hart v. State, 272 Ga. App. 754, 613 S.E.2d 107, 2005 Ga. App. LEXIS 179 (2005), cert. denied, No. S05C1327, 2005 Ga. LEXIS 601 (Ga. Sept. 19, 2005). Use of statements where counsel
denied when made.
Neither inculpatory statements nor exculpatory statements such as alibis may be used against an accused if the accused was denied counsel when the statements were made. Echols v. Caldwell, 334 F. Supp. 1356, 1971 U.S. Dist. LEXIS 10331 (N.D. Ga. 1971). Statements to police in absence of
counsel by defendant who has counsel.
Where a defendant is known by police to be represented by counsel, it is not the case that anything the defendant says to police in absence of counsel is per se inadmissible, whether “voluntary” or not. Pierce v. State, 235 Ga. 237, 219 S.E.2d 158, 1975 Ga. LEXIS 842 (1975).
Suspect voluntarily speaking to police.
Nothing in the sixth amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on the suspect’s own, to speak with police in the absence of an attorney. Starks v. State, 262 Ga. 244, 416 S.E.2d 520, 1992 Ga. LEXIS 428 (1992). Defendant acting on advice of
deputy sheriff rather than counsel.
Defendant’s right to counsel was not violated because a sheriff’s deputy, without the knowledge of the defendant’s trial counsel, advised the defendant to go to trial. Hammonds v. State, 218 Ga. App. 423, 461 S.E.2d 589, 1995 Ga. App. LEXIS 731 (1995). When conversations with counsel have been overheard, the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial. United States v. Kilrain, 566 F.2d 979, 1978 U.S. App. LEXIS 12841 (5th Cir.), cert. denied, 439 U.S. 819, 99 S. Ct. 80, 58 L. Ed. 2d 109, 1978 U.S. LEXIS 2567 (1978). Pretrial detainees are denied meaningful access to their counsel in violation of U.S. Const., amend. 6 if, in the facilities provided for attorney-client conferences, conversation is difficult and privacy is impossible, as where the facilities provided by the prison for attorney-client conferences are partitioned rooms in which the attorney and client, in order to engage in conversation at all, have to converse at a level loud enough to be overheard by other prisoners and prison employees. Wright v. State, 250 Ga. 570, 300 S.E.2d 147, 1983 Ga. LEXIS 588 (1983). Electronic surveillance of suspect
not in custody.
The rights to remain silent and to have the assistance of counsel do not apply to electronic surveillance of a suspect who is not in custody. Granese v. State, 232 Ga. 193, 206 S.E.2d 26, 1974 Ga. LEXIS 905 (1974). Statements of defendant overheard
by concealed officers.
Evidence of statements made by the defendant in a conversation overheard by the arresting officers who had concealed themselves, as planned between them and the person with whom the defendant talked, does not amount to evidence given by the defendant involuntarily and without the advice of counsel, and is not coerced from the defendant in violation of the defendant’s rights not to be compelled to be a witness against himself. Blackwell v. State, 113 Ga. App. 536, 148 S.E.2d 912, 1966 Ga. App. LEXIS 1126 (1966). Government deliberately violated the defendant’s Sixth Amendment right to counsel when it surreptitiously recorded the defendant’s telephone conversations with a government informant following the defendant’s indictment and during the period of the defendant’s pretrial detention. United States v. Terzado-Madruga, 897 F.2d 1099, 1990 U.S. App. LEXIS 4655 (11th Cir. 1990).
Jailhouse informants.
To prove a Sixth Amendment violation in a jailhouse informant case, a defendant must show that the informant was a government agent and that the informant deliberately elicited incriminating statements from the defendant. Baxter v. Thomas, 45 F.3d 1501, 1995 U.S. App. LEXIS 2400 (11th Cir.), cert. denied, 516 U.S. 946, 116 S. Ct. 385, 133 L. Ed. 2d 307, 1995 U.S. LEXIS 7258 (1995). Jailhouse informant’s contacts with the defendant did not give rise to a constitutional violation of the defendant’s right to counsel because all three detectives who interviewed the informant testified unequivocally that the informant initiated all contacts with them; that they did not instruct the informant to get information Right to Counsel (Cont’d) 1. In General (Cont’d) from the defendant or request that the informant do so; and that they made no promises and offered no benefits in exchange for information regarding the defendant; thus, the informant’s testimony regarding the defendant’s jailhouse statements about the defendant’s case, about African-Americans, and about inter-racial dating was properly not suppressed. Rai v. State, 297 Ga. 472, 775 S.E.2d 129, 2015 Ga. LEXIS 505 (2015). Trial court did not err by admitting the testimony of a jailhouse informant over defendant’s objection because absent an actual agreement between the informant and the state to obtain information on behalf of the state, defendant could not show that the informant was an agent for the state. Bates v. State, 317 Ga. 809, 896 S.E.2d 581, 2023 Ga. LEXIS 262 (2023). Interrogation of a witness known to be represented by counsel in another case is permitted. Drake v. State, 245 Ga. 798, 267 S.E.2d 237, 1980 Ga. LEXIS 940 (1980). Although Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), stands for the proposition that it violates the accused’s right to counsel for the police to interview the accused outside the defense attorney’s presence once it is known the accused is represented by counsel, that decision does not prohibit questioning where the investigation concerns an offense separate from that in which the accused is known to be represented by counsel. Spence v. State, 252 Ga. 338, 313 S.E.2d 475, 1984 Ga. LEXIS 665 (1984). Payment for expert witnesses for
indigents.
Defense counsel is not required to pay out of counsel’s own pocket for expert psychiatric witnesses for an indigent defendant. Bowden v. Zant, 244 Ga. 260, 260 S.E.2d 465, 1979 Ga. LEXIS 1207 (1979), cert. denied, 444 U.S. 1103, 100 S. Ct. 1068, 62 L. Ed. 2d 788 (1980). The exact parameters of an indigent defendant’s constitutional right to expert assistance in the preparation of the defense have not yet been fully developed. The right to counsel is an expanding concept in a developing jurisprudence in the sense that new areas are being brought within its scope as they are reached factually. Blake v. Zant, 513 F. Supp. 772, 1981 U.S. Dist. LEXIS 13559 (S.D. Ga. 1981), aff’d, 984 F.2d 1129, 1993 U.S. App. LEXIS 2267 (11th Cir. 1993). A defendant does not have a right to effective assistance of an expert witness which is distinct from the right to effective assistance of counsel. Turpin v. Bennett, 270 Ga. 584, 513 S.E.2d 478, 1999 Ga. LEXIS 178 (1999). Right to have psychiatrist examine
defendant.
Where the defendant has twice been committed to a mental institution, the right to have a psychiatrist appointed to examine the defendant is a right cognate to the effective assistance of counsel under U.S. Const., amend. 6. United States ex rel. Huguley v. Martin, 325 F. Supp. 489, 1971 U.S. Dist. LEXIS 14132 (N.D. Ga. 1971). tional right to counsel during state’s psychiatric examination. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806, 1983 Ga. LEXIS 938 (1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475, 1984 U.S. LEXIS 232 (1984). Advance notice and opportunity to
Defendant does not have constituconsult concerning defendant’s psychiatric examination.
While there was no constitutional violation due to defense counsel’s absence from the defendant’s psychiatric examination, the conviction and sentencing had to be vacated as a result of the lack of advance notice to counsel and of the lack of the opportunity to consult. Godfrey v. Francis, 613 F. Supp. 747, 1985 U.S. Dist. LEXIS 18352 (N.D. Ga. 1985), aff’d, 836 F.2d 1557, 1988 U.S. App. LEXIS 453 (11th Cir. 1988). Refusal to disclose to defendant the statements made to a psychologist by a prosecution witness during hypnotic sessions does not deny the defendant due process of law nor effective assistance of counsel because such statements are inadmissible at trial. Creamer v. State, 232 Ga. 136, 205 S.E.2d 240, 1974 Ga. LEXIS 886 (1974). Denial of appellant’s request to use an unofficial court reporter at the appellant’s expense does not deprive the appellant of the constitutional right to a fair trial. Estep v. State, 129 Ga. App. 909, 201 S.E.2d 809, 1973 Ga. App. LEXIS 1194 (1973). Right to consultation with counsel
during recess.
Where defendant had completed the defendant’s direct testimony, an order prohibiting consultation with the doctor’s counsel about the defendant’s ongoing testimony during a weekend recess did not violate the defendant’s right to assistance of counsel since the defendant and the defendant’s counsel did not indicate a desire to consult over the weekend and no objection to the order was made at the time. Parker v. State, 220 Ga. App. 303, 469 S.E.2d 410, 1996 Ga. App. LEXIS 179 (1996). der the influence in determining an appropriate sentence for a subsequent conviction does not violate any constitutional right to counsel because the driving under the influence statute (O.C.G.A. § 40-6-391) is not an enhanced penalty statute since it neither increases the maximum confinement authorized nor converts a misdemeanor offense into a felony. Moore v. State, 181 Ga. App. 548, 352 S.E.2d 821, 1987 Ga. App. LEXIS 2545, cert. denied, 484 U.S. 904, 108 S. Ct. 247, 98 L. Ed. 2d 204, 1987 U.S. LEXIS 4268 (1987). lation of the constitutional right of counsel should be made at the earliest practicable moment. Smith v. State, 255 Ga. 654, 341 S.E.2d 5, 1986 Ga. LEXIS 624 (1986). Denial of right must be raised in
Consideration of person’s prior uncounseled convictions for driving un-Any contention concerning the viotrial court.
From the date this opinion is published in the official advance sheets any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion, and such cases will no longer be remanded. Thompson v. State, 257 Ga. 386, 359 S.E.2d 664, 1987 Ga. LEXIS 856 (1987). Defendant’s diligence in obtaining
counsel.
Where trial of defendant had been continued in order to accommodate defendant’s request to obtain different counsel and defendant had been told when the case would be tried and warned of the dangers of proceeding without counsel and the defendant appeared without counsel on the date set, before proceeding to trial the court should have made inquiry as to whether defendant’s failure to obtain counsel was attributable to the defendant’s own lack of diligence. Hasty v. State, 210 Ga. App. 722, 437 S.E.2d 638, 1993 Ga. App. LEXIS 1334 (1993). Evidence that defendant made numerous unsuccessful attempts to retain counsel and that the defendant’s inability to do so was because of lack of funds demanded a finding of due diligence as a matter of law. Hasty v. State, 215 Ga. App. 155, 450 S.E.2d 278, 1994 Ga. App. LEXIS 1156 (1994). tained in violation of right to counsel. See United States v. Kelly, 749 F.2d 1541, 1985 U.S. App. LEXIS 27493 (11th Cir.), cert. denied, 472 U.S. 1029, 105 S. Ct. 3506, 87 L. Ed. 2d 636, 1985 U.S. LEXIS 2316 (1985).
Incriminating statements not ob-Advice concerning testimony by accused.
Despite defendant’s contentions that defendant’s trial counsel was ineffective in not advising the defendant in any meaningful way about the decision of whether to testify, defendant failed to show any error; furthermore, when asked by the court about whether or not defendant wished to testify, defendant stated that defendant understood defendant’s right, had discussed the matter with counsel, and decided in the end not to do so. Sims v. State, 278 Ga. 587, 604 S.E.2d 799, 2004 Ga. LEXIS 998 (2004).
Admission of non-privileged attorney-client communications.
Defendant’s claim of violation of the right to counsel was without merit because the defendant was charged in a one count indictment with failure to appear to begin serving a lawfully imposed sentence and the trial court denied the defendant’s motion in limine to prevent the admission of testimony by the defendant’s former attorney that the attorney had informed the defendant of the proper surrender date on the ground that such a communication was not protected by the attorney-client Right to Counsel (Cont’d) 1. In General (Cont’d) privilege. United States v. Innella, 821 F.2d 1566, 1987 U.S. App. LEXIS 9718 (11th Cir. 1987). Right with regard to videotaped
statement.
Defendant’s invocation of the right to counsel with regard to a videotaped statement was an invocation of a limited right only, which the police were required to honor to no greater extent than the express limits of the reservation. Ford v. State, 257 Ga. 461, 360 S.E.2d 258, 1987 Ga. LEXIS 1032 (1987), cert. denied, 485 U.S. 943, 108 S. Ct. 1124, 99 L. Ed. 2d 285, 1988 U.S. LEXIS 1145 (1988).
Conversation with government informant.
Regardless of who initiates the conversation, the Sixth Amendment is violated whenever a government informant actively engages a defendant in conversation that is likely to elicit incriminating statements about the defendant’s upcoming trial. United States v. Terzado-Madruga, 897 F.2d 1099, 1990 U.S. App. LEXIS 4655 (11th Cir. 1990). In order to establish a prisoner’s claim that the state violated the prisoner’s right to counsel by using jailhouse informants deliberately to elicit incriminating information from the prisoner in the absence of counsel, the prisoner must show (1) that a fellow inmate was a government agent; and (2) that the inmate deliberately elicited incriminating statements from the prisoner. Depree v. Thomas, 946 F.2d 784, 1991 U.S. App. LEXIS 26153 (11th Cir. 1991). Defendant did not receive ineffective assistance of counsel when trial counsel’s objection was not made contemporaneously to testimony because despite counsel failing to object contemporaneously, the trial court acknowledged the objection by admonishing the prosecutor not to ask any more questions regarding the defendant’s incarceration; thus, even if counsel was deficient for the delayed objection, the defendant was not prejudiced thereby. Kitchens v. State, 289 Ga. 242, 710 S.E.2d 551, 2011 Ga. LEXIS 429 (2011). Burden and standard of proof of
lack of benefit of counsel.
When an accused pleads guilty to criminal offenses and afterwards seeks release from prison on the ground that the accused did not at the time they were imposed upon the accused have the benefit of counsel, the accused has the burden of establishing that contention by a preponderance of the evidence. Cobb v. Dutton, 222 Ga. 11, 148 S.E.2d 399, 1966 Ga. LEXIS 384 (1966). The burden in a habeas corpus proceeding is on the petitioner to demonstrate that the petitioner was unaware of the disadvantages to be encountered by lack of counsel. Taylor v. Hopper, 596 F.2d 1284, 1979 U.S. App. LEXIS 13939 (5th Cir. 1979), cert. denied, 444 U.S. 1083, 100 S. Ct. 1039, 62 L. Ed. 2d 768, 1980 U.S. LEXIS 800 (1980). Denial of a requested continuance, after an attorney volunteered to assume the representation of an accused who had been told the accused was not eligible for appointed counsel, was denial of counsel. Butler v. State, 198 Ga. App. 217, 401 S.E.2d 43, 1990 Ga. App. LEXIS 1576 (1990), cert. denied, No. S91C0518, 1991 Ga. LEXIS 455 (Ga. Jan. 31, 1991).
Response to deadlocked jury.
Even if the failure of the trial court to inform defense counsel of the contents of a note from a deadlocked jury and to seek comment on or input in the formulation of the trial court’s response was a violation of the defendant’s Sixth Amendment right to counsel, any error was harmless because the ensuing Allen charge, though partly inaccurate, was otherwise balanced and fair and, thus, did not constitute reversible error. Lowery v. State, 282 Ga. 68, 646 S.E.2d 67, 2007 Ga. LEXIS 400, cert. denied, 552 U.S. 999, 128 S. Ct. 508, 169 L. Ed. 2d 355, 2007 U.S. LEXIS 11917 (2007).
Federal abstention.
The court of appeals abstained from exercising its equitable jurisdiction to hear a class action claim that Georgia’s indigent defense system was inherently incapable of providing constitutionally adequate services and that the system therefore violated the sixth, eighth, and fourteenth amendments to the United States Constitution. Luckey v. Miller, 976 F.2d 673, 1992 U.S. App. LEXIS 28489 (11th Cir. 1992). No ineffective assistance based on
witness’s ten year old conviction.
Defense counsel was not ineffective for failing to object to the trial court’s exclusion of a state witness’s conviction without conducting the balancing test required by former O.C.G.A. § 24-9-84.1(a)(1) (see now O.C.G.A. § 24-6-609) because the defendant made no showing that the prior conviction would have been admitted notwithstanding the stringent limitations in former § 24-9-84.1(b) on the use of a conviction more than ten years old. Chance v. State, 291 Ga. 241, 728 S.E.2d 635, 2012 Ga. LEXIS 580 (2012). 2. Attachment of Right a. In General
Stages at which right attaches generally.
It is the right of a defendant to have counsel with the defendant at every stage during the trial of a case. Coates v. Lawrence, 46 F. Supp. 414, 1942 U.S. Dist. LEXIS 2548 (D. Ga.), aff’d, 131 F.2d 110, 1942 U.S. App. LEXIS 2727 (5th Cir. 1942); Leverette v. State, 104 Ga. App. 743, 122 S.E.2d 745, 1961 Ga. App. LEXIS 786 (1961). The mandate of U.S. Const., amend. 6 that every accused in a criminal prosecution has the right to the assistance of counsel for the defense at every critical stage of the case as an essential component of due process in a trial in a state court compels every agency of government concerned with the operation of the courts to acknowledge the necessity for and implement the means by which this necessary public purpose must be accomplished. The provisions of the state Constitution make the same demand. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, 1966 Ga. App. LEXIS 1062, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304, 1966 U.S. LEXIS 196 (1966). An accused requires the guiding hand of counsel at every step in the proceedings against the accused. Phillips v. Smith, 300 F. Supp. 130, 1969 U.S. Dist. LEXIS 8396 (S.D. Ga. 1969). The accused’s right to counsel includes the benefit of counsel at all the critical stages of the case and sufficiently prior to the trial for adequate preparation. Rose v. State, 128 Ga. App. 370, 196 S.E.2d 683, 1973 Ga. App. LEXIS 1482 (1973). Attachment of right in felony cases
generally.
The right of a person accused of a felony to the aid of counsel at all critical stages of proceedings designed to bring the accused to trial is fundamental and must be protected by the state. This doctrine requires counsel at least at the stage of arraignment in noncapital cases as well as in capital felony cases. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, 1964 Ga. App. LEXIS 940, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337, 1964 U.S. LEXIS 180 (1964). The right of a person accused of a felony to the aid of counsel at all critical stages of criminal proceedings, before trial, and prosecute an appeal provided by state law, is fundamental and must be protected by the state. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, 1966 Ga. App. LEXIS 1062, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304, 1966 U.S. LEXIS 196 (1966) (For comment, see 18 Mercer L. Rev. 477 (1967)). A person charged with a felony in a state court has an unconditional and absolute constitutional right to a lawyer. This right attaches at the pleading stage of the criminal process, and may be waived only by voluntary and knowing action. Boyd v. Dutton, 405 U.S. 1, 92 S. Ct. 759, 30 L. Ed. 2d 755, 1972 U.S. LEXIS 93 (1972). At the very least, every person charged with a felony has an unconditional and absolute constitutional right to have available the services of an attorney at every stage of the trial. Bradley v. State, 135 Ga. App. 865, 219 S.E.2d 451, 1975 Ga. App. LEXIS 1853 (1975).
When right commences.
Right to counsel under U.S. Const., amend. 6 and U.S. Const., amend. 14, attaches only at or after the time that adversary judicial proceedings have been initiated against a person. West v. State, 229 Ga. 427, 192 S.E.2d 163, 1972 Ga. LEXIS 632 (1972). Right to counsel attaches only after the onset of formal prosecutorial proceedings. Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414, 1972 Ga. LEXIS 773 (1972); Hicks v. State, 256 Ga. 266, 347 S.E.2d 589, 1986 Ga. LEXIS 788 (1986).
Right not extended to probation revocation proceedings.
Probationer had no U.S. Const., amend. 6 right to Right to Counsel (Cont’d) 2. Attachment of Right (Cont’d) a. In General (Cont’d) counsel at a revocation proceeding because it was not a stage of a criminal prosecution, and only had a more limited due process right to counsel under U.S. Const., amend. 14; trial court’s flawed reasoning for refusing to appoint counsel for the defendant in a probation revocation proceeding was harmless because the defendant admitted to having committed another crime, did not claim any reasons justifying or mitigating the violations, capably spoke for the defendant, and failed to show a lack of fundamental fairness. Banks v. State, 275 Ga. App. 326, 620 S.E.2d 581, 2005 Ga. App. LEXIS 968 (2005). Effect of execution of eligibility
form for court-appointed counsel.
Defendant’s execution of an “eligibility affidavit form,” essentially a financial statement made for the purpose of informing county indigent defense program of an accused’s financial condition, constituted a request for court-appointed counsel once judicial proceedings were initiated and did not constitute an invocation of the right to counsel for Fifth Amendment purposes; thus, a statement given to police while in custody was not taken in violation of defendant’s constitutional rights because at the time the defendant completed the form, no adversarial criminal proceeding had been initiated against the defendant and no Sixth Amendment concerns had come into play. State v. Hatcher, 264 Ga. 556, 448 S.E.2d 698, 1994 Ga. LEXIS 836 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1405, 131 L. Ed. 2d 291, 1995 U.S. LEXIS 2307 (1995). An application for appointment of counsel prior to the initiation of an adversarial judicial proceeding against defendant did not constitute the invocation of the right to counsel for fifth amendment purposes. Turner v. State, 267 Ga. 149, 476 S.E.2d 252, 1996 Ga. LEXIS 728 (1996), overruled in part, Byrd v. State, 314 Ga. 21, 875 S.E.2d 643, 2022 Ga. LEXIS 178 (2022). Defendants’ right to counsel is not superior to state’s right to try the
defendant.
The sixth amendment right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. Buttrum v. Black, 721 F. Supp. 1268, 1989 U.S. Dist. LEXIS 11272 (N.D. Ga. 1989), aff’d, 908 F.2d 695, 1990 U.S. App. LEXIS 12655 (11th Cir. 1990). sel at every critical stage of criminal proceedings, including the first appeal, under U.S. Const., amend. 6 and U.S. Const., amend. 14. Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683, 1974 Ga. LEXIS 712 (1974). Indigents must be informed of the right to counsel during any critical
Indigents must be furnished counstage preceding trial.
What will be a critical stage will vary from case to case and circumstance to circumstance. Lumpkin v. Smith, 309 F. Supp. 1325, 1970 U.S. Dist. LEXIS 12841 (N.D. Ga. 1970), rev’d, 439 F.2d 1084, 1971 U.S. App. LEXIS 11311 (5th Cir. 1971).
No attorney required where request ambiguous.
Defendant’s motion to suppress inculpatory custodial statements that defendant made after the defendant was informed of the defendant’s Miranda rights and signed a waiver of the defendant’s rights was properly denied where the defendant did not unequivocally request an attorney and any ambivalent statements made by the defendant were not deemed assertions of the defendant’s right; there was no constitutional requirement under U.S. Const., amend. 6 for the detective to ask clarifying questions following the defendant’s ambiguous request for the attorney. Braham v. State, 260 Ga. App. 533, 580 S.E.2d 256, 2003 Ga. App. LEXIS 326 (2003), cert. denied, No. S03C1136, 2003 Ga. LEXIS 768 (Ga. Sept. 8, 2003). Denial of defendant’s suppression motion as to defendant’s videotaped statement was proper as the statement was ambiguous as to whether defendant invoked defendant’s right to counsel and after the disputed invocation of defendant’s right to counsel, defendant agreed to answer questions; the trial court’s interpretation of the disputed statement was not clearly erroneous, and even if the admission of the videotaped statement was in error, it would not warrant reversal because the statement was cumulative of other evidence. Christopher v. State, 262 Ga. App. 257, 585 S.E.2d 107, 2003 Ga. App. LEXIS 761 (2003), cert. denied, No. S03C1545, 2003 Ga. LEXIS 927 (Ga. Oct. 20, 2003).
Assertion by accused of right.
If an accused asserts the right to counsel during custodial interrogation, the accused is not subject to further interrogation by the authorities until counsel has been made available to the accused, unless the accused initiates further communications, exchanges, or conversations with the police. Ford v. State, 257 Ga. 461, 360 S.E.2d 258, 1987 Ga. LEXIS 1032 (1987), cert. denied, 485 U.S. 943, 108 S. Ct. 1124, 99 L. Ed. 2d 285, 1988 U.S. LEXIS 1145 (1988). Because the defendant advised a justice of the peace that the defendant would get the defendant’s own attorney rather than have the state appoint one for the defendant, the defendant thereby “asserted” the defendant’s right to counsel, and any waiver of the right to counsel for a subsequent police-initiated interrogation was invalid. Fleming v. Kemp, 837 F.2d 940, 1988 U.S. App. LEXIS 1019 (11th Cir. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1764, 104 L. Ed. 2d 200, 1989 U.S. LEXIS 1986 (1989). No need to appoint counsel where
defendant pleads guilty.
There is no necessity for the court to appoint an attorney to represent a defendant when the defendant intelligently pleads guilty to an indictment which the defendant understands. Adkins v. Sanford, 120 F.2d 471, 1941 U.S. App. LEXIS 3494 (5th Cir. 1941). mates from giving each other legal
Validity of regulation barring inassistance.
Unless and until the state provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation barring inmates from furnishing such assistance to other prisoners. Lepiscopo v. United States, 469 F.2d 650, 1972 U.S. App. LEXIS 6504 (5th Cir. 1972). ployed by an attorney is not an unjustifiable restriction on the right of access to the courts. Reed v. Evans, 455 F. Supp. 1139, 1978 U.S. Dist. LEXIS 15960 (S.D. Ga. 1978), aff’d, 592 F.2d 1189, 1979 U.S. App. LEXIS 15889 (5th Cir. 1979).
Prison’s requirement that a paralegal who interviews prisoners be em-Proceedings before selective service board.
There is no right to counsel under U.S. Const., amend. 6 in the noncriminal administrative proceedings before the selective service board. Camp v. United States, 413 F.2d 419, 1969 U.S. App. LEXIS 11733 (5th Cir.), cert. denied, 396 U.S. 968, 90 S. Ct. 451, 24 L. Ed. 2d 434, 1969 U.S. LEXIS 196 (1969).
Company level disciplinary hearing.
There is no independent legal right to counsel or other aspects of due process at a company level disciplinary hearing. Clark v. Seaboard Coast Line R.R., 332 F. Supp. 380, 1970 U.S. Dist. LEXIS 9091 (N.D. Ga. 1970). b. Pre-Trial Right to counsel does not arise until adversary judicial proceedings are commenced. Brown v. State, 181 Ga. App. 130, 351 S.E.2d 520, 1986 Ga. App. LEXIS 2348 (1986). The right to counsel attaches only at or after formal adversary proceedings. McCounly v. State, 191 Ga. App. 266, 381 S.E.2d 552, 1989 Ga. App. LEXIS 554 (1989). Where a custodial interrogation took place prior to any adversarial proceedings being initiated, the Sixth Amendment right to counsel had not attached. Beck v. State, 235 Ga. App. 707, 510 S.E.2d 368, 1998 Ga. App. LEXIS 1596 (1998).
Charges not pending.
There was no violation of U.S. Const., amend. 6 with respect to the admission of written and recorded statements made by the defendant to a police officer regarding the investigation of an alleged hit-and-run accident, which were later determined to be false, as there were no charges yet pending against the defendant and the statements were made in a non-custodial interview, such that the right to counsel had not yet attached; there was accordingly no ineffectiveness of counsel for failing to seek suppression of the statements. Harvill v. State, 296 Ga. App. Right to Counsel (Cont’d) 2. Attachment of Right (Cont’d) b. Pre-Trial (Cont’d) 453, 674 S.E.2d 659, 2009 Ga. App. LEXIS 237 (2009).
What constitutes custodial interrogation.
The custodial interrogation which requires investigating officers to advise the person interrogated of constitutional rights to counsel and against self-incrimination is that interrogation which occurs after the investigation has focused on an accused. Boutwell v. State, 256 Ga. 63, 344 S.E.2d 222, 1986 Ga. LEXIS 711 (1986).
Non-custodial polygraph examination.
Stipulation permitting the admissibility of polygraph examination results was valid though secured without advice of counsel since defendant was not in custody for Miranda purposes at the time the stipulation was obtained or the test administered. Brown v. State, 209 Ga. App. 314, 433 S.E.2d 321, 1993 Ga. App. LEXIS 844 (1993), cert. denied, No. S93C1591, 1994 Ga. LEXIS 530 (Ga. Feb. 18, 1994). tute an “adversary judicial proceeding” and, therefore, does not trigger U.S. Const., amend. 6’s right to counsel. Jarrell v. Balkcom, 735 F.2d 1242, 1984 U.S. App. LEXIS 21326 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331, 85 L. Ed. 2d 848, 1985 U.S. LEXIS 1823 (1985). Adversarial judicial proceedings do not commence with the issuance of an arrest warrant, because an arrest warrant is issuable in an ex parte proceeding. Ford v. State, 256 Ga. 375, 349 S.E.2d 361, 1986 Ga. LEXIS 853 (1986). lice-initiated interrogations after a defendant has asserted the Fifth Amendment right to counsel also applies when a defendant has asserted the Sixth Amendment right to counsel at an arraignment or similar proceedings. Collins v. Zant, 892 F.2d 1502, 1990 U.S. App. LEXIS 161 (11th Cir.), cert. denied, 498 U.S. 881, 111 S. Ct. 225, 112 L. Ed. 2d 180, 1990 U.S. LEXIS 4813 (1990).
Mere verbal arrest does not consti-Bright-line rule that prohibits po-Right to counsel during investigative stage of proceedings.
U.S. Const., amend. 6 does not give to the accused the absolute right to the services of a lawyer during the investigative stage of the proceedings against the accused. Sims v. State, 221 Ga. 190, 144 S.E.2d 103, 1965 Ga. LEXIS 416 (1965), rev’d, 385 U.S. 538, 87 S. Ct. 639, 17 L. Ed. 2d 593, 1967 U.S. LEXIS 2451 (1967). Defendant was not deprived of counsel in violation of Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 when defendant made statements to police in the murder case after the defendant had been assigned counsel on a theft charge that occurred in a different county hours after the murder; the appointment of counsel in the theft case did not extend to the murder case, as they were not closely related, and the theft involved different victims from the murder, occurred well after the murder, and occurred at a different location than the murder. Chenoweth v. State, 281 Ga. 7, 635 S.E.2d 730, 2006 Ga. LEXIS 596 (2006). U.S. Const., amend. 6 guarantees the right to counsel at a critical pretrial confrontation where the results might well determine the fate of an accused and where the absence of counsel might derogate from the accused’s right to a fair trial. Baier v. State, 124 Ga. App. 334, 183 S.E.2d 622, 1971 Ga. App. LEXIS 913 (1971). Pretrial, post-indictment corporeal identification is a critical stage in a criminal prosecution at which U.S. Const., amend. 6 entitles the accused to the presence of counsel. Foster v. State, 156 Ga. App. 672, 275 S.E.2d 745, 1980 Ga. App. LEXIS 3166 (1980). To require a line-up in the absence of counsel and in the absence of an intelligent waiver violates U.S. Const., amend. 6. Schmidt v. United States, 380 F.2d 22, 1967 U.S. App. LEXIS 5755 (5th Cir. 1967), cert. denied, 390 U.S. 908, 88 S. Ct. 830, 19 L. Ed. 2d 876, 1968 U.S. LEXIS 2672 (1968); Ford v. State, 227 Ga. 279, 180 S.E.2d 545, 1971 Ga. LEXIS 670 (1971). Defendant does not have a right under U.S. Const., amend. 6 to counsel at a preindictment line-up. Disby v. State, 238 Ga. 178, 231 S.E.2d 763, 1977 Ga. LEXIS 948 (1977); Thornton v. State, 238 Ga. 160, 231 S.E.2d 729, 1977 Ga. LEXIS 940 (1977); Young v. State, 243 Ga. 546, 255 S.E.2d 20, 1979 Ga. LEXIS 984 (1979); Johnson v. State, 153 Ga.App. 398, 265 S.E.2d 331, 1980 Ga. App. LEXIS 1820 (1980); Davis v. State, 155 Ga. App. 511, 271 S.E.2d 648, 1980 Ga. App. LEXIS 2643 (1980); Arnold v. State, 155 Ga. App. 569, 271 S.E.2d 702, 1980 Ga. App. LEXIS 2678 (1980); Davis v. State, 176 Ga. App. 650, 337 S.E.2d 431, 1985 Ga. App. LEXIS 2936 (1985); Snider v. State, 200 Ga. App. 12, 406 S.E.2d 542, 1991 Ga. App. LEXIS 766 (1991); Campbell v. State, 206 Ga. App. 456, 426 S.E.2d 45, 1992 Ga. App. LEXIS 1675 (1992). Where, at the time a witness observed the defendant in a physical lineup, adversarial criminal proceedings had not begun, defendant was not entitled to counsel at the lineup proceeding. Lee v. State, 165 Ga. App. 549, 301 S.E.2d 906, 1983 Ga. App. LEXIS 3168 (1983). The defendant does not have the right to have counsel present at the lineup if the lineup takes place prior to indictment and, therefore, prior to the commencement of adversary judicial proceedings. Harris v. State, 168 Ga. App. 159, 308 S.E.2d 406, 1983 Ga. App. LEXIS 3381 (1983). Where defendant enumerated as error the failure of the state to provide the defendant with counsel at the physical lineup, it was held that the right to counsel attaches only to corporeal identifications conducted at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment—because the initiation of such proceedings marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable. Houston v. State, 187 Ga. App. 335, 370 S.E.2d 178, 1988 Ga. App. LEXIS 679 (1988). Defendant, who had been charged with crimes against a first victim, but who had not been charged with crimes committed on second and third victims, did not have any right to counsel at a lineup at which the defendant was identified by the second and third victims. Ferguson v. State, 211 Ga. App. 218, 438 S.E.2d 682, 1993 Ga. App. LEXIS 1483 (1993). Defendant has a constitutional right to have counsel present at a post-indictment line-up. Philpot v. State, 128 Ga. App. 243, 196 S.E.2d 358, 1973 Ga. App. LEXIS 1449 (1973). Presence of counsel at a line-up at or after the beginning of adversary
judicial proceedings is required.
Godbee v. State, 232 Ga. 259, 206 S.E.2d 432, 1974 Ga. LEXIS 924 (1974). Presence of counsel not required during investigatory stages of the case. Godbee v. State, 232 Ga. 259, 206 S.E.2d 432, 1974 Ga. LEXIS 924 (1974); Jones v. State, 232 Ga. 771, 208 S.E.2d 825, 1974 Ga. LEXIS 1085 (1974), cert. denied, 419 U.S. 1115, 95 S. Ct. 795, 42 L. Ed. 2d 814, 1975 U.S. LEXIS 311 (1975). Failure to provide counsel in a line-up held prior to either an indictment or commitment hearing is not error. Painter v. State, 237 Ga. 30, 226 S.E.2d 578, 1976 Ga. LEXIS 1136 (1976). Failure to provide counsel in a line-up held prior to either an indictment or commitment hearing does not invalidate a conviction. Hunt v. Hopper, 232 Ga. 53, 205 S.E.2d 303, 1974 Ga. LEXIS 858 (1974). Where the line-up is the result of a witness’s prior identification, any error in not appointing counsel to be present is harmless. Philpot v. State, 128 Ga. App. 243, 196 S.E.2d 358, 1973 Ga. App. LEXIS 1449 (1973).
Request for consent to search.
Because a request for a consent to search is not a trial-like confrontation where the absence of counsel poses a threat of substantial prejudice to the accused like that posed by the absence of counsel at a pretrial lineup, or a pretrial interrogation, but is instead more analogous to a request for other types of physical evidence, such as handwriting exemplars and blood samples, a consent to search situation is not a critical stage of the proceedings against an accused to which the right of counsel attaches. United States v. Hidalgo, 7 F.3d 1566, 1993 U.S. App. LEXIS 30960 (11th Cir. 1993). Right to Counsel (Cont’d) 2. Attachment of Right (Cont’d) b. Pre-Trial (Cont’d) Absence of counsel from pretrial
photographic identification.
A defendant’s rights under U.S. Const., amend. 6 are not violated because defense counsel is not present at a pretrial photographic identification. Morrison v. State, 129 Ga. App. 558, 200 S.E.2d 286, 1973 Ga. App. LEXIS 1051 (1973); United States v. Gidley, 527 F.2d 1345, 1976 U.S. App. LEXIS 12513 (5th Cir.), cert. denied, 429 U.S. 841, 97 S. Ct. 116, 50 L. Ed. 2d 110, 1976 U.S. LEXIS 2671 (1976).
Out-of-court photographic identification in defendant’s absence.
There is no established constitutional right to counsel at an out-of-court photographic identification where the defendant is not present. Carter v. State, 157 Ga. App. 445, 278 S.E.2d 93, 1981 Ga. App. LEXIS 1864 (1981). tification does not require presence of counsel. Carter v. State, 157 Ga. App. 445, 278 S.E.2d 93, 1981 Ga. App. LEXIS 1864 (1981).
Preindictment photographic iden-No right during appearance of witness before grand jury.
A witness has no constitutional or legal right to have counsel with the witness when the witness appears before a grand jury. In re Earnest, 90 F.R.D. 698, 1981 U.S. Dist. LEXIS 13293 (M.D. Ga. 1981). nied where fingerprints are taken in the absence of counsel. Ward v. United States, 486 F.2d 305, 1973 U.S. App. LEXIS 7462 (5th Cir. 1973), cert. denied, 416 U.S. 990, 94 S. Ct. 2398, 40 L. Ed. 2d 768, 1974 U.S. LEXIS 270 (1974). Taking of fingerprints is not a critical stage at which the accused is entitled to the presence of counsel. Wilson v. State, 158 Ga. App. 174, 279 S.E.2d 345, 1981 Ga. App. LEXIS 2115 (1981).
Constitutional rights are not de-Psychiatric examination where insanity defense not put forth.
The defendant was not deprived of the right to counsel at a “critical stage” of the proceedings against the defendant, a psychiatric examination, where the psychiatrist’s later trial testimony was merely a comment on the defendant’s sanity at the time of the crime, a legal presumption which the defendant never rebutted through the use of the insanity defense. Cape v. Francis, 741 F.2d 1287, 1984 U.S. App. LEXIS 19031 (11th Cir. 1984), cert. denied, 474 U.S. 911, 106 S. Ct. 281, 88 L. Ed. 2d 245, 1985 U.S. LEXIS 4056 (1985). Defendant’s first-appearance hearing before a magistrate was not a critical stage of prosecution within the context of the Sixth Amendment right to counsel, and the defendant was therefore not entitled to the presence of counsel at the hearing. State v. Simmons, 260 Ga. 92, 390 S.E.2d 43, 1990 Ga. LEXIS 138 (1990).
Voice identification procedure.
Where the defendant and others are requested by investigating officers to speak into a telephone for the purpose of identifying by the defendant’s voice which of them had made obscene telephone calls, and where the suspects comply, the situation does not amount to a critical stage of the defendant’s prosecution and the defendant is neither entitled to receive warning of the defendant’s rights under U.S. Const., amend. 6 or U.S. Const., amend. 5, nor are the defendant’s rights violated. Bradford v. State, 118 Ga. App. 457, 164 S.E.2d 264, 1968 Ga. App. LEXIS 1429 (1968), cert. denied, 394 U.S. 1020, 89 S. Ct. 1644, 23 L. Ed. 2d 46, 1969 U.S. LEXIS 1754 (1969). Preindictment voice identification procedure conducted in the absence of counsel does not violate a defendant’s rights under the defendant. Evans v. State, 235 Ga. 396, 219 S.E.2d 725, 1975 Ga. LEXIS 892 (1975); Arnold v. State, 155 Ga. App. 569, 271 S.E.2d 702, 1980 Ga. App. LEXIS 2678 (1980). Even if trial counsel was ineffective for failing to listen to a 9-1-1 tape prior to trial, given the overwhelming evidence supporting the defendant’s convictions, particularly the eyewitness testimony, the defendant failed to show that there was a reasonable probability that the outcome of the trial would have been different but for counsel’s error. Thus, this ineffectiveness claim failed. Taylor v. State, 295 Ga. App. 689, 673 S.E.2d 7, 2009 Ga. App. LEXIS 10, aff’d, 286 Ga. 328, 687 S.E.2d 409, 2009 Ga. LEXIS 678 (2009). Substitution of other counsel for
suspect’s own counsel at line-up.
Although the right to counsel at a line-up usually means a right to the suspect’s own counsel, provision for substitute counsel may be justified on the ground that the substitute counsel’s presence may eliminate the hazards which render the line-up a critical stage for the presence of the suspect’s own counsel. Summerville v. State, 226 Ga. 854, 178 S.E.2d 162, 1970 Ga. LEXIS 713 (1970). Immediacy and definiteness of an identification based on a description given within an hour of the crime can be sufficient to purge an in-court identification by a witness of the primary taint of line-up where the defendant is exhibited without benefit of counsel. Powers v. State, 126 Ga. App. 113, 189 S.E.2d 893, 1972 Ga. App. LEXIS 1068 (1972). Failure to provide counsel at a probable cause hearing may not be raised after conviction by petitioners for writ of habeas corpus. State v. Houston, 234 Ga. 721, 218 S.E.2d 13, 1975 Ga. LEXIS 1239 (1975). Commitment hearing is a critical stage of criminal proceedings and the defendant is entitled to counsel. State v. Houston, 234 Ga. 721, 218 S.E.2d 13, 1975 Ga. LEXIS 1239 (1975). Preliminary hearing is a critical stage of the state’s criminal process at which the accused is as much entitled to aid of counsel as at the trial itself. State v. Houston, 134 Ga. App. 36, 213 S.E.2d 139, 1975 Ga. App. LEXIS 1895, aff’d in part and rev’d in part, 234 Ga. 721, 218 S.E.2d 13, 1975 Ga. LEXIS 1239 (1975); Middlebrooks v. State, 135 Ga. App. 411, 218 S.E.2d 110, 1975 Ga. App. LEXIS 1684 (1975), rev’d, 236 Ga. 52, 222 S.E.2d 343, 1976 Ga. LEXIS 766 (1976). Indigent defendant’s constitutional rights are violated if the defendant is liminary hearing and the defendant suffers prejudice on the trial of the defendant’s case as a result. Dismuke v. State, 127 Ga. App. 835, 195 S.E.2d 259, 1973 Ga. App. LEXIS 1659 (1973). Waiver of right to counsel at pre-
denied appointed counsel at the preliminary hearing.
A defendant waives any objection to the court’s failure to appoint counsel to represent the defendant at a preliminary hearing by the counsel’s failure to object to such failure before or during the trial. Strickland v. United States, 447 F.2d 1341, 1971 U.S. App. LEXIS 8402 (5th Cir. 1971). Arraignment is a critical stage in a
criminal case.
The absence or lack of counsel at such time is a violation of the right of the accused to due process. In such cases courts do not stop to determine whether prejudice resulted. Phillips v. Smith, 300 F. Supp. 130, 1969 U.S. Dist. LEXIS 8396 (S.D. Ga. 1969).
Interrogation of incarcerated defendant.
Where a defendant has been confined in a cell for nearly three months and interrogation is directed at obtaining evidence to be used in prosecuting the defendant, this is a time when legal advice is critical to the defendant and there is, therefore, a duty of the interrogators to determine if the defendant has counsel and whether the defendant wants counsel present during the interrogation. Breach of this duty violates U.S. Const., amend. 6 and U.S. Const., amend. 5. Clifton v. United States, 341 F.2d 649, 1965 U.S. App. LEXIS 6537 (5th Cir. 1965). Statements made to parties which are not law enforcement officers or agents of the state do not trigger an accused’s right to counsel. Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685, 1982 Ga. LEXIS 1146, cert. denied, 459 U.S. 981, 103 S. Ct. 317, 74 L. Ed. 2d 293 (1982).
Statements to witness visiting defendant.
That FBI was aware that the witness was visiting the defendant and paid the witness’s travel expenses for these visits, without more, did not make such witness an agent for the government, and, therefore, the defendant had no right to have counsel present during such visits. Harper v. State, 249 Ga. 519, 292 S.E.2d 389, 1982 Ga. LEXIS 1156 (1982), superseded by statute as stated in Wilson v. State, 370 Ga. App. 399, 897 S.E.2d 597, 2024 Ga. App. LEXIS 22 (2024), superseded by statute as stated in Garrison v. State, 319 Ga. 711, 905 S.E.2d 629, 2024 Ga. LEXIS 178 (2024). Circumstances under which the government obtained statements from the defendant were not the functional equivalent of Right to Counsel (Cont’d) 2. Attachment of Right (Cont’d) b. Pre-Trial (Cont’d) government interrogation, where the statements occurred because the defendant’s relative, in a private capacity, urged the defendant to speak and the defendant agreed. United States v. Gaddy, 894 F.2d 1307, 1990 U.S. App. LEXIS 2295 (11th Cir. 1990). Right extends to stages when guilty
plea might be entered.
U.S. Const., amend. 6’s guarantee of counsel has been extended to the earlier stages of criminal proceedings when a guilty plea might be entered. McBryar v. McElroy, 510 F. Supp. 706, 1981 U.S. Dist. LEXIS 12844 (N.D. Ga. 1981) (but see Adkins v. Sanford, 120 F.2d 471 (5th Cir. 1941)). Right to counsel at hearings on mo-
tion to withdraw a guilty plea.
Defendant was entitled to a re-hearing on the defendant’s motion to withdraw a guilty plea where no inquiries or findings were made by the trial judge as to the defendant’s right to or waiver of counsel under the U.S. Const., amend. 6 at the motion hearings. Horne v. State, 254 Ga. App. 207, 561 S.E.2d 491, 2002 Ga. App. LEXIS 311 (2002). The trial court held a hearing on defendant’s motion to withdraw a guilty plea, but did not appoint an attorney to represent defendant or inform defendant of the right to counsel; thus, defendant’s constitutional right to counsel during the plea proceedings was denied. Kennedy v. State, 267 Ga. App. 314, 599 S.E.2d 290, 2004 Ga. App. LEXIS 628 (2004). Transfer hearings under former
Code 1933, § 24A-2501 (see O.C.G.A.
§ 15-11-30.2) are critically important proceedings affecting important rights of the juvenile. While hearing need not conform with all of the requirements of a criminal trial or even of the usual administrative hearing, the hearing must measure up to the essentials of due process and fair treatment. R.S. v. State, 156 Ga. App. 460, 274 S.E.2d 810, 1980 Ga. App. LEXIS 3067 (1980). Right to inspect juvenile’s records and files in former Code 1933, § 24A-
2501 (see O.C.G.A. § 15-11-30.2) transfer proceeding.
While former Code 1933, §§ 24A-3501 and 24A-3502 (see O.C.G.A. §§ 15-11-79 and 15-11-82) both require the consent of the court to inspect a juvenile’s records and files, a juvenile’s right to effective assistance of counsel limits the court’s discretion to withhold such consent from counsel representing the juvenile in a critically important transfer proceeding under former Code 1933, § 24A-2501 (see O.C.G.A. § 15-11-30.2). R.S. v. State, 156 Ga. App. 460, 274 S.E.2d 810, 1980 Ga. App. LEXIS 3067 (1980). Not only are a juvenile and the juvenile’s counsel entitled to know what information in the juvenile’s records and files the court relied upon in its adverse decision to transfer jurisdiction from the juvenile court, but they are also entitled to view those records and files considered but not relied upon by the juvenile judge. R.S. v. State, 156 Ga. App. 460, 274 S.E.2d 810, 1980 Ga. App. LEXIS 3067 (1980). No right to be present at govern-
ment’s pretrial conference with witnesses.
Counsel for the defendant has no right to be present when counsel for the government holds pretrial conferences with prospective witnesses. United States v. Ervin, 436 F.2d 1331, 1971 U.S. App. LEXIS 12329 (5th Cir. 1971).
Preliminary juror orientation.
The preliminary juror orientation session was not a “stage of the trial” or a “critical stage of the proceedings,” such as would require reversal based solely upon the absence of the appellant or the appellant’s counsel. Bowden v. State, 202 Ga. App. 802, 415 S.E.2d 527, 1992 Ga. App. LEXIS 182 (1992).
Evidentiary suppression hearing.
— Defendant can waive the right to be present at a suppression hearing and that right can be waived by the defendant’s counsel if the waiver is made in defendant’s presence, or with the defendant’s express authority, or if the defendant subsequently acquiesces to the waiver made by counsel. McGinnis v. State, 208 Ga. App. 354, 430 S.E.2d 618, 1993 Ga. App. LEXIS 497 (1993).
DUI tests.
There is no right to have counsel present when a person is asked to submit to a chemical test and when the person is asked to comply with the implied consent law. Bowman v. Palmour, 209 Ga. App. 270, 433 S.E.2d 380, 1993 Ga. App. LEXIS 843 (1993). In a prosecution for driving under the influence under O.C.G.A. § 40-6-391, a defendant is not entitled to the advice of counsel before deciding whether to submit to a breath test under the Georgia Implied Consent Law; the right to counsel under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XIV does not come into play until the proceedings reach a critical stage, and the breath test is not such a stage because it does not signal the beginning of a formal adversary hearing and because a lawyer can add little to the warnings required from the officer administering the test by O.C.G.A. § 40-6-392(a)(4). Rackoff v. State, 281 Ga. 306, 637 S.E.2d 706, 2006 Ga. LEXIS 978 (2006). c. Trial
Admission of defendant’s statements to experts.
It was not error to admit a defendant’s statements to an expert appointed pursuant to O.C.G.A. § 17-7-130.1 to examine the defendant upon the defendant’s assertion of an insanity defense because: (1) the state had a statutory right, under O.C.G.A. § 17-7-130.1, to call the expert to rebut the testimony of the defendant’s expert regarding the defendant’s mental state at the time of the crimes charged; (2) the defendant had no Sixth Amendment right to counsel during the expert’s examination or Fifth Amendment right requiring the repetition of the defendant’s Miranda rights during the interview with the appointed expert; and (3) the defendant’s counsel was aware of the psychiatric interview and chose not to attend. Walker v. State, 290 Ga. 467, 722 S.E.2d 72, 2012 Ga. LEXIS 134 (2012). When courtroom identification by tion in absence of counsel is admis-
witness who made pretrial identificasible.
Courtroom identification by a witness to whom the accused is exhibited in the absence of counsel before trial must be excluded unless it can be established that the evidence had an independent origin or that the error in admitting the identification was harmless. Baier v. State, 124 Ga. App. 334, 183 S.E.2d 622, 1971 Ga. App. LEXIS 913 (1971); Carmichael v. State, 228 Ga. 834, 188 S.E.2d 495, 1972 Ga. LEXIS 926 (1972); Powers v. State, 126 Ga. App. 113, 189 S.E.2d 893, 1972 Ga. App. LEXIS 1068 (1972); Gates v. State, 229 Ga. 796, 194 S.E.2d 412, 1972 Ga. LEXIS 776 (1972); Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414, 1972 Ga. LEXIS 773 (1972). Permitting appointed counsel to leave the courtroom during the state’s argument does not deprive a defendant of the right to counsel in violation of U.S. Const., amend. 6 where no actual prejudice is shown. Bryant v. Caldwell, 484 F.2d 65, 1973 U.S. App. LEXIS 7871 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S. Ct. 1572, 39 L. Ed. 2d 878, 1974 U.S. LEXIS 927 (1974). Absence of an attorney from the turned and sentence imposed has no effect whatever upon the right of the defendant to move for a new trial or to appeal from the judgment and does not violate U.S. Const., amend. 6. Kent v. Sanford, 121 F.2d 216, 1941 U.S. App. LEXIS 3189 (5th Cir. 1941), cert. denied, 315 U.S. 799, 62 S. Ct. 622, 86 L. Ed. 1200, 1942 U.S. LEXIS 965 (1942). Right of counsel to be present and to poll the jury upon the return of the verdict is a material right, and in the absence of a waiver by the defendant or defense counsel, or at least of the implied waiver resulting from voluntarily absenting oneself in such manner as not to be easily located, a new trial should be granted. Duke v. State, 104 Ga. App. 494, 122 S.E.2d 127, 1961 Ga. App. LEXIS 727 (1961).
courtroom when the verdict is re-Absence of counsel during subsequent jury poll.
Where defense counsel is present at the first poll of the jury and fails to apprise the court of any defect in the polling procedure, absence of defense counsel at the post-sentence poll, held after realization that two jurors had inadvertently not been polled, of two jurors inadvertently omitted in original poll is not violative of any of appellant’s constitutional rights to counsel or due process. Hargett v. State, 151 Ga. App. 532, Right to Counsel (Cont’d) 2. Attachment of Right (Cont’d) c. Trial (Cont’d) 260 S.E.2d 406, 1979 Ga. App. LEXIS 2624 (1979). Effect of probated sentence on
right to counsel.
Appellate court erred in affirming trial court’s conviction of defendant on driving on a revoked license charge on the ground that defendant was not entitled to appointed counsel since defendant was not actually given a prison sentence but was instead given a probated sentence as the right to counsel was triggered when defendant, who was indigent, was given a probated or suspended sentence. Barnes v. State, 275 Ga. 499, 570 S.E.2d 277, 2002 Ga. LEXIS 825 (2002).
Presence of counsel at sentencing.
— Accused is entitled to the assistance of counsel at sentence, and if counsel for the accused is not present when the accused is sentenced to be executed, the constitutional right to the assistance of counsel at all stages of the proceedings is violated. Coates v. Lawrence, 46 F. Supp. 414, 1942 U.S. Dist. LEXIS 2548 (D. Ga.), aff’d, 131 F.2d 110, 1942 U.S. App. LEXIS 2727 (5th Cir. 1942). At a presentence hearing, proof that defendant was represented by counsel at trials resulting in prior convictions is not required as a condition for the prima facie right to introduce the record of those convictions. Philpot v. State, 128 Ga. App. 243, 196 S.E.2d 358, 1973 Ga. App. LEXIS 1449 (1973). Absence of counsel during jury
charge.
The defendant is not denied the Sixth Amendment right to counsel by the court, after inquiring into the jury’s numerical breakdown, recharging the jury as to the desirability of reaching a verdict outside the presence of the defendant’s counsel, where counsel is voluntarily absent from the courtroom, the charge is brief, counsel fails to demonstrate any error in the charge given, and opportunity is afforded counsel to object to the charge and perfect the record in any manner counsel sees fit. Millwood v. State, 166 Ga. App. 292, 304 S.E.2d 103, 1983 Ga. App. LEXIS 3225 (1983).
Consultation with defendant during cross-examination properly refused.
Where, during the state’s cross-examination of the defendant, the prosecutor paused to refer to the prosecutor’s notes and, as the prosecutor did, the defense attorney requested to consult with the defendant, but the court refused counsel’s request, and the prosecutor immediately resumed the questioning, there was neither infringement of defendant’s right to counsel nor abuse of discretion by the trial judge. Robinson v. State, 258 Ga. 279, 368 S.E.2d 513, 1988 Ga. LEXIS 240 (1988). Sentencing of an accused is a critical stage and counsel must be present. Phillips v. Smith, 300 F. Supp. 130, 1969 U.S. Dist. LEXIS 8396 (S.D. Ga. 1969). Lack of counsel after the death sentence is imposed deprives the accused of the vital constitutional right to counsel and renders the trial and sentence void. Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766, 1964 Ga. LEXIS 432 (1964). Habeas corpus petitioner who was sentenced to death was entitled to a new sentencing trial because petitioner received ineffective assistance of counsel in the sentencing phase of petitioner’s trial when petitioner’s counsel did not present available mitigation evidence from expert and lay witnesses or pursue other such evidence that was available through the exercise of reasonable diligence. Head v. Thomason, 276 Ga. 434, 578 S.E.2d 426, 2003 Ga. LEXIS 278 (2003), cert. denied, 540 U.S. 957, 124 S. Ct. 409, 157 L. Ed. 2d 294, 2003 U.S. LEXIS 7586 (2003), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Proceeding to revoke a probated sentence is not a criminal proceeding. Dutton v. Willis, 223 Ga. 209, 154 S.E.2d 221, 1967 Ga. LEXIS 468 (1967). There is no right to counsel at probation revocation hearing. Dutton v. Willis, 223 Ga. 209, 154 S.E.2d 221, 1967 Ga. LEXIS 468 (1967); Reece v. Pettijohn, 229 Ga. 619, 193 S.E.2d 841, 1972 Ga. LEXIS 705 (1972); Mercer v. Hopper, 233 Ga. 620, 212 S.E.2d 799, 1975 Ga. LEXIS 1392 (1975) (For comment, see 27 Mercer L. Rev. 325 (1975)). A probationer has no sixth amendment right to counsel at a revocation proceeding, but has only a more limited due process right to counsel under the fourteenth amendment. Vaughn v. Rutledge, 265 Ga. 773, 462 S.E.2d 132, 1995 Ga. LEXIS 801 (1995). A probationer has no sixth amendment right to counsel at a revocation proceeding because it is not a stage of a criminal prosecution. Kitchens v. State, 234 Ga. App. 785, 508 S.E.2d 176, 1998 Ga. App. LEXIS 1359 (1998). A proceeding to revoke a probated sentence of one convicted of a criminal offense is not a criminal proceeding, and the failure of the court to supply a probationer with counsel is not a denial of the right to counsel unless a statute provides for benefit of counsel at such a hearing. Dutton v. Willis, 223 Ga. 209, 154 S.E.2d 221, 1967 Ga. LEXIS 468 (1967). States must protect prisoner’s right of access to the courts by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. State v. Davis, 246 Ga. 200, 269 S.E.2d 461, 1980 Ga. LEXIS 1044, cert. denied, 449 U.S. 1057, 101 S. Ct. 631, 66 L. Ed. 2d 511 (1980). Offering to appoint counsel fully ers may not be denied effective access
satisfies the requirement that prisonto the courts.
Neither the government nor the prison officials are required to allow prisoners to pick and choose the means of access most convenient to them, irrespective of the burden this places on prison administration, expense, and discipline. Lee v. Stynchcombe, 347 F. Supp. 1076, 1972 U.S. Dist. LEXIS 11943 (N.D. Ga. 1972). A prisoner has the right to waive representation by counsel, and having knowingly exercised that right, the prisoner cannot claim that the prisoner has been denied due process or the equal protection of the laws. Lee v. Stynchcombe, 347 F. Supp. 1076, 1972 U.S. Dist. LEXIS 11943 (N.D. Ga. 1972).
Effect of criminal charges in multiple jurisdictions.
Admission of the defendant’s statement to a police officer concerning an attempted burglary was proper under the Sixth Amendment as the defendant had only invoked the Sixth Amendment right to counsel in connection with unrelated charges in Fulton County; the defendant’s Sixth Amendment right to counsel had not attached when the defendant was interviewed on the attempted burglary in Henry County. Smith v. State, 273 Ga. App. 107, 614 S.E.2d 219, 2005 Ga. App. LEXIS 423 (2005). 3. Appointment, Retention, and Dismissal
Extent of amendment’s protection.
— U.S. Const., amend. 6 generally protects a defendant’s decision to select a particular attorney. State v. Fleming, 245 Ga. 700, 267 S.E.2d 207, 1980 Ga. LEXIS 904 (1980). Due process requires reasonable opportunity to retain counsel of
choice.
Due process requirements guarantee to a defendant unable to employ counsel the right to have counsel appointed by the court, but no less do they entitle an accused who is able to employ counsel a reasonable opportunity to obtain representation of the defendant’s choice, and the defendant is not compelled to accept court-appointed defenders instead of an attorney in whom the defendant reposes greater confidence, merely to speed the trial by a day or two. Foote v. State, 136 Ga. App. 301, 220 S.E.2d 786, 1975 Ga. App. LEXIS 1333 (1975). Constitution requires opportunity
to consult and prepare defense.
The Constitution requires that a fair opportunity shall be afforded such counsel to consult the client and to prepare a defense against the charge. Coates v. Lawrence, 46 F. Supp. 414, 1942 U.S. Dist. LEXIS 2548 (D. Ga.), aff’d, 131 F.2d 110, 1942 U.S. App. LEXIS 2727 (5th Cir. 1942).
Indigency as prerequisite to right.
— Because the defendant did not meet the standard for indigency, the court had no obligation to appoint counsel for the defendant notwithstanding the defendant’s efforts to obtain representation. Everman v. State, 203 Ga. App. 350, 416 S.E.2d 861, 1992 Ga. App. LEXIS 413 (1992). There was no violation of the defendant’s right to counsel under U.S. Const., Right to Counsel (Cont’d) 3. Appointment, Retention, and Dismissal (Cont’d) amend. 6 because the defendant did not provide any evidence to show that the defendant lacked the financial resources to retain a lawyer, such that the trial court was not required to provide appointed counsel. Harvill v. State, 296 Ga.App. 453, 674 S.E.2d 659, 2009 Ga. App. LEXIS 237 (2009).
Knowing waiver of appointed counsel.
Defendant’s claim that the defendant did not knowingly waive the rights under Miranda because a detective misled the defendant about the right to an attorney lacked merit because the detective’s statement that “you get appointed with a lawyer when you are charged with something” was accurate insofar as an accused may be appointed a lawyer once charged with a crime under case law interpreting the Sixth Amendment and the record showed that the detective properly advised the defendant and the defendant did not unambiguously invoke the defendant’s right to counsel. Young v. State, 309 Ga. 529, 847 S.E.2d 347, 2020 Ga. LEXIS 539 (2020). Arbitrary dismissal of defendant’s
counsel of choice.
While the right to select a particular person as counsel is not an absolute right, the arbitrary dismissal of a defendant’s attorney of choice violates a defendant’s right to counsel. State v. Fleming, 245 Ga. 700, 267 S.E.2d 207, 1980 Ga. LEXIS 904 (1980). Defendant has no constitutional right to pick or choose a court-appointed attorney, but is entitled to have the appointed attorney render reasonably effective assistance. Lepiscopo v. United States, 469 F.2d 650, 1972 U.S. App. LEXIS 6504 (5th Cir. 1972); Harris v. State, 138 Ga. App. 388, 226 S.E.2d 462, 1976 Ga. App. LEXIS 2173 (1976); Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, 1980 Ga. LEXIS 977, cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 136, 1980 U.S. LEXIS 3545 (1980). A criminal defendant is not entitled to have counsel of the defendant’s choosing appointed. Graham v. State, 172 Ga. App. 660, 324 S.E.2d 518, 1984 Ga. App. LEXIS 3077 (1984). Although U.S. Const., amend. 6 guarantees every defendant aid of an attorney, that attorney need not be counsel of the defendant’s choosing. Robinson v. State, 182 Ga. App. 423, 356 S.E.2d 55, 1987 Ga. App. LEXIS 2612 (1987). An indigent defendant has no right to compel the trial court to appoint an attorney of the defendant’s own choosing. Where the attorney whose assistance the defendant sought was not a member of the bar of this state, neither the attorney nor the defendant had a constitutional right to demand that the attorney be allowed to represent the defendant. It was, rather, a matter governed by the trial court’s sound exercise of discretion. Lipham v. State, 257 Ga. 808, 364 S.E.2d 840, 1988 Ga. LEXIS 58, cert. denied, 488 U.S. 873, 109 S. Ct. 191, 102 L. Ed. 2d 160, 1988 U.S. LEXIS 3422 (1988). Where the defendant requested that the court discharge the defendant’s appointed counsel and appoint another, the court did not err when it determined that counsel had prepared adequately to defend the defendant and told the defendant that the defendant could either continue with the current counsel or continue pro se. Battle v. State, 234 Ga. App. 143, 505 S.E.2d 573, 1998 Ga. App. LEXIS 1173 (1998). Appointment of attorney is left to
the sound discretion of the court.
Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, 1980 Ga. LEXIS 977, cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 136, 1980 U.S. LEXIS 3545 (1980).
Defendant entitled to choose counsel of the defendant’s choice.
U.S. Const., amend. 6, while not providing an absolute right, guarantees a defendant a fair opportunity to secure counsel of the defendant’s choice. Birt v. Montgomery, 709 F.2d 690, 1983 U.S. App. LEXIS 24721 (11th Cir. 1983). Discharge of appointed attorney in
mid-trial.
Defendant did not have an absolute right to discharge appointed counsel in mid-trial and demand that the trial court either appoint the defendant another attorney or allow the defendant to hire another attorney. Cotton v. State, 223 Ga. App. 288, 477 S.E.2d 425, 1996 Ga. App. LEXIS 1133 (1996). Request by a trial judge that an dant is tantamount to a demand with which the attorney must necessarily comply, but the attorney’s professional services, work product, and necessary out-of-pocket expenses in providing competent representation are not required by the Constitution to be compensated. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, 1966 Ga. App. LEXIS 1062, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304, 1966 U.S. LEXIS 196 (1966) (For comment, see 18 Mercer L. Rev. 477 (1967)). A court may issue a valid order compelling a lawyer to represent an indigent. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, 1966 Ga. App. LEXIS 1062, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304, 1966 U.S. LEXIS 196 (1966) (For comment, see 18 Mercer L. Rev. 477 (1967)). Appointment of counsel to assist
attorney represent an indigent defenretained counsel.
It is not a denial of due process for a trial court to appoint and tender to a defendant additional counsel to assist the regularly employed counsel of defendant’s own selection. Andrews v. Robertson, 145 F.2d 101, 1944 U.S. App. LEXIS 2410 (5th Cir. 1944), cert. denied, 324 U.S. 874, 65 S. Ct. 1013, 89 L. Ed. 1427, 1945 U.S. LEXIS 2238 (1945). Because a murder defendant’s retained counsel had an almost total lack of criminal trial experience, the trial court acted within its discretion to require the defendant either to retain a more experienced attorney or accept the appointment of one. Lynd v. State, 262 Ga. 58, 414 S.E.2d 5, 1992 Ga. LEXIS 179, cert. denied, 506 U.S. 958, 113 S. Ct. 420, 121 L. Ed. 2d 342, 1992 U.S. LEXIS 6887 (1992). Because a defendant failed to argue or show actual prejudice by the trial court’s requirement that the defendant’s previously appointed attorney remain present at the defense table after retaining new counsel only one week prior to trial, the trial court did not err in denying the defendant’s motion to withdraw the guilty plea entered to possessing cocaine and speeding. Cole v. State, 284 Ga. App. 246, 643 S.E.2d 733, 2007 Ga. App. LEXIS 59 (2007), cert. denied, No. S07C1066, 2007 Ga. LEXIS 514 (Ga. June 25, 2007). Trial court’s order that only one attorney argue for the state and one attorney for appellant does not violate an appellant’s rights under U.S. Const., amend. 6 and U.S. Const., amend. 14. Willis v. State, 243 Ga. 185, 253 S.E.2d 70, 1979 Ga. LEXIS 847, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979). fendant unable to retain desired
Appointment of counsel where decounsel.
After being afforded a continuance to obtain counsel, a defendant cannot reject appointed counsel and insist that the preliminary hearing be further delayed while the defendant tries to obtain the services of one particular, prominent attorney who has not agreed to take the case. Eiland v. State, 246 Ga. 112, 268 S.E.2d 922, 1980 Ga. LEXIS 981 (1980). vided for a defendant who is financially unable to employ an attorney, the defendant is not denied effective assistance of counsel. Willingham v. State, 134 Ga. App. 144, 213 S.E.2d 516, 1975 Ga. App. LEXIS 1935 (1975). If the defendant advises appointed ployed another attorney, the defendant becomes responsible for the lack of preparation, if any, in the handling of the case when it is tried. Tootle v. State, 135 Ga. App. 840, 219 S.E.2d 492, 1975 Ga. App. LEXIS 1845 (1975). Trial judge does not have a duty to attempt to force unwanted counsel upon a defendant who has resolutely declared a purpose to dismiss that counsel. Taylor v. Hopper, 596 F.2d 1284, 1979 U.S. App. LEXIS 13939 (5th Cir. 1979), cert. denied, 444 U.S. 1083, 100 S. Ct. 1039, 62 L. Ed. 2d 768, 1980 U.S. LEXIS 800 (1980). Court failed to make finding of in-
Where competent counsel is procounsel that the defendant has emdigency or diligence.
Where it appeared that the trial court never inquired into defendant’s indigence or diligence in securing counsel, and did not exercise its discretion, the case would be remanded for such purpose. Livingston v. State, 221 Ga. App. 563, 472 S.E.2d 317, 1996 Ga. App. LEXIS 559 (1996). Trial court did not err in refusing to allow a nonlawyer to represent Right to Counsel (Cont’d) 3. Appointment, Retention, and Dismissal (Cont’d) defendant at trial. Robinson v. State, 182 Ga. App. 423, 356 S.E.2d 55, 1987 Ga. App. LEXIS 2612 (1987). Refusal to appoint lawyers who had
previously represented defendant.
Trial court abused its discretion in refusing to appoint the two lawyers who had previously represented defendant and appointing new local counsel for the retrial of defendant’s capital case. Amadeo v. State, 259 Ga. 469, 384 S.E.2d 181, 1989 Ga. LEXIS 405 (1989).
Failure to timely obtain counsel despite opportunity to do so.
If the accused has means to employ counsel, and is out upon bond, and has opportunity to secure counsel, and neglects or refuses to do so, the court is under no obligation or duty to appoint counsel to represent the defendant. Clarke v. Cobb, 195 Ga. 633, 24 S.E.2d 782, 1943 Ga. LEXIS 531 (1943). The defendant must be afforded benefit of counsel, and this includes time sufficient for counsel to prepare for trial, but where the defendant is apprised of the charge at a previous term of court and fails and neglects to procure counsel or ask the court to do so for the defendant there is no error in refusing a request for additional time on the ground that the counsel has had insufficient time to prepare the defense. It is the defendant’s duty to employ an attorney to aid in the preparation of the defense sufficiently in advance of the trial of the case. Duke v. State, 104 Ga. App. 494, 122 S.E.2d 127, 1961 Ga. App. LEXIS 727 (1961). Request for continuance to obtain
counsel.
The facts of a particular case determine whether or not the denial of a request for continuance to obtain counsel is a violation of a person’s guarantee under U.S. Const., amend. 6. United States v. Casey, 480 F.2d 151, 1973 U.S. App. LEXIS 9451 (5th Cir.), cert. denied, 414 U.S. 1045, 94 S. Ct. 550, 38 L. Ed. 2d 336, 1973 U.S. LEXIS 1536 (1973).
When continuance to obtain counsel may be denied.
It is not error for the trial court to refuse to grant a continuance in order to obtain the services of counsel where the defendant had ample time to employ counsel, had made no real attempt to employ counsel prior to trial, was represented by appointed counsel and there was no evidence in the record that defendant’s appointed counsel had inadequate time to prepare for trial. Miller v. State, 156 Ga. App. 469, 274 S.E.2d 818, 1980 Ga. App. LEXIS 3071 (1980). A court does not abuse its discretion in requiring the appointed counsel to proceed with the trial of the case where counsel is the only counsel recognized by the court as representing the defendant, and there is no direct evidence that any other counsel is privately employed to represent defendant in the case. Arnold v. State, 156 Ga. App. 248, 274 S.E.2d 640, 1980 Ga. App. LEXIS 3017 (1980). A defendant will not be permitted to use the change of counsel as a dilatory tactic in requesting a continuance. Standridge v. State, 158 Ga. App. 482, 280 S.E.2d 850, 1981 Ga. App. LEXIS 2263 (1981). A defendant by the defendant’s own misconduct, may, by repeated continuances giving rise to a valid conclusion that delay is the actual motivation, ultimately forfeit the right to yet another delay solely for the purpose of allowing the final counsel the opportunity to make trial preparations. Standridge v. State, 158 Ga. App. 482, 280 S.E.2d 850, 1981 Ga. App. LEXIS 2263 (1981). Trial court did not abuse its discretion in denying defendant’s motion for a continuance to select defendant’s own counsel; defendant’s court-appointed counsel was ready for trial, and defendant did not express any interest in retaining defendant’s own counsel during the six months preceding trial. Flowers v. State, 275 Ga. 592, 571 S.E.2d 381, 2002 Ga. LEXIS 925 (2002). Where the discharge of counsel is untimely and designed as a dilatory tactic, counsel’s appointment does not contribute to the defendant’s conviction and is therefore constitutionally harmless. Harris v. State, 138 Ga. App. 388, 226 S.E.2d 462, 1976 Ga. App. LEXIS 2173 (1976).
Right to discharge appointed counsel and have another appointed.
An indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in former counsel’s place. A request of this sort addresses itself to the sound discretion of the trial court. Garrett v. State, 159 Ga. App. 27, 282 S.E.2d 683, 1981 Ga. App. LEXIS 2468 (1981). A criminal defendant is not entitled to the appointment of another attorney as a matter of right whenever the defendant expresses dissatisfaction with the present attorney. Todd v. State, 261 Ga. 766, 410 S.E.2d 725, 1991 Ga. LEXIS 982 (1991), cert. denied, 506 U.S. 838, 113 S. Ct. 117, 121 L. Ed. 2d 73, 1992 U.S. LEXIS 5878 (1992). Just because defendant experienced distrust or loss of confidence in the appointed counsel did not entitle defendant to new counsel or show that counsel could not provide defendant with effective representation. Middlebrooks v. State, 255 Ga. App. 541, 566 S.E.2d 350, 2002 Ga. App. LEXIS 679 (2002). In defendant’s convictions for armed robbery, kidnapping, and aggravated assault in connection with robbery of a fast food restaurant, trial court did not err by refusing to appoint new trial counsel after defendant made it known that defendant was dissatisfied with trial counsel and had filed a bar complaint against trial counsel; trial court gave defendant choice between keeping current trial counsel or proceeding pro se, and defendant chose to proceed with current counsel. Holsey v. State, 291 Ga. App. 216, 661 S.E.2d 621, 2008 Ga. App. LEXIS 445 (2008). Capital murder defendant failed to show that the trial court abused the court’s discretion in allowing the defendant’s appointed counsel to remain on the defendant’s case to litigate the defendant’s mandatory appeal despite the defendant’s request for new counsel; defendant’s only complaint regarding counsel was that the defendant wanted to forego the motion for new trial and proceed as quickly as possible with the mandatory direct appeal, and the defendant stated that the defendant did not intend to work with any attorney in filing that appeal. Ford v. Tate, 307 Ga. 383, 835 S.E.2d 198, 2019 Ga. LEXIS 725 (2019), cert. denied, 141 S. Ct. 139, 207 L. Ed. 2d 1082, 2020 U.S. LEXIS 3336 (2020). An indigent defendant does not have right to change or refuse court-appointed counsel. See Cobble v. State, 199 Ga. App. 29, 404 S.E.2d 134, 1991 Ga. App. LEXIS 362 (1991), cert. denied, No. S91C0883, 1991 Ga. LEXIS 709 (Ga. May 15, 1991). Sentencing before appointment of
substitute counsel.
Even though sentencing occurred after the district court’s grant of defendant’s motion for substitute counsel but before appointment of substitute counsel, defendant was adequately represented by counsel, since all parties believed at the time of the sentencing hearing that the assistant public defender was still defendant’s counsel; the assistant public defender acted like the defendant’s counsel, and the district court treated the assistant public defender like the defendant’s counsel. Poole v. United States, 832 F.2d 561, 1987 U.S. App. LEXIS 15234 (11th Cir. 1987), cert. denied, 488 U.S. 817, 109 S. Ct. 54, 102 L. Ed. 2d 33, 1988 U.S. LEXIS 3389 (1988).
Delay due to illness of counsel.
The right to be represented by a particular attorney is not absolute when it would unduly delay and require the adjournment of a trial because of counsel’s illness. Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, 1980 Ga. LEXIS 977, cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 136, 1980 U.S. LEXIS 3545 (1980). State court may not deny a defendant the counsel of the defendant’s
choice.
A state court has no right under the Constitution to deny a defendant the right to counsel of the defendant’s own choosing. Andrews v. Robertson, 145 F.2d 101, 1944 U.S. App. LEXIS 2410 (5th Cir. 1944), cert. denied, 324 U.S. 874, 65 S. Ct. 1013, 89 L. Ed. 1427, 1945 U.S. LEXIS 2238 (1945). A defendant’s right to counsel of the defendant’s choice is not absolute and must yield to the higher interest of the effective administration of the courts. The right is specifically limited by the trial court’s power and responsibility to regulate the conduct of attorneys who practice before it. United States v. Kitchin, 592 F.2d 900, 1979 U.S. App. LEXIS 15558 (5th Cir.), cert. denied, 444 U.S. 843, 100 S. Ct. 86, 62 L. Ed. 2d 56, 1979 U.S. LEXIS 2752 (1979). Right to Counsel (Cont’d) 3. Appointment, Retention, and Dismissal (Cont’d)
Failure to procure counsel after repeated urgings to do so.
Because the defendant was repeatedly urged by the trial court to retain counsel and the defendant’s sole attempt to acquire representation by counsel terminated in counsel’s voluntary withdrawal from the case, after which the defendant made no further efforts to obtain legal assistance, the trial court did not deny the defendant the defendant’s constitutional right to counsel. DeShazor v. Board of Dirs., 157 Ga. App. 491, 277 S.E.2d 779, 1981 Ga. App. LEXIS 1879 (1981). Trial court did not err in directing the defendant’s attorney to remain during trial, where the defendant did not request to proceed pro se and did not indicate that the defendant intended to employ a licensed attorney to represent the defendant at trial. Robinson v. State, 182 Ga. App. 423, 356 S.E.2d 55, 1987 Ga. App. LEXIS 2612 (1987). Because a defendant failed to show that appointed counsel could not provide the defendant effective representation, the trial court did not abuse its discretion in denying the defendant’s motion to replace counsel three months before the start of trial, despite the defendant’s allegations that appointed counsel screamed at and insulted the defendant, lied to the defendant, failed to relay to the defendant a threat made against the defendant’s family by a codefendant, and used false methods of persuasion in an attempt to get the defendant to accept the state’s plea offer. Kollie v. State, 301 Ga. App. 534, 687 S.E.2d 869, 2009 Ga. App. LEXIS 1344 (2009), cert. denied, No. S10C0531, 2010 Ga. LEXIS 444 (Ga. June 1, 2010). Representation by out-of-state
counsel.
A defendant, although guaranteed the right to counsel by both the federal and state Constitutions has no guarantee that the defendant can be represented by out-of-state counsel. Williams v. State, 157 Ga. App. 494, 277 S.E.2d 781, 1981 Ga. App. LEXIS 1880 (1981). U.S. Const., amend. 6 should not be interpreted to allow a defendant to sanction a lawyer’s breach of ethical duties, when such duties serve the public interest as well as the client’s. Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, 1980 Ga. LEXIS 977, cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 136, 1980 U.S. LEXIS 3545 (1980). U.S. Const., amend. 6 should not be interpreted to allow a defendant to use it as a manipulative or subversive
device.
The freedom to choose one’s counsel may not be used as a device to manipulate or subvert the orderly procedure of the courts or the fair administration of justice. United States v. Casey, 480 F.2d 151, 1973 U.S. App. LEXIS 9451 (5th Cir.), cert. denied, 414 U.S. 1045, 94 S. Ct. 550, 38 L. Ed. 2d 336, 1973 U.S. LEXIS 1536 (1973). When attorney may be disqualified
for improper conduct.
An attorney may be disqualified from representing a client only if there is a reasonable possibility that some specifically identifiable impropriety actually occurred and, in light of the interests underlying the standards of ethics, the social need for ethical practice outweighs the party’s right to counsel of the party’s choice. United States v. Kitchin, 592 F.2d 900, 1979 U.S. App. LEXIS 15558 (5th Cir.), cert. denied, 444 U.S. 843, 100 S. Ct. 86, 62 L. Ed. 2d 56, 1979 U.S. LEXIS 2752 (1979).
Improper conduct of attorney.
Determination of whether the defendant’s right under U.S. Const., amend. 6 overrides the danger posed by improper conduct of the defendant’s attorney is committed to the trial court’s discretion. United States v. Kitchin, 592 F.2d 900, 1979 U.S. App. LEXIS 15558 (5th Cir.), cert. denied, 444 U.S. 843, 100 S. Ct. 86, 62 L. Ed. 2d 56, 1979 U.S. LEXIS 2752 (1979). Disqualification of defense counsel
where former prosecutor now in private practice with defense counsel.
Because a former assistant United States attorney involved in the development of a criminal action against the defendant prior to leaving a position for private practice with the defendant’s counsel of record, the United States is entitled to the disqualification of the defendant’s counsel, because the danger to the confidentiality of the government’s communications and the danger to public trust in the lawyer-client relationship outweigh the defendant’s right to counsel of the defendant’s own choice. United States v. Kitchin, 592 F.2d 900, 1979 U.S. App. LEXIS 15558 (5th Cir.), cert. denied, 444 U.S. 843, 100 S. Ct. 86, 62 L. Ed. 2d 56, 1979 U.S. LEXIS 2752 (1979). tice of law does not violate constitutional rights of clients, since right to counsel does not mean right to counsel of one’s own choosing in every situation. In re Stoner, 246 Ga. 581, 272 S.E.2d 313, 1980 Ga. LEXIS 1208 (1980).
Suspension of attorney from prac-Ineffective representation.
Defendant should have been allowed to withdraw defendant’s guilty plea to serious injury by vehicle as defense counsel’s failure to prepare and investigate the case, including failing to investigate the defendant’s claim that another person may have been driving the vehicle at the time of the collision, and the counsel’s performance at the plea hearing, in which counsel stated that the defendant was driving the vehicle, demonstrated a complete lack of advocacy so as to deny defendant the Sixth Amendment right to counsel. Heath v. State, 258 Ga. App. 612, 574 S.E.2d 852, 2002 Ga. App. LEXIS 1525 (2002), rev’d, 277 Ga. 337, 588 S.E.2d 738, 2003 Ga. LEXIS 943 (2003). Court of appeals erred in deferring to public defender’s own policy not to appoint new counsel for purposes of appeal and denying indigent defendant’s request to raise an ineffectiveness claim as part of a new trial motion as defendant was constitutionally entitled to appointment of conflict-free counsel to represent him on appeal. Garland v. State, 283 Ga. 201, 657 S.E.2d 842, 2008 Ga. LEXIS 190 (2008). 4. Conflicts of Interest and Joint Representation Where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220, 1981 U.S. LEXIS 76 (1981). dant’s rights under U.S. Const., amend. 6 and U.S. Const., amend. 5. — An attorney, whether retained or appointed, laboring under an actual conflict of interest in the representation of an accused, fails to accord the accused effective assistance of counsel as guaranteed by the due process clause of U.S. Const., amend. 5 and U.S. Const., amend. 6. United States v. Alvarez, 580 F.2d 1251, 1978 U.S. App. LEXIS 8749 (5th Cir. 1978). Constitutional infirmities found in
Conflict of interest violates defenmultiple representation of codefendants may violate U.S. Const., amend.
6 or the due process clause. For that reason, relief can be granted. Dean v. State, 247 Ga. 724, 279 S.E.2d 217, 1981 Ga. LEXIS 840 (1981). Conflict may impair effectiveness
of otherwise competent counsel.
The right under U.S. Const., amend. 6 to counsel implies much more than a minimum level of professional competence. Even otherwise competent trial lawyers may sometimes find themselves in a position in which they are unable to render effective assistance of counsel. Thus, where defense counsel in a criminal trial represents one of several clients with conflicting interests, counsel’s effectiveness as a vigorous advocate for a particular defendant may be impaired by counsel’s commitment to other clients. United States v. Alvarez, 580 F.2d 1251, 1978 U.S. App. LEXIS 8749 (5th Cir. 1978). Trial court abused its discretion in denying an assigned public defender’s motion to withdraw as counsel for the indigent criminal defendant pursuant to Ga. Unif. Super. Ct. R. 4.3, as the defendant’s anticipated filing of a federal action against the public defender and the public defender’s office presented a potential conflict of interest that was sufficient to bar further representation under Ga. St. Bar R. 4-102(d):1.7; failure to allow withdrawal in such a situation could violate the defendant’s Sixth Amendment right to effective assistance of counsel, which included representation without conflicts. Odum v. State, 283 Ga. App. 291, 641 S.E.2d 279, 2007 Ga. App. LEXIS 42 (2007). Conflict of interest cognizable on
habeas corpus.
An inmate’s claim that trial counsel had a conflict of interest Right to Counsel (Cont’d) 4. Conflicts of Interest and Joint Representation (Cont’d) was a Sixth Amendment claim and thus was cognizable on habeas corpus. Gibson v. Head, 282 Ga. 156, 646 S.E.2d 257, 2007 Ga. LEXIS 431 (2007). Actual conflict adversely affecting attorney’s performance required for habeas corpus relief. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), arguably requires a two-pronged showing to justify habeas relief on account of an attorney’s conflict of interest: Not only (1) that there was an actual conflict of interest, but also (2) that the conflict of interest adversely affected the attorney’s performance. Anglin v. Green, 639 F. Supp. 490, 1986 U.S. Dist. LEXIS 23503 (S.D. Ga. 1986), aff’d, 853 F.2d 930, 1988 U.S. App. LEXIS 8883 (11th Cir. 1988). Court may not impair right to coun-
sel by ordering simultaneous representation of conflicting interests.
The assistance of counsel guaranteed by U.S. Const., amend. 6 contemplates that such assistance be unimpaired by a court order requiring one lawyer to simultaneously represent conflicting interests. White v. United States, 396 F.2d 822, 1968 U.S. App. LEXIS 6393 (5th Cir. 1968). Representation of brothers not a
conflict.
Defendant did not receive ineffective assistance of counsel based on a conflict of interest due to counsel’s joint representation of him and his brother because their defenses were not antagonistic, as they refused to testify against each other, plea deals were not available to either of them, and their statements were not contradictory. Adams v. State, 317 Ga. 342, 893 S.E.2d 85, 2023 Ga. LEXIS 197 (2023). ney does not fulfill U.S. Const., amend. 6’s guarantee when the advocate’s conflicting obligations have effectively sealed the advocate’s lips on crucial matters. Johnson v. Hopper, 639 F.2d 236, 1981 U.S. App. LEXIS 19339 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S. Ct. 548, 70 L. Ed. 2d 412, 1981 U.S. LEXIS 4351 (1981). No conflict of interest for failing to
Mere physical presence of an attorcall previous client to testify.
Defendant failed to show that trial counsel operated under an actual conflict of interest by stipulating to where the murder weapon was found instead of calling a former client as a witness because the former client’s testimony would not have benefited the defense. Burke v. State, 320 Ga. 706, 911 S.E.2d 575, 2025 Ga. LEXIS 16 (2025). No conflict of interest due to prior
representation of victim.
Defendant’s right to the effective assistance of counsel was not violated due to trial counsel’s previous representation of a victim in an unrelated criminal matter because there was no actual conflict since there was no evidence that counsel had any pecuniary interest in receiving future business from the victim, there was no evidence counsel obtained privileged information from the victim that prevented counsel from conducting a thorough cross-examination of the victim at trial, and counsel’s decisions regarding the scope and extent of counsel’s cross-examination of the victim and how best to present evidence of a relationship between the victim and the murder victim were objectively reasonable under the circumstances. Moss v. State, 312 Ga. 202, 862 S.E.2d 309, 2021 Ga. LEXIS 578 (2021).
Amendment implicated when defense attorney is in situation inherently conducive to divided loyalties.
Johnson v. Hopper, 639 F.2d 236, 1981 U.S. App. LEXIS 19339 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S. Ct. 548, 70 L. Ed. 2d 412, 1981 U.S. LEXIS 4351 (1981). Attorney’s representations as to
conflict are to be seriously considered.
The representations of an attorney, as an officer of the court, that the attorney perceives a potential conflict should be given very serious consideration. Johnson v. Hopper, 639 F.2d 236, 1981 U.S. App. LEXIS 19339 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S. Ct. 548, 70 L. Ed. 2d 412, 1981 U.S. LEXIS 4351 (1981). dants is not a per se violation of U.S.
Joint representation of codefen-Const., amend. 6.
An actual, not merely hypothetical or speculative, conflict must be demonstrated before it can be said that an accused has been deprived of effective assistance of counsel. United States v. Alvarez, 580 F.2d 1251, 1978 U.S. App. LEXIS 8749 (5th Cir. 1978). Multiple representation is not per se unconstitutional. Dean v. State, 247 Ga. 724, 279 S.E.2d 217, 1981 Ga. LEXIS 840 (1981). Single representation of multiple defendants raises no per se presumption of conflict of interest or prejudice. Hamilton v. State, 255 Ga. 468, 339 S.E.2d 707, 1986 Ga. LEXIS 567 (1986).
Attorney as a witness.
Trial court did not abuse the court’s discretion by disqualifying defendant’s attorney because, although the state ultimately did not call the attorney as a witness, when the trial court ruled on the attorney’s ability to serve as defense counsel the court expected the attorney to be called as a witness, and evidence of the attorney’s involvement with the charged crimes was presented at trial. Defendant’s willingness to waive the conflict did not allow for the attorney’s representation because the attorney potentially would have been faced with impeaching one client or providing ineffective assistance of counsel to the other client. Campbell v. State, 320 Ga. 333, 907 S.E.2d 871, 2024 Ga. LEXIS 247 (2024). Right not violated when defendant discharged fourth court-appointed
attorney.
Defendant’s Sixth Amendment right to counsel was not violated when the trial court refused to continue the defendant’s child molestation trial when the defendant attempted to discharge the fourth appointed attorney the defendant had been assigned on the day of trial. The trial court gave the defendant warnings of the dangers of proceeding pro se, the defendant proceeded the first day with standby counsel, and after the first day, the defendant again had full representation. Cain v. State, 310 Ga. App. 442, 714 S.E.2d 65, 2011 Ga. App. LEXIS 584 (2011). No simultaneous right to counsel
and pro se representation.
Defendant does not have a right to simultaneous representation by counsel and self-representation. Snell v. State, 203 Ga. App. 27, 416 S.E.2d 360, 1992 Ga. App. LEXIS 238 (1992). Trial court did not err in finding that the defendant knowingly, voluntarily, and intelligently waived the defendant’s right to have a lawyer represent the defendant at trial because the record authorized the trial court to conclude that the defendant’s expression of dissatisfaction with the defendant’s third lawyer on the day of trial was a dilatory tactic that was the functional equivalent of a knowing and voluntary waiver of appointed counsel, and after the defendant indicated the defendant’s desire to proceed pro se, the extensive colloquy between the defendant and the trial court established that the defendant made a knowing and intelligent waiver of the defendant’s right to counsel; the defendant did not explain how the knowledge that the defendant could face lesser punishment than the defendant believed would have made the defendant less inclined to waive counsel and the record demonstrated that the defendant was aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver. Walker v. State, 288 Ga. 174, 702 S.E.2d 415, 2010 Ga. LEXIS 852 (2010).
Conflict of interest not automatically established.
The mere fact that one lawyer represents more than one codefendant does not automatically establish a conflict of interest. Johnson v. Hopper, 639 F.2d 236, 1981 U.S. App. LEXIS 19339 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S. Ct. 548, 70 L. Ed. 2d 412, 1981 U.S. LEXIS 4351 (1981). Conflict presumed when attorney
represents defendants over objection.
There is a presumptive conflict of interest when one attorney is required to represent multiple defendants over their objection; however, if the defendants do not object to the multiple representation by the attorney until after trial, there is no benefit of a presumption and the defendants must show that an actual conflict of interest existed that impaired their attorney’s performance on their behalf. Rautenberg v. State, 178 Ga. App. 165, 342 S.E.2d 355, 1986 Ga. App. LEXIS 2506 (1986). Mere possibility of conflict of interests is insufficient to impugn a Right to Counsel (Cont’d) 4. Conflicts of Interest and Joint Representation (Cont’d) criminal conviction amply supported by competent evidence. Montgomery v. State, 156 Ga. App. 448, 275 S.E.2d 72, 1980 Ga. App. LEXIS 3062 (1980); Brown v. State, 247 Ga. 298, 275 S.E.2d 52, 1981 Ga. LEXIS 683 (1981), cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981), overruled in part, Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442, 1982 Ga. LEXIS 1137 (1982), but see, Morgan v. State, 267 Ga. 203, 476 S.E.2d 747, 1996 Ga. LEXIS 885 (1996).
Duty of court to determine adequacy.
When defendants make timely objections to joint representation, they need not show an actual conflict of interest when a trial court fails to inquire adequately into the basis of the objection. In such circumstances the trial court has failed to discharge its constitutional duty to determine whether the defendants are receiving adequate assistance of counsel; reversal, therefore is automatic. Hamilton v. Ford, 969 F.2d 1006, 1992 U.S. App. LEXIS 19328 (11th Cir. 1992), cert. denied, 507 U.S. 1000, 113 S. Ct. 1625, 123 L. Ed. 2d 183, 1993 U.S. LEXIS 2391 (1993). Whenever a trial court improperly requires joint representation over timely defense objection, reversal is automatic. Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, 1980 Ga. LEXIS 977, cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 136, 1980 U.S. LEXIS 3545 (1980); Wilson v. State, 257 Ga. 352, 359 S.E.2d 661, 1987 Ga. LEXIS 864 (1987). Whenever a defendant establishes the lawyer’s unconstitutional multiple representation, that is, where an actual conflict of interest is objected to before or during trial, prejudice need not be demonstrated. Dean v. State, 247 Ga. 724, 279 S.E.2d 217, 1981 Ga. LEXIS 840 (1981). Actual conflict must be shown where defendant fails to object at
trial.
In order to establish a constitutional violation of right to effective assistance of counsel in a noncapital case, a defendant who raises no objection at trial must demonstrate that an actual conflict of interest adversely affected the defendant’s lawyer’s performance. Until a defendant shows that the defendant’s counsel actively represents conflicting interests, the defendant has not established the constitutional predicate for the defendant’s claim of ineffective assistance. Munford v. Seay, 241 Ga. 223, 244 S.E.2d 857, 1978 Ga. LEXIS 990 (1978); Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, 1980 Ga. LEXIS 977, cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 136, 1980 U.S. LEXIS 3545 (1980); Montgomery v. State, 156 Ga. App. 448, 275 S.E.2d 72, 1980 Ga. App. LEXIS 3062 (1980); Acierno v. State, 176 Ga. App. 600, 337 S.E.2d 39, 1985 Ga. App. LEXIS 2929 (1985). In order to establish a violation of U.S. Const., amend. 6, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected the lawyer’s performance. Dean v. State, 247 Ga. 724, 279 S.E.2d 217, 1981 Ga. LEXIS 840 (1981); Keen v. State, 164 Ga. App. 81, 296 S.E.2d 91, 1982 Ga. App. LEXIS 3279 (1982). In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected the lawyer’s performance. “Actual conflict” means more than the bare possibility that a conflict might have developed. Kennedy v. State, 177 Ga. App. 543, 340 S.E.2d 204, 1986 Ga. App. LEXIS 2433 (1986); Stephens v. State, 214 Ga. App. 183, 447 S.E.2d 26, 1994 Ga. App. LEXIS 819 (1994), cert. denied, No. S94C1802, 1994 Ga. LEXIS 1195 (Ga. Nov. 18, 1994), cert. denied, No. S94C1803, 1994 Ga. LEXIS 1196 (Ga. Nov. 18, 1994). When conflict of interest is raised in a post-conviction proceeding, the petitioner must show actual conflict that caused defense counsel’s performance to be adversely affected. Wharton v. Thomas, 256 Ga. 76, 343 S.E.2d 694, 1986 Ga. LEXIS 701 (1986). The fact that both defendants were represented by the same counsel does not by itself constitute a ground for reversal. A defendant who raises no objection at trial must demonstrate that an actual conflict of interest existed that adversely affected the attorney’s performance. Lawrence v. State, 187 Ga. App. 211, 369 S.E.2d 531, 1988 Ga. App. LEXIS 557 (1988). Defendant failed to show that the defendant’s attorney impaired the defendant’s defense for the benefit of the defendant’s spouse’s or that an actual conflict of interest existed, where there was no evidence that the defendant and the defendant’s spouse had inconsistent defenses or that another plausible strategy was available to trial counsel. United States v. Solomon, 856 F.2d 1572, 1988 U.S. App. LEXIS 14001 (11th Cir. 1988), cert. denied, 489 U.S. 1070, 109 S. Ct. 1352, 103 L. Ed. 2d 820, 1989 U.S. LEXIS 1257 (1989). In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected the lawyer’s performance. Dill v. State, 193 Ga. App. 213, 387 S.E.2d 424, 1989 Ga. App. LEXIS 1406 (1989). Defendant failed to show how, because the lawyer’s partner had been related by marriage to the victim’s parent and represented the victim’s parent in the probate of the victim’s estate, such conflict caused divided loyalties, compromised the attorney’s representation of the defendant, or influenced the defendant’s decision to plead guilty. Jackson v. State, 271 Ga. 705, 523 S.E.2d 871, 1999 Ga. LEXIS 958 (1999).
Speculative conflict is insufficient.
— The mere fact that one lawyer represents more than one codefendant does not automatically establish a conflict of interest, an actual rather than a speculative conflict of interest must be shown before the constitutional guarantee of effective assistance of counsel is implicated. Such a constitutional implication occurs when a defense attorney is placed in a situation inherently conducive to divided loyalties. Johnson v. Hopper, 639 F.2d 236, 1981 U.S. App. LEXIS 19339 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S. Ct. 548, 70 L. Ed. 2d 412, 1981 U.S. LEXIS 4351 (1981). A conflict of interest by an attorney must be actual rather than merely speculative to support relief and not every conceivable conflict is so egregious as to amount to violation of U.S. Const., amend. 6. Even joint representation of codefendants need not be a per se constitutional violation. Blake v. Zant, 513 F. Supp. 772, 1981 U.S. Dist. LEXIS 13559 (S.D. Ga. 1981), aff’d, 984 F.2d 1129, 1993 U.S. App. LEXIS 2267 (11th Cir. 1993). For a conflict of interest to cause representation to fail U.S. Const., amend. 6’s standards, the Eleventh Circuit requires that the conflict be actual, not speculative. Baty v. Balkcom, 661 F.2d 391, 1981 U.S. App. LEXIS 15986 (5th Cir. 1981), cert. denied, 456 U.S. 1011, 102 S. Ct. 2307, 73 L. Ed. 2d 1308, 1982 U.S. LEXIS 2395 (1982). flict of interest must be shown before the constitutional guarantee of effective assistance of counsel is implicated. Johnson v. Hopper, 639 F.2d 236, 1981 U.S. App. LEXIS 19339 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S. Ct. 548, 70 L. Ed. 2d 412, 1981 U.S. LEXIS 4351 (1981). New counsel to handle ineffective
Actual rather than speculative concounsel claim.
Defendant was entitled to new counsel to represent the defendant on the defendant’s ineffective counsel claim, and the trial court erred in appointing a member of the same public defender’s office as the defendant’s trial attorney. Kennebrew v. State, 267 Ga. 400, 480 S.E.2d 1, 1996 Ga. LEXIS 917 (1996).
What constitutes actual conflict.
An actual conflict exists if counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing. Baty v. Balkcom, 661 F.2d 391, 1981 U.S. App. LEXIS 15986 (5th Cir. 1981), cert. denied, 456 U.S. 1011, 102 S. Ct. 2307, 73 L. Ed. 2d 1308, 1982 U.S. LEXIS 2395 (1982). In representing codefendants, an actual conflict of interest exists if counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing. United Right to Counsel (Cont’d) 4. Conflicts of Interest and Joint Representation (Cont’d) States v. Carter, 721 F.2d 1514, 1984 U.S. App. LEXIS 26472 (11th Cir.), cert. denied, 469 U.S. 819, 105 S. Ct. 89, 83 L. Ed. 2d 36, 1984 U.S. LEXIS 3088 (1984). Representation of codefendant seeking different results constitutes
an actual conflict.
Since the same attorney represented two codefendants, siblings who were indicted for murder, one of whom wanted to proceed to trial and the other desiring to plead guilty, an obvious conflict of interest arose. Where the sibling who contended to be innocent pled guilty, because the state offered a plea agreement whereby it would not seek the death penalty only if both siblings pled guilty, that sibling was denied the right to effective assistance of counsel. Ford v. Ford, 749 F.2d 681, 1985 U.S. App. LEXIS 31595 (11th Cir.), cert. denied, 474 U.S. 909, 106 S. Ct. 278, 88 L. Ed. 2d 243, 1985 U.S. LEXIS 4049 (1985). senting multiple codefendants to adopt a strategy of shifting blame among the defendants may well give rise to an actual conflict of interest, but to do so the strategy must have been an option realistically available to trial counsel. United States v. Mers, 701 F.2d 1321, 1983 U.S. App. LEXIS 29538 (11th Cir.), cert. denied, 464 U.S. 991, 104 S. Ct. 482, 78 L. Ed. 2d 679, 1983 U.S. LEXIS 2462 (1983). Actual conflict in plea bargaining
Failure of a trial attorney repreefforts.
The trial attorney who represented the defendant and the codefendant, who successfully worked out a plea bargain for the codefendant, which required that the codefendant testify for the state in the criminal case against the defendant, but which plea bargain never materialized, labored under an actual conflict of interest that adversely affected the attorney’s performance, since the attorney was precluded from effective plea bargaining on behalf of the defendant. Ruffin v. Kemp, 767 F.2d 748, 1985 U.S. App. LEXIS 21117 (11th Cir. 1985). When counsel representing multiple defendants negotiates a plea bargain conditioned upon more than one pleading guilty, that attorney has suffered a conflict of interest that per se adversely affects the representation of each defendant affected. A showing that a defendant was allowed to plead guilty upon the condition that another defendant represented by the same attorney also plead guilty is a per se showing of ineffective assistance of counsel that rises to the level of an unconstitutional deprivation of the right to counsel. Tarwater v. State, 259 Ga. 516, 383 S.E.2d 883, 1989 Ga. LEXIS 550 (1989).
No conflict in plea bargaining efforts.
Joint representation did not prevent effective plea bargaining on behalf of either of two defendants, where a deal could not be negotiated for one defendant because the defendant refused to testify against the other defendant, and the state was unwilling to bargain with the other defendant. Smith v. Newsome, 876 F.2d 1461, 1989 U.S. App. LEXIS 8885 (11th Cir. 1989).
Actual conflict in immunity agreement.
An actual conflict of interest, in violation of U.S. Const., amend. 6, occurred when the defendant’s pretrial counsel, while representing two persons under suspicion for a murder, reached an informal understanding with the prosecutor that the other client would not be prosecuted in exchange for the other client’s testimony against the defendant. Burden v. Zant, 24 F.3d 1298, 1994 U.S. App. LEXIS 14952 (11th Cir. 1994).
Conflict of interest from joint representation must be actual to warrant reversal.
To warrant reversal, a conflict of interest brought about by an attorney’s representation of multiple codefendants must be actual rather than hypothetical. United States v. Mers, 701 F.2d 1321, 1983 U.S. App. LEXIS 29538 (11th Cir.), cert. denied, 464 U.S. 991, 104 S. Ct. 482, 78 L. Ed. 2d 679, 1983 U.S. LEXIS 2462 (1983). flict of interest actually affected the adequacy of the representation need not demonstrate prejudice in order to obtain relief. United States v. Alvarez, 580 F.2d 1251, 1978 U.S. App. LEXIS 8749 (5th Cir. 1978); Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, 1980 Ga. LEXIS 977, cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 136, 1980 U.S. LEXIS 3545 (1980). fronted with a conflict of interest between codefendants prejudice must be presumed and, except under the most extraordinary circumstances, the error cannot be considered harmless and reversal would be automatic. Johnson v. Hopper, 639 F.2d 236, 1981 U.S. App. LEXIS 19339 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S. Ct. 548, 70 L. Ed. 2d 412, 1981 U.S. LEXIS 4351 (1981). Judge’s knowledge of conflict need
Defendant who shows that a con-Since where an attorney is connot be shown.
Ineffective representation by a lawyer laboring under a conflict of interest renders the trial fundamentally unfair whether the judge knew of the conflict or not. Unlike most due process cases under U.S. Const., amend. 14, no state action in the form of a state official’s knowledge of the wrongdoing need be shown. A deprivation of due process results when the judgment reached in such a trial is enforced. Johnson v. Hopper, 639 F.2d 236, 1981 U.S. App. LEXIS 19339 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S. Ct. 548, 70 L. Ed. 2d 412, 1981 U.S. LEXIS 4351 (1981). Disqualification of an attorney from representing codefendants must be raised prior to trial, otherwise any disqualification could result in manufactured error. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, 1981 Ga. LEXIS 683 (1981), cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981), overruled on other grounds, Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442, 1982 Ga. LEXIS 1137 (1982). Failure to provide separate counsel
after notice of conflict is error.
Error will result only if a judge, after notice of potential conflict between codefendants, does not undertake to ensure that each defendant is represented by separate counsel. Stevenson v. State, 143 Ga. App. 813, 240 S.E.2d 123, 1977 Ga. App. LEXIS 2516 (1977).
Representation of multiple defendants.
Single defense counsel cannot effectively represent multiple defendants with conflicting interests. Collins v. State, 144 Ga. App. 102, 240 S.E.2d 597, 1977 Ga. App. LEXIS 2597 (1977). Trial counsel was not ineffective because counsel initially represented second defendant as well as third defendant where counsel withdrew from representing both defendants after counsel sensed a potential conflict. Baggs v. State, 265 Ga. App. 282, 593 S.E.2d 734, 2004 Ga. App. LEXIS 90 (2004). Defendant was not denied effective assistance of counsel based on the fact that defendant and codefendant were represented by different attorneys from the same public defender’s office; reversal was not required as no actual conflict of interest developed and defendant did not show that the fact that the attorneys were from the same office adversely affected the attorney’s performance. Burns v. State, 274 Ga. App. 687, 618 S.E.2d 600, 2005 Ga. App. LEXIS 667 (2005), aff’d, 281 Ga. 338, 638 S.E.2d 299, 2006 Ga. LEXIS 1026 (2006). Upon a review of the specific statements identified by the defendant supporting a conflict of interest claim between the defendant and the codefendant, who were represented by two separate attorneys with the public defender’s office, no evidence of antagonism was found, as the specific statements identified merely amounted to mutual expressions of indifference over the outcome of the criminal charges and not “finger pointing” as alleged by the defendant’s counsel; hence, counsel from the same public defender’s office were not automatically disqualified from their respective representations. Burns v. State, 281 Ga. 338, 638 S.E.2d 299, 2006 Ga. LEXIS 1026 (2006). Counsel representing prosecution
witness raises potential conflict.
The rules governing alleged conflicts arising from joint representation of codefendants apply with equal force to alleged conflicts arising from defense counsel’s representation of a prosecution witness in unrelated matters. Mitchell v. State, 261 Ga. 347, 405 S.E.2d 38, 1991 Ga. LEXIS 308 (1991).
Representation of persons with inconsistent interests.
A defendant’s right to the effective assistance of counsel under U.S. Const., amend. 6 is violated if over the defendant’s objection the defendant is represented by an attorney Right to Counsel (Cont’d) 4. Conflicts of Interest and Joint Representation (Cont’d) also charged with the representation of a codefendant whose interests are inconsistent with the defendant’s, but to justify separate counsel, the conflict may not be merely theoretical or speculative, but must have some substantial basis in fact. Davis v. State, 129 Ga. App. 796, 201 S.E.2d 345, 1973 Ga. App. LEXIS 1161 (1973); United States v. Johnson, 569 F.2d 269, 1978 U.S. App. LEXIS 12263 (5th Cir.), cert. denied, 437 U.S. 906, 98 S. Ct. 3096, 57 L. Ed. 2d 1137, 1978 U.S. LEXIS 2307 (1978). Simultaneous representation of
county and criminal defendant.
An actual conflict of interest would arise from defense counsel’s simultaneous representation of the defendant and Jones County, because it was counsel’s duty to defend against suits challenging the constitutionality of the county jury commission’s procedures in selecting grand and traverse jury pools, which situation arose in litigation occurring at the same time that the defendant was being tried in Jones County. Westbrook v. Zant, 743 F.2d 764, 1984 U.S. App. LEXIS 18386 (11th Cir. 1984). Trial counsel did not labor under a conflict of interest because counsel’s representation of the state in a guilty plea entered almost five years before the crimes at issue did not fall within the parameters of the Sixth Amendment, and even assuming the existence of an actual conflict of interest, the defendant would be required to demonstrate that the conflict significantly affected counsel’s performance, which the defendant failed to do; the record supported the trial court’s finding that trial counsel did not remember counsel’s work for the state against the defendant until after the jury verdict had been rendered, and the defendant did not allege that counsel’s performance at sentencing was affected by the discovery of that information. Lanier v. State, 288 Ga. 109, 702 S.E.2d 141, 2010 Ga. LEXIS 815 (2010). Representation by court’s law
clerk.
Defendant’s appointed counsel represented defendant in same court in which counsel was a full time law clerk; therefore, an actual conflict of interest existed warranting reversal of defendant’s convictions. Sallie v. State, 269 Ga. 446, 499 S.E.2d 897, 1998 Ga. LEXIS 518 (1998).
Simultaneous representation of defendant and state’s witness.
No conflict of interest stemmed from an attorney’s simultaneous representation of both a capital defendant and a state’s witness charged with a noncapital offense arising out of the events at issue in the capital trial. Zant v. Hill, 262 Ga. 815, 425 S.E.2d 858, 1993 Ga. LEXIS 217, cert. denied, 510 U.S. 931, 114 S. Ct. 342, 126 L. Ed. 2d 307, 1993 U.S. LEXIS 6564 (1993).
Prior employment in public defender’s office.
Trial court erred in granting a new trial based on ineffective assistance of counsel due to counsel’s prior employment in a public defender’s office where another attorney had briefly represented the state’s key witness against the defendant because the defendant failed to show how the conflict of interest compromised the attorney’s representation of the defendant. State v. Abernathy, 289 Ga. 603, 715 S.E.2d 48, 2011 Ga. LEXIS 550 (2011).
Counsel seeking election as prosecutor.
A defendant may wish to proceed with counsel holding other, even prosecutorial, offices because of perceived benefits to the defendant. Jones v. Ivory, 255 Ga. 20, 334 S.E.2d 666, 1985 Ga. LEXIS 857 (1985) (defendant knew of counsel’s campaign for office of district attorney). Joint representation at committal
hearing harmless.
Even if an accused was technically denied the Sixth Amendment right to counsel at a “committal hearing” because counsel who represented the codefendants had not in fact agreed to represent the accused, this denial was harmless error beyond a reasonable doubt because the evidence produced during the hearing was nothing more than an inventory of the completed investigation and nothing more than would have been revealed by the usual voluntary, informal discovery conference. Fleming v. Zant, 560 F. Supp. 525, 1983 U.S. Dist. LEXIS 18252 (M.D. Ga. 1983), aff’d, 748 F.2d 1435, 1984 U.S. App. LEXIS 16373 (11th Cir. 1984). Where defendants agree to one counsel, any error deemed induced
and impermissible.
Where a group of defendants confirm that they have discussed the case thoroughly with their counsel, and each states that there are no conflicts of interest, and each of them also states that they are satisfied to proceed with one counsel representing all of them, if any error occurs, it is induced by the defendants’ statements and induced error is impermissible. Accordingly, it is not error under the circumstances to allow one attorney to represent all of the defendants, and the multiple representation does not result in ineffective assistance of counsel. Shirley v. State, 166 Ga. App. 456, 304 S.E.2d 468, 1983 Ga. App. LEXIS 2210 (1983). Partners representing defendant
and codefendant.
Appointment of two partners to represent defendant and the defendant’s co-indictee in their respective murder trials did not infect the representation by defendant’s counsel so as to constitute an active representation of competing interests, because counsel’s decision not to make a “lesser culpability” argument on appeal was in no way attributable to the partnership. Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638, 1987 U.S. LEXIS 3047 (1987). Trial court did not err in finding that the defendant received adequate representation at trial, although the defendant’s trial attorney had represented the state’s informant in unrelated matters before and after trial. Dill v. State, 193 Ga. App. 214, 387 S.E.2d 425, 1989 Ga. App. LEXIS 1413 (1989). nistic defenses, but the trial judge denies the defendant’s motion for separate trial, defendant is not denied the right to effective counsel or to confront the witnesses, despite codefendants’ ability to assert the privilege against self-incrimination on cross-examination in a joint trial, unless defendant can show that the defendant is prejudiced. Cain v. State, 235 Ga. 128, 218 S.E.2d 856, 1975 Ga. LEXIS 803 (1975). counts related by codefendants to counsel, as their individual versions of what actually occurred, will not necessarily create a conflict which justifies separate counsel. Davis v. State, 129 Ga. App. 796, 201 S.E.2d 345, 1973 Ga. App. LEXIS 1161 (1973).
Where codefendants assert antago-Minor inconsistencies in the ac-Attorney’s representations as to existence of conflict.
The representations of an attorney, as an officer of the court, that the attorney perceives a potential conflict should be given very serious consideration. Johnson v. Hopper, 639 F.2d 236, 1981 U.S. App. LEXIS 19339 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S. Ct. 548, 70 L. Ed. 2d 412, 1981 U.S. LEXIS 4351 (1981). Professional judgment of counsel
as to need for separate counsel.
Where failure of appointed counsel to ask for separate representatives for each of the accused occurs, it must be assumed to have stemmed from their professional judgment that it was better not to get into an antagonistic fight with codefendants and there is no failure to provide counsel such as would deprive a criminal court, even under our civil jurisprudence, of jurisdiction to proceed to judgment and sentence. Bisson v. Howard, 224 F.2d 586, 1955 U.S. App. LEXIS 4125 (5th Cir.), cert. denied, 350 U.S. 916, 76 S. Ct. 201, 100 L. Ed. 803, 1955 U.S. LEXIS 80 (1955). Where defense counsel has it within counsel’s power to void a proceeding against counsel’s client and, because of counsel’s representation of another is not completely free to exercise this power, counsel most assuredly has a directly conflicting interest. Collins v. State, 144 Ga. App. 102, 240 S.E.2d 597, 1977 Ga. App. LEXIS 2597 (1977). Conflict where defense counsel also
represents a witness.
The reason a conflict of interest exists in a situation in which defense counsel is simultaneously representing a witness, even though the witness is not a codefendant at trial, is that defense counsel might not be vigorous enough in cross-examination of such a witness. Lemley v. State, 245 Ga. 350, 264 S.E.2d 881, 1980 Ga. LEXIS 793 (1980).
Counsel’s affiliations.
The defendant was not denied the right to counsel in the defendant’s capital murder prosecu-Right to Counsel (Cont’d) 4. Conflicts of Interest and Joint Representation (Cont’d) tion based on allegations that the defendant’s attorneys had conflicts of interest in that they had co-hosted a fund-raising event with the county district attorney and county solicitor general, and that the attorneys were co-owners of an office building with another attorney who had contracted with the district attorney to collect child support for the county. Henry v. State, 269 Ga. 851, 507 S.E.2d 419, 1998 Ga. LEXIS 812 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1768, 143 L. Ed. 2d 798, 1999 U.S. LEXIS 3321 (1999). Failure to raise issue because of
agreement by public defender’s office.
An inmate had been denied effective assistance of counsel under the Sixth Amendment and Ga. Const. 1983, Art. I, Sec. I, Para. XIV based on an actual conflict of interest because both trial and appellate counsel did not diligently pursue a jury array issue based on an agreement that the public defender’s office had with superior court judges, despite their belief that the issue was a strong one. The attorneys’ duties to their employer, the public defender’s office, directly conflicted with their duties of loyalty and zealous advocacy to their client under Ga. St. Bar R. 4-102(d):1.7, and the conflict significantly affected the representation the inmate received. Edwards v. Lewis, 283 Ga. 345, 658 S.E.2d 116, 2008 Ga. LEXIS 187 (2008). That appellant is jointly indicted and tried with a codefendant who is additionally alleged in the indictment to have been convicted of prior similar offenses, where the indictment is read to the jury during the guilt determination phase of the trial, and where both defendants are represented by the same attorney, is not in itself prejudicial to appellant to an extent requiring reversal of the conviction. Davis v. State, 129 Ga. App. 796, 201 S.E.2d 345, 1973 Ga. App. LEXIS 1161 (1973). Where the death penalty is sought against any one defendant, the defendant and the codefendants must be provided with separate and independent counsel. Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, 1980 Ga. LEXIS 977, cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 136, 1980 U.S. LEXIS 3545 (1980). Penalty may be imposed despite joint representation, if no prejudice
shown.
Where there is no timely defense objection nor is there any objection by the state, and no material prejudice has been demonstrated, the fact that the appellant’s attorney is appointed to represent both the appellant and the appellant’s codefendants does not prevent imposition of the death penalty. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, 1981 Ga. LEXIS 683 (1981), cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981), overruled on other grounds, Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442, 1982 Ga. LEXIS 1137 (1982). Representation of codefendants in
death penalty cases.
In Fleming v. State, 246 Ga. 90, 270 S.E.2d 185 (1980), the Supreme Court of Georgia, by the authority of its supervisory power over the bar of this state, created a broad rule in cases in which the death penalty is sought. Under the rule of Fleming, the same attorney shall not represent codefendants in cases in which the death penalty is sought. Fleming v. State was decided June 9, 1980, and, in that it is based on the court’s supervisory power, is prospective only. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, 1981 Ga. LEXIS 683 (1981), cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981), overruled on other grounds, Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442, 1982 Ga. LEXIS 1137 (1982). Trial court need not advise a defendant of the right to separate counsel in the event of a conflict of interest between codefendants, where there is neither objection, claim, nor notice to the court of any alleged conflict between the interests of the defendants. United States v. Boudreaux, 502 F.2d 557, 1974 U.S. App. LEXIS 6525 (5th Cir. 1974).
Procedure upon motion for separate counsel.
If a trial counsel who has been appointed to represent two or more criminal defendants makes a timely motion to have separate counsel appointed, the trial court must either appoint separate counsel or take adequate steps to determine if the risk of a conflict of interests is too remote to warrant separate counsel. Lemley v. State, 245 Ga. 350, 264 S.E.2d 881, 1980 Ga. LEXIS 793 (1980).
Waiver of right to separate counsel.
— The right to separate appointed counsel where multiple defendants have conflicting interests is a right the defendant is entitled to waive. Collins v. State, 144 Ga. App. 102, 240 S.E.2d 597, 1977 Ga. App. LEXIS 2597 (1977).
Inquiry as to attorneys’ fees.
Where the record clearly indicated that lawyers representing codefendants in this case also represented codefendants in a previous case and that the defendant provided fees to all counsel in the previous case even though the defendant was not a party in the previous case, the appearance of impropriety and possible conflicts of interest were pervasive, thereby warranting the district court to inquire as to the source of attorney’s fees. United States v. Sims, 845 F.2d 1564, 1988 U.S. App. LEXIS 7103 (11th Cir. 1988).
Joint representation when one defendant pays all fees.
Habeas court did not err in granting the appellee’s petition for writ of habeas corpus because there was no error in the habeas court’s finding of an actual conflict of interest that adversely affected plea counsel’s performance since the fact that the codefendant alone was paying counsel’s fees created a strong incentive for counsel to prioritize the codefendant’s interests in the matter over the appellee’s interest, and counsel not only failed to pursue an alternative defense theory on behalf of the appellee, counsel failed even to recognize the possibility that one could exist; even though the appellee and the codefendant pursued a unified defense in that their accounts of the incident were consistent, the record reflected that the appellee was the less culpable of the two in the crime, as it appeared that the appellee’s participation was limited to the role of a passive witness who happened to be driving when the codefendant initiated the brief, apparently unpremeditated interaction with the victim. State v. Mamedov, 288 Ga. 858, 708 S.E.2d 279, 2011 Ga. LEXIS 254 (2011).
Defense counsel, not court, initiates inquiry.
Nothing in the legal precedents suggest that this provision requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case. Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial. Craddock v. State, 173 Ga. App. 133, 325 S.E.2d 804, 1984 Ga. App. LEXIS 3104 (1984). Right to counsel not violated by
attorney’s internal investigation.
Attorneys from a law firm conducting an internal investigation for the corporation did not violate the defendant employee’s constitutional right to counsel. The attorneys were not acting as de facto government agents during their internal investigation of the defendant’s employer, and, in addition, the attorneys indeed advised the defendant of the defendant’s rights. Therefore, the defendant’s statement which tended to inculpate the defendant violated no duty or privilege and was admissible. United States v. Calhoon, 859 F. Supp. 1496, 1994 U.S. Dist. LEXIS 10991 (M.D. Ga. 1994), aff’d, 97 F.3d 518, 1996 U.S. App. LEXIS 26962 (11th Cir. 1996). No ineffective assistance of counsel for conflict of interest in representing rape codefendants where testimony of one was subsequently helpful to other on issue of consent. Yeck v. Goodwin, 985 F.2d 538, 1993 U.S. App. LEXIS 4229 (11th Cir. 1993).
No conflict of interest.
Record belied any assertion that trial counsel had any divided loyalties between the defendant and a man who had been a suspect in the murder and testified as a state’s witness at trial or that counsel represented the man in any way during the defendant’s trial because counsel actually targeted the man as one of the people other than the defendant who had actually committed the murder. Wheeler v. State, 290 Ga. 817, 725 S.E.2d 580, 2012 Ga. LEXIS 333 (2012). Defendant did not establish a successful ineffective assistance of counsel claim based on a conflict of interest because the Right to Counsel (Cont’d) 4. Conflicts of Interest and Joint Representation (Cont’d) fact that attorneys from one public defender’s office were representing the defendant and the accomplice was not sufficient, standing alone, to show an impermissible conflict of interest; nothing in the record indicated that counsel bypassed any meritorious defenses, that the accomplice’s plea bargain was negotiated at the expense of the defendant, or that counsel’s ability to cross-examine the accomplice was constrained; and there was no evidence that the defendant’s counsel shared any privileged or confidential information with or obtained such information from the attorney representing the accomplice. Williams v. State, 302 Ga. 404, 807 S.E.2d 418, 2017 Ga. LEXIS 936 (2017). Defendant’s right to conflict-free counsel at trial was not violated as the defendant did not show any actual conflict that adversely affected the co-counsel’s performance because the concern about simultaneous conflicting representations dissipated when the state announced that it would not call another criminal defendant represented by co-counsel as a witness at the defendant’s trial; lead counsel zealously defended the defendant; and lead counsel confirmed that both lead counsel and co-counsel represented the defendant’s best interests and that co-counsel was helpful in preparing for trial. Tanner v. State, 303 Ga. 203, 811 S.E.2d 316, 2018 Ga. LEXIS 141 (2018). 5. Duties and Effectiveness of Counsel Right to counsel is the right to effective counsel. Harrell v. State, 139 Ga. App. 556, 228 S.E.2d 723, 1976 Ga. App. LEXIS 1884 (1976), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982); Jones v. State, 243 Ga. 820, 256 S.E.2d 907, 1979 Ga. LEXIS 1079, cert. denied, 444 U.S. 957, 100 S. Ct. 437, 62 L. Ed. 2d 329 (1979). The guarantee of the assistance of counsel to a criminal defendant requires that such representation must be effective. Beavers v. Balkcom, 636 F.2d 114, 1981 U.S. App. LEXIS 20401 (5th Cir. 1981). A defendant is entitled not to perfect representation but to reasonably effective assistance. Foreman v. State, 200 Ga. App. 400, 408 S.E.2d 178, 1991 Ga. App. LEXIS 988 (1991). Defense counsel’s failure to reserve exceptions to the jury charge was a conscious decision, was a matter of trial strategy, and did not constitute ineffective assistance of counsel as, although defense counsel was not asked why counsel did not object to the omission of a previouslyrequested charge on impeachment by crime of moral turpitude, the record showed that defense counsel felt that the witness had been impeached by other means. Botelho v. State, 268 Ga. App. 129, 601 S.E.2d 494, 2004 Ga. App. LEXIS 862 (2004). Ineffective assistance of counsel claim failed where trial counsel’s decision not to challenge the search of defendant’s residence was based on the fact that the lessor, a person other than defendant, had given permission to search the home; thus, counsel felt counsel did not have standing or sufficient ground to challenge the search. In addition, defendant failed to demonstrate how a motion challenging the search warrant would have been successful and, thus, failed to show prejudice. Allen v. State, 268 Ga. App. 519, 602 S.E.2d 250, 2004 Ga. App. LEXIS 961 (2004), cert. denied, No. S04C1943, 2004 Ga. LEXIS 896 (Ga. Oct. 12, 2004), overruled in part, Harris v. State, 322 Ga. App. 87, 744 S.E.2d 82, 2013 Ga. App. LEXIS 458 (2013), overruled on other grounds, Hillman v. Johnson, 297 Ga. 609, 774 S.E.2d 615, 2015 Ga. LEXIS 489 (2015).
Pending disciplinary action not ineffective assistance per se.
Trial counsel was not ineffective per se due to the fact that there was a pending disciplinary action against counsel at the time of trial or due to the subsequent surrender of counsel’s license to practice law. Simmons v. State, 291 Ga. 705, 733 S.E.2d 280, 2012 Ga. LEXIS 775 (2012). isfy the mandate of U.S. Const.,
Physical presence alone fails to satamend. 6.
The right to counsel means no less than the right to effective counsel. United States v. Woods, 487 F.2d 1218, 1973 U.S. App. LEXIS 6600 (5th Cir. 1973). Effective assistance is that which
assures due process.
Effective assistance does not mean that a defendant is entitled to have the best counsel appointed, or any particular counsel, but it does mean that the defendant must have such assistance as will assure the defendant due process of law. Hawes v. State, 240 Ga. 327, 240 S.E.2d 833, 1977 Ga. LEXIS 1496 (1977). Due process of law requires that the court-appointed counsel be competent to serve and give more than casual or perfunctory service. Lip service only will not do. Coates v. Lawrence, 46 F. Supp. 414, 1942 U.S. Dist. LEXIS 2548 (D. Ga.), aff’d, 131 F.2d 110, 1942 U.S. App. LEXIS 2727 (5th Cir. 1942). Effective representation involves more than courtroom conduct by the
advocate.
Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. This means that in most cases a defense attorney should interview not only the defense’s own witnesses but also those that the government intends to call, when they are accessible. Harrell v. State, 139 Ga. App. 556, 228 S.E.2d 723, 1976 Ga. App. LEXIS 1884 (1976), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982). Counsel must be acquainted with
law and facts.
An attorney cannot render reasonably effective assistance unless the attorney has become acquainted with the law and facts of the case. United States v. Woods, 487 F.2d 1218, 1973 U.S. App. LEXIS 6600 (5th Cir. 1973). Counsel must evaluate defenses
and discuss case with client.
Constitutionally effective counsel must make an informed evaluation of possible defenses and have a meaningful discussion of the case with the client. Dixon v. Balkcom, 614 F.2d 1067, 1980 U.S. App. LEXIS 18928 (5th Cir. 1980). Evaluating defenses and discussing the case with the client are the cornerstones of the effective assistance of counsel. Beavers v. Balkcom, 636 F.2d 114, 1981 U.S. App. LEXIS 20401 (5th Cir. 1981).
Counsel must provide client the basis for informed choice.
Effective assistance of counsel embodies a requirement that the defendant be afforded an understanding of the law in relation to the fact, and counsel’s advice must permit the accused to make an informed and conscious choice. Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff’d, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979).
Assistance of counsel in determining how to plead.
A defendant is entitled to effective assistance of counsel in determining how to plead and in making the plea, and can attack the conviction collaterally if the defendant is not given this right. Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff’d, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979). Trial court erred in convicting defendant of incest, O.C.G.A. § 16-6-22; at a guilty plea hearing, the prosecutor alleged that defendant had sexual intercourse with the defendant’s step-sibling, and sexual intercourse between step-siblings was not included in the crime of incest under O.C.G.A. § 16-6-22(a)(3). Further, the defendant received ineffective assistance of counsel at the plea hearing pursuant to U.S. Const., amend. 6, because if counsel had informed the defendant that the state could not as a matter of law prove the offense of incest because the defendant’s relationship to the victim was not included within the statutory scheme for such offense, the defendant would not have pled guilty and would have insisted on going to trial. Shabazz v. State, 259 Ga. App. 339, 577 S.E.2d 45, 2003 Ga. App. LEXIS 102 (2003), overruled in part, Adams v. State, 285 Ga. 744, 683 S.E.2d 586, 2009 Ga. LEXIS 480 (2009). Failure to advise on withdrawal of
plea.
Defendant’s conviction based on a guilty plea was properly set aside because the defendant did not waive a statutory right to withdraw the guilty plea at any time prior to sentencing as there was no indication in the sentencing transcript Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) that such a waiver was made; no reasonable attorney providing constitutionally effective representation would fail to inform the defendant of an absolute statutory right to withdraw a plea when the attorney had obtained new information that changed the attorney’s assessment of the defendant’s case and had not yet fully discussed that information and its relevance with the defendant; and there was prejudice as the defendant would have withdrawn the guilty plea prior to sentencing and continued with trial. Nelson v. Wilkey, 309 Ga. 203, 845 S.E.2d 566, 2020 Ga. LEXIS 468 (2020). U.S. Const., amend. 6 guarantees neither successful counsel, nor the best counsel available, nor counsel free from tactical errors or errors of judgment. Pitts v. Hopper, 402 F. Supp. 119, 1974 U.S. Dist. LEXIS 11588 (N.D. Ga. 1974), aff’d, 520 F.2d 941 (5th Cir. 1975).
Right to plan defense in private.
Effective assistance of counsel involves the right of counsel and the client to plan defense strategy and tactics in private and independent of interference by the court. Harrell v. State, 139 Ga. App. 556, 228 S.E.2d 723, 1976 Ga. App. LEXIS 1884 (1976), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982). Use of a private investigator who assists in the preparation of the defense as a paid informant for the FBI, does not by itself constitute a denial of a fundamental right to a fair trial and effective assistance of counsel. United States v. Zarzour, 432 F.2d 1, 1970 U.S. App. LEXIS 7231 (5th Cir. 1970). Intrusion by the government upon the confidential relationship between dant’s attorney, either through surreptitious electronic means or through an informant, is a violation of the right to counsel under U.S. Const., amend. 6. United States v. Zarzour, 432 F.2d 1, 1970 U.S. App. LEXIS 7231 (5th Cir. 1970). Determination as to whether such investigator has given prosecution
a criminal defendant and the defeninformation about defense.
When private investigator hired to assist in preparation of accused’s defense is an informant for the FBI, an in camera inspection of the government’s files should be made to determine whether any information concerning the accused’s case was transmitted to the prosecution in violation of the accused’s rights under U.S. Const., amend. 6 and to order disclosure of such information to the accused. United States v. Zarzour, 432 F.2d 1, 1970 U.S. App. LEXIS 7231 (5th Cir. 1970).
No right to gender preference.
There was no showing that defendant was not provided with reasonably effective assistance of counsel just because the defendant was denied a request for a male defense attorney in a prosecution for rape and kidnapping. Johnson v. State, 208 Ga. App. 453, 430 S.E.2d 821, 1993 Ga. App. LEXIS 599 (1993). ment violates U.S. Const., amends. 5
Failure to make effective appointand 14.
The necessity of counsel is so vital and imperative that the failure of the trial court to make an effective appointment of counsel is likewise a denial of due process within the meaning of U.S. Const., amends. 5 and 14. Bridwell v.Aderhold, 13 F. Supp. 253, 1935 U.S. Dist. LEXIS 1098 (D. Ga. 1935), aff’d, 92 F.2d 748, 1937 U.S. App. LEXIS 4689 (5th Cir. 1937). Judges should maintain proper
standards of performance by attorneys.
If the right to counsel guaranteed by the United States Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts. McBryar v. McElroy, 510 F. Supp. 706, 1981 U.S. Dist. LEXIS 12844 (N.D. Ga. 1981). vices are performed in a skillful manner and the presumption may be overcome only by competent expert testimony showing that such services were not performed in an ordinarily skillful manner. Gottschalk v. State, 160 Ga. App. 769, 287 S.E.2d 107, 1982 Ga. App. LEXIS 1682 (1982).
There is presumption that legal ser-Presumption regarding performance of counsel.
There is a strong presumption that trial counsel’s performance falls within the wide range of professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. Ferrell v. State, 261 Ga. 115, 401 S.E.2d 741, 1991 Ga. LEXIS 140, cert. denied, 502 U.S. 927, 112 S. Ct. 343, 116 L. Ed. 2d 282, 1991 U.S. LEXIS 6246 (1991). There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Stevens v. State, 199 Ga. App. 563, 405 S.E.2d 713, 1991 Ga. App. LEXIS 592 (1991). Counsel has a duty to make reasonable investigations, however, the defendant must overcome the presumption that, under the circumstances the challenged action might be considered sound trial strategy. Carver v. State, 203 Ga. App. 197, 416 S.E.2d 810, 1992 Ga. App. LEXIS 469 (1992), cert. denied, No. S92C0852, 1992 Ga. LEXIS 380 (Ga. Apr. 30, 1992). In evaluating an attorney’s performance for purposes of considering a claim of ineffective assistance of counsel, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Horne v. State, 260 Ga. App. 640, 580 S.E.2d 644, 2003 Ga. App. LEXIS 447 (2003). In a prosecution for false imprisonment, aggravated assault, and aggravated battery, defendant failed to establish that the alleged deficient performance of the trial council prejudiced the defense; the assistance rendered by defendant’s trial counsel fell within the broad range of reasonably effective assistance which members of the bar in good standing are presumed to render. Grier v. State, 276 Ga. App. 655, 624 S.E.2d 149, 2005 Ga. App. LEXIS 1143 (2005), cert. denied, No. S06C0754, 2006 Ga. LEXIS 329 (Ga. Apr. 25, 2006). No ineffectiveness of counsel was shown in a defendant’s malice murder trial by the trial counsel’s purported bolstering of the testimony of a detective who was a prosecution witness; when, after pointing out inconsistencies and contradictions in the testimony of a witness whose statements the detective had relied upon in concluding that the defendant was responsible for the murder, the trial counsel asked the detective whether, in light of those matters, the detective believed the witness, the trial counsel was engaging in trial strategy intended to undermine the testimony of the witness rather than seeking to bolster that testimony. Green v. State, 281 Ga. 322, 638 S.E.2d 288, 2006 Ga. LEXIS 992 (2006). With regard to defendant’s convictions for aggravated child molestation and two counts of child molestation after a bench trial, because defendant failed to call trial counsel at the hearing on defendant’s motion for a new trial, defendant was unable to establish that defendant received ineffective assistance of counsel at trial based on trial counsel: (1) failing to adequately investigate the case; (2) failing to present an interview report as evidence; and (3) failing to object to hearsay testimony regarding the victims’ abuse allegations; therefore, the presumption remained that trial counsel strategically elected not to offer the interview report as evidence. Further, even if the child victim’s statements were not admissible under the child hearsay statute, there was no ineffective assistance since defendant confirmed the statements through his own trial testimony. Brumbelow v. State, 289 Ga. App. 520, 657 S.E.2d 603, 2008 Ga. App. LEXIS 141 (2008).
When issue must be raised.
Any contention concerning a violation of the constitutional right of effective assistance of counsel must be made at the earliest practicable moment, and the counsel whose proficiency is under attack should be given an opportunity to be heard. Lynn v. State, 181 Ga. App. 461, 352 S.E.2d 602, 1986 Ga. App. LEXIS 2829 (1986). The proceeding in which an out-of-time appeal is sought is the proper time to raise the issue of ineffective assistance of counsel. Ponder v. State, 260 Ga. 840, 400 S.E.2d 922, 1991 Ga. LEXIS 95 (1991), overruled in part, Kelly v. State, 311 Ga. 827, 860 S.E.2d 740, 2021 Ga. LEXIS 470 (2021). A claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) the issue is raised and resolved by means of an evidentiary hearing. Ponder v. State, 260 Ga. 840, 400 S.E.2d 922, 1991 Ga. LEXIS 95 (1991), overruled in part, Kelly v. State, 311 Ga. 827, 860 S.E.2d 740, 2021 Ga. LEXIS 470 (2021). Habeas corpus petitioner’s claim of ineffective assistance of trial counsel was waived, because the petitioner’s appellate counsel, who was not the petitioner’s trial counsel, failed to assert it on direct appeal, and the petitioner failed to demonstrate cause for the failure to raise the claim and prejudice arising therefrom. White v. Kelso, 261 Ga. 32, 401 S.E.2d 733, 1991 Ga. LEXIS 133 (1991). If there is new counsel appointed or retained, the new counsel must raise the ineffectiveness of previous counsel at the first possible instance in the legal proceedings. Ryan v. Thomas, 261 Ga. 661, 409 S.E.2d 507, 1991 Ga. LEXIS 829 (1991). Raising issue of ineffectiveness by
law firm member.
A member of a law firm may not, by his or her failure to raise an ineffective assistance claim against a fellow member of the firm, bar the rights of a defendant to ever raise that issue. To hold otherwise would permit one member of the firm to shield a fellow member against accusations of ineffectiveness at the expense of the rights of the defendant. Ryan v. Thomas, 261 Ga. 661, 409 S.E.2d 507, 1991 Ga. LEXIS 829 (1991). Raising issue of ineffectiveness by
public defender’s office.
Attorneys in a public defender’s office are to be treated as members of a law firm for the purposes of raising claims of ineffective assistance of counsel. As such, different attorneys from the same public defenders office are not to be considered “new” counsel for the purpose of raising ineffective assistance claims under White v. Kelso, so that a defendant’s right to raise such a claim may not be barred by the failure of a succession of attorneys from the same public defender’s office to raise it. Ryan v. Thomas, 261 Ga. 661, 409 S.E.2d 507, 1991 Ga. LEXIS 829 (1991). Failure to raise a claim of ineffectiveness of counsel by motion for new trial before appeal, when there was an adequate opportunity to do so, was a procedural bar to raising the claim at a later date; overruling Sixayaketh v. State, 261 Ga. 690, 410 S.E.2d 113 (1991); Dozier v. State, 217 Ga. 835, 459 S.E.2d 463 (1995); King v. State, 208 Ga. App. 77, 430 S.E.2d 640 (1993). Glover v. State, 266 Ga. 183, 465 S.E.2d 659, 1996 Ga. LEXIS 28 (1996); Clay v. State, 232 Ga. App. 541, 502 S.E.2d 267, 1998 Ga. App. LEXIS 649 (1998). Appellant’s new appellate counsel who participated in a motion for new trial, but did not raise the issue of the effectiveness of appellant’s trial counsel, barred appellant from asserting this argument. Smith v. State, 263 Ga. 224, 430 S.E.2d 579, 1993 Ga. LEXIS 508 (1993). Defendant could claim ineffective assistance of counsel at the defendant’s motion for new trial for the first time on appeal, since the attorney was initially retained to represent the defendant at the motion and, therefore, the claim was presented at the earliest practicable moment. Rucker v. State, 268 Ga. 406, 489 S.E.2d 844, 1997 Ga. LEXIS 583 (1997). Defendant’s ineffective assistance of counsel claim was waived as defendant’s original post-conviction counsel moved for a new trial, but did not raise an ineffective assistance of trial counsel claim; defendant’s claim that defendant’s original post-conviction counsel was deficient in failing to raise an ineffective assistance claim below had to be addressed in a habeas corpus proceeding. Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340, 2004 Ga. App. LEXIS 663 (2004), cert. denied, No. S04C1634, 2004 Ga. LEXIS 680 (Ga. Sept. 7, 2004). Defendant’s case was remanded for an evidentiary hearing on the defendant’s ineffective assistance of counsel claims as it was not clear when the defendant took over the defendant’s own representation and the defendant’s appeal might have been the defendant’s first opportunity to raise the defendant’s ineffective assistance of counsel claims, and as the defendant’s claims could not be resolved by examining the appellate record. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637, 2004 Ga. App. LEXIS 702 (2004). Failure to cite to law or record. — Because defendant failed to provide any citations to either the law or the record, let alone an application of authority to that record amounting to legal argument, in support of an ineffective assistance of counsel assertion, this issue was deemed abandoned on appeal. Gore v. State, 272 Ga. App. 156, 611 S.E.2d 764, 2005 Ga. App. LEXIS 243 (2005). Trial court’s denial of the defendant’s new trial motion was proper because the defendant did not raise the issue of the trial counsel’s ineffectiveness at the first available opportunity, as the defendant’s having filed a notice of appeal divested the trial court of jurisdiction over such a motion, and moreover, the motion was untimely filed pursuant to O.C.G.A. § 5-5-40(a); there was no evidence that overcame the presumption of effective assistance of counsel pursuant to U.S. Const., amend. 6, as defendant could not substantiate the allegations solely from the record and he declined the opportunity to have the counsel testify. Carter v. State, 275 Ga. App. 846, 622 S.E.2d 60, 2005 Ga. App. LEXIS 1122 (2005). As the defendant was represented during the motion for new trial following criminal conviction by one of the two counsel who had assisted the defendant before and during the trial, and the claim of ineffective assistance of counsel under U.S. Const., amend. 6 was not raised in the motion or at the hearing, new appellate counsel raised the claim at the earliest practicable time by noting it in the direct appeal; thus, a remand was proper in order to have a hearing on the claim. Warren v. State, 281 Ga. App. 490, 636 S.E.2d 671, 2006 Ga. App. LEXIS 1085 (2006), cert. denied, No. S07C0095, 2006 Ga. LEXIS 1007 (Ga. Nov. 20, 2006). Defendant’s claim that counsel was ineffective for not raising the issue of the validity of the defendant’s prior convictions was procedurally barred because the defendant had not raised the issue in the defendant’s motion for new trial. The defendant could not resuscitate the issue by raising the issue under the guise of an ineffective assistance of appellate counsel claim. McGlocklin v. State, 292 Ga. App. 162, 664 S.E.2d 552, 2008 Ga. App. LEXIS 721 (2008).
Ineffective counsel may not be asserted in out-of-time appeal.
A claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing. Holt v. State, 205 Ga. App. 40, 421 S.E.2d 131, 1992 Ga. App. LEXIS 1065 (1992). Effectiveness issue not addressed
for first time on appeal.
The issue of effectiveness of counsel is not to be addressed for the first time on appeal. Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573, 1988 Ga. App. LEXIS 376 (1988). The right to claim ineffective assistance of counsel is waived by the failure to raise it at the trial level, i.e., at the “earliest practicable moment.” Battle v. State, 195 Ga. App. 542, 394 S.E.2d 788, 1990 Ga. App. LEXIS 638 (1990). There is no indication from the record that the issue of ineffective assistance of counsel was ever raised in the trial court where appellate counsel had ample opportunity to raise the issue before the trial court. Over 15 months elapsed between the appointment of appellate counsel and the hearing on the motion for new trial during which appellate counsel could have raised this argument. Thus, having failed to do so, appellant is barred from asserting this argument here. Martin v. State, 204 Ga. App. 782, 420 S.E.2d 645, 1992 Ga. App. LEXIS 1012 (1992).
Waiver of claim of ineffective assistance.
A defendant does not waive the claim of ineffective assistance of counsel by responding to trial court’s inquiries pursuant to paragraphs (a)(7) and (b)(4) of the Unified Appeal Procedure under Rule 34.3 by silence or expression of one or more objections to the defendant’s counsel’s performance. Grace v. State, 262 Ga. 485, 422 S.E.2d 176, 1992 Ga. LEXIS 917 (1992). Because the defendant failed to raise an ineffective assistance of counsel claim at the first practicable opportunity, specifically when newly appointed counsel filed an amended motion for a new trial, the Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) claim was waived. Simmons v. State, 281 Ga. 437, 637 S.E.2d 709, 2006 Ga. LEXIS 977 (2006). Defendant’s ineffective assistance of counsel claim based on appointed counsel’s failure to file any motions or to appear at any hearing or trial was waived; further, appointed counsel made an appearance and retained counsel entered an appearance a month later, the defendant was never unrepresented, and the defendant was not prejudiced by appointed counsel’s inaction. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729, 2006 Ga. App. LEXIS 1217 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (Ga. Jan. 22, 2007), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Defendant’s ineffective assistance of counsel claim based on trial counsel’s failure to object when the state called witnesses who were not “properly placed on the witness list” was waived; all of the witnesses’ names were included in investigative reports given to the defendant, one witness was included in the second additional list under her maiden name, and trial counsel interviewed two other witnesses. The defendant was not surprised by the witnesses and trial counsel’s failure to object to their testimony did not so prejudice the defense that the defendant was deprived of a fair trial. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729, 2006 Ga. App. LEXIS 1217 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (Ga. Jan. 22, 2007), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Defendant abandoned claims of insufficient investigation and trial preparation when those claims were merely general and bald assertions, unsupported by argument or citation of authority; as for the defendant’s other claims, a failure to make meritless objections could not support an ineffective assistance of counsel claim. Sampson v. State, 282 Ga. 82, 646 S.E.2d 60, 2007 Ga. LEXIS 404 (2007). Rules of practice governing pro se
counsel.
Post-judgment practice involves strict compliance with rules of practice and procedure, and pro se parties are generally bound by the same rules of practice and procedure as a lawyer. Weber v. State, 203 Ga. App. 356, 416 S.E.2d 868, 1992 Ga. App. LEXIS 416 (1992), overruled in part, Allen v. Daker, 311 Ga. 485, 858 S.E.2d 731, 2021 Ga. LEXIS 264 (2021).
Pro se defendants have no ineffective assistance of counsel claim.
Because the defendant elected to handle the defendant’s own representation, the defendant could not assert a claim of ineffective assistance of counsel. Daughtry v. State, 225 Ga. App. 45, 482 S.E.2d 532, 1997 Ga. App. LEXIS 288 (1997). Distinction exists between lack of effective assistance and denial of that
right.
There is a distinction to be made between the lack of effective assistance of competent counsel and being denied the right to have the effective assistance of competent counsel. It is the latter that opens a judgment to challenge by habeas corpus. Johnson v. Smith, 295 F. Supp. 835, 1968 U.S. Dist. LEXIS 7690 (N.D. Ga. 1968), aff’d, 414 F.2d 645, 1969 U.S. App. LEXIS 11569 (5th Cir. 1969). tained and appointed counsel, for purposes of gauging counsel’s effectiveness. Allen v. Hopper, 234 Ga. 642, 217 S.E.2d 156, 1975 Ga. LEXIS 1213 (1975). Standard for appointed counsel is more stringent than for retained counsel. Allen v. Hopper, 234 Ga. 642, 217 S.E.2d 156, 1975 Ga. LEXIS 1213 (1975).
There is a distinction between re-Test for asserting ineffective assistance of counsel claim.
When a defendant asserts a claim of ineffective assistance, the test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross v. State, 262 Ga. 232, 416 S.E.2d 284, 1992 Ga. LEXIS 515 (1992). Defendant did not show that the trial counsel performed deficiently and that any alleged deficient performance prejudiced the defense, and, thus, did not establish ineffective assistance of counsel, as: (1) the trial court’s alleged failure to give a curative instruction regarding a remark a witness made that bolstered the victim’s credibility was not error since defense counsel had asked the question to which the remark was made and did not object, which meant defendant could not challenge the failure to give the instruction as error; and (2) the victim’s comment to a witness shortly after having sex with defendant was admissible as res gestae evidence and, thus, defense counsel could not be ineffective for failing to object to it. Drummond v. State, 275 Ga. App. 86, 619 S.E.2d 784, 2005 Ga. App. LEXIS 885 (2005). In determining prejudice on an ineffective assistance of counsel claim under Strickland, a defendant has to show that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; Georgia cases that deviated from that standard by eliminating the reasonable probability language, thereby putting a more stringent burden on the defendant, are thus disapproved. Miller v. State, 285 Ga. 285, 676 S.E.2d 173, 2009 Ga. LEXIS 143 (2009). To determine effectiveness, totality
of circumstances must be examined.
— Claims of ineffective assistance of counsel require the court to inquire into the actual performance rendered by counsel based on the totality of the circumstances. Young v. Zant, 506 F. Supp. 274, 1980 U.S. Dist. LEXIS 16535 (M.D. Ga. 1980), rev’d in part, 677 F.2d 792, 1982 U.S. App. LEXIS 19269 (11th Cir. 1982). Effective counsel need not be errorless counsel, nor should counsel be judged ineffective by hindsight; the appropriate methodology for determining whether there has been effective assistance is to examine the totality of the circumstances in the record. Dodd v. Williams, 560 F. Supp. 372, 1983 U.S. Dist. LEXIS 18612 (N.D. Ga. 1983). Habeas court erred by reversing a defendant’s death sentence imposed for a murder based on the defendant’s claim of ineffective assistance of counsel for trial counsel’s failure to present evidence of the defendant’s mental health status and for failing to present other mitigation evidence as, considering the combined effect of trial counsel’s various professional deficiencies, as a matter of law, there was no possibility that absent trial counsel’s professional deficiencies a reasonable probability existed that a different outcome would have occurred. Schofield v. Cook, 284 Ga. 240, 663 S.E.2d 221, 2008 Ga. LEXIS 545 (2008).
Measure of reasonable effectiveness at time of service.
Appellant was not denied effective assistance of counsel because appointed counsel conducted extensive cross-examination, made appropriate objections to the presentation of the state’s case in chief, and was faced with overwhelming evidence of the appellant’s guilt through the testimony of numerous eyewitnesses. The effectiveness of counsel cannot be measured fairly by the results of a criminal trial or appeal, but is measured upon the reasonable effectiveness of counsel at the time the services were rendered. White v. State, 174 Ga. App. 443, 330 S.E.2d 381, 1985 Ga. App. LEXIS 2714 (1985). The effectiveness of counsel cannot be measured fairly by the results of a criminal trial or appeal, but upon the reasonable effectiveness of counsel at the time the services were rendered. Keese v. State, 174 Ga. App. 739, 331 S.E.2d 88, 1985 Ga. App. LEXIS 2747 (1985); Gross v. State, 262 Ga. 232, 416 S.E.2d 284, 1992 Ga. LEXIS 515 (1992). Performance reviewed in light of
type of proceeding.
The rules laid down in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), provide the appropriate framework for evaluating a claim of ineffective assistance of counsel in the context of a probation revocation hearing, but the court must review counsel’s performance in light of the particular type of proceeding involved. United States v. Wren, 682 F. Supp. 1237, 1988 U.S. Dist. LEXIS 2419 (S.D. Ga. 1988).
Actions of counsel assessed in context of information reasonably available at time.
In assessing counsel’s conduct, the habeas corpus court must view counsel’s actions in the context of the information that was reasonably available to counsel at the time of the defendant’s trial. Mitchell v. Hopper, 564 F. Supp. 780, 1983 U.S. Dist. LEXIS 16411 (S.D. Ga. Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) 1983), aff’d, 762 F.2d 886, 1985 U.S. App. LEXIS 30164 (11th Cir. 1985). equate assistance is a mixed question of fact and law requiring application of legal principles to the historical facts of the case. Birt v. Montgomery, 709 F.2d 690, 1983 U.S. App. LEXIS 24721 (11th Cir. 1983).
Whether counsel has rendered ad-Question of fact and law.
Whether defense counsel has rendered adequate assistance is a mixed question of fact and law that requires the application of legal principles to the historical facts of the case. Young v. Zant, 677 F.2d 792, 1982 U.S. App. LEXIS 19269 (11th Cir. 1982). Absent a clearly erroneous determination, the Court of Appeals will defer to the district court’s findings on such primary facts as what the attorney did or did not do during the course of the trial, but the Court of Appeals will apply its own judgment to the question of whether that conduct constituted ineffective assistance. Young v. Zant, 677 F.2d 792, 1982 U.S. App. LEXIS 19269 (11th Cir. 1982). Claim cannot be raised by counsel
who participated in trial.
Defense counsel was precluded from presenting a claim of ineffective assistance of counsel concerning a trial in which counsel participated due to the ethical prohibition against a lawyer acting as a witness. Tweedell v. State, 218 Ga. App. 518, 462 S.E.2d 181, 1995 Ga. App. LEXIS 780 (1995). Defense counsel is precluded from sistance of counsel concerning a trial in which counsel participated, due to the ethical prohibition against a lawyer acting as a witness. Harrison v. State, 201 Ga. App. 577, 411 S.E.2d 738, 1991 Ga. App. LEXIS 1523 (1991), cert. denied, No. S92C0220, 1991 Ga. LEXIS 1000 (Ga. Nov. 21, 1991).
presenting a claim of ineffective as-Trial strategy in referring to defendant as drug dealer.
Trial counsel was not ineffective in deliberately characterizing the defendant as a drug dealer because it was trial counsel’s strategy to present to the jury a credible alternative explanation for what the defendant was doing at the time of the murder and also to preempt or blunt the effect of the evidence of drugs and drug paraphernalia found in the search of the defendant’s home. Babbage v. State, 296 Ga. 364, 768 S.E.2d 461, 2015 Ga. LEXIS 2 (2015).
Trial strategy.
There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and any challenged action by trial counsel might be considered sound trial strategy. Stephens v. State, 265 Ga. 120, 453 S.E.2d 443, 1995 Ga. LEXIS 72 (1995).
Trial strategy on number of objections to hearsay evidence.
Trial counsel was not ineffective in failing to object to every instance of hearsay because such was made as a strategic decision not to object in order to avoid alienating a jury that would ultimately determine whether to impose a death sentence upon defendant; moreover, defendant failed to show that any prejudice resulted by counsel’s conduct. Buttram v. State, 280 Ga. 595, 631 S.E.2d 642, 2006 Ga. LEXIS 405 (2006). Defendant failed to establish a claim of ineffective assistance of counsel based on trial counsel’s failure to object to certain hearsay because defense counsel testified at the hearing on the motion for new trial that the decision not to raise numerous objections, including objections to hearsay, was a tactical one; because defense counsel believed that most of the evidence was consistent with the defense, counsel chose to follow a strategy of allowing the jury to focus on that defense, rather than a strategy of disrupting the flow of the testimony with numerous technical objections, and stated further that defense counsel was “not a big fan of objecting to hearsay anyway. If you catch it too late and then stand up, then they get to hear it two or three times.” Kania v. State, 280 Ga. App. 356, 634 S.E.2d 146, 2006 Ga. App. LEXIS 853 (2006).
Trial strategy on DNA evidence.
Trial counsel was not ineffective in handling the DNA evidence as: (1) counsel stipulated to the DNA evidence as part of its strategy to reduce the number of state’s witnesses; (2) the defendant remembered having sexual relations with the defendant’s spouse; (3) counsel discussed the chain of custody with the state and was satisfied that the chain of custody could be established; and (4) in light of the overwhelming evidence against the defendant, the defendant failed to establish that the results of the proceeding would have been different if the lawyer had not stipulated as to the DNA evidence. Furthermore, evidence of the sexual history of the defendant’s spouse was properly excluded under the Georgia Rape Shield Statute, O.C.G.A. § 24-2-3, as the defendant was charged with the aggravated assault of the defendant’s spouse in conjunction with a rape charge; trial counsel was not ineffective for failing to argue that evidence of the prior sexual history of the defendant’s spouse was admissible. Osterhout v. State, 266 Ga. App. 319, 596 S.E.2d 766, 2004 Ga. App. LEXIS 363 (2004).
Trial strategy on witness testimony.
— Defendant did not receive ineffective assistance of counsel because counsel failed to subpoena two witnesses as the witnesses were present at trial and counsel and the defendant decided that the witnesses would not be called because the information they would have provided elicited during the cross-examination of a state’s witness; the failure to call the witnesses was a reasonable strategic decision that did not constitute deficient performance. McKinney v. State, 281 Ga. 92, 635 S.E.2d 153, 2006 Ga. LEXIS 582 (2006). Counsel was not ineffective under the Sixth Amendment for not objecting when a witness testified that the witness did not believe that a defendant gave the victim a “chopper” to commit a robbery. Reasonable decisions as to whether to raise a specific objection were ordinarily matters of trial strategy; moreover, even if counsel had been successful in excluding the statement, other witnesses contradicted the defendant’s account of the victim’s disappearance, asserting that it was a bogus cover story. Anderson v. State, 285 Ga. 496, 678 S.E.2d 84, 2009 Ga. LEXIS 295 (2009). Trial counsel’s performance was not deficient because trial counsel testified that counsel received and reviewed discovery material provided by the district attorney and viewed the crime scenes, that counsel’s investigator interviewed witnesses who gave statements to police, that counsel met with the defendant approximately six times in the months before trial, and that counsel ascertained that family members were willing to be alibi witnesses for the defendant, but counsel elected not to have the family members testify since the defendant acknowledged being at the crime scenes. Haynes v. State, 287 Ga. 202, 695 S.E.2d 219, 2010 Ga. LEXIS 392 (2010). Trial counsel’s failure to object to the officer’s testimony regarding statements made by a witness who did not testify did not amount to ineffective assistance because the decision was strategically made so as not to draw attention to the testimony. Durham v. State, 292 Ga. 239, 734 S.E.2d 377, 2012 Ga. LEXIS 953 (2012). A witness’s passing references to the defendant’s record did not put the defendant’s character in issue, and even if it did, defense counsel’s decision not to object was an informed strategic decision, not ineffective assistance. McKenzie v. State, 284 Ga. 342, 667 S.E.2d 43, 2008 Ga. LEXIS 742 (2008).
Trial strategy on accident defense.
— Defense counsel’s decision to pursue an accident defense was an informed strategic choice and was not ineffective assistance of counsel as the decision was not due to a misunderstanding of the law or the facts of the case; rather, counsel consulted with the defendant and learned that the defendant contended that the gun accidentally discharged. There was no evidence that the defendant pointed the gun at the victim before the shooting occurred and there was no dispute as to how the fatal injury was inflicted. Mayberry v. State, 281 Ga. 144, 635 S.E.2d 736, 2006 Ga. LEXIS 646 (2006).
Trial strategy on severance.
In a trial for malice murder, felony murder, and cruelty to children, a defendant was not denied effective assistance of counsel because the defendant’s attorney failed to move to sever the defendant’s trial from that of the defendant’s codefendant and failed to object to the prosecutor’s alleg-Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) edly improper closing argument; trial counsel testified that counsel did not seek a severance so that the jury would focus its outrage on the codefendant rather than the defendant, and the prosecutor’s use of phrases such as “I think” and “I know” did not amount to an impermissible statement of personal opinion. Jackson v. State, 281 Ga. 705, 642 S.E.2d 656, 2007 Ga. LEXIS 243 (2007).
Trial strategy on questioning jurors.
When the defendant was on trial for murdering the defendant’s paramour, as defense counsel decided not to further question a prospective juror, who had strong feelings about domestic violence, in order to avoid tainting the remaining jurors, this was a reasonable strategic decision that did not constitute ineffective assistance. Cade v. State, 289 Ga. 805, 716 S.E.2d 196, 2011 Ga. LEXIS 717 (2011).
Trial strategy on opening statement.
Trial counsel’s decisions not to object to an opening statement that set forth admissible evidence or object to the admissibility of letters written by defendant was reasonable trial strategy that was not deficient performance. Poole v. State, 291 Ga. 848, 734 S.E.2d 1, 2012 Ga. LEXIS 858 (2012).
Trial strategy on cross-examination.
Defendant’s trial counsel did not render ineffective assistance by failing to cross-examine the victim of defendant’s attempted armed robbery as to the victim’s disciplinary record at the fast-food restaurant where the crime was committed in order to show that the victim had a reason to fabricate the crime, as the decision not to cross-examine was one of trial strategy and defendant failed to show prejudice. Silver v. State, 276 Ga. App. 801, 625 S.E.2d 81, 2005 Ga. App. LEXIS 1372 (2005). Trial counsel’s decision not to impeach a witness and to develop that witness as a suspect in the murder for which defendant was on trial, as part of the strategy to preserve the right to final argument under O.C.G.A. § 17-8-71, did not amount to deficient performance. Eason v. State, 283 Ga. 116, 657 S.E.2d 203, 2008 Ga. LEXIS 132 (2008).
Trial strategy on admissions.
As it was a trial strategy for defendant’s counsel to admit that the defendant violated the defendant’s probation from a prior conviction, but that defendant was not on trial for the violation of probation and the state had failed to prove the other offense, and that theory was not patently unreasonable, there was no ineffective assistance of counsel. Copeland v. State, 276 Ga. App. 834, 625 S.E.2d 100, 2005 Ga. App. LEXIS 1381 (2005). State death row inmate’s federal habeas corpus petition was denied where trial counsel was not ineffective for introducing as mitigation evidence at the sentencing phase an independent mental health expert’s opinion that the innate suffered from antisocial personality disorder; although that testimony could be a “two-edged sword,” counsel’s strategy was to emphasize that the inmate’s poor impulse control, which led to the murder of a woman and a child, were not the inmate’s fault and that the inmate did not act with premeditation. Ford v. Schofield, 488 F. Supp. 2d 1258, 2007 U.S. Dist. LEXIS 34958 (N.D. Ga. 2007), aff’d, 546 F.3d 1326, 2008 U.S. App. LEXIS 22318 (11th Cir. 2008). Defendant’s numerous claims of ineffective assistance of counsel were rejected as the way counsel handled the defense was part of a reasonable trial strategy, even though the defendant claimed that counsel should have: (1) conducted a more in depth voir dire; (2) called the experts who prepared allegedly exculpatory laboratory reports; (3) examined the alibi witnesses about their prior criminal histories; (4) presented evidence to counter the state’s evidence of robbery as a motive; and (5) interviewed the defendant’s Army friend to determine that a discharge against that individual was dishonorable; even if counsel had undertaken these steps, the outcome would not have changed. Tolbert v. State, 282 Ga. 254, 647 S.E.2d 555, 2007 Ga. LEXIS 487 (2007).
Trial strategy on alibi defense.
Counsel was not ineffective for presenting an alibi defense when the defendant contended before trial that the defendant was at home when the crime occurred; counsel’s decision was a reasonable trial tactic and did not amount to ineffectiveness because the defendant and the defendant’s present counsel questioned its efficacy. Johnson v. State, 282 Ga. 235, 647 S.E.2d 48, 2007 Ga. LEXIS 474 (2007). Trial counsel was not ineffective for not emphasizing that no blood was found in the rooming house where a murder defendant and the victim lived; defense counsel had established the absence of forensic evidence, which would include blood evidence, inside the house, and had emphasized this during closing argument, and it could not be said that counsel was ineffective simply because another attorney might have placed more or a different emphasis on the evidence. Jones v. State, 282 Ga. 306, 647 S.E.2d 576, 2007 Ga. LEXIS 526 (2007).
Trial strategy on impeachment.
With regard to defendant’s convictions for malice murder and other crimes, defendant failed to show that defense counsel was ineffective for failing to impeach four witnesses’ testimony by the witnesses’ convictions as such impeachment would have caused defense counsel to lose the right to make the final closing argument under O.C.G.A. § 17-8-71. Adams v. State, 283 Ga. 298, 658 S.E.2d 627, 2008 Ga. LEXIS 240 (2008). In a felony murder prosecution, defense counsel was not ineffective for failing to object to testimony about the ballistics findings made by a crime lab on grounds of hearsay and the state’s failure to supply the ballistics report in discovery. As the overall defense strategy was that the defendant did not commit the crimes, the specifics of the crimes were less material. McKenzie v. State, 284 Ga. 342, 667 S.E.2d 43, 2008 Ga. LEXIS 742 (2008). Decision not to object to the admission of a codefendant’s guilty plea could have been the result of reasonable trial strategy; since the defendant did not call the defendant’s trial counsel to testify at the hearing on the motion for new trial, and in the absence of evidence to the contrary, counsel’s decisions were presumed to be strategic and thus insufficient to support an ineffective assistance of counsel claim. In any event, the evidence of the defendant’s guilt was overwhelming, there was no reasonable probability the outcome would have been more favorable had counsel done the things the defendant claimed that counsel should have, and no prejudice was shown. Washington v. State, 285 Ga. 541, 678 S.E.2d 900, 2009 Ga. LEXIS 311 (2009). Counsel was not ineffective for failing to object to the state’s opening comment that the defendant’s story was “ludicrous” and “crazy.” Counsel testified that counsel did not object because the statement was not evidence and because objecting could bring attention to the comments; this was a conscious and deliberate trial strategy. Raymond v. State, 298 Ga. App. 549, 680 S.E.2d 598, 2009 Ga. App. LEXIS 735 (2009), cert. denied, No. S09C1791, 2010 Ga. LEXIS 47 (Ga. Jan. 12, 2010). An armed robbery defendant’s counsel was not ineffective for failing to object to fingerprint evidence, because the theory of defense was that defendant was present in the store, but that the crime was not an armed robbery. Defense counsel’s decision not to call two witnesses was also supported by counsel’s trial tactics and strategy. Crawford v. State, 302 Ga. App. 782, 691 S.E.2d 660, 2010 Ga. App. LEXIS 230 (2010). Although defendant contended defendant’s trial counsel was ineffective because the defendant chose to pursue a theory of defense in which the defendant argued that the defendant was unaware that the defendant was being arrested and, thus, could not have knowingly resisted, instead of pursuing a defense in which the defendant argued that defendant legally resisted an unlawful arrest, counsel’s decision as to which theory of defense to pursue is a matter of strategy and tactics; and, as a general rule, matters of tactics and strategy, whether wise or unwise, did not amount to ineffective assistance of counsel. Defendant had not shown that counsel’s strategy was so patently unreasonable that no competent attorney would have chosen that strategy. Zeger v. State, 306 Ga. App. 474, 702 S.E.2d 474, 2010 Ga. App. LEXIS 969 (2010). Trial counsel was not ineffective because the defendant failed to show trial Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) counsel’s alleged inadequate preparation or communication with the defendant; counsel did object to the co-defendant’s out of court statements because counsel believed that some of the things that the co-defendant said would actually help the defendant; and counsel submitted a written supplemental charge of voluntary manslaughter, which was rejected because the evidence did not support the charge of voluntary manslaughter. Browder v. State, 294 Ga. 188, 751 S.E.2d 354, 2013 Ga. LEXIS 963 (2013).
Trial strategy on officer’s testimony.
— Trial counsel was not ineffective for failing to object to the alleged hearsay testimony of an officer that allegedly violated the defendant’s Sixth Amendment right to confrontation because it was counsel’s strategic decision not to object to the testimony as counsel spoke with the defendant’s relatives in New York, and they knew nothing about a murder, robbery, or anything else, only that the defendant had asked to come visit them; counsel did not object to the statement as counsel believed it to be innocent in nature and did not believe the testimony was harmful; and, given the overwhelming evidence presented, the defendant could not show that the outcome of the trial would have been different had the testimony been excluded. Sullivan v. State, 301 Ga. 37, 799 S.E.2d 163, 2017 Ga. LEXIS 244 (2017). Trial counsel was not ineffective for agreeing not to pursue severance of the cruelty to children count and the June 14, 2015 aggravated assault counts from the murders counts because it benefited defendant by securing the state’s agreement to sever the count of aggravated assault of five people on May 25, 2015. Riley v. State, 321 Ga. 112, 913 S.E.2d 559, 2025 Ga. LEXIS 51 (2025). Right to remain silent was trial tac-
tic.
Defendant failed to meet the burden of showing ineffective assistance during his criminal trial, as defendant failed to show that the evidence elicited from a police detective affected the outcome of the trial, and counsel’s decision not to object to testimony that defendant had invoked the right to remain silent was a trial tactic. Dunson v. State, 275 Ga. App. 515, 621 S.E.2d 525, 2005 Ga. App. LEXIS 1019 (2005).
Failure to pursue voluntary intoxication defense.
Because declining to spend time and energy delving into murder defendant’s drug use was a reasonable course, defense counsel performed in a way that was constitutionally acceptable when they did not investigate and did not present evidence of PCP’s effects. Rogers v. Zant, 13 F.3d 384, 1994 U.S. App. LEXIS 2198 (11th Cir.), cert. denied, 513 U.S. 899, 115 S. Ct. 255, 130 L. Ed. 2d 175, 1994 U.S. LEXIS 6712 (1994).
Admission of defendant’s guilt.
Counsel’s admission to the jury during opening and closing arguments that defendant caused the victim’s death, made in order to maintain credibility with the jury for the purpose of avoiding the death sentence, did not constitute representation which fell below an objective standard of reasonableness. Parker v. Turpin, 60 F. Supp. 2d 1332, 1999 U.S. Dist. LEXIS 18591 (N.D. Ga. 1999), aff’d, 244 F.3d 831, 2001 U.S. App. LEXIS 3942 (11th Cir. 2001). Trial counsel was not ineffective in making opening statements in which trial counsel, notwithstanding defendant’s pleas of not guilty, effectively admitted defendant’s guilt as to the terroristic threats and battery charges. Mallon v. State, 266 Ga. App. 394, 597 S.E.2d 497, 2004 Ga. App. LEXIS 384 (2004). Trial court’s finding that defendant received effective assistance of counsel was not clearly erroneous as there was evidence that defense counsel advised defendant of the 10-year mandatory minimum sentence under O.C.G.A. § 17-10-6.1, and defendant failed to show error or prejudice from the state’s reading of preliminary instructions to the jury. Richardson v. State, 265 Ga. App. 711, 595 S.E.2d 565, 2004 Ga. App. LEXIS 236 (2004), overruled in part, Brown v. State, 290 Ga. 865, 725 S.E.2d 320, 2012 Ga. LEXIS 348 (2012).
Failure to challenge indictment.
Despite an inmate’s claim to the contrary in a petition for habeas relief, trial counsel was not ineffective in not contesting the failure of the indictment to state venue, by inducing the inmate’s guilty plea, in failing to advise the inmate of the inmate’s Boykin rights, by failing to object to the prosecutor’s conduct at the plea hearing, and by failing to advise the inmate about parole eligibility. Wright v. Hall, 281 Ga. 318, 638 S.E.2d 270, 2006 Ga. LEXIS 990 (2006). Trial counsel was not ineffective in failing to challenge the felony murder count of an indictment because the indictment contained sufficient facts to put the defendant on notice that the defendant was accused of the death of the victim as a result of an aggravated assault when the indictment alleged a specific offensive use of the defendant’s hands and feet and that when the defendant’s hands and feet were used in a particular way they were objects which were likely to and actually did result in serious bodily injury; the absence of self-defense, like general intent, did not have to be expressly alleged in an indictment, and even if some such allegation were necessary, language in the indictment asserting that defendant acted unlawfully and contrary to the laws of the state, the good order, peace and dignity thereof was sufficient. Lizana v. State, 287 Ga. 184, 695 S.E.2d 208, 2010 Ga. LEXIS 404 (2010). Trial counsel was not ineffective for failing to demur to the fatally flawed felony murder counts in the indictment because the defendant did not demonstrate prejudice as the defendant failed to show that the state would not have simply re-indicted the defendant after dismissal of the original indictment; and the state faced no imminent deadlines on the murder counts. Martin v. State, 306 Ga. 747, 833 S.E.2d 122, 2019 Ga. LEXIS 604 (2019). Failure to object to testimony of cell mate regarding co-indictee’s
statements.
Second defendant’s counsel was not ineffective for failing to object to the testimony of the detective who interviewed the co-indictee’s cell mate and for failing to object to the evidence concerning the co-indictee’s statements to the cell mate because all of the defendants had a continuing objection regarding the admission of any evidence of the co-indictee’s statements to the cell mate, and that objection encompassed the testimony of the detective who interviewed the cell mate, and any objection based on the Confrontation Clause would have been without merit as the statements were not testimonial because the co-indictee made the statements to the cell mate and not to police. Grimes v. State, 296 Ga. 337, 766 S.E.2d 72, 2014 Ga. LEXIS 922 (2014). Failure to object to testimony of
family member of defendant.
Trial counsel’s failure to object to testimony by the defendant’s son as to the defendant’s racism and desire for the defendant’s children to have traditional Indian marriages did not constitute ineffective assistance of counsel insofar as the son’s opinion in that regard was a mental deduction from facts which were within the son’s knowledge and to which the son testified; and, even assuming the testimony was improper, there was no prejudice insofar as the son attempted in the son’s testimony to disavow the past characterizations of the defendant as racist, and the evidence was cumulative of other testimony regarding the defendant’s racist beliefs. Rai v. State, 297 Ga. 472, 775 S.E.2d 129, 2015 Ga. LEXIS 505 (2015).
Treatment of hearsay statements.
— Trial counsel was not ineffective for failing to object to the admission of the victim’s hearsay statements to the extent that they expressed the victim’s opinions regarding the defendant’s racial and cultural bias because trial counsel’s vigorous efforts to exclude the totality of the victim’s hearsay statements as ineligible for admission under the necessity exception were successful in large measure and greatly narrowed the scope of the hearsay evidence that was ultimately admitted; and the defendant could not establish prejudice from that testimony as it was cumulative of other evidence the state adduced regarding the defendant’s racial and cultural bias, including, but not limited to, the damning testimony by the jailhouse informant. Rai v. State, 297 Ga. 472, 775 S.E.2d 129, 2015 Ga. LEXIS 505 (2015).
Matters of strategy.
Because the trial court did not commit reversible error Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) when it granted the state’s motion in limine, permitted a police officer to explain the officer’s conduct under O.C.G.A. § 24-3-2, and allowed the state to introduce evidence of defendant’s prior misdemeanor convictions under O.C.G.A. § 24-9-20(b) and O.C.G.A. § 24-2-2, defendant failed to show that counsel’s trial strategies constituted ineffective assistance. Harris v. State, 279 Ga. 522, 615 S.E.2d 532, 2005 Ga. LEXIS 446 (2005). Trial counsel was not ineffective for opening the door to allow the state to introduce evidence of a defendant’s past juvenile adjudication for child molestation as: (1) trial counsel was aware of the defendant’s juvenile adjudication prior to the trial and made a strategic decision to call a witness to testify regarding the defendant’s good character; (2) the witness consistently testified that the witness knew nothing about such an incident; (3) in light of the witness’s lack of knowledge and the state’s failure to introduce a certified copy of the prior juvenile adjudication, trial counsel successfully objected to the state making any mention of the prior adjudication during its closing argument, and the trial court gave a special limiting instruction to ensure that the jury would not consider any impeachment evidence in making its determination. Redman v. State, 281 Ga. App. 605, 636 S.E.2d 680, 2006 Ga. App. LEXIS 1099 (2006), cert. denied, No. S07C0189, 2006 Ga. LEXIS 1002 (Ga. Nov. 20, 2006). Because the defendant: (1) failed to show prejudice by trial counsel’s failure to call certain witnesses at trial; (2) failed to raise allegations of ineffectiveness regarding the state’s grant of immunity to a witness and regarding the admission of an audiotape; and (3) abandoned any error regarding the admission of a videotape of the crime scene, the defendant failed to show that trial counsel was ineffective. McNeal v. State, 281 Ga. 427, 637 S.E.2d 375, 2006 Ga. LEXIS 822 (2006). No ineffectiveness of counsel was shown in a defendant’s malice murder trial by three instances of asserted errors by the defendant’s trial counsel which the defendant contended resulted from lack of understanding of the law on the part of the trial counsel; the defendant did not show that the trial counsel’s alleged failure to object to the admission of certain evidence, to make a proper challenge to the jury venire, or to follow proper procedure in obtaining funds for an investigator had any negative impact on the defense, and therefore the defendant failed to show that but for the deficient performance, the outcome of the trial would have been different. Green v. State, 281 Ga. 322, 638 S.E.2d 288, 2006 Ga. LEXIS 992 (2006). In a defendant’s appeal of convictions for murder, felony murder, and aggravated assault, the defendant failed to rebut the presumption that defense counsel’s conduct fell within the range of reasonable professional assistance as to defense counsel introducing the fact that the defendant was on probation at the time of the murder, which defense counsel chose to do in order to offer an explanation to the jury of why the defendant was afraid to report the victim’s death to the police; even though a different attorney might have chosen a different trial strategy, that did not equate to ineffective assistance of counsel. Warbington v. State, 281 Ga. 464, 640 S.E.2d 11, 2007 Ga. LEXIS 7 (2007). Trial court did not clearly err in determining that counsel’s decision not to use a witness’s pre-trial testimony was proper, and not evidence of counsel’s ineffectiveness, when there was an available witness who could testify that that testimony was perjured, as such was not an unreasonable decision no competent attorney would make under the circumstances presented. Walker v. State, 281 Ga. 521, 640 S.E.2d 274, 2007 Ga. LEXIS 32 (2007). A defendant did not show that trial counsel was ineffective with regard to a witness, and counsel’s actions were the result of a reasonable trial strategy; a component of the defense was that an investigator was persecuting the defendant because the defendant had rebuffed the investigator’s sexual advances, and trial counsel did not wish to ask the witness about a discussion with the investigator because it would emphasize to the jury that at an earlier stage in the investigation than suited this theory, the investigator had information implicating the defendant. Conway v. State, 281 Ga. 685, 642 S.E.2d 673, 2007 Ga. LEXIS 234 (2007). A defendant failed to establish that the defendant received ineffective assistance of counsel where defense counsel’s decision not to seek a severance of certain theft by receiving and drug charges from the defendant’s prosecution on malice murder and armed robbery charges, and counsel’s decision not to present the defendant’s mother as an alibi witness due to a prior inconsistent statement, were both reasonable tactical decisions. Horne v. State, 281 Ga. 799, 642 S.E.2d 659, 2007 Ga. LEXIS 240 (2007). Trial court did not err by denying a defendant’s motion for a new trial based on the defendant’s contention that the defendant received ineffective assistance of counsel regarding convictions for aggravated sexual battery and child molestation involving the defendant’s eight-yearold child as the trial transcript confirmed that trial counsel attempted to use the allegations that the defendant had abused siblings in the past in an effort to impeach or discredit the young victim on the premise that the young victim received the information from the other parent, which was trial strategy that did not amount to ineffective assistance. Dyer v. State, 295 Ga. App. 495, 672 S.E.2d 462, 2009 Ga. App. LEXIS 22 (2009). Defendant’s claim that trial counsel’s failure to preserve an issue constituted ineffective assistance of counsel was without merit because trial counsel’s testimony showed that counsel pursued the reasonable strategy, however mistaken it could appear with hindsight, of placing the damaging information before the jury through the defendant’s direct testimony, rather than risk having the information extracted from the defendant on cross-examination. Collier v. State, 288 Ga. 756, 707 S.E.2d 102, 2011 Ga. LEXIS 178 (2011). Based on trial counsel’s testimony regarding pre-trial consultations with a trauma nurse and a physician, both of whom discounted the suggested alternative explanation for the victim’s initial brain injury, trial counsel’s strategic decision not to continue hunting for a defense expert, but instead to challenge the state’s experts on cross-examination, was not unreasonable and did not constitute deficient performance. Brown v. State, 292 Ga. 454, 738 S.E.2d 591, 2013 Ga. LEXIS 152 (2013). Defendant’s claim that a conflict existed between trial counsel/appellate counsel and defense testimony lacked merit, as defendant provided no support for his proposition that an alleged conflict based on his counsels’ strategy rose to the level of an actual conflict of interest for the purposes of the Sixth Amendment. Mahdi v. State, 312 Ga. 466, 863 S.E.2d 133, 2021 Ga. LEXIS 620 (2021).
Tactical decisions by trial counsel.
— Counsel’s “all-or-nothing” defense to rape charge (denial of the charge) was presumed to be a strategic decision and therefore not evidence of unprofessional conduct or ineffective assistance. Scott v. State, 223 Ga. App. 479, 477 S.E.2d 901, 1996 Ga. App. LEXIS 1207 (1996). Trial counsel were not ineffective for failing to object to the cross-examination of the defendant’s psychologist that brought out instances of the psychologist’s past professional misconduct, where the attorneys made the tactical decision that the prosecutor was hurting the state’s case by picking on the witness. Henry v. State, 269 Ga. 851, 507 S.E.2d 419, 1998 Ga. LEXIS 812 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1768, 143 L. Ed. 2d 798, 1999 U.S. LEXIS 3321 (1999). Defense counsel’s failure to object to a rape victim’s fiancé’s testimony about how the fiancé tried to help the victim overcome the victim’s drug addiction was part of counsel’s trial strategy to portray the victim as an addict who willingly exchanged sexual favors for drugs; defendant’s claim of ineffective assistance therefore failed. Brown v. State, 260 Ga. App. 77, 579 S.E.2d 87, 2003 Ga. App. LEXIS 317 (2003), cert. denied, No. S03C0934, 2003 Ga. LEXIS 565 (Ga. June 9, 2003). Trial court did not clearly err in denying defendant’s motion for a new trial based Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) on a claim of ineffective assistance of counsel where defendant alleged that a prospective witness told counsel that a child victim said that nothing happened, and trial counsel testified that the prospective witness advised the counsel that a child victim would not testify against defendant because the witness was afraid of defendant, and that the witness’s testimony was not necessary; deciding which defense witnesses are to be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel. Tanner v. State, 259 Ga. App. 94, 576 S.E.2d 71, 2003 Ga. App. LEXIS 25 (2003). Defendant’s 16 challenges to trial counsel’s assistance were rejected as they were decisions made after thorough investigation and client consultation, and all involved trial strategy; the decisions concerned: (1) which witnesses to call; (2) whether to put on evidence so as to preserve the final word in closing argument; (3) how to conduct cross-examinations; (4) what motions to file; and (5) what objections to make. Rowe v. State, 263 Ga. App. 367, 587 S.E.2d 781, 2003 Ga. App. LEXIS 1149 (2003). Felony murder conviction for the defendant shooting the victim following a prolonged argument concerning an attempted drug sale was affirmed because the defendant failed to prove that defense counsel was ineffective because defense counsel’s decision not to enlarge a photograph of defendant’s claimed wound and introduce it into evidence was a reasonable strategic or tactical decision nor was counsel’s failure to subpoena a detective in order to obtain a diagram of the crime scene ineffective as the information that the defendant sought to obtain and introduce into evidence was submitted into evidence by the testimony of other witnesses and a videotape of the crime scene. Sellers v. State, 277 Ga. 172, 587 S.E.2d 35, 2003 Ga. LEXIS 833 (2003). Counsel’s decision not to use evidence of appellant’s purported cocaine intoxication that conflicted with appellant’s plea of not guilty was a matter of trial strategy within the exclusive province of the lawyer after consultation with the client, and fell within the bounds of reasonable professional conduct. The trial court did not err when it determined that trial counsel’s decision not to use the psychiatric evidence did not constitute ineffective assistance of counsel. Prince v. State, 277 Ga. 230, 587 S.E.2d 637, 2003 Ga. LEXIS 893 (2003). Defendant convicted of aggravated assault did not show that defense counsel provided ineffective assistance by: (1) failing to object to the admission of defendant’s prior convictions after defendant placed defendant’s character in issue; (2) failing to object to the admission, at sentencing, of defendant’s prior convictions, which had been used at trial for impeachment, as the convictions were properly admitted; and (3) making a strategic decision not to request a jury instruction on the defense of accident, which defendant did not raise until defendant’s own testimony, and any ineffective assistance arising from counsel’s failure to investigate defendant’s prior guilty pleas used to enhance defendant’s sentence, which may have been involuntary, was rendered moot by the vacation of defendant’s sentence. Carswell v. State, 263 Ga. App. 833, 589 S.E.2d 605, 2003 Ga. App. LEXIS 1346 (2003). Trial court properly denied defendant’s claim of ineffective assistance of counsel since defense counsel met with defendant seven times, disagreed with defendant’s assertion that certain defense witnesses were improperly dressed for court, rejected certain witnesses to avoid entering into evidence defendant’s prior convictions, and made several other tactical decisions about the conduct of defendant’s defense. Anderson v. State, 264 Ga. App. 362, 590 S.E.2d 729, 2003 Ga. App. LEXIS 1396 (2003). Defendant did not show defendant was deprived of effective assistance of counsel because defense counsel did not call two character witnesses as counsel said the two witnesses would only have offered character evidence, the state could easily have discredited their testimony, counsel did not want to lose closing argument by introducing evidence other than defendant’s testimony, and the decision not to call these witnesses was trial strategy. Martin v. State, 266 Ga. App. 392, 597 S.E.2d 445, 2004 Ga. App. LEXIS 302 (2004). Trial counsel’s use of a videotaped police interview did not constitute ineffective assistance but was a tactical decision made to support the defense theory. Robinson v. State, 278 Ga. 31, 597 S.E.2d 386, 2004 Ga. LEXIS 469 (2004). Where the defendant asserted that the defendant was denied effective assistance of trial counsel in violation of Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 because trial counsel failed to call witnesses who gave testimony at the hearing on the defendant’s motion for a new trial that contradicted testimony for the state with regard to the timing of the defendant’s arrest, the argument failed; defense counsel did not call the witnesses as a matter of trial strategy after defense counsel interviewed the witnesses and determined that their testimony was cumulative and potentially harmful to the defendant. Furthermore, the defendant’s assertion that the defendant was denied effective assistance of trial counsel based on trial counsel’s failure to call witnesses who would have testified that the defendant told the owner of the vehicle where the vehicle could have been found after the defendant had allegedly stolen the vehicle, was not error as the witnesses’ testimony would have been inadmissible hearsay under O.C.G.A. § 24-3-1. Sexton v. State, 268 Ga. App. 736, 603 S.E.2d 66, 2004 Ga. App. LEXIS 1011 (2004). Defendant argued that counsel was ineffective for failing to present evidence in support of defendant’s coercion defense, failing to sever the trial from the codefendant, and failing to voir dire certain parties; however, all these claims either lacked merit or were part of counsel’s trial strategy thereby making counsel’s services effective. Treadwell v. State, 272 Ga. App. 508, 613 S.E.2d 3, 2005 Ga. App. LEXIS 148 (2005), cert. denied, No. S05C1267, 2005 Ga. LEXIS 612 (Ga. Sept. 19, 2005). Defendant’s counsel was not ineffective in defendant’s criminal trial, as the decision to waive opening argument was a tactical decision, the decision not to request jury charges was based on counsel’s determination that the applicable law was adequately covered, counsel’s failure to interview one witness was not shown to have prejudiced defendant’s case, and there was no showing that a request for a continuance would have been necessary; tactical trial decisions did not constitute ineffective assistance. Polk v. State, 275 Ga. App. 467, 620 S.E.2d 857, 2005 Ga. App. LEXIS 999 (2005). Because a defendant had not questioned trial counsel at the hearing on the motion for new trial about counsel’s alleged failure to object to certain comments, any decision not to object was presumed to be a strategic one that did not amount to ineffective assistance. John v. State, 282 Ga. 792, 653 S.E.2d 435, 2007 Ga. LEXIS 719 (2007). Errors of judgment and tactical errors do not constitute denial of effective assistance of counsel. Harrell v. State, 139 Ga. App. 556, 228 S.E.2d 723, 1976 Ga. App. LEXIS 1884 (1976), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982); Bishop v. State, 155 Ga. App. 611, 271 S.E.2d 743, 1980 Ga. App. LEXIS 2702 (1980); Hudson v. State, 156 Ga.App. 281, 274 S.E.2d 675, 1980 Ga. App. LEXIS 3032 (1980), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982); McCloud v. State, 174 Ga. App. 672, 331 S.E.2d 54, 1985 Ga. App. LEXIS 1923 (1985); Brenneman v. State, 200 Ga. App. 111, 407 S.E.2d 93, 1991 Ga. App. LEXIS 781 (1991). Because the appellant’s counsel negotiated a favorable pretrial agreement that the appellant rejected, conducted extensive and appropriate cross-examination of state witnesses, presented witnesses on the appellant’s behalf, in addition to the appellant’s testimony, made an opening statement and closing argument and there was overwhelming evidence against the appellant, including a positive identification and the appellant’s confession, the attorney did an excellent job in represent-Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) ing the appellant; errors of judgment and tactical errors do not constitute denial of effective assistance of counsel. Moore v. State, 174 Ga. App. 460, 330 S.E.2d 397, 1985 Ga. App. LEXIS 2716 (1985). Errors of judgment and tactical errors do not establish ineffective assistance. Clarington v. State, 178 Ga. App. 663, 344 S.E.2d 485, 1986 Ga. App. LEXIS 2554 (1986). Record did not show that counsel’s decisions concerning the extent of counsel’s voir dire examination and whether or not to interpose challenges were not reasonable tactical decisions. Williams v. State, 258 Ga. 281, 368 S.E.2d 742, 1988 Ga. LEXIS 276 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606, 1989 U.S. LEXIS 3313 (1989). Decisions as to what objections to make and when to make them are matters within the trial counsel’s discretion, and the strategic choices of counsel do not establish ineffective assistance, even if in hindsight these strategic choices are proven to be erroneous. Jones v. Kemp, 706 F. Supp. 1534, 1989 U.S. Dist. LEXIS 1682 (N.D. Ga. 1989). Defendant, charged with aggravated assault, was not prejudiced by counsel’s pursuit of an insanity defense at trial, rather than one of self-defense, where none of the witnesses other than defendant gave any indication that defendant was defending self in the incident. Prophitt v. State, 191 Ga. App. 5, 381 S.E.2d 83, 1989 Ga. App. LEXIS 468 (1989). Trial strategy and tactics do not equate with ineffective assistance of counsel. Lee v. State, 199 Ga. App. 246, 404 S.E.2d 598, 1991 Ga. App. LEXIS 429 (1991), cert. denied, No. S91C0990, 1991 Ga. LEXIS 735 (Ga. May 22, 1991). Trial counsel was not ineffective in failing to require the court reporter to take down certain portions of the trial, failing to question witnesses further, refusing to accept the trial court’s offer to give a limiting instruction on deposition testimony, failing to object to certain testimony, and failing to preserve pretrial interviews with a key witness, as each alleged deficiency was a strategic or tactical decision. Herndon v. State, 235 Ga. App. 258, 509 S.E.2d 142, 1998 Ga. App. LEXIS 1486 (1998) Defendant failed to establish a claim of ineffective assistance of counsel because defense counsel’s failure to object to the admission of a witness’s pretrial statement to police was not ineffective assistance of counsel as admission of the statement was proper; the defendant also failed to show that defense counsel’s failure to object to opinion evidence given by police officers was not the result of a reasonable trial strategy on counsel’s part, or that the result of the trial would have been different had counsel objected. Finally, the defendant failed to show that defense counsel’s cooperating in the introduction of a witness’s prior testimony was anything other than a decision made in the reasonable exercise of professional judgment. Cummings v. State, 280 Ga. 831, 632 S.E.2d 152, 2006 Ga. LEXIS 464 (2006). Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 for failing to object when the state allegedly presented the hearsay statements of a nontestifying codefendant to a second codefendant and to an acquaintance of the defendant’s that inculpated the declarant in the offenses; the defendant was unable to prove that the defendant was prejudiced, as the strength of the evidence against the defendant included the defendant’s statements to the codefendant, an acquaintance and to the police admitting to shooting the victim, and the evidence included the murder weapon that was recovered from the defendant. Chenoweth v. State, 281 Ga. 7, 635 S.E.2d 730, 2006 Ga. LEXIS 596 (2006). Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 for failing to object to the trial court’s questions concerning juror bias; trial counsel had no obligation to object, as the trial court’s general questions to each of the allegedly biased jurors were not improper. Chenoweth v. State, 281 Ga. 7, 635 S.E.2d 730, 2006 Ga. LEXIS 596 (2006). Counsel was not ineffective where
tactics used were for trial strategy.
Trial tactics which had the effect of revealing to the jury the defendant’s prior criminal record do not establish ineffective assistance of counsel. Williams v. State, 202 Ga. App. 494, 414 S.E.2d 716, 1992 Ga. App. LEXIS 60 (1992). Failure to obtain defendant civilian clothes via a request for a continuance was construable as sound trial strategy and not ineffective assistance of counsel. Walker v. State, 210 Ga. App. 139, 435 S.E.2d 259 (1993). At the new trial hearing, both defense counsels testified that they discussed their trial strategy with the defendant who agreed with their ultimate tactics. The appellate court should not second guess those decisions and defendant was not entitled to a new trial based on ineffective assistance of counsel. Nihart v. State, 227 Ga. App. 272, 488 S.E.2d 740, 1997 Ga. App. LEXIS 880 (1997). Trial counsel’s questioning of investigator to show investigator’s bias against defendant was not ineffective assistance even though it divulged defendant’s previous arrest by the inspector and defendant’s refusal to give a statement when arrested. Ross v. State, 231 Ga. App. 793, 499 S.E.2d 642, 1998 Ga. App. LEXIS 288 (1998), cert. denied, No. S98C1171, 1998 Ga. LEXIS 789 (Ga. Sept. 8, 1998). Defendant failed to prove that defendant was prejudiced by the absence of certain evidence, as the evidence did not go to whether the defendant, in fact, assaulted the victim. Furthermore, defense counsel’s failure to object to allegedly improper statements during closing argument was a matter of trial strategy and did not prejudice the defendant. Clonts v. State, 260 Ga. App. 143, 579 S.E.2d 1, 2002 Ga. App. LEXIS 1621 (2002), cert. denied, No. S03C1066, 2003 Ga. LEXIS 887 (Ga. Oct. 6, 2003). Defendant’s conviction for molesting the defendant’s minor child as part of Wiccan sexual rituals had to be affirmed, even though the defendant argued that the defendant received ineffective assistance of counsel, as the defendant did not provide the appellate court with evidence that any of the deficiencies the defendant alleged, even if assumed to be true, actually prejudiced the defendant’s coercion defense in any way; too, the bulk of the defendant’s allegations involved issues of trial strategy, which could not serve as the basis for the reversal of the defendant’s conviction. Laymon v. State, 261 Ga. App. 488, 583 S.E.2d 165, 2003 Ga. App. LEXIS 666 (2003). Where defendant’s trial counsel failed to interview an eyewitness, met with defendant three times before trial, failed to request a curative instruction that the jury was not to infer guilt from defendant’s disruptive behavior in the courtroom, failed to move for a mistrial, and failed to request a charge on the lesser included offense of possession of stolen property at defendant’s burglary trial, such were matters of trial strategy that the court refused to second-guess and, therefore, ineffective assistance of counsel was not shown. Lovelace v. State, 262 Ga. App. 690, 586 S.E.2d 386, 2003 Ga. App. LEXIS 991 (2003), cert. denied, No. S03C1862, 2004 Ga. LEXIS 47 (Ga. Jan. 12, 2004). Where defense counsel informed the trial court that counsel and defendant had agreed, as a matter of trial strategy, not to call character witnesses in case the state had any character impeachment witnesses, defendant’s claim that this was ineffective assistance was rejected; decisions about which witnesses to call were a matter of trial strategy. Weathersby v. State, 263 Ga. App. 341, 587 S.E.2d 836, 2003 Ga. App. LEXIS 1207 (2003). Defendant did not show the defendant received ineffective assistance of counsel when defendant’s trial counsel did not subpoena two alibi witnesses, because the testimony of these witnesses would have been cumulative of witnesses who testified, so defendant did not show that defendant was prejudiced by counsel’s actions. Jefferies v. State, 267 Ga. App. 694, 600 S.E.2d 753, 2004 Ga. App. LEXIS 758 (2004). Because defense counsel’s trial strategy, tactics, and tactical errors did not constitute ineffective assistance of counsel and because defendant did not establish that the deficiency prejudiced the defense, the trial court’s denial of defendant’s motion Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) for a new trial was not clearly erroneous. Ford v. State, 272 Ga. App. 798, 613 S.E.2d 234, 2005 Ga. App. LEXIS 377 (2005). Defendant failed to prove ineffective assistance of counsel, in violation of U.S. Const., amend. 6, because counsel’s decision not to seek severance of an offense in the defendant’s multi-count criminal trial and the decision not to call the defendant’s spouse as a witness, were matters which were within the counsel’s trial strategy and did not constitute ineffectiveness; the prosecutor’s closing arguments were within the wide latitude given for that purpose, and a failure to object thereto was also not ineffectiveness. Level v. State, 273 Ga. App. 601, 615 S.E.2d 640, 2005 Ga. App. LEXIS 581 (2005). Defendant failed to establish that defense counsel’s failure to object to a prosecutor’s questions about specific instances of misconduct was ineffective assistance since trial counsel testified that, knowing that the state had no evidence of prior crimes to introduce, defense counsel’s trial strategy was to show that the type of acts for which the defendant stood accused were “totally out of character,” and since counsel further testified that the counsel did not object to the two questions at issue because defense counsel believed that the door to that line of questioning had been opened and because the state possessed no evidence that could be introduced to harm the defendant. Harris v. State, 279 Ga. App. 570, 631 S.E.2d 772, 2006 Ga. App. LEXIS 645 (2006). Defendant failed to establish a claim of ineffective assistance of counsel based on counsel’s decision to not put up evidence because trial counsel testified that, as agreed to by the defendant, it was defense counsel’s strategy to not put up evidence in order to preserve the right to closing argument; with regards to the defendant’s accusations that a county solicitor general had some motive to commit the murders at issue, defense counsel also testified that defense counsel believed that it would not be productive to attempt to blame an elected official on the basis of weak evidence and supposition. Griffin v. State, 280 Ga. 683, 631 S.E.2d 671, 2006 Ga. LEXIS 455 (2006), superseded by statute as stated in Ash v. State, 312 Ga. 771, 865 S.E.2d 150, 2021 Ga. LEXIS 680 (2021). Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 for failing to object when the state placed the defendant’s character at issue by introducing evidence of the defendant’s use of crack cocaine after the crime; the state presented evidence that the defendant acted erratically after the crime, suggesting nervousness about the defendant’s involvement in the crime, and the defendant and defense counsel strategically chose not to object to the crack cocaine evidence because it provided an alternative reason for the defendant’s nervous behavior. Brooks v. State, 281 Ga. 14, 635 S.E.2d 723, 2006 Ga. LEXIS 603 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266, 167 L. Ed. 2d 91, 2007 U.S. LEXIS 2212 (2007). Trial counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 for failing to join the objection tendered by the codefendant’s counsel to the prosecutor’s closing argument that allegedly improperly shifted the burden of proof to the three defendants; trial counsel’s decision not to add an objection on top of the codefendant’s objection was neither deficient performance nor prejudicial, as the trial counsel had already objected once, the codefendant’s objection to the statement had already been overruled, and the trial counsel testified that the trial counsel was prepared to argue extensively about the burden of proof and the judge’s instructions on the burden of proof during the trial counsel’s closing argument. Brooks v. State, 281 Ga. 14, 635 S.E.2d 723, 2006 Ga. LEXIS 603 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266, 167 L. Ed. 2d 91, 2007 U.S. LEXIS 2212 (2007). Defendant did not receive ineffective assistance of counsel due to counsel’s failure to object to testimony concerning the defendant’s initial statement denying knowledge of a murder as counsel testified that counsel did not object because the testimony bolstered the defense theory that the initial statement was true and that the defendant had given a subsequent inculpatory statement only after being threatened by a co-indictee; the decision was a reasonable strategic decision and did not constitute deficient performance. McKinney v. State, 281 Ga. 92, 635 S.E.2d 153, 2006 Ga. LEXIS 582 (2006). Supreme Court of Georgia rejected the defendant’s five ineffective assistance of counsel claims as lacking merit because the defendant failed to show that trial counsel’s trial tactics and investigation were deficient, counsel explained that choices as to when and when not to object were part of the overall defense trial strategy, the defendant failed to show prejudice by permitting the state to elicit speculation that the person who killed the victim could be the person who called an anonymous tip line to suggest various suspects, and any claims not raised in the defendant’s motion for a new trial were waived. Lynch v. State, 280 Ga. 887, 635 S.E.2d 140, 2006 Ga. LEXIS 587 (2006). A murder defendant did not show ineffective assistance of counsel; trial counsel chose not to call two eyewitnesses because counsel did not consider their testimony strong enough to justify the loss of the right to conclude closing argument, which was a well recognized trial tactic at the time. Cooper v. State, 281 Ga. 760, 642 S.E.2d 817, 2007 Ga. LEXIS 245 (2007). Because the defendant’s trial counsel was not ineffective in presenting a defense and requesting jury instructions on the defendant’s claim of innocence, and was authorized to forego objection to a challenged portion of the state’s closing argument, the defendant’s ineffective assistance of counsel claims lacked merit and did not warrant a new trial. King v. State, 282 Ga. 505, 651 S.E.2d 711, 2007 Ga. LEXIS 712 (2007). With regard to defendant’s conviction for armed robbery and other crimes, the trial court did not err in denying defendant’s motion for new trial when the court found that defendant did not carry the burden of showing ineffective assistance based on defense counsel failing to object to the introduction into evidence of the guilty plea of the gunman/co-indictee and further failed to request a limiting instruction thereon as the evidence supported the trial court’s findings that those decisions were strategic and not patently unreasonable. Trial counsel testified at the motion for a new trial hearing that the guilty plea of the gunman was important to the defense strategy of placing all the blame on the gunman as well as showing the jury that defendant would serve a lengthy sentence if the jury found the defendant guilty. Sillah v. State, 291 Ga. App. 848, 663 S.E.2d 274, 2008 Ga. App. LEXIS 657 (2008). Defendant did not show that trial counsel was ineffective for not requesting certain charges as these would have been inconsistent with the defendant’s “mere presence” defense. Thus, the trial court properly found that this was a strategic decision made in the exercise of reasonable professional judgment. Whitley v. State, 293 Ga. App. 605, 667 S.E.2d 447, 2008 Ga. App. LEXIS 1026 (2008). Counsel’s failure to seek severance of the defendant’s trial from that of the driver of a car in which drugs were found did not constitute ineffective assistance. Trial counsel testified that counsel wanted the driver in the case so that counsel could “blame the drugs on” the driver, and this strategic decision did not constitute deficient performance. Gresham v. State, 295 Ga. App. 449, 671 S.E.2d 917, 2009 Ga. App. LEXIS 9 (2009). Trial counsel was not ineffective for failing to object to the admission into evidence of a video statement by a witness because the defense wished the jury to view the witness’s statement, and counsel did not believe that the defense would be successful in attempting to admit into evidence only certain portions of the statement; that was a matter of trial strategy and tactics, which had not been shown to be unreasonable so as to form a basis for a claim of counsel’s ineffectiveness. Nations v. State, 290 Ga. 39, 717 S.E.2d 634, 2011 Ga. LEXIS 866 (2011). Defendant’s claim of ineffective assistance of trial counsel lacked merit because trial counsel’s strategy and tactics, including refraining from objecting to certain Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) hearsay statements, were reasonable and the defendant failed to overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. Green v. State, 291 Ga. 579, 731 S.E.2d 359, 2012 Ga. LEXIS 695 (2012). Trial tactics used after consultation
with client.
Activities that are properly described as trial tactics that are within the exclusive province of the lawyer after consultation with the client do not equate to ineffective assistance of counsel. Warner v. State, 155 Ga. App. 495, 271 S.E.2d 636, 1980 Ga. App. LEXIS 2633 (1980); Scott v. State, 157 Ga. App. 608, 278 S.E.2d 49, 1981 Ga. App. LEXIS 1931 (1981). Trial counsel who consulted with defendant and acted pursuant to an informed strategic choice which comported with defendant’s feelings about the defense was not ineffective. Van Alstine v. State, 263 Ga. 1, 426 S.E.2d 360, 1993 Ga. LEXIS 264 (1993). Trial counsel’s compliance with the client’s instructions not to contact family members was reasonable because counsel feared that if counsel did not, counsel would lose the defendant’s cooperation in the defense strategy. Hance v. Zant, 981 F.2d 1180, 1993 U.S. App. LEXIS 177 (11th Cir.), cert. denied, 510 U.S. 920, 114 S. Ct. 317, 126 L. Ed. 2d 263, 1993 U.S. LEXIS 6431 (1993). Defense counsel did not give ineffective assistance of counsel in failing to call certain witnesses as which witnesses to call was in the exclusive province of the attorney, after consultation with the client; defense counsel conferred with defendant after counsel indicated that counsel wanted to call defendant’s accomplices as witnesses and explained to defendant that defendant had the right to testify, defendant testified, and the only further mention of the witnesses was by the trial judge, who directed that the witnesses be brought to the courtroom, after which the defense rested, without calling the witnesses. Reynolds v. State, 267 Ga. App. 148, 598 S.E.2d 868, 2004 Ga. App. LEXIS 550 (2004). Disagreement, in retrospect, with
trial tactics.
The fact that the defendant’s attorney made decisions during the trial with which the defendant and the defendant’s current counsel now disagree, does not require a finding that the original representation of defendant was so inadequate as to amount to a denial of effective assistance of counsel. Harrell v. State, 139 Ga. App. 556, 228 S.E.2d 723, 1976 Ga. App. LEXIS 1884 (1976), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982). Commission by retained counsel of acts which may retrospectively appear to be errors of judgment, if made in good faith, do not constitute a denial of effective representation. Harrell v. State, 139 Ga. App. 556, 228 S.E.2d 723, 1976 Ga. App. LEXIS 1884 (1976), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982). Where trial counsel sufficiently investigates the facts of the case, adequately researches the law, and presents the case in a competent and reasonably effective manner and then in counsel’s reasoned judgment determines that the assertion of a particular defense could prove disadvantageous to the defense, such decision is a matter of trial tactics and strategy left to the discretion of trial counsel. The fact that appellate counsel now disagrees with trial counsel’s decisions and would have handled the appellant’s case differently does not require a finding that trial counsel’s representation of him was so inadequate as to amount to ineffective assistance of counsel. Berryhill v. Ricketts, 242 Ga. 447, 249 S.E.2d 197, 1978 Ga. LEXIS 1247 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2418, 60 L. Ed. 2d 1073 (1979). The standard of effectiveness of counsel is not to be judged by hindsight with reference to trial tactics, even though another lawyer or other lawyers might have conducted the trial differently. Gottschalk v. State, 160 Ga. App. 769, 287 S.E.2d 107, 1982 Ga. App. LEXIS 1682 (1982). Complaint as to tactics must raise
question of loyalty, integrity, or competence.
Where the defendant’s appellate complaint relates to tactical judgments made by trial counsel and, in the absence of a showing that the trial counsel’s loyalty, integrity, or best use of counsel’s ability is questioned, a new trial will not be granted on the ground that the defendant was not afforded competent representation. Bishop v. State, 155 Ga. App. 611, 271 S.E.2d 743, 1980 Ga. App. LEXIS 2702 (1980). Tactical decision is question of fact; reasonableness of tactic a question of
law.
The question of whether a decision by counsel was a tactical one is a question of fact. However, whether a tactic was reasonable is a question of law. Horton v. Zant, 941 F.2d 1449, 1991 U.S. App. LEXIS 20577 (11th Cir. 1991), cert. denied, 503 U.S. 952, 112 S. Ct. 1516, 117 L. Ed. 2d 652, 1992 U.S. LEXIS 1943 (1992). Trial counsel was not ineffective for allowing a portion of a videotaped interview showing the defendant invoking the defendant’s right to counsel to be shown to the jury because the trial court gave counsel the option to withdraw counsel’s objection and allow the video to be played or accept the state’s offer not to play the remainder of the video; and counsel’s decision that it was best that the jury hear the whole interview rather then cut it off in the middle was not unreasonable trial strategy, especially given the equivocal nature of the defendant’s reference to a lawyer and the defendant’s continued cooperation with police. Grant v. State, 305 Ga. 170, 824 S.E.2d 255, 2019 Ga. LEXIS 102 (2019), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020).
Failure to seek redaction of video.
— Even assuming that trial counsel’s failure to seek the redaction of the video making reference to the defendant’s probation was deficient, there was no prejudice because, in the defendant’s own direct testimony, the defendant used the defendant’s probation as part of the defense, explaining that the defendant’s probation (and the consequence for violating the terms of probation) was a reason that the defendant would not have been involved with someone planning to commit a crime. Grant v. State, 305 Ga. 170, 824 S.E.2d 255, 2019 Ga. LEXIS 102 (2019), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Withdrawal of request to charge on
justification.
In a malice murder trial, trial counsel, who relied on a defense of lack of malicious intent, was not ineffective for withdrawing a request to charge on justification. Self-defense was supported by only slight evidence at best, and such a defense might have risked alienating the jury; moreover, defense counsel reasonably concluded that if the defendant sought a charge on self-defense, the state would request a charge on voluntary manslaughter. Muller v. State, 284 Ga. 70, 663 S.E.2d 206, 2008 Ga. LEXIS 530 (2008).
Objection to testimony not required.
Trial counsel was not ineffective for objecting to the State’s requested jury instruction that an accomplice’s testimony had to be corroborated because it was consistent with an objectively reasonable defense strategy of avoiding labeling the witness, who was not charged with any crime in connection with the shooting, as an accomplice, which would have undermined defendant’s claim that he was surprised to encounter the victim that night. Rayton v. State, 314 Ga. 29, 875 S.E.2d 708, 2022 Ga. LEXIS 170 (2022).
Failure to request certain instructions.
Although the defendant’s counsel failed to secure a transcript of the defendant’s daughter’s juvenile court proceeding, wherein the daughter claimed sole responsibility for having shoplifted various items from a store, it was not shown that such a transcript or a jury charge on the daughter’s prior consistent statements would have caused the jury to reject the testimony of the store’s asset protection agent that he observed the defendant tear packaging off items of merchandise in her shoplifting trial; accordingly, there was no ineffective assistance of the defendant’s counsel in violation of the Sixth Amendment and Ga. Const. 1983, Art. I, Sec. I, Para. XIV, and the failure of the trial court to have given the jury prior consistent statement jury instructions under O.C.G.A. § 5-5-24(b) was not harmful error. Tucker v. State, 282 Ga. App. 807, 640 S.E.2d 310, 2006 Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) Ga. App. LEXIS 1421 (2006), cert. denied, No. S07C0617, 2007 Ga. LEXIS 272 (Ga. Mar. 26, 2007). Because the trial court thoroughly instructed the jury that it was the arbiter of each witness’s credibility and that it should give consideration to each witness’s interest or lack thereof in the outcome of the case, no other instructions were necessary, as this charge adequately covered the possible motive, interest, or bias of a state witness; thus, counsel was under no obligation to request an additional instruction regarding motive, interest, or bias. Lee v. State, 281 Ga. 776, 642 S.E.2d 835, 2007 Ga. LEXIS 256 (2007). Defendant’s contention on appeal that defense counsel was ineffective for failing to timely request a charge on bare suspicion or to object to the trial court’s refusal to give the charge once requested failed because defendant was not entitled to such a charge. Additionally, the charges that the trial court gave on presumption of innocence and reasonable doubt embodied all the elements of a bare suspicion charge, rendering such a charge unnecessary. Range v. State, 289 Ga. App. 727, 658 S.E.2d 245, 2008 Ga. App. LEXIS 184 (2008). Evidence was insufficient to establish a reasonable probability that the jury would have found defendant guilty of voluntary manslaughter and thus trial counsel was not ineffective in requesting this instruction since the evidence demonstrated that the victim and defendant were in rival gangs; that the victim and others drove into an apartment complex to pick up a friend; that an occupant in the victim’s vehicle poked a gun out of a window; and that defendant and the defendant’s codefendant shot at the vehicle, killing the victim and wounding others. Hung v. State, 284 Ga. 796, 671 S.E.2d 811, 2009 Ga. LEXIS 21 (2009). Trial court did not err by denying a defendant’s motion for a new trial based on the defendant’s contention that the defendant received ineffective assistance of counsel regarding convictions for aggravated sexual battery and child molestation involving the defendant’s eight-yearold child, since despite trial counsel acknowledging that trial counsel failed to move for a mistrial or request a curative instruction after the state questioned the defendant about a prior act of sodomy on a 14-year-old, trial counsel’s objection to the evidence was sustained. Thus, the jury heard no evidence concerning the circumstances giving rise to the sodomy charge and, further, heard no evidence refuting or contradicting the defendant’s testimony that the defendant was acquitted of that charge. Dyer v. State, 295 Ga. App. 495, 672 S.E.2d 462, 2009 Ga. App. LEXIS 22 (2009). Prior inconsistent statement of a witness who took the stand and who was subject to cross-examination was admissible as substantive evidence. Thus, because the defendant, who testified at trial, was not entitled to a limiting instruction as to the use of the defendant’s prior inconsistent statements, counsel was not ineffective for failing to request the instruction; likewise, the defendant’s claim that counsel was ineffective for failing to object to the state’s closing argument telling the jurors that the jurors could consider this testimony as substantive evidence also failed. Gregory v. State, 297 Ga. App. 245, 676 S.E.2d 856, 2009 Ga. App. LEXIS 413 (2009). There was no ineffectiveness of the defendant’s counsel for failing to request a jury charge on entrapment with respect to a charge of making false statements as there was no evidence that a state agent originated the idea for making a false statement. Harvill v. State, 296 Ga. App. 453, 674 S.E.2d 659, 2009 Ga. App. LEXIS 237 (2009). As the defendant was not convicted of the charged offense of aggravated stalking, there was no ineffectiveness by counsel’s failure to seek a directed verdict on that charge due to lack of evidence because the defendant could not show any harm therefrom; further, the trial court was authorized to charge the jury on the lesser-included offense of stalking, in violation of O.C.G.A. § 16-5-90(a)(1), based on the trial court’s discretion. Harvill v. State, 296 Ga. App. 453, 674 S.E.2d 659, 2009 Ga. App. LEXIS 237 (2009). In a defendant’s criminal prosecution for, inter alia, felony murder, defense counsel was not ineffective for failing to request a jury charge on a witness testifying pursuant to a grant of immunity because the witness at issue was never charged, arrested, or prosecuted as to the events forming the basis of the instant case. Watkins v. State, 285 Ga. 107, 674 S.E.2d 275, 2009 Ga. LEXIS 138 (2009), cert. denied, 558 U.S. 1121, 130 S. Ct. 1070, 175 L. Ed. 2d 900, 2010 U.S. LEXIS 323 (2010). Trial counsel was not ineffective by failing to request a limiting instruction regarding the jury’s consideration of evidence of the defendant’s prior felony convictions because assuming deficient performance in the failure to request a limiting instruction, the defendant did not establish prejudice therefrom; the defendant failed to show that the outcome of defendant’s trial would have been different had the jury been told the jury was to consider the prior convictions only for the purposes of establishing the predicate offenses of the counts in which the convictions were described. Higginbotham v. State, 287 Ga. 187, 695 S.E.2d 210, 2010 Ga. LEXIS 405 (2010). Trial counsel was not ineffective for failing to request a jury charge on immunity granted to a witness because the transcript revealed that the witness was questioned regarding the grant of immunity and was thoroughly cross-examined regarding the witness’s motives for testifying; that questioning and the general jury instructions on witness credibility that were given were sufficient to apprise the jury of any negative inferences the jury could draw from the immunity arrangement involving this witness. Dockery v. State, 287 Ga. 275, 695 S.E.2d 599, 2010 Ga. LEXIS 472 (2010). Trial counsel was ineffective for failing to object to the prosecutor’s characterization of the defendant as a “thug” during closing argument because the prosecution was afforded wide latitude in closing argument, and the characterization was based on reasonable inferences drawn from the evidence. Dockery v. State, 287 Ga. 275, 695 S.E.2d 599, 2010 Ga. LEXIS 472 (2010). Defendant failed to show that his trial counsel was ineffective for failing to request an accomplice-corroboration charge because he failed to show that slight evidence supported an inference that defendant and the other man were accomplices to the charge of possession of marijuana with the intent to distribute. Reese v. State, 317 Ga. 189, 891 S.E.2d 835, 2023 Ga. LEXIS 173 (2023). Defendant failed to show that his trial counsel was ineffective for failing to object to an allegedly improper sequential jury instruction because he did not show under existing precedent that the instruction was clearly improper, as the trial court did not expressly prohibit the jury from considering the lesser included offenses until after it reached a unanimous verdict on the indicted offenses. Reese v. State, 317 Ga. 189, 891 S.E.2d 835, 2023 Ga. LEXIS 173 (2023). Defendant failed to show that trial counsel was ineffective for failing to request a jury instruction on justification because counsel’s choice to rely solely on the defense of accident was not patently unreasonable, given that defendant repeatedly stated that her foster child’s death was an accident caused by poor performance of the Heimlich maneuver and CPR during a choking incident, and the statements were supported by a doctor’s testimony. Rosenbaum v. State, 320 Ga. 5, 907 S.E.2d 593, 2024 Ga. LEXIS 229 (2024). Failure to request instruction on
involuntary intoxication.
Trial counsel’s failure to request a jury instruction on involuntary intoxication did not amount to ineffective assistance in violation of the Sixth Amendment because there was no persuasive evidence on that point; to the contrary, the evidence tended to show that the defendant was much more sober than the victim. Hills v. State, 306 Ga. 800, 833 S.E.2d 515, 2019 Ga. LEXIS 631 (2019).
Trial strategy on jury instructions.
— Because trial counsel’s failure to request an adequate charge on the limits to consideration of the defendant’s prior conviction for felony firearms possession did not raise a reasonable probability that but for counsel’s deficient performance, the Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) outcome of the trial would have been different, the defendant’s ineffective assistance of counsel claim failed. Holsey v. State, 281 Ga. 177, 637 S.E.2d 32, 2006 Ga. LEXIS 891 (2006). Defendant’s claim that trial counsel offered ineffective assistance for not objecting to the trial court’s failure to recharge the jury after the jury requested written definitions of the charges lacked merit because the decision was based on counsel’s strategic decision that such a request only made the jury more inclined to convict the defendant rather than acquit the defendant. Lake v. State, 293 Ga. 56, 743 S.E.2d 414, 2013 Ga. LEXIS 447 (2013). Failure to request jury charge on
proximate causation.
Trial counsel was not ineffective for failing to request a jury charge on proximate causation as the jury charge was sufficient to inform the jury that, in order to convict the defendant of felony murder, the jury had to determine that the defendant caused or was a party with the codefendant in causing the victim’s death during the escape phase of the underlying felonies. Pennie v. State, 292 Ga. 249, 736 S.E.2d 433, 2013 Ga. LEXIS 25 (2013). Failure to request lesser-included
offense instruction.
In a murder prosecution, the appeals court rejected the defendant’s claims that trial counsel was ineffective in failing to pursue a battered woman syndrome defense and by failing to request a jury instruction on the lesser offense of voluntary manslaughter, as: (1) the evidence showed that the defendant, after consultation with counsel, instead chose to focus exclusively on the defense of justification; (2) the evidence did not support a voluntary manslaughter charge; and (3) the defendant did not want the trial court to charge on manslaughter. Moreover, because appellate counsel did not ask trial counsel about the decision not to seek the manslaughter instruction, that decision was presumed to be a strategic. Ballard v. State, 281 Ga. 232, 637 S.E.2d 401, 2006 Ga. LEXIS 935 (2006). Defendant failed to establish that defendant received ineffective assistance of counsel because trial counsel erroneously acceded to a simple assault charge and failed to request a jury charge on battery because the jury’s finding of guilt on aggravated assault necessarily required a finding that defendant used defendant’s hands in a way that did or was likely to result in serious bodily injury, which required the jury to reject the opportunity to find mere violent injury, which would have been the basis for a simple assault. Accordingly, the trial court was authorized to find that defendant failed to meet the burden to show that defendant’s defense was so prejudiced that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Armstrong v. State, 292 Ga. App. 145, 664 S.E.2d 242, 2008 Ga. App. LEXIS 715 (2008). Because trial counsel made a reasonable decision to pursue an all-or-nothing defense strategy based on counsel’s review of the evidence, the appellate court found no merit in the defendant’s claim that trial counsel provided ineffective assistance due to counsel’s failure to request a charge on misdemeanor obstruction as a lesser included offense of felony obstruction of an officer. Ingram v. State, 317 Ga. App. 606, 732 S.E.2d 456, 2012 Ga. App. LEXIS 773 (2012).
Failure to object to pre-trial instruction.
Trial court did not err in finding that trial counsel were not deficient in failing to object to a pre-trial instruction that was given to the jury pool because the pre-trial instruction was proper, and trial counsel found it advantageous; the pre-trial charge, as a whole, did not shift the burden of proof to the defendant, and one of the defendant’s trial counsel testified that counsel believed that the defendant actually benefitted from the instruction because it sounded as if it were in defendant’s favor and that the giving of the instruction aided the defendant in effectively questioning the jurors regarding their viewpoints on the law during voir dire. Bridges v. State, 286 Ga. 535, 690 S.E.2d 136, 2010 Ga. LEXIS 87 (2010).
Failure to argue rule of completeness.
Defendant failed to show that trial counsel was ineffective by not arguing the rule of completeness, former O.C.G.A. § 24-3-38 (see now O.C.G.A. § 24-8-822), as a means to get the defendant’s entire post-stabbing statement into evidence because there were discrepancies between the defendant’s trial testimony and the account of a witness regarding a statement the defendant allegedly made on the night of the stabbing; therefore, an acquittal would not likely have resulted had the jury heard the witness’s testimony in its entirety. Carruth v. State, 290 Ga. 342, 721 S.E.2d 80, 2012 Ga. LEXIS 24 (2012).
Withdrawing by counsel on instruction on self defense or accident.
Trial counsel was not ineffective for withdrawing jury instructions on the defenses of accident and self-defense because no evidence was elicited at trial that would support a defense of accident or self-defense. Jones v. State, 287 Ga. 770, 700 S.E.2d 350, 2010 Ga. LEXIS 600 (2010). Ineffective assistance of counsel claims are usually not considered on direct appeal because a district court normally has not had the opportunity to conduct an evidentiary hearing or to render findings of fact. United States v. Badolato, 701 F.2d 915, 1983 U.S. App. LEXIS 29181 (11th Cir. 1983). Where the issue of ineffectiveness of counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the claim. Holt v. State, 205 Ga. App. 40, 421 S.E.2d 131, 1992 Ga. App. LEXIS 1065 (1992); Turner v. State, 210 Ga. App. 328, 436 S.E.2d 66, 1993 Ga. App. LEXIS 1152 (1993). Ineffective assistance of counsel claim may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel but, where new counsel amends a motion for new trial without raising the issue of ineffective assistance so that it may be heard in the trial court, the issue is waived. Holt v. State, 205 Ga. App. 40, 421 S.E.2d 131, 1992 Ga. App. LEXIS 1065 (1992).
Applicability of “reasonably effective assistance” standard.
The “reasonably effective assistance” standard is applicable to the pretrial as well as the trial phase. House v. Balkcom, 562 F. Supp. 1111, 1983 U.S. Dist. LEXIS 17753 (N.D. Ga. 1983), rev’d, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir. 1984). Standard inappropriate in civil suit
seeking prospective relief.
The “ineffective assistance of counsel” standard as set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) is inappropriate for a civil suit seeking prospective relief, where the plaintiff ’s burden is to show “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” Luckey v. Harris, 860 F.2d 1012, 1988 U.S. App. LEXIS 15659 (11th Cir. 1988), cert. denied, 493 U.S. 957, 110 S. Ct. 2562, 109 L. Ed. 2d 744, 1990 U.S. LEXIS 2766 (1990). sel divides itself into two parts: First the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by U.S. Const., amend. 6. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Kornegay v. State, 174 Ga. App. 279, 329 S.E.2d 601, 1985 Ga. App. LEXIS 2705 (1985). There are two components to the claim of ineffective assistance of counsel: Deficient performance and prejudice resulting from such deficient performance; neither exists in the instant case. Manus v. State, 180 Ga. App. 658, 350 S.E.2d 41, 1986 Ga. App. LEXIS 2765 (1986). To establish ineffective assistance of counsel the defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense. Brock v. State, 183 Ga. App. 277, 358 S.E.2d 613, 1987 Ga. App. LEXIS 2694 (1987); Gross v. State, 262 Ga. 232, 416 S.E.2d 284, 1992 Ga. LEXIS 515 (1992); Taylor v. State, 203 Ga. App. 210, 416 S.E.2d 554, 1992 Ga. App. LEXIS 470 (1992). In order to prevail on an ineffectiveassistance claim, a convicted defendant Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) must show: (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances; and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Johnson v. State, 199 Ga. App. 67, 404 S.E.2d 139, 1991 Ga. App. LEXIS 360 (1991), cert. denied, No. S91C0925, 1991 Ga. LEXIS 697 (Ga. May 15, 1991).
Question of ineffectiveness of coun-Joint representation not ineffective.
The burden is on the defendant claiming ineffectiveness of counsel to establish (1) the attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Day v. State, 203 Ga. App. 186, 416 S.E.2d 548, 1992 Ga. App. LEXIS 465 (1992). Trial counsel did not provide ineffective assistance of counsel under the Sixth Amendment where: (1) trial counsel jointly represented defendants, a husband and a wife; (2) the trial court questioned defendants about the joint representation and they testified that they understood the potential problems with joint representation; (3) any error was induced by defendants; (4) there was no evidence that defendant husband would have been offered a better deal if he had testified against defendant wife; and (5) defendant wife’s argument that trial counsel was unable to argue that the methamphetamine in the safe belonged to defendant husband completely ignored defendant wife’s testimony that she put the methamphetamine in the safe and that her husband was lying to protect her, and the notes about the various drug sales. Christopher v. State, 262 Ga. App. 257, 585 S.E.2d 107, 2003 Ga. App. LEXIS 761 (2003), cert. denied, No. S03C1545, 2003 Ga. LEXIS 927 (Ga. Oct. 20, 2003). Defendant was not denied effective assistance of counsel based on trial counsel’s representation of both defendant and his brother because there was no actual conflict of interests, as they refused to incriminate each other, would not testify against each other, and their defenses could be presented in a way that was not antagonistic: the brother was drunk and asleep in the back seat when defendant, the driver, was unwittingly made a participant in the shooting when the shooter fired at the victim as defendant passed the victim’s car. Adams v. State, 318 Ga. 105, 897 S.E.2d 396, 2024 Ga. LEXIS 8 (2024). Trial counsel’s joint representation of both defendant and her husband did not give rise to a conflict of interest because any potential conflict of interest was waivable, the evidence showed that defendant waived her right to conflict-free counsel, and her waiver was knowing, voluntary, and intelligent. Defendant had received more than two years of legal training, she executed a written waiver, and each co-defendant had consulted with independent counsel. Rosenbaum v. State, 320 Ga. 5, 907 S.E.2d 593, 2024 Ga. LEXIS 229 (2024). Standard for determining effectiveness of counsel applies equally to both appointed and retained counsel. Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982). Test for relief from conviction on
grounds of inadequate counsel.
It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel under U.S. Const., amend. 6 will be granted only when the trial is a farce, or a mockery of justice, or is shocking to the conscience of the reviewing court, or the purported representation is only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for a conference and preparation. Lawyers are not required to be infallible. The ability and faithfulness of an attorney is not to be judged by whether the attorney won or lost the verdict. Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414, 1972 Ga. LEXIS 773 (1972); Bonaparte v. Smith, 362 F. Supp. 1315, 1973 U.S. Dist. LEXIS 14966 (S.D. Ga.), aff’d, 484 F.2d 956, 1973 U.S. App. LEXIS 7872 (5th Cir. 1973); Sewell v. State, 130 Ga. App. 740, 204 S.E.2d 524, 1974 Ga. App. LEXIS 1246 (1974); Beavers v. State, 132 Ga. App. 94, 207 S.E.2d 550, 1974 Ga. App. LEXIS 1610 (1974). The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Jones v. State, 177 Ga. App. 531, 339 S.E.2d 786, 1986 Ga. App. LEXIS 2421 (1986). Right to the effective assistance of counsel is the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing, and when a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred, but if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. Heath v. State, 268 Ga. App. 235, 601 S.E.2d 758, 2004 Ga. App. LEXIS 893 (2004).
Test with regard to guilty plea.
To show ineffective assistance of counsel, a defendant who pleads guilty must show that defendant’s counsel erred and that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pled guilty and would have insisted on going to trial. Johnson v. State, 260 Ga. App. 897, 581 S.E.2d 407, 2003 Ga. App. LEXIS 520 (2003). In a case in which defendant sought to withdraw defendant’s guilty plea after sentencing based on, inter alia, defense counsel’s ineffectiveness in allegedly giving defendant confusing advice about the sentence and in allegedly failing to inform defendant that defendant had the opportunity to withdraw defendant’s guilty plea prior to sentencing, the trial court did not clearly err in finding that the evidence of ineffective assistance of counsel was insufficient to justify allowing defendant to withdraw defendant’s guilty plea, as the record clearly showed that defendant was well aware of the trial court’s intention to sentence defendant to 20 years in prison and that defense counsel had informed defendant that defendant could withdraw defendant’s guilty plea prior to sentencing if defendant did not want to accept the intended sentence. Johnson v. State, 260 Ga. App. 897, 581 S.E.2d 407, 2003 Ga. App. LEXIS 520 (2003). Trial court did not abuse its discretion in finding that defendant’s trial counsel was not ineffective at defendant’s plea hearing and in denying defendant’s plea withdrawal motion. There was not a reasonable probability that, but for the attorney’s failure to challenge a Ga. Unif. Super. Ct. R. 33.9 violation, the result of the guilty plea hearing would have been different, because a sufficient factual basis existed from the testimony at the plea hearing and a prior bond hearing to support the plea. Bielen v. State, 265 Ga. App. 865, 595 S.E.2d 543, 2004 Ga. App. LEXIS 196 (2004), cert. denied, No. S04C1103, 2004 Ga. LEXIS 510 (Ga. June 7, 2004). Defendant’s motion to withdraw the guilty pleas because the defendant received ineffective assistance of counsel at a guilty plea hearing since defense counsel misinformed the defendant regarding the amount of time the defendant would serve in prison was properly rejected by the trial court because: (1) the counsel correctly informed the defendant that the defendant would not be eligible for parole consideration for at least 20 years and the counsel denied telling the defendant that the defendant would serve no more than 20 years; (2) the trial court clearly explained the defendant’s sentence to the defendant at the plea hearing, including the fact that the defendant would not be eligible to be considered for parole for at least 20 years and that because of the violent nature of the defendant’s crimes the defendant likely would spend the rest of the defendant’s life in prison; and (3) the trial court emphasized to the defendant that neither the defendant’s counsel nor the district attorney could make any certification to the defendant concerning the defendant’s eligibility for parole; even assuming the counsel provided erroneous advice about the time the defendant would serve in prison, the defendant was informed of the correct sentence prior to the entry of the defendant’s plea and the defendant could not show prejudice. Rios Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) v. State, 281 Ga. 181, 637 S.E.2d 20, 2006 Ga. LEXIS 890 (2006). Defendant failed to establish that the defendant received ineffective assistance in defense counsel’s advice to plead guilty because the defendant’s trial counsel testified that after the conviction in a first trial, it was counsel’s best professional recommendation that the defendant plead guilty in the second case, as the second case was a lot worse than the first and that, if the defendant went to trial in the second case, the defendant was potentially facing a much longer sentence, but as a consequence of the plea, the defendant’s maximum aggregate sentence in both cases was 15 years, with 13 to serve; moreover, the defendant’s testimony demonstrated that the defendant understood that by pleading guilty, the defendant would not have to serve a longer sentence. Hollman v. State, 280 Ga. App. 53, 633 S.E.2d 395, 2006 Ga. App. LEXIS 746 (2006). Trial court did not err by denying a defendant’s motion to withdraw the defendant’s guilty plea due to ineffective assistance of the counsel representing the defendant at the plea hearing as: (1) the counsel met with the defendant several times prior to the plea hearing, reviewed the district attorney’s file, and discussed with the defendant the evidence the state intended to present against the defendant; (2) the counsel moved to suppress the defendant’s statements to the police and discussed the options available with the defendant after the motion was denied, including the state’s offer of a plea recommendation; and (3) the defendant failed to show how additional communication with the counsel would have changed the defendant’s decision to enter a guilty plea. Rios v. State, 281 Ga. 181, 637 S.E.2d 20, 2006 Ga. LEXIS 890 (2006). Defendant failed to show that defendant received ineffective assistance of counsel with regard to being coerced or deceived by counsel as to length of sentence that could be imposed, and trial court did not err by denying defendant’s motion to withdraw guilty plea entered into, because record did not support defendant’s claim that counsel deceived him about the length of the sentence as defendant was advised of the maximum possible sentence and was told that there was no guarantee as to length of sentence that would be imposed. Brantley v. State, 290 Ga. App. 764, 660 S.E.2d 846, 2008 Ga. App. LEXIS 409 (2008). It was error to deny an inmate’s habeas petition when the only evidence of record, the inmate’s affidavit, indicated that counsel gave erroneous advice that adversely affected the decision of the inmate, who entered into a negotiated plea, not to go to trial. Without a finding that counsel gave proper advice or that the inmate lacked credibility, the evidence did not support the conclusion that counsel was not deficient. Garrett v. State, 284 Ga. 31, 663 S.E.2d 153, 2008 Ga. LEXIS 534 (2008). With regard to defendant’s conviction for pimping, defendant failed to establish that defendant was rendered ineffective assistance of counsel as a result of defense counsel allegedly failing to advise defendant as to the consequences of a guilty plea as defendant failed to show how further consultation with defense counsel would have impacted the decision to enter a guilty plea and defendant failed to show how, but for counsel’s performance, defendant would not have pled guilty and proceeded to trial. Burroughs v. State, 292 Ga. App. 580, 665 S.E.2d 4, 2008 Ga. App. LEXIS 677 (2008), cert. denied, No. S08C1930, 2008 Ga. LEXIS 930 (Ga. Oct. 27, 2008). Where a defendant contends that the defendant went to trial instead of pleading guilty because of counsel’s deficient representation, the defendant is entitled to relief if there is at least an inference from the evidence that the defendant would have accepted a plea. However, simply because such an inference can be drawn even where the evidence is disputed or unclear on this question does not mean that a trial court is required to do so in cases where the evidence is disputed. Cleveland v. State, 285 Ga. 142, 674 S.E.2d 289, 2009 Ga. LEXIS 72 (2009). Defendant failed to show that the defendant’s plea counsel was ineffective for affirming the trial court’s incorrect statement of the law as to the minimum sentence applicable to the defendant’s child molestation plea because the defendant failed to show that the defendant would have pled not guilty and gone to trial had the defendant known the true minimum was five years, pursuant to O.C.G.A. § 16-6-4. Roseborough v. State, 311 Ga. App. 456, 716 S.E.2d 530, 2011 Ga. App. LEXIS 755 (2011). Defendant’s allegations of ineffective assistance of counsel failed because the court credited trial counsel’s testimony that trial counsel fully explained the evidence and the strength of the state’s case to the defendant, conveyed all plea bargain offers from the state to the defendant, and the defendant rejected those offers. Butler v. State, 319 Ga. App. 350, 734 S.E.2d 567, 2012 Ga. App. LEXIS 985 (2012). Counsel’s ineffectiveness in dealing
with defendant’s competency issues.
— Habeas court’s order denying the petitioner’s claim that the petitioner was entitled to a new sentencing trial was reversed and the petitioner’s death sentence was vacated because trial counsel performed deficiently by failing to sufficiently develop mitigating evidence from non-experts, and there was a reasonable probability that the jury would have reached a different outcome in the sentencing phase of the petitioner’s trial if the additional evidence habeas counsel obtained had been presented at trial; trial counsel failed to fully investigate whether the petitioner had suffered one or more brain injuries prior to the petitioner’s crimes, unduly limiting counsel’s interviews of the petitioner’s family and friends to an unreasonably narrow range of persons, and there was additional evidence from nonexperts concerning the petitioner’s traumatic childhood and the petitioner’s change in behavior and apparent mental distress following two head injuries. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335, 2011 Ga. LEXIS 255 (2011), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). For summary of standards by which lawyer competency is to be judged according to recent federal cases, see Carter v. State, 176 Ga. App. 632, 337 S.E.2d 413, 1985 Ga. App. LEXIS 2933 (1985).
Standard in capital cases.
Adefendant is entitled to an attorney likely to render and, in fact, rendering reasonably effective assistance, whether that attorney be retained or court-appointed. This standard is to be applied with particular care in capital cases. Blake v. Zant, 513 F. Supp. 772, 1981 U.S. Dist. LEXIS 13559 (S.D. Ga. 1981), aff’d, 984 F.2d 1129, 1993 U.S. App. LEXIS 2267 (11th Cir. 1993). In context of challenge to guilty plea, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Tahamtani v. Lankford, 846 F.2d 712, 1988 U.S. App. LEXIS 7702 (11th Cir. 1988) (standard not met). Trial court did not abuse its discretion in disregarding defendant’s testimony that defendant’s appointed attorney misled defendant and in refusing to allow defendant to withdraw defendant’s plea because: (1) defendant’s counsel was not ineffective because: (a) counsel stated that defendant determined that the plea and the resulting sentence to be served concurrently with what defendant already had was better than going to trial; (b) counsel expressly stated that counsel made no threats or promises to induce the client’s plea; and (c) counsel testified that before completing the plea, the attorney continuously advised defendant of the status of the witnesses against the counsel; (2) defendant’s plea was voluntary and knowingly entered because defendant understood the charges, the sentence, and plea consequences; and (3) there was a factual basis for the plea. Hill v. State, 267 Ga. App. 357, 599 S.E.2d 307, 2004 Ga. App. LEXIS 634 (2004). Defendant could not argue that defendant received ineffective assistance of counsel because of defense counsel’s failure to object to a breach of the terms of the plea agreement by the state, as the record showed that the state did not breach the plea agreement; accordingly, defense Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) counsel was not required to raise a meritless objection concerning the terms of the agreement. Pitts v. State, 265 Ga. App. 633, 595 S.E.2d 322, 2004 Ga. App. LEXIS 144 (2004), cert. denied, No. S04C1017, 2004 Ga. LEXIS 434 (Ga. May 24, 2004), overruled in part, Collier v. State, 307 Ga. 363, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (2019). Prejudice component of a claim of ineffective assistance of counsel in cases involving withdrawal of guilty pleas may be satisfied by showing that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Heath v. State, 268 Ga. App. 235, 601 S.E.2d 758, 2004 Ga. App. LEXIS 893 (2004). Trial court properly denied the defendant’s motion to withdraw the defendant’s guilty plea based on ineffective assistance under the Sixth Amendment. The record showed that trial counsel, who obtained discovery materials, investigated the case, spoke to the victim and other eyewitnesses, and met with the defendant, was adequately prepared to try the case; moreover, the defendant did not show that additional trial preparation would likely have changed reasonable counsel’s advice regarding the guilty plea or the outcome of a trial. Hammett v. State, 297 Ga. App. 235, 676 S.E.2d 880, 2009 Ga. App. LEXIS 404 (2009). Defendant, who sought to withdraw an Alford plea, did not show that the defendant misunderstood the state’s recommendation concerning credit for time served or that counsel failed to listen to the defendant, much less that the defendant would have insisted on going to trial had the defendant been counseled properly. Thus, the defendant failed to prove that plea counsel was ineffective on this ground. Skinner v. State, 297 Ga. App. 828, 678 S.E.2d 526, 2009 Ga. App. LEXIS 547 (2009). Trial court properly denied a defendant’s motion to withdraw a guilty plea to voluntary manslaughter. Pretermitting whether counsel’s performance was deficient, the defendant failed to establish a reasonable probability that the defendant would have insisted on a trial if the defendant had always known the defendant could be sentenced to serve 15 years instead of ten years; furthermore, the defendant would have been tried for felony murder had the defendant gone to trial. Johnson v. State, 298 Ga. App. 197, 679 S.E.2d 763, 2009 Ga. App. LEXIS 634 (2009). Defendant failed to show deficient performance on the part of defense counsel as defense counsel testified defense counsel correctly advised the defendant that the defendant would not be eligible for parole until the defendant served 30 years of the life sentence and did not tell the defendant that the defendant could withdraw the plea at any time, testimony which the trial court credited. Arnold v. State, 292 Ga. 95, 734 S.E.2d 382, 2012 Ga. LEXIS 961 (2012).
Plea deals.
Because the defendant failed to show that trial counsel was ineffective for failing to properly advise the defendant regarding a plea offer, and counsel was not required make meritless objections to the admission of testimony and evidence, the defendant’s ineffective assistance of counsel claim failed. Hunter v. State, 281 Ga. 526, 640 S.E.2d 271, 2007 Ga. LEXIS 44 (2007). Defendant failed to establish that defendant received ineffective assistance of trial counsel with regard to defendant’s drug-related convictions as, although defendant successfully met the burden of showing that defense counsel’s representation fell below an objective standard of reasonableness due to defense counsel failing to advise defendant about all of the evidence in the state’s case against defendant due to defense counsel failing to examine the state’s open file, defendant failed to establish but for defense counsel’s unprofessional errors, the result of the proceeding would have been different, namely that defendant would not have accepted the state’s plea offer. Cleveland v. State, 290 Ga. App. 835, 660 S.E.2d 777, 2008 Ga. App. LEXIS 325 (2008), aff’d, 285 Ga. 142, 674 S.E.2d 289, 2009 Ga. LEXIS 72 (2009). Trial court properly denied defendant’s motion to withdraw defendant’s guilty plea to possession of cocaine and possession of tools for the commission of a crime charges as defendant failed to show that the plea was not knowingly, intelligently, and voluntarily entered as the colloquy of the trial court indicated that defendant was properly questioned and that defendant’s responses established that the plea and circumstances were understood and that defendant was satisfied with trial counsel. Further, the defendant failed to establish that defendant was rendered ineffective assistance of counsel based on trial counsel purportedly not explaining that the state was incapable of meeting its burden on a trafficking charge, causing defendant to believe that the reduced charges were a part of a negotiated plea agreement, as defendant testified that defendant informed trial counsel that defendant would take a plea if the trafficking offense was reduced. Franklin v. State, 291 Ga. App. 267, 661 S.E.2d 870, 2008 Ga. App. LEXIS 456 (2008). Habeas corpus petitioner failed to prove that trial counsel’s performance was professionally deficient because trial counsel did not fail in the duty to offer the petitioner informed advice regarding the state’s plea agreement offer; the petitioner admitted that the petitioner never told trial counsel that the petitioner wished to plead guilty, and trial counsel did not act in an unreasonable or professionally deficient manner in concluding that the petitioner had decided to let the petitioner’s father speak for the petitioner and wished to reject the state’s offer. Cammer v. Walker, 290 Ga. 251, 719 S.E.2d 437, 2011 Ga. LEXIS 938 (2011).
Standard for judging counsel’s effectiveness in petty offense cases.
Even while extending the right of counsel to indigents for petty offenses, the United States Supreme Court has obliquely acknowledged that the enormous volume of minor cases will continue to result in hurried and inadequate prosecution, defense, and determination. The Georgia Court of Appeals cannot presume to set standards of representation in these circumstances but must accept adequacy prima facie in the absence of a showing either that counsel’s loyalty or integrity were in question, or that the trial was a farce or mockery of justice. Campbell v. State, 128 Ga. App. 74, 195 S.E.2d 664, 1973 Ga. App. LEXIS 1395 (1973). Test is not whether ablest or most
skillful attorneys were appointed.
The question of whether the accused has been deprived of the aid and benefit of counsel depends not on whether the ablest or most skillful attorneys were appointed for the accused, but on whether the attorneys actually appointed were so ignorant, inexperienced, or grossly lacking in appreciation of their responsibility as to amount to virtually no representation upon the trial. Wilcoxon v. Aldredge, 193 Ga. 661, 19 S.E.2d 499, 1942 Ga. LEXIS 449, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506, 1942 U.S. LEXIS 274 (1942). Test of representation is whether tance of counsel, which means representation so lacking in competence that it becomes the duty of the court or the district attorney to observe it and correct it. Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414, 1972 Ga. LEXIS 773 (1972). Mere subjective lack of confidence in the attorney by a defendant is not sufficient to render the assistance provided by counsel ineffective under U.S. Const., amend. 6. United States v. Beaver, 524 F.2d 963, 1975 U.S. App. LEXIS 11478 (5th Cir. 1975), cert. denied, 425 U.S. 905, 96 S. Ct. 1498, 47 L. Ed. 2d 756, 1976 U.S. LEXIS 818 (1976). Attorneys are officers of the court and are presumed to do as the law
defendant was denied effective assisand their duty require them.
When an attorney is appointed by the court to defend a person accused of crime who is unable to employ counsel, it is to be presumed that the attorney will discharge the attorney’s full duty in the premises. Wilcoxon v. Aldredge, 193 Ga. 661, 19 S.E.2d 499, 1942 Ga. LEXIS 449, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506, 1942 U.S. LEXIS 274 (1942).
Sufficient skill and learning presumed.
It is also to be presumed that the court, in appointing counsel for this purpose, will appoint attorneys who have sufficient skill and learning to defend the accused properly. Wilcoxon v. Aldredge, Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) 193 Ga. 661, 19 S.E.2d 499, 1942 Ga. LEXIS 449, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506, 1942 U.S. LEXIS 274 (1942). Broad discretion must be granted trial courts on matters of continuances, and only unreasoning and arbitrary insistence upon expeditiousness in the face of justifiable request for delay would violate the right to assistance of counsel. Bennett v. State, 186 Ga. App. 832, 368 S.E.2d 789, 1988 Ga. App. LEXIS 512 (1988). Testimony of defendants and their
trial counsel.
When the issue of whether defendants were denied effective assistance of counsel has been raised in a motion for new trial, defendants’ trial counsel, who was a different attorney than their appellate counsel, should be allowed to testify as to attorney’s conduct of the trial, and defendants should also be allowed to testify and/or present evidence on this issue. Martin v. State, 185 Ga. App. 145, 363 S.E.2d 765, 1987 Ga. App. LEXIS 2853 (1987). When a trial counsel is unavailable for a hearing on a claim of ineffective counsel, the trial court shall decide the issue on the record of the case proceedings and other available evidence. Bowman v. State, 222 Ga. App. 893, 476 S.E.2d 608, 1996 Ga. App. LEXIS 937 (1996), cert. denied, No. S97C0171, 1997 Ga. LEXIS 262 (Ga. Jan. 31, 1997).
Failure of appellate counsel to challenge state’s use of peremptory challenges.
Appellate counsel was ineffective in failing to ask the state supreme court to set aside the petitioner’s conviction on the ground that petitioner was denied right to equal protection where the state used nine out of ten peremptory challenges to exclude blacks from the jury in the petitioner’s trial for malice murder and it was clear that such a claim would have succeeded on appeal. Eagle v. Linahan, 268 F.3d 1306, 2001 U.S. App. LEXIS 21767 (11th Cir.), sub. op., 279 F.3d 926, 2001 U.S. App. LEXIS 29395 (11th Cir. 2001).
Failure to file notice of appeal.
Trial court erred in summarily denying the defendant’s pro se motion for an out-of-time appeal without holding a hearing because, with respect to the defendant’s claim that the defendant’s right to appeal was frustrated by the ineffectiveness of the defendant’s motion-to-withdraw counsel, the appellate court could not determine whether the defendant’s counsel performed deficiently in failing to file a notice of appeal as the trial court failed to hold an evidentiary hearing on the issue; on remand, the defendant had to show that there was a reasonable probability that, but for counsel’s deficient failure to consult with the defendant about an appeal, the defendant would have timely appealed. Blackwell v. State, 306 Ga. 577, 832 S.E.2d 352, 2019 Ga. LEXIS 512 (2019).
Remand of claim.
A defendant’s claim of ineffective assistance of counsel may be remanded for further consideration even though the claim is not raised in a motion for a new trial where the instant case is not pending in a trial court subsequent to the Georgia supreme court’s decision in Thompson v. State, 255 Ga. 654, 341 S.E.2d 5 (1986) which prevents a remand of an ineffective assistance of counsel claim which is raised for the first time on appeal. Foote v. State, 184 Ga. App. 900, 363 S.E.2d 180, 1987 Ga. App. LEXIS 2840 (1987). Where a defendant is represented on appeal by counsel other than trial counsel, and no motion for a new trial was filed, the case may be remanded for a hearing and appropriate findings concerning a claim of ineffective assistance of counsel. Thompson v. State, 186 Ga. App. 471, 367 S.E.2d 320, 1988 Ga. App. LEXIS 332 (1988); Brady v. State, 207 Ga. App. 451, 428 S.E.2d 373, 1993 Ga. App. LEXIS 215 (1993). Where the failure of trial counsel to object to the alleged improper closing argument of counsel for the state is urged in support of the appellant’s enumeration of error, which raises the ineffective-assistance-of-counsel claim, but the appellant is represented on appeal by different counsel than at trial, the case will be remanded to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. Green v. State, 187 Ga. App. 373, 370 S.E.2d 348, 1988 Ga. App. LEXIS 675 (1988). Defendant’s claim of ineffective assistance was correctly denied, where on remand to the trial court for a hearing on the effectiveness of trial counsel, defendant merely reasserted deficiencies in trial counsel’s performance, but did not attempt to establish that those claimed deficiencies prejudiced the defense. Murray v. State, 262 Ga. 435, 420 S.E.2d 752, 1992 Ga. LEXIS 783 (1992). The lack of any hearing before the trial court concerning counsel’s effectiveness required remand of case for an evidentiary hearing on the asserted claims of ineffective assistance of counsel. Wright v. State, 209 Ga. App. 128, 433 S.E.2d 99, 1993 Ga. App. LEXIS 795 (1993), overruled on other grounds, Mullins v. State, 270 Ga. 450, 511 S.E.2d 165, 1999 Ga. LEXIS 47 (1999). Trial court committed reversible error when it did not address a defendant’s claim that defense counsel failed to support post-conviction remedies, deliberately foregoing a direct appeal for four years without the defendant’s consent, because that ground was closely connected to the defendant’s repeated effort to obtain appellate counsel and as such, a hearing was required; moreover, the defendant was entitled to rely on the fact that a hearing on the motion was scheduled, and as a result, no action was taken to waive or abandon a right to a hearing. Jones v. State, 280 Ga. App. 287, 633 S.E.2d 806, 2006 Ga. App. LEXIS 834 (2006). Meritorious claim as prerequisite
to challenge.
Where the defendant does not have a meritorious Fourth Amendment claim, the defendant cannot prevail on the defendant’s claim that counsel was ineffective for not challenging the defendant’s arrest. Thomas v. Newsome, 821 F.2d 1550, 1987 U.S. App. LEXIS 9637 (11th Cir.), cert. denied, 484 U.S. 967, 108 S. Ct. 461, 98 L. Ed. 2d 401, 1987 U.S. LEXIS 4983 (1987). Attorney’s failure to bring a jury challenge claim did not constitute ineffective representation, where petitioner failed to show that a jury challenge claim would have been meritorious. Burden v. Zant, 690 F. Supp. 1040, 1988 U.S. Dist. LEXIS 6921 (M.D. Ga. 1988), aff’d, 903 F.2d 1352, 1990 U.S. App. LEXIS 8719 (11th Cir. 1990), aff’d, 975 F.2d 771, 1992 U.S. App. LEXIS 24856 (11th Cir. 1992), rev’d, 24 F.3d 1298, 1994 U.S. App. LEXIS 14952 (11th Cir. 1994). A defendant did not receive ineffective assistance of counsel as: (1) a hearsay objection to statements the defendant made during an argument and to testimony that the defendant stated that the defendant should have killed the other witnesses would have been futile as the statements were not offered for the truth of the matter asserted; (2) a hearsay objection to a witness’s testimony as to the defendant’s statements during a van ride would also have been futile as the statements were admissible under O.C.G.A. § 24-3-3; and (3) counsel’s strategic decision to attack certain testimony through cross-examination was not ineffective assistance of counsel. Johnson v. State, 281 Ga. 229, 637 S.E.2d 393, 2006 Ga. LEXIS 928 (2006). Inexperience does not constitute ineffectiveness per se: a defendant who relies on allegations of counsel’s inexperience in support of an ineffective-assistance-of-counsel claim must still make the two-part showing of deficient performance and prejudice. Burden v. Zant, 903 F.2d 1352, 1990 U.S. App. LEXIS 8719 (11th Cir. 1990), rev’d in part, 498 U.S. 433, 111 S. Ct. 862, 112 L. Ed. 2d 962, 1991 U.S. LEXIS 664 (1991). Claim that trial counsel was ineffective due to inexperience failed, as during the three years counsel practice law, counsel’s practice was almost exclusively criminal defense, counsel had tried 16 cases, and co-counsel had been practicing law for approximately 18 years at the time of trial and had handled about 10 criminal jury trial. Simmons v. State, 291 Ga. 705, 733 S.E.2d 280, 2012 Ga. LEXIS 775 (2012). Counsel’s performance need only fall within a sphere of reasonable legal skill and practice. Blake v. Zant, 513 F. Supp. 772, 1981 U.S. Dist. LEXIS 13559 (S.D. Ga. 1981), aff’d, 984 F.2d 1129, 1993 U.S. App. LEXIS 2267 (11th Cir. 1993). Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) Attorney’s performance need not be tive particular. Blake v. Zant, 513 F. Supp. 772, 1981 U.S. Dist. LEXIS 13559 (S.D. Ga. 1981), aff’d, 984 F.2d 1129, 1993 U.S. App. LEXIS 2267 (11th Cir. 1993). Whenever a defendant selects the defendant’s own counsel, that counsel truly represents the defendant and no mistake or error of counsel, made in good faith and with earnest and honest purpose to serve the client, can be made the basis of a claim of reversible error. Donaldson v. State, 180 Ga. App. 879, 350 S.E.2d 849, 1986 Ga. App. LEXIS 2792 (1986). Inadequate preparation of counsel is one ground for finding a violation of the right to effective counsel. Baty v. Balkcom, 661 F.2d 391, 1981 U.S. App. LEXIS 15986 (5th Cir. 1981), cert. denied, 456 U.S. 1011, 102 S. Ct. 2307, 73 L. Ed. 2d 1308, 1982 U.S. LEXIS 2395 (1982). The total failure of trial preparation required a disposition that there was evidence of ineffectiveness so pervasive that a particularized inquiry into prejudice would be unguided speculation. Cochran v. State, 262 Ga. 106, 414 S.E.2d 211, 1992 Ga. LEXIS 215 (1992). Where counsel was appointed to the case approximately two weeks before the defendant’s trial was scheduled to begin, the counsel had only a short period of time in which to prepare for the case, the counsel had duties in other courts, and a family illness occupied a great deal of the counsel’s out-of-court time, the defendant was not given effective assistance of counsel. Cochran v. State, 262 Ga. 106, 414 S.E.2d 211, 1992 Ga. LEXIS 215 (1992). Defendant did not show defense counsel provided ineffective assistance because counsel was not prepared for trial, as the defendant did not point to any instances in the record that reflected counsel’s lack of preparedness. Furthermore, defense counsel’s decision to not move for a mistrial after the prosecutor asked the defendant why the defendant’s sibling shot the defendant was not ineffective as counsel’s decision was within the ambit of trial strategy and counsel’s decision was not outside the wide range of reasonable professional conduct. Berry v. State, 262 Ga. App. 375, 585 S.E.2d 679, 2003 Ga. App. LEXIS 918 (2003). Trial counsel’s failure to promptly interview restaurant employees did not amount to ineffective assistance as the purported witnesses alleged that they knew nothing and defendant failed to make a proffer about what they might have said if interviewed earlier. Robinson v. State, 278 Ga. 31, 597 S.E.2d 386, 2004 Ga. LEXIS 469 (2004). Defendant failed in the burden of showing that the trial counsel was ineffective due to the failure to adequately prepare for trial and failure to file a suppression motion regarding a one-on-one showup identification, as defendant’s failure to be up front with counsel deprived the counsel of an opportunity to effectively cross-examine a witness, and counsel’s decision not to file a suppression motion was part of the trial strategy, and thus was not second-guessed on appeal. Johnson v. State, 272 Ga. App. 881, 614 S.E.2d 128, 2005 Ga. App. LEXIS 386 (2005). Defendant failed to establish a claim of ineffective assistance of counsel based on an alleged failure to consult adequately with the defendant because defense counsel testified to extensive telephone conversations with the defendant regarding the case, and several meetings; further, the defendant advanced nothing that suggested that further meetings would have produced a different result at trial. Phillips v. State, 280 Ga. 728, 632 S.E.2d 131, 2006 Ga. LEXIS 471 (2006). Appeals court rejected defendant’s claims that trial counsel was ineffective: (1) for failing to move to sever the trial from a codefendant’s; (2) for failing to call as a witness a certain individual who would have provided evidence that was crucial to the defense; and (3) because counsel was ill-prepared for trial, as the overwhelming evidence of guilt would not have changed the outcome of the trial; thus, defendant failed to prove that the defendant was prejudiced by these allegations. Jenkins v. State, 279 Ga. App. 897, 633 S.E.2d 61, 2006 Ga. App. LEXIS 733 (2006). Defendant failed to establish a claim of ineffective assistance from defense counsel’s alleged inadequate preparation based on counsel’s failure to search, find, and interview numerous witnesses who could have impeached the testimony of the state’s witnesses because the defendant did not identify these witnesses and made no proffer of the expected testimony; moreover, although the defendant complained that defense counsel failed to take sworn statements from the prosecution’s witnesses, the defendant did not state what these statements may have revealed, other than the defendant’s hope that these statements would have cleared up confusion about what occurred, which was insufficient to establish that a probability existed that the result of the trial might have been different if counsel had done so. Johnson v. State, 280 Ga. App. 341, 634 S.E.2d 134, 2006 Ga. App. LEXIS 851 (2006), overruled in part, Kimbrough v. State, 300 Ga. 516, 796 S.E.2d 694, 2017 Ga. LEXIS 48 (2017). Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 for failure to request a continuance to locate potential exculpatory witnesses; the defendant failed to show prejudice, as the defendant did not show that the testimony of such witnesses would have been relevant and favorable. Wells v. State, 281 Ga. 253, 637 S.E.2d 8, 2006 Ga. LEXIS 823 (2006). On remand, a Georgia trial court properly found that the defendant did not receive the ineffective assistance of trial counsel, as the record clearly showed that counsel: (1) met with the defendant to prepare for trial and go over discovery; (2) met with the prosecutor to discuss the case; (3) discussed legal issues and possible defenses with the defendant; and (4) properly decided to withhold copies of documents from the defendant, who was incarcerated, out of an abundance of caution that other inmates would steal them, learn the details of the case, and then offer to testify against the defendant in order to receive preferable treatment. Williams v. State, 281 Ga. 196, 637 S.E.2d 25, 2006 Ga. LEXIS 880 (2006). Defendant’s ineffective assistance of counsel claim based on first appellate counsel’s failure to properly research the issues for the motion for new trial and to present evidence necessary for the trial court to make a reasonable determination of whether there was error in the trial sufficient to merit a new trial was rejected as appointed counsel’s failure to act and all of the defendant’s counsels’ failure to pursue pretrial motions did not constitute ineffective assistance and the defendant failed to cite any authority as to the other seven issues the defendant claimed were not properly presented; the only means by which the defendant could pursue a claim challenging the effectiveness of first appellate counsel was through a habeas corpus proceeding. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729, 2006 Ga. App. LEXIS 1217 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (Ga. Jan. 22, 2007), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Although a defendant asserted that certain statements by trial counsel about inadequate time to review discovery materials provided by the prosecution indicated that the trial counsel was insufficiently prepared for the defendant’s malice murder trial, no ineffective assistance of counsel was shown; the trial court noted on the motion for a new trial that the record showed that trial counsel had reviewed the material provided by the prosecution, had investigated the case, had filed and argued pre-trial motions, and had adequate time to prepare for trial, and the defendant did not point out any occurrence at trial that demonstrated a lack of preparation. Green v. State, 281 Ga. 322, 638 S.E.2d 288, 2006 Ga. LEXIS 992 (2006). There was no merit to the defendant’s argument that because counsel did not have time to prepare for trial, the defendant had experienced a constructive denial of counsel under the Sixth Amendment. Counsel was already familiar with the case when counsel took it over from an attorney whom counsel supervised; counsel had access to the trial preparation work done by the original attorney; counsel met with the defendant before trial; and counsel indicated to the trial court that counsel was ready to proceed to trial. Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) Crane v. State, 294 Ga. App. 321, 670 S.E.2d 123, 2008 Ga. App. LEXIS 1178 (2008). Claim that counsel performed deficiently by failing to adequately prepare for trial and failing to investigate potential witnesses failed because two of the witnesses the defendant claimed should have been interviewed testified at trial and a third was interviewed but it was determined that the third witness’s testimony would not have established an alibi defense. Griffin v. State, 292 Ga. 321, 737 S.E.2d 682, 2013 Ga. LEXIS 67 (2013). Before a court should grant a new trial upon the ground that counsel failed to do their duty, there should be strong and convincing proof to overcome the presumption to the contrary. Wilcoxon v. Aldredge, 193 Ga. 661, 19 S.E.2d 499, 1942 Ga. LEXIS 449, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506, 1942 U.S. LEXIS 274 (1942).
ideal in every strategic or substan-No guarantee of errorless counsel.
— The constitutional right to the assistance of counsel does not guarantee errorless counsel, nor counsel judged ineffective by hindsight. Bonaparte v. Smith, 362 F. Supp. 1315, 1973 U.S. Dist. LEXIS 14966 (S.D. Ga.), aff’d, 484 F.2d 956, 1973 U.S. App. LEXIS 7872 (5th Cir. 1973); Jones v. State, 232 Ga. 771, 208 S.E.2d 825, 1974 Ga. LEXIS 1085 (1974), cert. denied, 419 U.S. 1115, 95 S. Ct. 795, 42 L. Ed. 2d 814, 1975 U.S. LEXIS 311 (1975); Pitts v. Hopper, 402 F. Supp. 119, 1974 U.S. Dist. LEXIS 11588 (N.D. Ga. 1974), aff’d, 520 F.2d 941 (5th Cir. 1975); Harrell v. State, 139 Ga. App. 556, 228 S.E.2d 723, 1976 Ga. App. LEXIS 1884 (1976), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982); Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977). But see Stewart v. State, 232 Ga. App. 565, 502 S.E.2d 502, 1998 Ga. App. LEXIS 747 (1998); Leggett v. State, 241 Ga. 237, 244 S.E.2d 847, 1978 Ga. LEXIS 963 (1978); Gaines v. Hopper, 575 F.2d 1147, 1978 U.S. App. LEXIS 10396 (5th Cir. 1978); Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff’d, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979); Jones v. State, 243 Ga. 820, 256 S.E.2d 907, 1979 Ga. LEXIS 1079, cert. denied, 444 U.S. 957, 100 S. Ct. 437, 62 L. Ed. 2d 329 (1979); Suits v. State, 150 Ga. App. 285, 257 S.E.2d 306, 1979 Ga. App. LEXIS 2181 (1979), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020); Fegan v. State, 154 Ga. App. 791, 270 S.E.2d 211, 1980 Ga. App. LEXIS 2392 (1980); Warner v. State, 155 Ga. App. 495, 271 S.E.2d 636, 1980 Ga. App. LEXIS 2633 (1980); Bishop v. State, 155 Ga. App. 611, 271 S.E.2d 743, 1980 Ga. App. LEXIS 2702 (1980); Hudson v. State, 156 Ga. App. 281, 274 S.E.2d 675, 1980 Ga. App. LEXIS 3032 (1980), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982); Rosser v. State, 156 Ga. App. 463, 274 S.E.2d 812, 1980 Ga. App. LEXIS 3068 (1980), aff’d, 247 Ga. 724, 279 S.E.2d 217, 1981 Ga. LEXIS 840 (1981); Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826, 1980 Ga. App. LEXIS 3079 (1980); Irby v. State, 156 Ga. App. 761, 275 S.E.2d 391, 1980 Ga. App. LEXIS 3191 (1980); Young v. Zant, 506 F. Supp. 274, 1980 U.S. Dist. LEXIS 16535 (M.D. Ga. 1980), rev’d in part, 677 F.2d 792, 1982 U.S. App. LEXIS 19269 (11th Cir. 1982); Kemp v. Leggett, 635 F.2d 453, 1981 U.S. App. LEXIS 20661 (5th Cir. 1981); Beavers v. Balkcom, 636 F.2d 114, 1981 U.S. App. LEXIS 20401 (5th Cir. 1981); Sliger v. State, 248 Ga. 316, 282 S.E.2d 291, 1981 Ga. LEXIS 967 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657, 1982 U.S. LEXIS 896 (1982); Austin v. Carter, 248 Ga. 775, 285 S.E.2d 542, 1982 Ga. LEXIS 1083 (1982); Blake v. Zant, 513 F. Supp. 772, 1981 U.S. Dist. LEXIS 13559 (S.D. Ga. 1981), aff’d, 984 F.2d 1129, 1993 U.S. App. LEXIS 2267 (11th Cir. 1993); Spangler v. State, 162 Ga. App. 624, 292 S.E.2d 461, 1982 Ga. App. LEXIS 2266 (1982); Tanner v. State, 162 Ga. App. 623, 292 S.E.2d 476, 1982 Ga. App. LEXIS 2265 (1982); Storey v. State, 162 Ga. App. 763, 292 S.E.2d 483, 1982 Ga. App. LEXIS 2331 (1982); Young v. Zant, 677 F.2d 792, 1982 U.S. App. LEXIS 19269 (11th Cir. 1982); Galloway v. State, 165 Ga. App. 536, 301 S.E.2d 894, 1983 Ga. App. LEXIS 1937 (1983); Johnson v. State, 165 Ga. App. 773, 302 S.E.2d 626, 1983 Ga. App. LEXIS 2012 (1983); Birt v. Montgomery, 709 F.2d 690, 1983 U.S. App. LEXIS 24721 (11th Cir. 1983); Fleming v. Zant, 560 F. Supp. 525, 1983 U.S. Dist. LEXIS 18252 (M.D. Ga. 1983), aff’d, 748 F.2d 1435, 1984 U.S. App. LEXIS 16373 (11th Cir. 1984); Brown v. State, 179 Ga. App. 538, 346 S.E.2d 908, 1986 Ga. App. LEXIS 2638 (1986). The constitutional right to effective assistance of counsel insures not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. Veit v. State, 182 Ga. App. 753, 357 S.E.2d 113, 1987 Ga. App. LEXIS 2656 (1987). Petitioner was not entitled to error-free representation, only representation that fell within the range of competence demanded of attorneys in criminal cases and conformed to professional standards of reasonable investigation of facts and understanding of the law. Lancaster v. Newsome, 880 F.2d 362, 1989 U.S. App. LEXIS 11890 (11th Cir. 1989). Constitutional right to assistance of counsel only guarantees counsel dering reasonably effective assistance. Harrell v. State, 139 Ga. App. 556, 228 S.E.2d 723, 1976 Ga. App. LEXIS 1884 (1976), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982); Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977). But see Stewart v. State, 232 Ga. App. 565, 502 S.E.2d 502, 1998 Ga. App. LEXIS 747 (1998); Gaines v. Hopper, 575 F.2d 1147, 1978 U.S. App. LEXIS 10396 (5th Cir. 1978); United States v. Alvarez, 580 F.2d 1251, 1978 U.S. App. LEXIS 8749 (5th Cir. 1978); Carbo v. United States, 581 F.2d 91, 1978 U.S. App. LEXIS 8774 (5th Cir. 1978); Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff’d, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979); Jones v. State, 243 Ga. 820, 256 S.E.2d 907, 1979 Ga. LEXIS 1079, cert. denied, 444 U.S. 957, 100 S. Ct. 437, 62 L. Ed. 2d 329 (1979); Suits v. State, 150 Ga. App. 285, 257 S.E.2d 306, 1979 Ga. App. LEXIS 2181 (1979), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020); Warner v. State, 155 Ga. App. 495, 271 S.E.2d 636, 1980 Ga. App. LEXIS 2633 (1980); Bishop v. State, 155 Ga. App. 611, 271 S.E.2d 743, 1980 Ga. App. LEXIS 2702 (1980); Hudson v. State, 156 Ga. App. 281, 274 S.E.2d 675, 1980 Ga. App. LEXIS 3032 (1980), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982); Rosser v. State, 156 Ga. App. 463, 274 S.E.2d 812, 1980 Ga. App. LEXIS 3068 (1980), aff’d, 247 Ga. 724, 279 S.E.2d 217, 1981 Ga. LEXIS 840 (1981); Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826, 1980 Ga. App. LEXIS 3079 (1980); Irby v. State, 156 Ga. App. 761, 275 S.E.2d 391, 1980 Ga. App. LEXIS 3191 (1980); Young v. Zant, 506 F. Supp. 274, 1980 U.S. Dist. LEXIS 16535 (M.D. Ga. 1980), rev’d in part, 677 F.2d 792, 1982 U.S. App. LEXIS 19269 (11th Cir. 1982); Kemp v. Leggett, 635 F.2d 453, 1981 U.S. App. LEXIS 20661 (5th Cir. 1981); Beavers v. Balkcom, 636 F.2d 114, 1981 U.S. App. LEXIS 20401 (5th Cir. 1981); Sliger v. State, 248 Ga. 316, 282 S.E.2d 291, 1981 Ga. LEXIS 967 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657, 1982 U.S. LEXIS 896 (1982); Austin v. Carter, 248 Ga. 775, 285 S.E.2d 542, 1982 Ga. LEXIS 1083 (1982); Blake v. Zant, 513 F. Supp. 772, 1981 U.S. Dist. LEXIS 13559 (S.D. Ga. 1981), aff’d, 984 F.2d 1129, 1993 U.S. App. LEXIS 2267 (11th Cir. 1993); Spangler v. State, 162 Ga. App. 624, 292 S.E.2d 461, 1982 Ga. App. LEXIS 2266 (1982); Tanner v. State, 162 Ga. App. 623, 292 S.E.2d 476, 1982 Ga. App. LEXIS 2265 (1982); Storey v. State, 162 Ga. App. 763, 292 S.E.2d 483, 1982 Ga. App. LEXIS 2331 (1982); Galloway v. State, 165 Ga. App. 536, 301 S.E.2d 894, 1983 Ga. App. LEXIS 1937 (1983). U.S. Const., amend. 6 guarantees criminal defendants the right to counsel reasonably likely to render and rendering reasonably effective assistance given the totality of the circumstances. Birt v. Montgomery, 709 F.2d 690, 1983 U.S. App. LEXIS 24721 (11th Cir. 1983); United States v. Johnson, 709 F.2d 639, 1983 U.S. Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) App. LEXIS 25934 (11th Cir.), cert. denied, 464 U.S. 1010, 104 S. Ct. 531, 78 L. Ed. 2d 713, 1983 U.S. LEXIS 2669 (1983). The right to effective counsel does not mean errorless counsel, nor does it mean counsel adjudged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. Jackson v. State, 167 Ga. App. 509, 306 S.E.2d 757, 1983 Ga. App. LEXIS 2531 (1983).
reasonably likely to render and ren-Good faith errors of retained counsel not ordinarily reversible error.
Ordinarily, if the defendant selects the defendant’s own counsel, that counsel truly represents the defendant and no mistake or error of counsel, made in good faith and with earnest and honest purpose to serve the client, can be made the basis of claim of a reversible error. Irby v. State, 156 Ga. App. 761, 275 S.E.2d 391, 1980 Ga. App. LEXIS 3191 (1980). Good faith errors of appointed counsel are normally insufficient to justify granting a motion to vacate sentence. Walker v. Caldwell, 476 F.2d 213, 1973 U.S. App. LEXIS 10733 (5th Cir. 1973). Honest mistake of retained counsel
not basis of claim of error.
Whenever a defendant selects the defendant’s own counsel, that counsel truly represents the defendant and no mistake or error of counsel, made in good faith and with earnest and honest purpose to serve the client, can be made the basis of a claim of reversible error. Scott v. State, 178 Ga. App. 844, 344 S.E.2d 764, 1986 Ga. App. LEXIS 2570 (1986). Significant misleading statements of counsel can rise to a level of denial of due process of law and result in a vitiation of the judicial proceeding because of ineffective assistance of counsel. Walker v. Caldwell, 476 F.2d 213, 1973 U.S. App. LEXIS 10733 (5th Cir. 1973). Trial court did not err in denying defendant’s motion for new trial, because: (1) trial counsel’s failure to object to a mock Christmas gift that was entered into evidence was part of counsel’s strategy to attack the victim’s credibility and veracity, and thus was not ineffective assistance of counsel; (2) because it was necessary for trial counsel, as part of the trial strategy, to raise the issue of the victim’s veracity, trial counsel could not subsequently object to the victim’s prior consistent statement, which was entered to verify the victim’s testimony; (3) trial counsel was not ineffective for failing to file a motion to sever the charges, as the decision was presumed to be strategic; and (4) trial counsel’s failure to reserve objections to the jury charge, without a showing of deficient performance and prejudice to the defense, was not ineffective assistance. However, trial counsel’s failure to object to opinion testimony about the victim’s veracity or request that it be stricken constituted deficient performance, but the testimony was not so significant as to have contributed to the jury’s verdict. Mealor v. State, 266 Ga. App. 274, 596 S.E.2d 632, 2004 Ga. App. LEXIS 162 (2004), cert. denied, No. S04C1281, 2004 Ga. LEXIS 770 (Ga. Sept. 7, 2004). Defendant failed to demonstrate that trial counsel rendered ineffective assistance by mistakenly referring to the night of the murder as August 30 rather than September 1, 2006 during the direct examination of the host of a barbecue because the transcript of defense counsel’s complete questioning of the host and the host’s responsive testimony made clear that both were operating under the premise that the event of the barbecue took place on the day of the murder, which was unquestionably September 1, 2006, and thus, the jury was aware that the host was testifying in an attempt to establish an alibi for the defendant; there was not a reasonable probability that, but for counsel’s mistake, the outcome of the defendant’s trial would have been different because it was plain that the host was testifying about the night of the murder, and the host’s testimony fell well short of establishing an alibi for the defendant for other reasons. Smiley v. State, 288 Ga. 635, 706 S.E.2d 425, 2011 Ga. LEXIS 164 (2011).
Counsel’s decision not to seek suppression of evidence.
Defendant’s ineffective assistance of counsel claims lacked merit, as: (1) trial counsel’s decisions not to seek suppression of a bloody jacket seized from the defendant’s home was strategic, and not to challenge, were strategic; and (2) the defendant failed to show a reasonable likelihood that the outcome of the trial would have been different had counsel objected to evidence of the victim’s good character or evidence of the defendant’s bad character. Parker v. State, 281 Ga. 490, 640 S.E.2d 44, 2007 Ga. LEXIS 19 (2007). Defense counsel was not ineffective for not seeking to suppress the evidence seized in the search of the defendant’s home based upon the alleged insufficiency of the search warrant affidavit; there was no showing that the information in support of the warrant was patently false or that there was any intent to misled the judge in seeking the search warrant. Bryant v. State, 282 Ga. 631, 651 S.E.2d 718, 2007 Ga. LEXIS 718 (2007). Trial counsel did not perform deficiently by failing to renew the motion to suppress after evidence was presented at trial because there was no evidence that a renewed motion would have been granted or that the defendant suffered prejudice as a result of counsel’s performance. Gibson v. State, 290 Ga. 6, 717 S.E.2d 447, 2011 Ga. LEXIS 721 (2011). Defendant failed to show that his trial counsel was ineffective for failing to file a motion to suppress a key ring and shell casings recovered from his yard because he failed to show that such a motion would have been successful, as no evidence was admitted regarding the exact distance between defendant’s house and the area of his yard where the items were found, and defendant did not offer evidence about what the relevant area of his yard was used for. Reese v. State, 317 Ga. 189, 891 S.E.2d 835, 2023 Ga. LEXIS 173 (2023).
Tactical decision not to secure additional evaluations.
Defendant received effective assistance of counsel where defense counsel made a strategic decision not to obtain an additional psychiatric evaluation based on defense counsel’s review of the psychiatric records and counsel’s conversations with defendant; there was no evidence that defendant’s sanity at the time of the charged offense would be a significant factor at trial since: (1) defendant had repeatedly been diagnosed with depressive disorder, which did not support a mental incapacity defense; (2) the only evidence that defendant had a condition that could have supported a mental incapacity defense came from an expert witness that the trial court found not to be credible; and (3) defendant insisted that the victim’s death was the result of self-defense. Coker v. State, 262 Ga. App. 320, 585 S.E.2d 221, 2003 Ga. App. LEXIS 905 (2003), cert. denied, No. S03C1697, 2003 Ga. LEXIS 979 (Ga. Nov. 10, 2003). tent because of a single act even though it may have been a mistake in judgment. Hudson v. State, 156 Ga. App. 281, 274 S.E.2d 675, 1980 Ga. App. LEXIS 3032 (1980), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982). In a prosecution for rape and murder, the court determined that even assuming that the defendant’s trial counsel should have discovered and used certain impeachment evidence to attack the testimony of two witnesses, the state habeas court’s conclusion that counsel’s failure to do so did not prejudice the defendant’s sentence was objectively reasonable. Brown v. Head, 272 F.3d 1308, 2001 U.S. App. LEXIS 24505 (11th Cir. 2001), cert. denied, 537 U.S. 978, 123 S. Ct. 476, 154 L. Ed. 2d 338, 2002 U.S. LEXIS 7877 (2002). Effectiveness of counsel cannot be measured by the result reached at trial. Harrell v. State, 139 Ga. App. 556, 228 S.E.2d 723, 1976 Ga. App. LEXIS 1884 (1976), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982); Hudson v. State, 156 Ga. App. 281, 274 S.E.2d 675, 1980 Ga. App. LEXIS 3032 (1980), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982). A defendant cannot retain the defendant’s selected counsel and seemingly acquiesce in counsel’s tactics, only to have judgment set aside on alleged incompetence of counsel if outcome of trial is unfavorable. Harrell v. State, 139 Ga. Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) App. 556, 228 S.E.2d 723, 1976 Ga. App. LEXIS 1884 (1976), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982). Standard of effectiveness of counsel is not to be judged by hindsight nor by result that appellant was convicted. Spangler v. State, 162 Ga. App. 624, 292 S.E.2d 461, 1982 Ga. App. LEXIS 2266 (1982); Waites v. State, 178 Ga. App. 333, 343 S.E.2d 115, 1986 Ga. App. LEXIS 1670 (1986). Effectiveness of counsel cannot be fairly measured by results of trial, but upon reasonable effectiveness of counsel’s services at time they were rendered. Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982). That appointed counsel is a highly respected attorney does not establish counsel’s effectiveness in a particular case. Walker v. Caldwell, 476 F.2d 213, 1973 U.S. App. LEXIS 10733 (5th Cir. 1973). Shortness of time spent with a client alone does not suffice to show ineffective representation. Walker v. Caldwell, 476 F.2d 213, 1973 U.S. App. LEXIS 10733 (5th Cir. 1973). Defendant did not show defendant was deprived of effective assistance of counsel because defense counsel allegedly did not adequately meet with defendant or prepare for trial because there was no specified amount of time counsel had to spend with defendant, counsel met with defendant at critical stages of the defense and before trial and presented discovery to defendant for review, defendant participated in jury selection and was allowed to meet with counsel before the start of trial, and, even if counsel’s performance was deficient, defendant did not show the trial’s outcome would have been different if counsel had spent more time with the defendant. Martin v. State, 266 Ga. App. 392, 597 S.E.2d 445, 2004 Ga. App. LEXIS 302 (2004). Attempt to withdraw does not show
Attorneys do not become incompeineffectiveness.
The mere fact that defendant’s counsel attempted to withdraw from the case (after defendant voiced dissatisfaction with counsel when the case was called for trial) did not demonstrate deficient performance. Middlebrooks v. State, 208 Ga. App. 23, 430 S.E.2d 163, 1993 Ga. App. LEXIS 430 (1993). Membership of the bar in good standing is prima facie proof of competency as an attorney. Hill v. Balkcom, 213 Ga. 58, 96 S.E.2d 589, 1957 Ga. LEXIS 301 (1957); Suits v. State, 150 Ga. App. 285, 257 S.E.2d 306, 1979 Ga. App. LEXIS 2181 (1979), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020); Chapman v. State, 154 Ga. App. 532, 268 S.E.2d 797, 1980 Ga. App. LEXIS 2271 (1980); Hudson v. State, 156 Ga.App. 281, 274 S.E.2d 675, 1980 Ga. App. LEXIS 3032 (1980), overruled in part, Spence v. State, 163 Ga. App. 198, 292 S.E.2d 908, 1982 Ga. App. LEXIS 3193 (1982).
Impact of bar membership.
Membership of the bar in good standing is prima facie proof that counsel’s presentation meets due process requirements. Hill v. Balkcom, 213 Ga. 58, 96 S.E.2d 589, 1957 Ga. LEXIS 301 (1957). Commissioned officer admitted to practice before courts-martial, is a competent attorney within the purview of U.S. Const., amend. 6. Altmayer v. Sanford, 148 F.2d 161, 1945 U.S. App. LEXIS 2416 (5th Cir. 1945). Defendants have duty to notify the courts of an inadequacy in the assistance of counsel, and the judiciary is not required to monitor all cases to insure that counsel are using due diligence in prosecuting their client’s appeals. Chapman v. United States, 469 F.2d 634, 1972 U.S. App. LEXIS 6938 (5th Cir. 1972). Defendant’s required showing of deficient performance prejudicing
defense.
To prove ineffective assistance of counsel, a defendant is required to show that counsel’s performance was deficient and that this deficient performance prejudiced defendant’s defense. A trial court’s determination with respect to counsel’s effectiveness will be upheld on appeal unless clearly erroneous. Davis v. State, 264 Ga. App. 128, 589 S.E.2d 700, 2003 Ga. App. LEXIS 1414 (2003). With regard to a defendant’s conviction for armed robbery and other crimes, the defendant failed to establish ineffective assistance of counsel from failure to: (1) adequately prepare the defendant for trial; (2) keep the defendant adequately updated with respect to issues relevant to the defense; and (3) discuss post-trial motions; the defendant failed to meet the burden of proving that any such alleged deficiency prejudiced the defendant in any manner. Defense counsel’s failure to file a written motion to sever would have been pointless, as the trial court had considered the defense’s oral motion; there was no evidence in the record that other witnesses existed that could have been called on the defendant’s behalf; and trial counsel did not represent the defendant with regard to the defendant’s motion for a new trial, therefore, the alleged failure of trial counsel to prepare the defendant for the motion for new trial hearing could not have constituted ineffective assistance of counsel. Grant v. State, 289 Ga. App. 230, 656 S.E.2d 873, 2008 Ga. App. LEXIS 54 (2008).
Defendant’s refusal to cooperate.
A defendant may not refuse to cooperate with appointed counsel and then claim that the defendant was not effectively represented. Jefferson v. State, 209 Ga. App. 859, 434 S.E.2d 814, 1993 Ga. App. LEXIS 1012 (1993), cert. denied, No. S93C1852, 1994 Ga. LEXIS 203 (Ga. Jan. 6, 1994). Defendant failed to make a case for the ineffective assistance of trial counsel because trial counsel could hardly be found to be deficient for not considering the defendant as a key witness in the defendant’s own defense and for having to move forward with defendant’s defense without the defendant’s cooperation; trial counsel testified that counsel went to the jail to visit the defendant perhaps two or three times and then ceased to do so because the defendant refused to answer most of counsel’s questions, would not give counsel defendant’s version of events, would not help with the defense, and told counsel that the defendant did not want to talk to counsel. Sanford v. State, 287 Ga. 351, 695 S.E.2d 579, 2010 Ga. LEXIS 395 (2010), cert. denied, 562 U.S. 1237, 131 S. Ct. 1514, 179 L. Ed. 2d 336, 2011 U.S. LEXIS 1697 (2011). Advisement of the right not to tes-
tify.
Defendant’s claim that counsel provided ineffective assistance of counsel by failing to adequately advise the defendant of the defendant’s right not to testify failed as the defendant did not rebut the presumption that counsel acted as an effective legal representative and properly advised the defendant of the defendant’s rights since there was no testimony that counsel failed to inform the defendant of the defendant’s constitutional rights or the risks of testifying. Mayberry v. State, 281 Ga. 144, 635 S.E.2d 736, 2006 Ga. LEXIS 646 (2006). Defense counsel was not ineffective for interfering with the defendant’s right to testify at trial as: (1) counsel informed the defendant that, although the defendant had an absolute right to testify, counsel believed that it was in the defendant’s interest not to testify for strategic reasons; and (2) based on the reasonable advice of counsel, the defendant voluntarily chose not to testify. Dixon v. State, 285 Ga. 312, 677 S.E.2d 76, 2009 Ga. LEXIS 154 (2009), overruled in part, Whitehead v. State, 287 Ga. 242, 695 S.E.2d 255, 2010 Ga. LEXIS 412 (2010). Although defendant’s three attorneys disagreed as to whether defendant should testify at trial, the attorneys presented their advice to defendant, and defendant made the decision not to testify; consequently, the attorney’s advice did not in any way violate defendant’s Sixth Amendment right to effective counsel. Spencer v. State, 287 Ga. 434, 696 S.E.2d 617, 2010 Ga. LEXIS 489 (2010). Trial counsel was not ineffective for advising the defendant not to testify because the defendant acknowledged that counsel told the defendant that the defendant would cause more damage to the defendant’s case if the defendant testified and acknowledged trusting counsel thereby choosing not to testify; even assuming that trial counsel did advise the defendant that the defendant could be impeached by certain evidence and that such advise was incorrect, the defendant did not show that the defendant was prejudiced thereby because the defendant Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) never said what the defendant’s testimony would have been had the defendant testified at trial. Johnson v. State, 290 Ga. 382, 721 S.E.2d 851, 2012 Ga. LEXIS 78 (2012).
Failure to call defendant to testify.
— Trial counsel did not render ineffective assistance by failing to call the defendant to testify because the defendant made the decision not to testify with a complete understanding of the defendant’s rights, and trial counsel testified that counsel advised the defendant that it was up to the defendant whether to testify and that counsel advised against given the defendant’s prior felony convictions and belief that the testimony the defendant wished to present was, to a certain extent, contrary to the defense theory. Thornton v. State, 292 Ga. 796, 741 S.E.2d 641, 2013 Ga. LEXIS 328 (2013).
Factors considered where inadequate representation alleged.
When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977). But see Stewart v. State, 232 Ga. App. 565, 502 S.E.2d 502, 1998 Ga. App. LEXIS 747 (1998). In determining reasonably effective assistance of counsel, critical factual inquiry relates to whether a defense was not presented, sufficiency of counsel’s consultation with defendant and adequacy of investigation into facts and law and whether errors alleged resulted from inadequate trial preparation rather than from unwise choices of strategy and trial tactics. Hall v. State, 162 Ga. App. 713, 293 S.E.2d 862, 1982 Ga. App. LEXIS 2307 (1982). Where inadequate representation of counsel is alleged, the reviewing court normally considers whether the defendant had a defense which was not presented; whether trial counsel consulted with the accused and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation, rather than from unwise trial tactics. Ealy v. State, 251 Ga. 426, 306 S.E.2d 275, 1983 Ga. LEXIS 821 (1983). Burden and standard of proof of
denial of benefit of counsel.
The burden is on the applicant to sustain the contention that the applicant was denied the benefit of counsel. In order to sustain such contention, it is incumbent upon the applicant to show that the applicant was virtually unrepresented. Wilcoxon v. Aldredge, 193 Ga. 661, 19 S.E.2d 499, 1942 Ga. LEXIS 449, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506, 1942 U.S. LEXIS 274 (1942). For relief, a petitioner must show that the petitioner’s counsel was in fact ineffective, that counsel’s conduct was not within the range of competence demanded of attorneys in criminal cases. A petitioner then has the additional burden of proving that the petitioner’s counsel’s ineffectiveness caused actual and substantial prejudice in the petitioner’s case. Mitchell v. Hopper, 564 F. Supp. 780, 1983 U.S. Dist. LEXIS 16411 (S.D. Ga. 1983), aff’d, 762 F.2d 886, 1985 U.S. App. LEXIS 30164 (11th Cir. 1985). In order to be entitled to habeas corpus relief on a claim of ineffective assistance of counsel, the petitioner must establish by a preponderance of the evidence: (1) that based upon the totality of circumstances in the entire record the petitioner’s counsel was not “reasonably likely to render” and in fact did not render “reasonable effective assistance”; and (2) that ineffectiveness of counsel resulted in actual and substantial disadvantage to the course of the petitioner’s defense. Even if the petitioner meets this burden, habeas corpus relief may still be denied if the state can prove that in the context of all the evidence it remains certain beyond a reasonable doubt that the outcome of the proceedings would not have been altered but for the ineffectiveness of counsel. McCleskey v. Zant, 580 F. Supp. 338, 1984 U.S. Dist. LEXIS 19860 (N.D. Ga. 1984), aff’d in part and rev’d in part, 753 F.2d 877, 1985 U.S. App. LEXIS 28073 (11th Cir. 1985). Because of the presumption that a lawyer is competent, the burden falls upon a defendant to demonstrate a constitutional deprivation of right to counsel. Kervin v. State, 178 Ga. App. 601, 344 S.E.2d 441, 1986 Ga. App. LEXIS 2552 (1986). In determining whether there has been actual ineffective assistance of counsel, thereby requiring the reversal of the defendant’s conviction, the defendant must show both that trial counsel’s performance was deficient and that this deficiency prejudiced the defense. Tutton v. State, 179 Ga. App. 462, 346 S.E.2d 898, 1986 Ga. App. LEXIS 2632 (1986). Defendant bears the burden to show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Webb v. State, 178 Ga. App. 725, 344 S.E.2d 660, 1986 Ga. App. LEXIS 2553 (1986); Askin v. State, 178 Ga. App. 810, 344 S.E.2d 699, 1986 Ga. App. LEXIS 2564 (1986); Parisie v. State, 178 Ga. App. 857, 344 S.E.2d 727, 1986 Ga. App. LEXIS 2565 (1986), overruled in part, Willis v. State, 304 Ga. 686, 820 S.E.2d 640, 2018 Ga. LEXIS 685 (2018); Scott v. State, 178 Ga. App. 844, 344 S.E.2d 764, 1986 Ga. App. LEXIS 2570 (1986); Bradley v. State, 178 Ga. App. 894, 344 S.E.2d 772, 1986 Ga. App. LEXIS 2586 (1986). In order to prevail on an ineffectiveness claim, a convicted defendant must show: (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances; and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Jones v. State, 180 Ga. App. 706, 350 S.E.2d 309, 1986 Ga. App. LEXIS 2254 (1986); Rhinehart v. State, 181 Ga. App. 507, 352 S.E.2d 823, 1987 Ga. App. LEXIS 2542 (1987). The burden is on the defendant to show both that trial counsel’s performance was deficient and that the deficient performance prejudiced the defense. Brown v. State, 257 Ga. 277, 357 S.E.2d 590, 1987 Ga. LEXIS 820 (1987). Because trial counsel’s actions involved strategic decisions or failed to harm defendant and defendant could only pursue a claim against appellate counsel through a habeas corpus proceeding, defendant did not carry the burden of proving ineffective assistance. Miller v. State, 273 Ga. App. 171, 614 S.E.2d 796, 2005 Ga. App. LEXIS 402 (2005). tutional violation rests upon the defendant, and in the absence of a showing to the contrary it will be assumed that trial counsel put aside any personal animosity toward defendant arising from the collapse of the economic arrangements between defendant and trial counsel and rendered reasonably effective assistance. Brown v. State, 180 Ga. App. 361, 349 S.E.2d 250, 1986 Ga. App. LEXIS 2721 (1986).
Burden of demonstrating a consti-Prejudice must be shown.
Adefendant claiming ineffective assistance of counsel must establish that the attorney’s alleged failure resulted in some degree of prejudice to the defendant. United States v. Costa, 691 F.2d 1358, 1982 U.S. App. LEXIS 23916 (11th Cir. 1982). Prejudice is required for habeas corpus relief based on ineffective assistance of counsel. United States v. Lagrone, 727 F.2d 1037, 1984 U.S. App. LEXIS 24426 (11th Cir. 1984). Because the defendant did not assert a possessory interest in a car in which the defendant was a passenger or in items seized from the car, the defendant failed to show standing to contest the admissibility of those items, and since it was also unclear what was known to the officer at time of the defendant’s arrest, the defendant failed to establish ineffective assistance based on counsel’s failure to file a motion to suppress those items. Callahan v. State, 280 Ga. App. 323, 634 S.E.2d 102, 2006 Ga. App. LEXIS 847 (2006), cert. denied, No. S06C1973, 2006 Ga. LEXIS 861 (Ga. Oct. 16, 2006), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Defendant did not receive ineffective assistance of counsel due to counsel’s failure to object to hearsay testimony of a Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) note-passing inmate as the hearsay statements fell within the exception permitting hearsay statements made by co-conspirators during the pendency of the conspiracy; the failure to object did not constitute deficient performance. McKinney v. State, 281 Ga. 92, 635 S.E.2d 153, 2006 Ga. LEXIS 582 (2006). Trial counsel was not ineffective in requesting an inapplicable impeachment charge as the improper language was a mere passing reference in a lengthy instruction and the defendant could not show a reasonable probability that trial counsel’s performance changed the outcome of the trial. Miller v. State, 281 Ga. App. 354, 636 S.E.2d 60, 2006 Ga. App. LEXIS 1100 (2006), cert. denied, No. S07C0087, 2007 Ga. LEXIS 106 (Ga. Jan. 8, 2007). Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 in failing to argue at trial and on appeal that the inmate’s statutory rape and incest convictions should have merged into the inmate’s rape conviction as a matter of fact since all of the crimes arose out of the same incident, as the crimes of statutory rape and incest were not established by proof of the same or less than all the facts required to establish the crime of rape; the inmate’s convictions of statutory rape under O.C.G.A. § 16-6-3 and incest under O.C.G.A. § 16-6-22 were not included pursuant to O.C.G.A. § 16-1-6(1) in the rape conviction under O.C.G.A. § 16-6-1, as statutory rape, which required evidence as to the victim’s age and that the victim was not the inmate’s spouse, and incest, which required proof of the victim’s relation to the inmate, had elements not required for rape. Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530, 2006 Ga. LEXIS 840 (2006). Defendant did not meet the defendant’s burden of showing prejudice to support the defendant’s ineffective assistance of counsel claim as the defendant did not proffer an alleged alibi witness’s testimony at the hearing on the defendant’s new trial motion. Boatwright v. State, 281 Ga. App. 560, 636 S.E.2d 719, 2006 Ga. App. LEXIS 1167 (2006). In a malice murder prosecution, trial counsel was not required to object when a witness testified about an encounter a few days before the victim was killed in which the defendant held a gun to the head of a friend of the victim, as the testimony amounted to evidence of prior difficulties between defendant and the victim, and was admissible without notice and a hearing pursuant to Ga. Unif. Super. Ct. R. 31.3; hence, counsel could not be deemed ineffective for a failure to voice an objection to that evidence. Sims v. State, 281 Ga. 541, 640 S.E.2d 260, 2007 Ga. LEXIS 47 (2007). Assuming that defense counsel was deficient for not having knowledge of the contents of the defendant’s cell phone records, the defendant could not show the required prejudice in light of the overwhelming evidence establishing the defendant’s guilt. Swanson v. State, 282 Ga. 39, 644 S.E.2d 845, 2007 Ga. LEXIS 351 (2007). Absent any prejudice from counsel’s alleged ineffectiveness for failing to object to the state’s introduction of hearsay and evidence of prior abuse committed by the defendant against the victim and the victim’s mother, and for counsel’s failure to move for a mistrial, the defendant’s ineffective assistance of counsel claim lacked merit. Johnson v. State, 281 Ga. 770, 642 S.E.2d 827, 2007 Ga. LEXIS 255 (2007). An inmate seeking habeas corpus had not shown prejudice by the alleged deficiencies of trial counsel, and even if trial counsel had failed to provide certain records to a psychologist, the psychologist, upon seeing the records, had reaffirmed the psychologist’s original opinion that the inmate was not mentally retarded; the additional mitigation evidence cited by the inmate would not have made a significant contribution in light of the evidence trial counsel actually presented. Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56, 2007 Ga. LEXIS 182 (2007), cert. denied, 552 U.S. 1070, 128 S. Ct. 728, 169 L. Ed. 2d 569, 2007 U.S. LEXIS 12856 (2007), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Trial counsel was not ineffective as: (1) the defendant failed to support an assertion that trial counsel was ineffective in failing to listen to an audiotape of the defendant’s second interview with the Georgia Bureau of Investigation prior to trial; (2) counsel’s off-hand comment as to hindsight was insufficient to support an inference of deficient performance; and (3) the defendant failed to show that prejudice resulted from counsel’s alleged deficiency. Sturgis v. State, 282 Ga. 88, 646 S.E.2d 233, 2007 Ga. LEXIS 414 (2007). Even if trial counsel was ineffective for failing to challenge the jury array on the basis that the array was tainted by the comments of a juror who was excused after stating that the juror thought the defendant was “guilty in 2003,” when the crimes occurred, there was no prejudice because the juror’s opinion was based solely on media reports, not on any personal knowledge of the defendant; where a prospective juror’s comments did not link a defendant with criminal activity, or characterize the defendant as a criminal, the entire jury panel did not have to be excused. Edwards v. State, 282 Ga. 259, 646 S.E.2d 663, 2007 Ga. LEXIS 399 (2007). Because there was significant evidence refuting the defendant’s claim of self-defense, the defendant had not shown prejudice even if trial counsel was deficient for failing to object to the prosecutor’s comment on the defendant’s silence, for failing to object to the prosecutor’s comment in opening about the evidence the defendant was anticipated to present at trial, and for failing to object to an alleged “golden rule” argument. Jackson v. State, 282 Ga. 494, 651 S.E.2d 702, 2007 Ga. LEXIS 720 (2007). Because a felony murder conviction merged with a malice murder conviction, the defendant had not shown prejudice from trial counsel’s failure to object to the felony murder jury charge; furthermore, defendant had not shown prejudice by the making of a statement that was not introduced at trial. John v. State, 282 Ga. 792, 653 S.E.2d 435, 2007 Ga. LEXIS 719 (2007). Defendant argued that defense counsel was ineffective in cross-examining a state’s witness and in failing to call a witness to undermine the testimony of the state’s witness. The defendant failed to show prejudice; as eyewitnesses testified that the defendant ordered an aggravated assault on the victim and assisted in murdering the victim, any deficiencies of counsel were unlikely to have affected the verdict. Wilcox v. State, 284 Ga. 414, 667 S.E.2d 603, 2008 Ga. LEXIS 831 (2008). Because the defendant did not show that there was a reasonable probability that the outcome would have been different if counsel had objected to a reference to a codefendant’s guilty plea during the state’s opening, the court did not have to determine whether counsel was deficient; furthermore, the jury was charged that opening statements were not evidence. Wilcox v. State, 297 Ga. App. 201, 677 S.E.2d 142, 2009 Ga. App. LEXIS 95 (2009), cert. denied, No. S09C1285, 2009 Ga. LEXIS 342 (Ga. June 1, 2009). Defendant’s claim of ineffective assistance of counsel failed because the defendant pointed to no change in the law or facts or loss of material evidence that would have raised a reasonable probability that the outcome of the appeal would have been different but for the counsel’s delay in pursuing a motion for a new trial. Simmons v. State, 291 Ga. 664, 732 S.E.2d 65, 2012 Ga. LEXIS 739 (2012).
When prejudice presumed.
In some cases, prejudice from the ineffective assistance of counsel may be presumed, including those instances in which there has been an actual or constructive denial of the assistance of counsel altogether. Heath v. State, 268 Ga. App. 235, 601 S.E.2d 758, 2004 Ga. App. LEXIS 893 (2004). Necessity of showing of prejudice
and disadvantage from counsel’s ineffectiveness.
Under the law of the Eleventh Circuit, if the court finds that counsel’s representation was not merely deficient or inadequate in many or most respects, but was functionally equivalent in every respect to having no representation at all, then it is not necessary for a habeas applicant to show that the applicant was prejudiced by counsel’s failings. House v. Balkcom, 562 F. Supp. 1111, 1983 U.S. Dist. LEXIS 17753 (N.D. Ga. 1983), Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) rev’d, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir. 1984). In a case where counsel’s representation is below proper standards in certain respects, but where the representation was not the functional equivalent of no representation, the relevant standard requires the habeas applicant to demonstrate that counsel’s failings worked to the applicant’s “actual and substantial disadvantage”; if the applicant is successful in making this showing, the writ must be granted unless the state proves that counsel’s ineffectiveness was harmless beyond a reasonable doubt. House v. Balkcom, 562 F. Supp. 1111, 1983 U.S. Dist. LEXIS 17753 (N.D. Ga. 1983), rev’d, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir. 1984). A habeas petitioner has the burden of persuasion to demonstrate that the ineffective assistance of counsel created not only a possibility of prejudice, but that it worked to the petitioner’s actual and substantial disadvantage. Fleming v. Zant, 560 F. Supp. 525, 1983 U.S. Dist. LEXIS 18252 (M.D. Ga. 1983), aff’d, 748 F.2d 1435, 1984 U.S. App. LEXIS 16373 (11th Cir. 1984); Spradlin v. State, 262 Ga. App. 897, 587 S.E.2d 155, 2003 Ga. App. LEXIS 1065 (2003), cert. denied, No. S04C0055, 2004 Ga. LEXIS 40 (Ga. Jan. 12, 2004). Even assuming that trial counsel’s performance was deficient, appellant failed to show that a reasonable probability existed that such performance would have prejudiced the appellant’s defense. Robinson v. State, 231 Ga. App. 368, 498 S.E.2d 579, 1998 Ga. App. LEXIS 452 (1998), cert. denied, No. S98C1130, 1998 Ga. LEXIS 765 (Ga. June 26, 1998). Defendant’s claims of ineffective assistance of counsel lacked merit as some of the alleged errors were strategic decisions which could not be the basis for such a claim and there was no evidence that absent the alleged errors by counsel that the outcome of the trial would have been different. Pinson v. State, 266 Ga. App. 254, 596 S.E.2d 734, 2004 Ga. App. LEXIS 348 (2004). Defendant failed to show that anything that defense counsel would have done differently or how an earlier disclosure of Brady information would have affected the outcome of the trial, and thus failed to show that the failure to object on Brady grounds constituted deficient performance or that the defendant was prejudiced thereby. Callahan v. State, 280 Ga. App. 323, 634 S.E.2d 102, 2006 Ga. App. LEXIS 847 (2006), cert. denied, No. S06C1973, 2006 Ga. LEXIS 861 (Ga. Oct. 16, 2006), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Defendant’s ineffective assistance of counsel claim was properly rejected by the trial court, given evidence that: (1) counsel did not stipulate as to the weight of the marijuana seized; (2) counsel’s failure to file a suppression motion did not constitute per se ineffective assistance of counsel, and defendant failed to show that the challenged evidence would have been suppressed had the motion been filed; (3) defendant’s decision not to testify was defendant’s own; and (4) a continuing witness objection would not have changed the outcome of the trial. Parnell v. State, 280 Ga. App. 665, 634 S.E.2d 763, 2006 Ga. App. LEXIS 648 (2006). Defendant could not establish that defendant’s trial counsel was deficient for failing to object to inadmissible evidence concerning other bad acts because trial counsel objected to the admission of the evidence and obtained a ruling from the trial court, and regardless of the format of trial counsel’s objections, the allegations were made with sufficient specificity for the trial court to identify their precise basis since they specifically pointed out how the proposed evidence violated some established rule of evidence or procedure; even if counsel’s performance was deficient, the defendant did not show there was a reasonable probability that the outcome of the trial would have been different but for counsel’s purported omission because there was overwhelming evidence of the defendant’s guilt. Ellis v. State, 287 Ga. 170, 695 S.E.2d 35, 2010 Ga. LEXIS 398 (2010). Trial counsel’s deficient performance in failing to object to a jury charge was not prejudicial because the trial court admitted having erred and went on to conclude that the error was harmless in light of the overwhelming evidence of the defendant’s guilt. Higginbotham v. State, 287 Ga. 187, 695 S.E.2d 210, 2010 Ga. LEXIS 405 (2010). Insufficient showing of prejudice
on issue of defendant’s silence.
Defendant’s claim that trial counsel rendered ineffective assistance not objecting to pervasive comments on the defendant’s pre-arrest silence failed because the defendant made an insufficient showing of prejudice; there was strong evidence of the defendant’s guilt of felony murder, including that it was undisputed that the defendant was the only adult caring for the victim when the victim received mortal injuries and that the defense that the victim fell from the bed was not supported by the medical evidence. Whitaker v. State, 291 Ga. 139, 728 S.E.2d 209, 2012 Ga. LEXIS 493 (2012).
Suppression of identification.
Trial counsel was not ineffective by failing to seek suppression of the identification evidence or attack the reliability of the same on grounds that such was impermissibly suggestive, as: (1) the showup was preceded by a photo array against which no attack was made; and (2) counsel’s strategy in handling the state’s failure to elicit in-court identification testimony from a particular witness was reasonable. Brooks v. State, 281 Ga. 514, 640 S.E.2d 280, 2007 Ga. LEXIS 49 (2007). With regard to a defendant’s convictions for child molestation, the trial court properly denied the defendant’s motion for a new trial as the defendant failed to show that the defendant was rendered ineffective assistance of counsel as a result of trial counsel failing to move to suppress the photographic lineup evidence wherein the two victims identified the defendant as the perpetrator. The reviewing court agreed with the trial court that the photographic lineup was not impermissibly suggestive since the lineup depicted six black and white photographs of men of similar race, age, hairstyle, and complexion; thus, the defendant failed to prove that there would have been any merit to the motion to suppress. Mohammed v. State, 295 Ga. App. 514, 672 S.E.2d 483, 2009 Ga. App. LEXIS 25 (2009). Defendant failed to show that trial counsel was ineffective by failing to move to suppress identification evidence and testimony because the admission of a deceased victim’s identification statement was made the subject of a motion in limine filed by trial counsel and, thus, there could be no error as counsel did not fail to seek the exclusion of the admission of the victim’s identification; the victims’ identification of the defendant was merely one of the credibility of eyewitnesses to the incident, which had to be resolved by the trier of fact. Gandy v. State, 290 Ga. 166, 718 S.E.2d 287, 2011 Ga. LEXIS 933 (2011). Witness testifying to defendant’s gang involvement was not ineffective
assistance.
Defendant did not receive ineffective assistance of counsel due to trial counsel’s failure to object when a witness testified that the defendant spent time with an alleged gang because there was no prejudice in light of the overwhelming evidence of the defendant’s guilt; several other eyewitnesses testified that the defendant shot the victim, and the defendant failed to show that but for counsel’s failure to object, the outcome of the trial would have been any different. Kitchens v. State, 289 Ga. 242, 710 S.E.2d 551, 2011 Ga. LEXIS 429 (2011). dant’s burden to establish prejudice stemming from counsel’s errors in three instances: (1) an actual or constructive denial of counsel; (2) government interference with defense counsel; and (3) counsel that labors under an actual conflict of interest that adversely affects counsel’s performance. Heath v. State, 268 Ga. App. 235, 601 S.E.2d 758, 2004 Ga. App. LEXIS 893 (2004). tory rules, and disciplinary standards would not automatically relieve appellant of the burden to show harm resulting from the alleged misconduct. Robinson v. State, 210 Ga. App. 278, 435 S.E.2d 718, 1993 Ga. App. LEXIS 1130 (1993). Attorney’s acts of professional misconduct in unrelated matters and Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) cases did not establish inadequacy or prejudice. White v. State, 267 Ga. 523, 481 S.E.2d 804, 1997 Ga. LEXIS 65 (1997).
Defendant will be relieved of defen-Truth of allegation that counsel violated ethical considerations, direc-Suspension from practice of law.
An attorney suspended from the practice of law for failure to comply with state bar administrative regulations does not render ineffective assistance of counsel under either the United States or Georgia Constitution when representing a criminal defendant. Cornwell v. Dodd, 270 Ga. 411, 509 S.E.2d 919, 1999 Ga. LEXIS 11 (1999). Trial counsel’s failure to disclose to the defendant a previous six-month suspension from the practice of law did not support a finding of ineffective assistance because the suspension occurred more than 13 years earlier and concerned the handling of trust accounts that were unrelated to representation of criminal defendants. Durham v. State, 292 Ga. 239, 734 S.E.2d 377, 2012 Ga. LEXIS 953 (2012).
Administrative suspension.
Defendant did not show that defendant received ineffective assistance of counsel, despite the fact that defendant’s counsel was under the state bar’s administrative suspension at the time defendant was being tried, as the suspension was for failing to timely respond to an inquiry and did not show that counsel provided ineffective assistance in representing defendant; since defendant did not show any other evidence that defense counsel provided ineffective assistance, defendant’s ineffective assistance of counsel claim had to fail. Zinnamon v. State, 261 Ga. App. 170, 582 S.E.2d 146, 2003 Ga. App. LEXIS 567 (2003). tions upon which the attorney bases the defense strategy are reasonable and the attorney’s choices on the basis of those assumptions are reasonable. Mitchell v. Hopper, 564 F. Supp. 780, 1983 U.S. Dist. LEXIS 16411 (S.D. Ga. 1983), aff’d, 762 F.2d 886, 1985 U.S. App. LEXIS 30164 (11th Cir. 1985). Standard for holding a conviction sel to obtain evidence should be at least as rigorous as that for getting a new trial on the ground of newly discovered evidence. House v. Balkcom, 562 F. Supp. 1111, 1983 U.S. Dist. LEXIS 17753 (N.D. Ga. 1983), rev’d, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir. 1984). Advice as to interrogation prior to
Attorney is effective if the assumpunconstitutional for failure of counadversary proceedings.
Sixth amendment claim as to advice given by counsel to defendant with respect to the police interrogation occurring prior to the initiation of adversary judicial proceedings was without merit, because the right does not attach to pre-adversarial interrogations. Ford v. State, 256 Ga. 375, 349 S.E.2d 361, 1986 Ga. LEXIS 853 (1986).
Initiation of statement by defendant.
Trial court did not err in failing to suppress a statement the defendant made to the police because the statement was made during the course of a subsequent interview that the defendant initiated and was admissible; the defendant contacted the case detective and requested a meeting, the detective met with the defendant and again advised the defendant of the defendant’s right to counsel, and the defendant waived the defendant’s right to counsel and made an incriminating statement. Haynes v. State, 287 Ga. 202, 695 S.E.2d 219, 2010 Ga. LEXIS 392 (2010).
Failure to obtain information concerning police interrogation of defendant.
Counsel did not provide reasonably effective assistance to defendant where they failed to interview or otherwise obtain information concerning defendant’s interrogation by police officers. House v. Balkcom, 562 F. Supp. 1111, 1983 U.S. Dist. LEXIS 17753 (N.D. Ga. 1983), rev’d, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir. 1984).
Allowing second confession.
Because the defendant had already confessed to the district attorney, the defendant’s subsequent confession to the police after brief consultation with the defendant’s public defender did not show ineffective assistance of counsel; counsel might have felt it would present the obvious remorse of the defendant. Stewart v. State, 262 Ga. 894, 426 S.E.2d 367, 1993 Ga. LEXIS 292 (1993). tance of counsel not violated by preindictment delay. United States v. Jorge-Salon, 734 F.2d 789, 1984 U.S. App. LEXIS 21421 (11th Cir.), cert. denied, 469 U.S. 869, 105 S. Ct. 215, 83 L. Ed. 2d 145, 1984 U.S. LEXIS 3773 (1984). Inquiry into counsel’s failure to
Defendant’s right to effective assischallenge jury arrays required.
Where a defendant claimed ineffective assistance of counsel based on counsel’s failure to pursue defendant’s requests to challenge the arrays of the grand and traverse juries and to secure the presence of certain defense witnesses, trial court’s summary overruling of defendant’s motions for change of counsel without a hearing or any further inquiry was error. Heard v. State, 173 Ga. App. 543, 327 S.E.2d 767, 1985 Ga. App. LEXIS 1612 (1985). Failure to object to limitations on
voir dire.
Trial counsel was not ineffective for failing to object to limitations on voir dire because the defendant was nevertheless able to adequately explore any inclination or bias that might have derived from strong feelings that prospective jurors had about individuals involved in the sale of illegal drugs. Ellis v. State, 292 Ga. 276, 736 S.E.2d 412, 2013 Ga. LEXIS 17 (2013).
Failure to challenge jury array.
Defense counsel’s failure to challenge the grand jury array did not amount to ineffective assistance of counsel, even though a codefendant’s attorney successfully challenged the array because of an insufficient representation of women. Fleming v. Zant, 560 F. Supp. 525, 1983 U.S. Dist. LEXIS 18252 (M.D. Ga. 1983), aff’d, 748 F.2d 1435, 1984 U.S. App. LEXIS 16373 (11th Cir. 1984). Neither defense counsel’s failure to timely challenge the composition of the grand jury nor counsel’s tactical decision not to challenge the traverse jury array results in the denial of the defendant’s sixth and fourteenth amendment rights to effective assistance of counsel. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806, 1983 Ga. LEXIS 938 (1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475, 1984 U.S. LEXIS 232 (1984). Assuming defense counsel’s performance was deficient during defendant’s trial for aggravated assault and criminal trespass for failing to object to the trial court’s failure to ask the qualifying voir dire questions that are required by O.C.G.A. § 15-12-164(a), defendant failed to show that the outcome of the trial would have been different had the trial court asked the statutory questions as the prosecutor asked the potential jurors whether they were acquainted with the defendant or the victim, and if so, whether they could remain impartial. Since the potential jurors indicated no bias and defendant did not contend that any juror was, in fact, biased or prejudiced, defendant failed to show ineffective assistance of trial counsel. Burnette v. State, 291 Ga. App. 504, 662 S.E.2d 272, 2008 Ga. App. LEXIS 550 (2008), overruled in part, McClure v. State, 306 Ga. 856, 834 S.E.2d 96, 2019 Ga. LEXIS 643 (2019). Failure to challenge juror for
cause.
Defendant did not overcome the strong presumption that trial counsel’s failure to seek a juror’s removal for cause constituted reasonable professional assistance because the defendant did not question trial counsel at the motion for a new trial hearing about counsel’s decision-making with regard to this issue, and the trial transcript showed that the juror did not meet the qualification for dismissal for cause. Higginbotham v. State, 287 Ga. 187, 695 S.E.2d 210, 2010 Ga. LEXIS 405 (2010). Trial counsel was not ineffective for failing to move to strike three prospective jurors for cause, all of whom said the jurors had strong feelings about individuals involved in the sale of illegal drugs, because the jurors all indicated the jurors could try to judge the case based upon the court’s instructions and the evidence. Ellis v. State, 292 Ga. 276, 736 S.E.2d 412, 2013 Ga. LEXIS 17 (2013). Trial counsel was not ineffective for failing to move to strike for cause a former FBI agent, who had spent nine years assigned to a bank robbery squad and had been a victim in a pending armed robbery prosecution for which the district attorney prosecuting the defendant was responsible, as the prospective juror said that the prospective juror could be fair and Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) impartial. Ellis v. State, 292 Ga. 276, 736 S.E.2d 412, 2013 Ga. LEXIS 17 (2013). Trial counsel was not ineffective for failing to persuade the trial court to strike for cause a prospective juror who was a corrections officer at a federal penitentiary and who was not a sworn police officer with arrest powers because no evidence was ever produced, either at trial, or during the hearing on the motion for new trial, that the prospective juror could have been struck for cause. Allen v. State, 296 Ga. 785, 770 S.E.2d 824, 2015 Ga. LEXIS 191 (2015). Counsel’s representation of county in another case’s jury composition
challenge.
Defendant would be entitled to have conviction overturned on ground of ineffective assistance of counsel upon proof that defense counsel, who had not raised a question as to the grand jury’s composition, was actively involved in county’s defense to constitutional challenge of grand jury composition in another case. Westbrook v. Zant, 704 F.2d 1487, 1983 U.S. App. LEXIS 27982 (11th Cir. 1983), overruled in part, Peek v. Kemp, 784 F.2d 1479, 1986 U.S. App. LEXIS 22736 (11th Cir. 1986). Allowing sentencing sheet to go to
jury room.
Any error by counsel in allowing the sentencing sheet for similar transaction evidence to go out with the jury was harmless as the evidence of guilt was overwhelming. Gregory v. State, 297 Ga. App. 245, 676 S.E.2d 856, 2009 Ga. App. LEXIS 413 (2009).
Failure to ensure defendant’s presence at an in-chamber hearing.
With regard to a defendant’s conviction for malice murder, the trial court properly denied the defendant’s motion for a new trial based on a claim that trial counsel was ineffective for failing to object to a juror remaining on the panel after a brief encounter with one of the state’s witnesses and the failure to insist that defendant be allowed to personally participate in the in-chambers hearing on the issue. The decision to allow the juror to remain on the panel was a reasonable tactical decision made after a hearing was held on the issue and no harm was established by the defendant not being present during the in-chambers hearing on the issue as a result of the overwhelming evidence of the defendant’s guilt. Peterson v. State, 284 Ga. 275, 663 S.E.2d 164, 2008 Ga. LEXIS 522 (2008).
Effective assistance requires pretrial investigation.
It is beyond dispute that effective assistance of counsel requires some degree of pretrial investigation. McCleskey v. Zant, 580 F. Supp. 338, 1984 U.S. Dist. LEXIS 19860 (N.D. Ga. 1984), aff’d in part and rev’d in part, 753 F.2d 877, 1985 U.S. App. LEXIS 28073 (11th Cir. 1985). Defense counsel was not ineffective for alleged failure to conduct pretrial investigation which was the result of reasoned tactical decisions because counsel did visit the scene of the crime, spoke with defendant and the defendant’s family, gained limited access to defendant’s file, viewed the autopsy report, and received scientific reports. Solomon v. Kemp, 735 F.2d 395, 1984 U.S. App. LEXIS 21632 (11th Cir. 1984), cert. denied, 469 U.S. 1181, 105 S. Ct. 940, 83 L. Ed. 2d 952, 1985 U.S. LEXIS 2986 (1985). The failure of defense counsel to prepare and investigate an insanity defense was, at best, a failure to perform investigatory duties rather than a fundamental breakdown of the adversarial process such that prejudice would be presumed, as the only evidence produced was that the defendant informed the trial attorneys that a psychiatrist who had cared for the defendant had told the defendant that the defendant was on the verge of insanity and that the defendant became temporarily insane when the defendant consumed alcohol. Chadwick v. Green, 740 F.2d 897, 1984 U.S. App. LEXIS 19019 (11th Cir. 1984). Defendant’s counsel did not render ineffective assistance for a failure to interview two witnesses in defendant’s criminal trial, as defendant submitted no evidence to show how any information possessed by those witnesses would have helped in the defense. Andrews v. State, 275 Ga. App. 426, 620 S.E.2d 629, 2005 Ga. App. LEXIS 991 (2005). gate should be narrowly circumscribed by the specific facts revealed to counsel by the client. House v. Balkcom, 562 F. Supp. 1111, 1983 U.S. Dist. LEXIS 17753 (N.D. Ga. 1983), rev’d, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir. 1984). Counsel must investigate plausible
Scope of counsel’s duty to investidefenses.
The failure to conduct a reasonably substantial investigation into a defendant’s one plausible line of defense is not a permissible trial strategy. United States v. Badolato, 701 F.2d 915, 1983 U.S. App. LEXIS 29181 (11th Cir. 1983).
Counsel fully investigated case.
Defendant failed to meet the defendant’s burden of proving deficient performance on the ground that defendant’s trial counsel failed to investigate an additional suspect because counsel testified that counsel investigated every person who could have been connected to the case and that counsel also investigated relevant phone records and police files that could have revealed other suspects in the victim’s murder; despite counsel’s efforts, counsel was unable to connect any additional suspect to the shooting. Jennings v. State, 288 Ga. 120, 702 S.E.2d 151, 2010 Ga. LEXIS 816 (2010). Trial counsel was not ineffective for failing to adequately investigate the case, consult with the defendant, or prepare for trial because counsel met with the defendant several times prior to and during trial, shared with the defendant the state’s discovery materials and explained to the defendant the proposed trial strategy, and, in coordination with a private investigator, interviewed witnesses, visited the crime scene, and otherwise investigated the case; furthermore, the defendant failed to establish prejudice as the defendant did not proffer any specific evidence that trial counsel would have uncovered or alternative strategies counsel would have pursued had counsel investigated more thoroughly. Babbage v. State, 296 Ga. 364, 768 S.E.2d 461, 2015 Ga. LEXIS 2 (2015).
Failure to research or investigate.
— As evidence showed that a doctor asked defense counsel about the effect of a nolo plea to sexual battery on the doctor’s future participation in federal health care programs, and that counsel responded with affirmative misrepresentations, which were caused by counsel’s failure to perform basic research, the habeas court properly allowed the doctor to withdraw the doctor’s plea. State v. Patel, 280 Ga. 181, 626 S.E.2d 121, 2006 Ga. LEXIS 76 (2006). Defendant was not entitled to a new trial based on counsel’s ineffectiveness because defendant gave counsel no information (in support of defendant’s self-defense claim) to conduct an investigation of the victims’ alleged prior violent acts. Moreno-Rivera v. State, 291 Ga. 336, 729 S.E.2d 366, 2012 Ga. LEXIS 644 (2012). Defendant’s claim of ineffective assistance of counsel failed because the defendant offered no evidence to prove that if counsel had conducted more investigation counsel would have discovered evidence favorable to the defense. Zamora v. State, 291 Ga. 512, 731 S.E.2d 658, 2012 Ga. LEXIS 688 (2012). Defendant failed to show that trial counsel was ineffective for failing to investigate the possibility that a variety of different bullet fragments and shell casings were habitually found at the stretch of the road where the shooting took place because it was a reasonable strategic decision, as counsel consistently argued that the shooters fired two guns and that defendant and defendant’s brother were not involved and counsel testified that arguing that some other, unknown party was the shooter based on shell casings found along the road would be a last resort. Adams v. State, 318 Ga. 105, 897 S.E.2d 396, 2024 Ga. LEXIS 8 (2024).
Failure to adequately research law.
— Where prior cases supported a defense that defendant’s consent to a blood test allowed the state to use the sample only to prosecute the offense of driving with a controlled substance in the defendant’s urine, not for a possession charge, counsel was ineffective in not raising that issue. Turpin v. Helmeci, 271 Ga. 224, 518 S.E.2d 887, 1999 Ga. LEXIS 580 (1999). Failure to request preliminary
hearing.
The defendant was not entitled to the reversal of the defendant’s conviction based on the defendant’s trial Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) counsel’s failure to request a preliminary hearing since it could not be determined, without trial counsel’s testimony, whether the decision was a trial tactic. McClarity v. State, 234 Ga. App. 348, 506 S.E.2d 392, 1998 Ga. App. LEXIS 1158 (1998), cert. denied, No. S99C0076, 1999 Ga. LEXIS 65 (Ga. Jan. 15, 1999). Criminal Procedure Discovery Act
constitutional.
Reciprocal discovery provisions of the Criminal Procedure Discovery Act (O.C.G.A. § 17-16-1 et seq.) do not violate the right to effective representation of counsel by denying defendant the benefit of counsel’s judgment of whether and when to reveal aspects of defendant’s case to the state. State v. Lucious, 271 Ga. 361, 518 S.E.2d 677, 1999 Ga. LEXIS 587 (1999). Discovery requirements of O.C.G.A. § 17-16-4 relating to the presentence hearing did not violate a defendant’s right to effective assistance of counsel; counsel may freely investigate for mitigating evidence, knowing that the identity of any potentially harmful witness resulting from that investigation need only be produced to the state in reciprocal discovery should the defense decide to call that witness at the presentence hearing. Muhammad v. State, 282 Ga. 247, 647 S.E.2d 560, 2007 Ga. LEXIS 489 (2007). It is reasonable to expect a defengation to determine the facts upon which all future decisions will be made, and this is especially true where the defendant, because of trauma, has no memory of the event; under such a circumstance, a lawyer is duty-bound to investigate so that the lawyer can properly advise a client. Heath v. State, 268 Ga. App. 235, 601 S.E.2d 758, 2004 Ga. App. LEXIS 893 (2004).
dant’s attorney to conduct an investi-Failure regarding discovery.
The defendant was not entitled to the reversal of the defendant’s conviction based on the defendant’s trial counsel’s failure to make any discovery motions since, absent trial counsel testimony to the contrary, such choice was presumed to be strategic. McClarity v. State, 234 Ga. App. 348, 506 S.E.2d 392, 1998 Ga. App. LEXIS 1158 (1998), cert. denied, No. S99C0076, 1999 Ga. LEXIS 65 (Ga. Jan. 15, 1999). The defendant was not entitled to the reversal of the defendant’s conviction based on the defendant’s trial counsel’s failure to request informal discovery where the record showed that counsel asked the state’s attorney several questions about the file and since, absent trial counsel’s testimony, the court could not further evaluate the issue. McClarity v. State, 234 Ga. App. 348, 506 S.E.2d 392, 1998 Ga. App. LEXIS 1158 (1998), cert. denied, No. S99C0076, 1999 Ga. LEXIS 65 (Ga. Jan. 15, 1999) In a defendant’s malice murder trial, a failure by the defendant’s trial counsel to comply with reciprocal discovery procedures which resulted in a trial court ruling precluding the defendant from impeaching a witness by introducing certified copies of the felony convictions of the witness did not constitute ineffective assistance of counsel; although the failure had to be considered deficient performance, it produced no prejudice because evidence of the criminal history of the witness was introduced by other means and the jury was instructed on the law of impeachment. Green v. State, 281 Ga. 322, 638 S.E.2d 288, 2006 Ga. LEXIS 992 (2006).
Time spent with client.
Defendant failed to establish that trial counsel rendered ineffective assistance by failing to confer meaningfully with the defendant because the defendant did not specifically describe how additional communications with counsel could have changed the outcome of the trial; there exists no magic amount of time which counsel must spend in actual conference with a client. Glass v. State, 289 Ga. 542, 712 S.E.2d 851, 2011 Ga. LEXIS 557 (2011). Failure to investigate lines of defense can support an ineffective assistance of counsel claim. Collins v. Francis, 728 F.2d 1322, 1984 U.S. App. LEXIS 24501 (11th Cir.), cert. denied, 469 U.S. 963, 105 S. Ct. 361, 83 L. Ed. 2d 297, 1984 U.S. LEXIS 392 (1984). Counsel has rendered effective assistance even though counsel decided not to pursue a particular line of defense without substantial investigation, so long as the decision was reasonable under the circumstances. Baines v. State, 201 Ga. App. 354, 411 S.E.2d 95, 1991 Ga. App. LEXIS 1341 (1991). Defendant’s argument that defense counsel was ineffective on general grounds was not supported by citations to the record, and it was not the appellate court’s duty to cull the record in search of error; defendant’s argument that trial counsel was ineffective for failing to investigate the fingerprint evidence and failing to obtain an independent fingerprint expert was rejected for failure to show harm. Gary v. State, 259 Ga. App. 136, 575 S.E.2d 903, 2003 Ga. App. LEXIS 11 (2003), cert. denied, No. S03C0893, 2003 Ga. LEXIS 515 (Ga. May 5, 2003).
Failure to pursue sleepwalking defense.
Trial counsel was not ineffective for failing to assert a sleepwalking defense since the decision was based on counsel’s belief that the jury was more likely to believe a defense based on the accidental discharge of a defective weapon. Smith v. State, 292 Ga. 620, 740 S.E.2d 158, 2013 Ga. LEXIS 258 (2013).
Failure to obtain evidence.
Since both the defendant and the ex-wife testified that they had a phone conversation on the day of the stalking and burglary incident, but disagreed as to what was said in the conversation, and the defendant’s cell phone records would not have reflected the substance of the conversation, the admission of the records would have had no impact on the issue of credibility, and the failure of defense counsel to obtain the phone records did not amount to ineffective assistance. Bray v. State, 294 Ga. App. 562, 669 S.E.2d 509, 2008 Ga. App. LEXIS 1234 (2008). Defendant failed to show that he was prejudiced by trial counsel’s failure to obtain certification of medical records from the time of his incarceration and preventing their admission because defendant did not admit the records at the motion for new trial stage and he did not point to anything contained in the records that would have been useful to him that the jury did not hear at trial, as two doctors testified about the contents of the records. King v. State, 316 Ga. 611, 889 S.E.2d 851, 2023 Ga. LEXIS 130 (2023).
Failure to introduce evidence.
Although the defendant claimed that the defense attorney failed to introduce evidence that would have allowed the jury to understand the reasonable nature of the defendant’s allegedly fearful state of mind with regard to the shooting victim, the defendant’s attorney was able to elicit testimony from the defendant about the defendant’s belief that the victim was dangerous. Therefore, the defendant did not prevail on the defendant’s ineffective assistance of counsel claim because the defendant could not show that a reasonable probability existed that, but for counsel’s errors in allegedly failing to introduce the evidence, the outcome at trial would have been more favorable. Render v. State, 288 Ga. 420, 704 S.E.2d 767, 2011 Ga. LEXIS 9 (2011). Failure to move for change of
venue.
Trial counsel was not ineffective in failing to move for a change of venue where the record showed that the decision was based on sound trial strategy and, even if the parties had agreed to change venue to a particular county, the trial court would have determined venue. Hammond v. State, 264 Ga. 879, 452 S.E.2d 745, 1995 Ga. LEXIS 23, cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 54, 1995 U.S. LEXIS 5611 (1995). An alleged failure of a defendant’s trial counsel to present evidence in support of a motion for a change of venue in defendant’s prosecution for malice murder did not demonstrate that the defendant received ineffective assistance of counsel; the defendant presented no evidence post-trial to suggest that the trial’s setting was inherently prejudicial or that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible, and since a complete failure to make a motion for change of venue would not have constituted ineffective assistance of counsel under those circumstances, the failure to support the motion adequately likewise did not show ineffectiveness under those circumstances. Green v. State, 281 Ga. 322, 638 S.E.2d 288, 2006 Ga. LEXIS 992 (2006). Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d)
Counsel’s failure to object to appointed judge.
Defendant’s claim that an order appointing a senior judge to preside over defendant’s trial was insufficient under O.C.G.A § 15-1-9.2(b) was not timely filed given it was filed after the motion for a new trial. Furthermore, counsel’s failure to object to the appointment of the judge did not deny defendant effective assistance of counsel. Strozier v. State, 277 Ga. 78, 586 S.E.2d 309, 2003 Ga. LEXIS 718 (2003). Failure to object to appointment of
magistrate.
Defendant failed to meet the burden of establishing that defendant was rendered ineffective assistance of counsel for trial counsel’s failure to object to the alleged improper appointment of a chief magistrate who presided over the trial, sitting by designation following a request for judicial assistance by the superior court judge assigned to the case, since defendant failed to show that defendant was denied a fair trial by virtue of the appointment. Further, trial counsel testified at defendant’s hearing on a motion for a new trial that trial counsel thought it would benefit defendant to have the particular magistrate preside over the trial rather than a superior court judge, which established that the failure to object to the appointment was a matter of trial strategy or tactics, which was not a basis for an ineffective assistance of counsel claim. Mazza v. State, 292 Ga. App. 168, 664 S.E.2d 548, 2008 Ga. App. LEXIS 723 (2008). Failure to object to compliance
with rules.
Trial counsel was not ineffective for failing to object to the state’s failure to comply with Ga. Unif. Super. Ct. R. 31.1 and 31.3 as the detective’s testimony regarding the fact that the defendant, an accomplice, and the victim were suspected of murdering the victim’s husband, was admissible as relevant to the defendant’s motive to kill the victim. Goodman v. State, 293 Ga. 80, 742 S.E.2d 719, 2013 Ga. LEXIS 503 (2013). Failure to object to pretrial
showup.
Although it may have been better practice to move to exclude evidence regarding the pretrial showup and to object to the in-court identification, since neither strategy would have changed the result, neither omission may be deemed conclusive evidence of ineffectiveness on the part of counsel. Holbrook v. State, 209 Ga. App. 301, 433 S.E.2d 616, 1993 Ga. App. LEXIS 850 (1993), cert. denied, No. S93C1545, 1993 Ga. LEXIS 912 (Ga. Oct. 5, 1993). Failure to object to identification of
defendant.
Defendant failed to show that the defendant received ineffective assistance of counsel by failing to object to an in-court identification of the defendant by the aggravated assault victim because the defendant neither asked trial counsel why no objection was made to the in-court identification nor made any showing that the identification would have been suppressed had an objection been made; the defendant made no affirmative showing that the purported deficiency in counsel’s representation was indicative of ineffectiveness as opposed to being an example of a conscious, deliberate, and reasonable trial strategy. Newsome v. State, 288 Ga. 647, 706 S.E.2d 436, 2011 Ga. LEXIS 155 (2011).
Failure to object to photographs.
Trial counsel was not ineffective for failing to object to two photographs of the defendant holding a gun, which the defendant had posted on social media, because trial counsel thoroughly attacked the photographs on cross-examination, pointing to their age and the fact that the firearms in the pictures could not be linked to the weapon used to kill the first victim; and the defendant could not show that, had counsel objected, the photographs would have been excluded. Sullivan v. State, 301 Ga. 37, 799 S.E.2d 163, 2017 Ga. LEXIS 244 (2017). Defendant failed to show prejudice due to trial counsel’s failure to object to the introduction of photographs taken while a search warrant was executed on defendant’s home because the probative value of the photographs, which showed the location of some of the evidence ultimately linked to the crimes charged, was not substantially outweighed by any unfair prejudice attributable to the other guns and ammunition depicted in the photographs, given that evidence that defendant possessed guns and ammunition did not impute to defendant generally bad character. Adams v. State, 318 Ga. 105, 897 S.E.2d 396, 2024 Ga. LEXIS 8 (2024). Failure to object to police officer’s
testimony.
Trial counsel was not deficient for failing to object to police officers’ testimony regarding the defendant’s arrest because there could have been no prejudice to the defendant by the testimony; there was ample and undisputed evidence that the defendant had consumed a substantial amount of alcohol prior to the shooting and the defendant’s flight from the crime scene. Nations v. State, 290 Ga. 39, 717 S.E.2d 634, 2011 Ga. LEXIS 866 (2011). Failure to object to testimony of
GBI agent.
Trial counsel was not ineffective for failing to object to the testimony of a GBI Agent because counsel made a strategic decision not to object to the testimony, and that strategy was reasonable. Wheeler v. State, 290 Ga. 817, 725 S.E.2d 580, 2012 Ga. LEXIS 333 (2012). Trial counsel was not ineffective for failing to object to the victim’s brother’s testimony on the ground that the state failed to put the brother on the witness list as required by O.C.G.A. § 17-16-3 because the defendant failed to show that if counsel had objected the outcome of the trial would have been different; the defendant offered no evidence at the motion for new trial hearing to show how the defendant could have benefitted from a continuance before the brother was permitted to testify; or that the state acted in bad faith in leaving the brother off the witness list. Charleston v. State, 292 Ga. 678, 743 S.E.2d 1, 2013 Ga. LEXIS 300 (2013). Failure to object to charge on trans-
ferred intent.
Trial counsel performed deficiently by failing to object to the giving of a charge on transferred intent and the prosecutor’s closing argument addressing the inapplicable principles of transferred intent because the charge was not adjusted to the evidence since there was no evidence that the defendant was intending to shoot any other person when the defendant shot the victim so as to bring the case within the typical “innocent bystander” scenario in which the doctrine of transferred intent was applied; however, in light of the overwhelming evidence of the defendant’s guilt, it was highly probable that the charge did not contribute to the verdict, and the defendant failed to show the requisite prejudice in that there was no reasonable probability that the outcome of the trial would have been different had trial counsel objected to the prosecutor’s argument and the trial court’s charge. Boatright v. State, 289 Ga. 597, 713 S.E.2d 829, 2011 Ga. LEXIS 511 (2011).
Failure to contest validity of indictment.
Defendant was not prejudiced by the failure of the defendant’s trial counsel to contest the validity of an indictment, where the indictment was not void as a matter of law. Hammock v. State, 201 Ga. App. 614, 411 S.E.2d 743, 1991 Ga. App. LEXIS 1520 (1991), cert. denied, No. S92C0208, 1991 Ga. LEXIS 1021 (Ga. Dec. 4, 1991). Defendant’s counsel provided ineffective assistance under U.S. Const., amend. 6 because the counsel failed to file a timely demurrer to the burglary count of an indictment, pursuant to O.C.G.A. § 16-7-1, which was fatally defective because it did not specify an underlying felony, and the requirement could not be imputed because there was no specific incorporation by reference and this failure contributed to defendant’s conviction on a void count. Polk v. State, 275 Ga. App. 467, 620 S.E.2d 857, 2005 Ga. App. LEXIS 999 (2005). Defendant’s counsel was not ineffective for failing to object to the indictment as a whole because it was allegedly not received in open court, as there was no evidence that the indictment had not been returned in open court, it bore the signature of the grand jury foreperson, and the minutes of the criminal court docket showed that the indictment was filed. Polk v. State, 275 Ga. App. 467, 620 S.E.2d 857, 2005 Ga. App. LEXIS 999 (2005). Because the record showed that the victim could not recall the exact dates when the events alleged in the indictment occurred, the state was not able to identify a specific date for the offenses, and the Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) defendant offered no other evidence that the indictment was imperfect in form or substance or that the defendant’s ability to present a defense was impaired, the defendant failed to establish that a special demurrer would have been successful or that defense counsel’s failure to file such pleading before trial affected the outcome of the proceedings; therefore, the defendant’s ineffective assistance claim lacked merit. Berman v. State, 279 Ga. App. 867, 632 S.E.2d 757, 2006 Ga. App. LEXIS 707 (2006). Defense counsel’s performance was deficient in failing to challenge the defendant’s charge of possession of a firearm by a convicted felon on the basis that the indictment erroneously alleged that the crime was committed on a date after the indictment was issued; since this was the second time the defendant had been indicted for that offense, if trial counsel had timely challenged that count, any future prosecution for that crime would have been barred, and thus prejudice to the defendant was shown. Langlands v. State, 280 Ga. 799, 633 S.E.2d 537, 2006 Ga. LEXIS 490 (2006), modified in part, 282 Ga. 103, 646 S.E.2d 253, 2007 Ga. LEXIS 420 (2007). Failure to argue double jeopardy
claim.
Counsel did not err in failing to argue a frivolous double jeopardy claim. Jackson v. United States, 976 F.2d 679, 1992 U.S. App. LEXIS 28484 (11th Cir. 1992). Failure to raise claim concerning
effective date of amendment.
Failure to argue that amendments requiring five years of additional prison time were not in effect when defendant committed the crime did not constitute ineffective assistance of counsel since the amendments took effect on the enactment date for the entire act, over three years earlier. Jackson v. United States, 976 F.2d 679, 1992 U.S. App. LEXIS 28484 (11th Cir. 1992). Failure of counsel to request a con-
tinuance.
It obviously is not ineffective for counsel to fail to request a continuance for delay only. Chandler v. State, 204 Ga. App. 512, 419 S.E.2d 751, 1992 Ga. App. LEXIS 893 (1992). The defendant was not entitled to the reversal of a conviction based on trial counsel’s failure to request a continuance after learning on the morning of trial that a videotape of the incident at issue would be introduced since such choice was presumed to be strategic. McClarity v. State, 234 Ga. App. 348, 506 S.E.2d 392, 1998 Ga. App. LEXIS 1158 (1998), cert. denied, No. S99C0076, 1999 Ga. LEXIS 65 (Ga. Jan. 15, 1999). Defendant failed to show that the counsel rendered ineffective assistance, in violation of U.S. Const., amend. 6, after the counsel failed to request a continuance upon learning the identity of a confidential informant who had conducted controlled drug buys on the first day of defendant’s criminal trial, as defendant failed to show prejudice by the mere speculation as to what might have been uncovered by further investigation of the informant. Brown v. State, 274 Ga. App. 302, 617 S.E.2d 227, 2005 Ga. App. LEXIS 726 (2005), cert. denied, No. S05C1902, 2005 Ga. LEXIS 734 (Ga. Oct. 24, 2005). Trial counsel was not ineffective for failing to request a continuance to review evidence and have the evidence tested by the defendant’s own expert because the defendant presented no evidence at the motion for new trial hearing to support the defendant’s bald assertion that there was a reasonable probability that the outcome of the proceeding would have been different had counsel sought a continuance or independent expert testing; even assuming that the defendant could properly raise a claim of ineffectiveness against counsel, the trial court did not err in denying the motion for new trial on that ground. Walker v. State, 288 Ga. 174, 702 S.E.2d 415, 2010 Ga. LEXIS 852 (2010). Decision by trial counsel not to move for a continuance after an alibi witness did not appear and could not be located to testify on the defendant’s behalf did not show the counsel’s ineffectiveness because trial counsel testified that the alibi witness indicated by telephone that the witness did not want to testify and that defense counsel would not like what the witness had to say if counsel forced the witness to testify, and the trial court was authorized to credit counsel’s testimony regarding the alibi witness; because trial counsel’s investigation revealed that the supposed alibi witness was reluctant, unfavorable, and possibly prepared to commit perjury, the decision not to call such a witness was a reasonable exercise of professional judgment, and the tactical decision to proceed without the alibi witness’s testimony was made after consultation with the defendant, who confirmed on the record that counsel agreed with the decision not to request a continuance. Reeves v. State, 288 Ga. 545, 705 S.E.2d 159, 2011 Ga. LEXIS 101 (2011).
Failure to request a continuance.
Trial court did not err when the court denied the defendant’s ineffective assistance of counsel claim because counsel testified that counsel attempted to produce evidence of specific acts of violence by the victim against third persons but because of lack of time was not able to do so; counsel further testified that counsel did not strenuously pursue a continuance for more time to gather such evidence because of the age of the case and because counsel believed such motion for continuance would be unsuccessful. Rafi v. State, 289 Ga. 716, 715 S.E.2d 113, 2011 Ga. LEXIS 674 (2011).
Failure to request bifurcated trial.
— Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 for failure to request a bifurcated trial on felony murder in violation of O.C.G.A. § 16-5-1 and on possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-11-131; because the possession count was a predicate offense for the felony murder count, the prior conviction that was admitted into evidence was relevant to the felony murder count, and it was not necessary to sever the possession count. Wells v. State, 281 Ga. 253, 637 S.E.2d 8, 2006 Ga. LEXIS 823 (2006). Trial counsel’s failure to move to have the charge of possession of a firearm during the commission of a felony tried separately did not amount to ineffective assistance as the possession charge was an underlying felony for the felony murder counts and, therefore, bifurcation was not authorized. Leonard v. State, 292 Ga. 214, 735 S.E.2d 767, 2012 Ga. LEXIS 968 (2012).
Failure to pursue insanity defense.
— Trial counsel was not ineffective in failing to pursue an insanity defense as: (1) nothing in the hospital’s evaluation of defendant supported an insanity defense; (2) defendant never claimed that defendant was insane, only that defendant could not remember; (3) the sentencing court stated that defendant was evaluated twice, and that the reports contained no indication that defendant did not have the capacity to distinguish between right and wrong at the time of the crimes; (4) defendant failed to present evidence at defendant’s new trial hearing regarding defendant’s mental capacity that would support the feasibility of an insanity defense; and (5) defendant did not show that counsel unreasonably failed to inquire into defendant’s mental state or that there was a likelihood that such an evaluation would have affected the outcome of the trial. Osterhout v. State, 266 Ga. App. 319, 596 S.E.2d 766, 2004 Ga. App. LEXIS 363 (2004). Because: (1) the record did not demonstrate that the defendant’s sanity or competency was or should have been a significant issue at trial; and (2) the defendant failed to support an assertion a competency should have been raised, the defendant failed to prove the prejudice prong of an ineffective assistance of counsel claim due to counsel’s failure to request an independent psychiatric examination. Thus, a new trial on this ground was unwarranted. Jennings v. State, 282 Ga. 679, 653 S.E.2d 17, 2007 Ga. LEXIS 832 (2007). Defendant failed to show that the counsel was ineffective in violation of U.S. Const., amend. 6 for a failure to pursue a request for a psychological examination, an insanity defense under O.C.G.A. § 16-3-2, and failure to assert that defendant was not competent to stand trial under O.C.G.A. § 17-7-130 in a criminal trial arising from multiple offenses, including murder, as there was nothing in the defendant’s psychological history or in counsels’ interactions with Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) the defendant which suggested that there was a problem with the defendant’s sanity or competency. Redwine v. State, 280 Ga. 58, 623 S.E.2d 485, 2005 Ga. LEXIS 863 (2005). Defendant was not erroneously denied a new trial on grounds that trial counsel was ineffective, as the evidence, via trial counsel’s testimony, showed that: (1) counsel, after gathering the defendant’s medical history and interviewing the defendant’s medical provider, did not believe the defendant was insane; and (2) counsel, after consulting with the defendant and gaining an approval, made a strategic decision not to pursue a mental health defense, opting instead to pursue a claim of self-defense. Radford v. State, 281 Ga. 303, 637 S.E.2d 712, 2006 Ga. LEXIS 969 (2006). Trial counsel’s strategic decisions in representing the defendant did not amount to ineffectiveness, as: (1) the defendant’s own self-serving general statements regarding a purported psychological condition at the time of the offense were insufficient to substantiate any claim of a mental condition which would have provided a possible defense; (2) counsel’s determination to rely exclusively on the prior difficulties between the defendant and the victim proved no deficiency; and (3) no ineffectiveness resulted by counsel’s failure to object to the prosecutor’s alleged improper remarks during closing argument. Nichols v. State, 281 Ga. 483, 640 S.E.2d 40, 2007 Ga. LEXIS 18 (2007). Failure to request competency
hearing.
Habeas court correctly concluded that ineffective assistance of trial counsel could not be used to excuse the procedural default of the petitioner’s claim that the petitioner was mentally incompetent during trial because the information that trial counsel then had available to them, including the information that trial counsel unreasonably failed to obtain, would not have led constitutionally effective counsel to pursue a claim of incompetence to stand trial and would not be reasonably probable to have resulted in a finding that the petitioner was incompetent had such a plea been pursued; the petitioner failed to prove that trial counsel rendered ineffective assistance regarding the petitioner’s competence to stand trial because trial counsel withdrew the petitioner’s plea of incompetence only after satisfying themselves that counsel was able to communicate effectively with the petitioner, and the trial court had an extensive opportunity to observe the petitioner in pre-trial and trial proceedings and to interact directly with the petitioner, and the court did not see sufficient indications of incompetence to pursue further evaluation. Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335, 2011 Ga. LEXIS 255 (2011), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Failure to obtain psychological
evaluation of defendant.
With regard to a defendant’s conviction for statutory rape and two counts of child molestation involving a stepchild, the defendant’s ineffective assistance of counsel claim as a result of failure to have the defendant evaluated for mental illness and incompetence before trial or before sentencing was rejected because defense counsel testified at the defendant’s motion for a new trial hearing that: (1) defense counsel did not know of the defendant’s alleged prior history of psychiatric problems; (2) the defendant appeared to understand the communications that defense counsel had with the defendant; and (3) defense counsel did not explore the need for a psychological evaluation of the defendant because defense counsel did not see it as an issue. Haygood v. State, 289 Ga. App. 187, 656 S.E.2d 541, 2008 Ga. App. LEXIS 42 (2008). Defendant’s trial counsel performed deficiently in not seeking expert assistance in evaluating the defendant’s mental condition at the time of the shooting and at the time of trial because the defendant was hospitalized in 1996 after stabbing the same man that the defendant murdered; and, in 1996, the defendant reported hearing a voice telling the defendant to kill for which the defendant received antipsychotic medication; however, counsel’s deficient performance was not prejudicial as the defendant did not show that the jury would have returned a verdict of not guilty by reason of insanity because the defendant did not receive any diagnosis of or treatment for mental illness for more than a decade before the current crimes. Scott v. State, 301 Ga. 573, 802 S.E.2d 211, 2017 Ga. LEXIS 544 (2017).
Failure to adequately prepare witnesses.
Defendant was sentenced to death for murder. Defense counsel was not ineffective in failing to properly prepare mitigation witnesses for their testimony as it was reasonable for counsel not to rehearse the witnesses’ testimony with them as counsel reasonably chose not to overly prepare them so that their testimony would come across as sincere. Whatley v. Terry, 284 Ga. 555, 668 S.E.2d 651, 2008 Ga. LEXIS 824 (2008), cert. denied, 556 U.S. 1248, 129 S. Ct. 2409, 173 L. Ed. 2d 1316, 2009 U.S. LEXIS 3757 (2009).
Failure to contact alibi witnesses.
— Defense counsel’s failure to contact alibi witnesses and to object to illegally obtained evidence was prejudicial, because the evidence against the defendant was not overwhelming and a reasonable probability existed that the presence of the alibi witnesses would have affected the result. Richardson v. State, 189 Ga. App. 113, 375 S.E.2d 59, 1988 Ga. App. LEXIS 1309 (1988). Defendant’s representation was not ineffective for failure to interview possible alibi witnesses or to call them to testify at trial where the record indicated that counsel did investigate the possibility of an alibi defense and that, under the circumstances, counsel made a tactical decision that an alibi defense would not be feasible. McCoy v. Newsome, 953 F.2d 1252, 1992 U.S. App. LEXIS 1108 (11th Cir.), cert. denied, 504 U.S. 944, 112 S. Ct. 2283, 119 L. Ed. 2d 208, 1992 U.S. LEXIS 3196 (1992). Court’s finding that defendant received effective assistance of counsel was not clearly erroneous where defendant did not overcome the presumption that counsel’s failure to call alibi witness was made in the exercise of reasonable professional judgment. Jackson v. State, 209 Ga. App. 217, 433 S.E.2d 655, 1993 Ga. App. LEXIS 810 (1993). Trial counsel’s performance was not constitutionally flawed because counsel could not be ineffective for failing to interview and call a potential alibi witness of whom counsel was not informed, and the trial court was authorized to credit counsel’s testimony regarding the alibi witnesses whose names counsel was given; the defendant did not show that the testimony of the alibi witnesses would have been relevant and favorable because neither alleged alibi witness testified at the hearing on the motion for new trial. McIlwain v. State, 287 Ga. 115, 694 S.E.2d 657, 2010 Ga. LEXIS 318 (2010), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020).
Failure to present alibi witnesses.
— Although defendant discussed potential alibi witnesses with the attorney and attempted to contact and interview those witnesses, none of the witnesses were able to provide defendant with an alibi at the time of a robbery, and accordingly, counsel made a tactical decision not to call any witnesses on defendant’s behalf; such was not ineffective assistance. Todd v. State, 275 Ga. App. 459, 620 S.E.2d 666, 2005 Ga. App. LEXIS 992 (2005). Defendant failed to establish a claim of ineffective assistance of counsel based on counsel’s failure to present an alibi witness because counsel testified that counsel thought the jury would believe that the alibi witness, the defendant’s sibling, was lying for the defendant, and because counsel did not call the sibling in order to preserve the right to final closing argument. Walker v. State, 280 Ga. App. 457, 634 S.E.2d 93, 2006 Ga. App. LEXIS 743 (2006), cert. denied, No. S06C2003, 2006 Ga. LEXIS 799 (Ga. Oct. 2, 2006). In a malice murder prosecution, as the defendant did not give defense counsel the correct phone number for an alleged alibi witness until trial was underway, and the witness was out of state and counsel was unable to convince the witness to appear voluntarily, counsel did not provide ineffective assistance. Marshall v. State, 285 Ga. 351, 676 S.E.2d 201, 2009 Ga. LEXIS 148 (2009). Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d)
Failure to present alibi evidence.
Defendant failed to establish a claim of ineffective assistance of counsel based on defense counsel’s strategy in not presenting evidence that the defendant was at the defendant’s mother’s home on the night of the crime as an alibi defense because counsel testified that although the defendant offered multiple alibi defenses, defendant did not tell counsel that the defendant was at the mother’s home on the night of the murder, that counsel did not consider the defendant’s mother a good source of defense evidence because the mother’s extensive history of substance abuse presented a major obstacle to the mother’s credibility, and that counsel believed that the defendant’s fiancé was not credible because the fiancé had previously posed as a reporter conducting interviews about the murder and counsel believed there was a high probability of that fact damaging the defendant’s defense; counsel also testified that counsel did not want to introduce any evidence in order to preserve the right to opening and closing argument, which was a valid trial strategy. Phillips v. State, 280 Ga. 728, 632 S.E.2d 131, 2006 Ga. LEXIS 471 (2006). Defendant was not denied effective assistance of counsel, and claims that the counsel was ineffective by failing to: (1) offer testimony of certain alibi witnesses; (2) adequately consult with the defendant prior to trial; and (3) move to sever the trial from that of the codefendants were rejected, given that the defendant never provided counsel with any alibi witnesses, a claim that counsel failed to consult with the defendant was unfounded, and counsel’s strategy to have the codefendants tried together was sound. Adkins v. State, 280 Ga. 761, 632 S.E.2d 650, 2006 Ga. LEXIS 477 (2006).
Strategy not to call eyewitness.
Because the defendant’s trial counsel testified that counsel did not call an eyewitness to the incident that led to the charges that the defendant committed aggravated assault of a peace officer and four counts of felony obstruction of an officer because interviews with the eyewitness revealed evidence that would have been detrimental to the defendant’s claim that the defendant acted in self-defense, the omission of this testimony did not constitute ineffective trial strategy. Carver v. State, 203 Ga. App. 197, 416 S.E.2d 810, 1992 Ga. App. LEXIS 469 (1992), cert. denied, No. S92C0852, 1992 Ga. LEXIS 380 (Ga. Apr. 30, 1992).
No ineffective counsel through examination of witnesses.
Defense counsel was not ineffective in asking the codefendant’s father if the father told the defendant to hide a gun because defense counsel testified that the testimony was used to shift responsibility to the codefendant; counsel’s examination of the father was cumulative of prior testimony elicited by the prosecutor. Chance v. State, 291 Ga. 241, 728 S.E.2d 635, 2012 Ga. LEXIS 580 (2012).
Failure to impeach witness.
Under the First Offender Act, O.C.G.A. § 42-8-60 et seq., the trial court properly prohibited a defendant from impeaching a witness with a forgery offense. The defendant cited no authority in support of the argument that this violated the defendant’s rights under the confrontation clause of the Sixth Amendment, and the court had held that impeachment to show a general lack of trustworthiness based on a prior criminal conviction was not guaranteed by the confrontation clause. Butler v. State, 285 Ga. 518, 678 S.E.2d 92, 2009 Ga. LEXIS 296 (2009). Trial court did not err in finding that ineffective assistance of counsel had not been proven when trial counsel failed to impeach a witness with evidence of charges pending against the witness because the defendant failed to establish that the outcome of the defendant’s trial would have been different had the witness been impeached; there were eyewitness identifications of defendant as the shooter, evidence that defendant had been looking for the victim and believed the victim had robbed the defendant, and evidence that the defendant had been shot. Allen v. State, 286 Ga. 392, 687 S.E.2d 799, 2010 Ga. LEXIS 82 (2010). Defendant failed to establish that the defendant received ineffective assistance of trial counsel due to counsel’s failure to provide the state with written notice of the defendant’s intent to use evidence of a witness’s prior conviction for impeachment purposes pursuant to former O.C.G.A. § 24-9-84.1(b) (see now O.C.G.A. § 24-6-609) because even if the conviction had been admitted and the jury had disregarded the witness’s testimony, there remained evidence sufficient to convict the defendant; the witness’s trial testimony conflicted with the witness’s prior statements, and the witness admitted on the stand being a crack dealer. Lanier v. State, 288 Ga. 109, 702 S.E.2d 141, 2010 Ga. LEXIS 815 (2010). Trial counsel was not ineffective for failing to highlight the inconsistencies between a prior victim’s trial testimony and the victim’s account of a shooting as reported to police immediately after the victim was shot because although trial counsel testified that counsel recalled that the account in the police report was inconsistent with the victim’s trial testimony, appellate counsel never inquired as to why trial counsel chose not to use the police report to impeach the state’s pretrial proffer or the victim’s trial testimony; in the absence of any evidence on the issue, it was presumed that trial counsel made a reasonable strategic decision not to pursue that mode of impeachment. Johnson v. State, 289 Ga. 22, 709 S.E.2d 217, 2011 Ga. LEXIS 261 (2011).
Failure to present cumulative evidence.
Although trial counsel could have further impeached codefendants with certified copies of their felony convictions, any such deficiency in counsel’s performance could not have prejudiced defendant because the jury was already aware of the disreputable character of these witnesses by virtue of their own testimony on the stand. Ross v. State, 231 Ga. App. 793, 499 S.E.2d 642, 1998 Ga. App. LEXIS 288 (1998), cert. denied, No. S98C1171, 1998 Ga. LEXIS 789 (Ga. Sept. 8, 1998).
Failure to introduce medical evidence.
Defendant did not receive effective assistance of counsel when defendant provided counsel medical records showing that defendant suffered from “confusional migraines,” which could render defendant unable to form the requisite criminal intent, but counsel did not investigate the condition, nor was evidence of it, which was defendant’s only defense, offered, and defendant was prejudiced because other evidence showed defendant was suffering from this condition at the time of defendant’s alleged crime. Guzman v. State, 260 Ga. App. 689, 580 S.E.2d 654, 2003 Ga. App. LEXIS 457 (2003). Trial court properly rejected the defendant’s claim that trial counsel was ineffective for failing to introduce into evidence two medical evaluation documents, which the defendant alleged would have contradicted statements witnesses gave to the police, because it was mere speculation that the witnesses’ statements were inconsistent with the medical reports; it was impossible for the defendant to show there was a reasonable probability the results of the proceedings would have been different but for counsel’s alleged error. McClarin v. State, 289 Ga. 180, 710 S.E.2d 120, 2011 Ga. LEXIS 288 (2011), cert. denied, 565 U.S. 1117, 132 S. Ct. 1004, 181 L. Ed. 2d 745, 2012 U.S. LEXIS 200 (2012).
Lab analyst not available to testify.
— Testimony of the Georgia Bureau of Investigation analyst relating the factual assertions in an absent lab analyst’s report violated the confrontation clause because the defendant had no opportunity to cross-examine the analyst who performed the testing before or at trial. Watkins v. State, 320 Ga. 862, 912 S.E.2d 574, 2025 Ga. LEXIS 32 (2025).
Failure to obtain service of diabetes expert.
See Collier v. Turpin, 177 F.3d 1184, 1999 U.S. App. LEXIS 5900 (11th Cir. 1999). ize the bruises defendant contends he received at the hands of the police, where the evidence shows that if photographs had been taken, they would not have materially assisted the judge and the jury in determining the voluntariness of his confession, since police photographs showed only insignificant marks. House v. Balkcom, 562 F. Supp. 1111, 1983 U.S. Dist. LEXIS 17753 (N.D. Ga. 1983), rev’d, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir. 1984).
Counsel were not ineffective in failing to take photographs to memorial-Failure to hire polygrapher.
Defendant failed to establish a claim that Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) defense counsel was ineffective based on the fact that defense counsel did not hire a defense polygraph examiner to rebut the state’s examiner because, at the motion for new trial hearing, the defendant’s trial defense counsel testified that this was a matter of trial strategy to preserve the right to closing argument; defense counsel was prepared to and did cross-examine the state’s expert to bring out the points defense counsel wanted to raise and felt the value of putting on a defense expert was outweighed by retaining the right to close. Johnson v. State, 280 Ga. App. 341, 634 S.E.2d 134, 2006 Ga. App. LEXIS 851 (2006), overruled in part, Kimbrough v. State, 300 Ga. 516, 796 S.E.2d 694, 2017 Ga. LEXIS 48 (2017).
Use of blood spatter experts.
In a murder prosecution, defense counsel was not ineffective for failing to properly interview a blood spatter expert before calling the expert as a witness. The expert’s discussions with counsel provided support for the defendant’s claim that the shooting was accidental, but at trial, the expert’s testimony differed from the information relayed to counsel over the phone, and defense counsel was surprised by the testimony, which aided the prosecution. Watkins v. State, 285 Ga. 355, 676 S.E.2d 196, 2009 Ga. LEXIS 163 (2009). Failure to object to presence of in-
terpreters in jury room.
With regard to two defendants’ convictions for murder, the defendants failed to show that the defendants received ineffective assistance of counsel based on the defendants’respective trial counsel failing to object to the presence of two sign language interpreters in the jury room as the trial court had the two interpreters take an oath swearing that, during jury deliberations, the interpreters would merely interpret and not interject the interpreters’ personal opinions, conclusions, or comments. The defendants failed to present a shred of evidence that the interpreters did anything other than comply fully with the oath taken and that trial counsel had any reasons to suspect the interpreters did otherwise. Smith v. State, 284 Ga. 599, 669 S.E.2d 98, 2008 Ga. LEXIS 866 (2008). Failure to object to use of single
interpreter.
There was no ineffectiveness of the defendant’s trial counsel for failing to seek separate interpreters for the defendant and a codefendant during their criminal trial as there was no showing that the defendant’s rights were impinged by the use of a single interpreter. Hung v. State, 284 Ga. 796, 671 S.E.2d 811, 2009 Ga. LEXIS 21 (2009).
Failure to obtain admission of polygraph evidence.
Defendant did not receive ineffective assistance of counsel due to an attorney’s failure to obtain a stipulation from the state permitting the admission of the results of a polygraph test, in a case in which the attorney had not entered the attorney’s appearance in the case, because the defendant did not show that the state was willing to enter into a stipulation to authorize the admission of the polygraph results and the defendant did not show that the attorney’s performance was deficient or that the defendant suffered any prejudice from the inaction. McKinney v. State, 281 Ga. 92, 635 S.E.2d 153, 2006 Ga. LEXIS 582 (2006). Failure to object to impermissible questions/comments on defendant’s
pre-arrest silence from prosecution.
— With regard to a defendant’s convictions for malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony, although the defendant’s trial counsel was deficient for failing to object to the prosecutor’s impermissible questions and comments relating to the defendant’s prearrest silence regarding the defendant’s failure to contact the police to inform the police of the alleged accidental shooting, the defendant was not prejudiced by the deficiency based on the overwhelming evidence of guilt, including eyewitness accounts and evidence that the deceased victim was unarmed, which negated the defendant’s accidental shooting and self-defense theories. Thomas v. State, 284 Ga. 647, 670 S.E.2d 421, 2008 Ga. LEXIS 1027 (2008). Failure to object to evidence after
trial completed.
Even if a decision with regard to similar transaction evidence had the effect that the defendant claimed it did, it could not be used to support an ineffective assistance of counsel claim based on failure to object because it was decided after the defendant’s trial was completed. Failure to make a meritless objection did not amount to ineffective assistance of counsel. Walley v. State, 298 Ga. App. 483, 680 S.E.2d 550, 2009 Ga. App. LEXIS 714 (2009), cert. denied, No. S09C1728, 2009 Ga. LEXIS 603 (Ga. Sept. 8, 2009).
Failure to object to physical evidence.
Trial counsel was not ineffective in failing to object to testimony that a gun and ammunition, which were not alleged to be the murder weapon, were seized from the defendant’s home and to the introduction of those items into evidence because the evidence was relevant and probative of the charge of possession of a firearm by a convicted felon, and an objection to the admissibility would have been fruitless. Ardis v. State, 290 Ga. 58, 718 S.E.2d 526, 2011 Ga. LEXIS 862 (2011). Failure to file motion to suppress
evidence.
Defense counsel’s failure to make a motion to suppress on the grounds that warrants were issued without probable cause was neither deficient nor prejudicial and did not render counsel’s assistance ineffective. Davis v. State, 209 Ga. App. 755, 434 S.E.2d 752, 1993 Ga. App. LEXIS 1006 (1993), cert. denied, No. S93C1716, 1993 Ga. LEXIS 1035 (Ga. Oct. 29, 1993). Defendant’s counsel committed prejudicial error in failing to pursue a motion to suppress or otherwise object to the admission of evidence illegally seized on the day of defendant’s arrest. Jefferson v. State, 217 Ga. App. 747, 459 S.E.2d 173, 1995 Ga. App. LEXIS 589 (1995), cert. denied, No. S95C1729, 1995 Ga. LEXIS 1086 (Ga. Oct. 13, 1995). Defendant did not show defendant was deprived of the effective assistance of counsel because defense counsel did not move to suppress evidence of prior difficulties between defendant and the victim, as such a motion would have been denied. Martin v. State, 266 Ga. App. 392, 597 S.E.2d 445, 2004 Ga. App. LEXIS 302 (2004). Defendant’s claim that trial counsel was ineffective in failing to move to suppress defendant’s post-arrest statement was without merit as trial counsel viewed the statement as exculpatory and failed to make the motion as part of counsel’s trial strategy. Ogden v. State, 266 Ga. App. 399, 597 S.E.2d 491, 2004 Ga. App. LEXIS 386 (2004). Malice murder and accompanying life sentence were upheld on appeal because counsel was not ineffective for failing to make a motion to suppress defendant’s two statements; attempting to suppress the first statement would have been futile because defendant was not under arrest and not subject to a custodial interrogation, and the second statement was made after a waiver of Miranda rights. Wiggins v. State, 280 Ga. 627, 632 S.E.2d 80, 2006 Ga. LEXIS 408 (2006). Trial counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 for failing to object to a witness’s hearsay testimony that the codefendant told the witness that the three defendants acted together in carrying out the robbery and murder; this testimony was properly admitted as a statement by a coconspirator under O.C.G.A. § 24-3-5. Brooks v. State, 281 Ga. 14, 635 S.E.2d 723, 2006 Ga. LEXIS 603 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266, 167 L. Ed. 2d 91, 2007 U.S. LEXIS 2212 (2007). Because there was nothing improper in a statement the trial court made to the panel during voir dire, counsel did not perform deficiently by failing to object to the statement, and counsel was not ineffective for failing to object to properly admitted similar transaction evidence. Edwards v. State, 282 Ga. 259, 646 S.E.2d 663, 2007 Ga. LEXIS 399 (2007). With regard to defendant’s conviction for trafficking in methamphetamine, defendant failed to establish that defense counsel was ineffective for failing to pursue a motion to suppress the evidence found in defendant’s room as the evidence showed that a preliminary motion to suppress was filed and that trial counsel concluded that, based on the Fourth Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) Amendment waivers of defendant and others involved, pursuit of the motion would have been fruitless. Corn v. State, 290 Ga. App. 792, 660 S.E.2d 782, 2008 Ga. App. LEXIS 342 (2008), cert. denied, No. S08C1356, 2008 Ga. LEXIS 712 (Ga. Sept. 8, 2008). Defendant had not shown that counsel was ineffective for failing to attempt to suppress the defendant’s videotaped statement: even if the defendant had sufficiently articulated a desire to have counsel present, the defendant had waived the right by initiating discussion with police without any further prompting or interrogation by them; furthermore, the videotape supported the conclusion that the defendant was not prevented by any intoxication from knowingly waiving the defendant’s Miranda rights and giving a voluntary statement. Stanley v. State, 283 Ga. 36, 656 S.E.2d 806, 2008 Ga. LEXIS 26 (2008). Counsel was not ineffective for failing to file a motion to suppress a holster when the admission of the holster did not violate the fourth amendment. The information in an affidavit contained sufficient information for the magistrate to come to the commonsense conclusion that evidence of contraband could be found at the defendant’s apartment, and an officer saw the holster in plain view in an area in which the officer had a right to be while searching for contraband. Cobb v. State, 283 Ga. 388, 658 S.E.2d 750, 2008 Ga. LEXIS 258 (2008). Defendant was rendered ineffective assistance of counsel with regard to defendant’s trial and conviction for aggravated assault and drug possession as a result of trial counsel’s failure to move to suppress the test results of defendant’s urine and blood, and evidence of a tube of cocaine found in the vehicle which defendant was driving, as the bodily fluids were unlawfully obtained from defendant while unconscious and without a warrant, and there was evidence affirmatively showing that persons other than defendant had equal opportunity to possess the cocaine that was found on the floor of the vehicle. Coney v. State, 290 Ga. App. 364, 659 S.E.2d 768, 2008 Ga. App. LEXIS 318 (2008). With regard to defendant’s conviction for robbery by sudden snatching, defendant failed to establish that defendant was rendered ineffective assistance of counsel for failing to file a motion to suppress based on the patrol officer having no articulable suspicion to stop defendant pursuant to the purported generic car description that was broadcast as defendant failed to make a strong showing that the motion to suppress would have been granted on the asserted ground. Cray v. State, 291 Ga. App. 609, 662 S.E.2d 365, 2008 Ga. App. LEXIS 582 (2008). With regard to defendant’s conviction for possession of marijuana with the intent to distribute, even if defendant had not waived the issue of defense counsel being ineffective for failing to file a motion to suppress, the challenge was meritless since the search warrant properly named the package the police sought to seize, which defendant picked up at a mailing store, and the warrant did not need to name defendant’s vehicle, which defendant entered into with the package. Ferguson v. State, 292 Ga. App. 7, 663 S.E.2d 760, 2008 Ga. App. LEXIS 676 (2008). With regard to defendant’s convictions for possessing cocaine with the intent to distribute, possessing a firearm during the commission of a crime, and numerous other crimes, defendant failed to establish that defense counsel was ineffective for failing to file a motion to suppress with regard to challenging the contraband evidence obtained after the police attempted to stop defendant’s vehicle for failing to maintain the traffic lane, which was a valid basis for making a traffic stop. As such, there was no basis to file a motion to suppress the contraband discovered in defendant’s vehicle after the stop. Ray v. State, 292 Ga. App. 575, 665 S.E.2d 345, 2008 Ga. App. LEXIS 671 (2008). With regard to defendant’s conviction for distributing cocaine, defendant failed to establish that defendant was rendered ineffective assistance of counsel based on defense counsel failing to move to suppress the evidence obtained during a traffic stop as the motion to suppress would have been futile as the evidence showed that the officer had reasonable suspicion if not probable cause to stop the vehicle based on carefully constructing an orchestrated buy and using a confidential informant. Beck v. State, 292 Ga. App. 472, 665 S.E.2d 701, 2008 Ga. App. LEXIS 714 (2008), cert. denied, No. S08C1863, 2008 Ga. LEXIS 922 (Ga. Oct. 6, 2008). Because the defendant failed to demonstrate the existence of a meritorious Fourth Amendment argument, there was no merit to the argument that trial counsel was ineffective for failing to file a motion to suppress or motion in limine to exclude the evidence obtained from a search of the defendant’s apartment. Williams v. State, 284 Ga. 849, 672 S.E.2d 619, 2009 Ga. LEXIS 17 (2009). Defendant’s armed robbery conviction was upheld on appeal as the defendant failed to show that the defendant was rendered ineffective assistance of counsel as a result of trial counsel failing to move to suppress items found in the defendant’s vehicle shortly after the robbery linking the defendant to the crime. The defendant failed to prove that the damaging evidence would have been suppressed if the motion had been made. Williams v. State, 295 Ga. App. 639, 673 S.E.2d 30, 2009 Ga. App. LEXIS 55 (2009). Trial counsel did not render ineffective assistance by failing to file a second motion to suppress until the morning of trial, and thus failing to secure a transcript of the hearing on the motion because trial counsel thoroughly cross-examined the arresting detective, who admitted that the detective had previously testified to three different versions of the defendant’s alleged statement; therefore, even assuming that trial counsel was deficient by failing to secure a transcript before trial to impeach the detective, the deficiency did not prejudice the defendant since the arresting detective admitted to the detective’s contradictory statements and, thus, the inconsistencies were known to the jury even though the prior inconsistent testimony was not read verbatim into the record. Cannon v. State, 288 Ga. 225, 702 S.E.2d 845, 2010 Ga. LEXIS 607 (2010). Trial counsel was not ineffective for failing to move to suppress evidence found during a search of the defendant’s father’s home because, even if the appellate court disregarded the allegedly incorrect statements about the defendant being positively identified as a perpetrator, the affidavit in support of the search warrant accurately stated that an eyewitness had positively identified the codefendant as a murder suspect and that the codefendant was apprehended in the residence the state desired to search. Therefore, the search was conducted pursuant to a valid warrant and the evidence was admissible. Charleston v. State, 292 Ga. 678, 743 S.E.2d 1, 2013 Ga. LEXIS 300 (2013). Failure to submit written motions
to suppress excused where court entertains oral motions.
The failure to submit any written motions to suppress certain lineup identification evidence does not support the defendant’s allegation of ineffective legal representation at trial where the trial court entertained such motions made orally and conducted a hearing thereon outside the presence of the jury. Aparicio v. State, 166 Ga. App. 793, 305 S.E.2d 649, 1983 Ga. App. LEXIS 3275 (1983).
Delay in filing of motion.
Tactical decision to delay the filing of a potentially meritorious suppression motion in order later to obtain more favorable habeas review was objectively unreasonable. Huynh v. King, 95 F.3d 1052, 1996 U.S. App. LEXIS 24900 (11th Cir. 1996). tion as to previous injuries of child
Failure to exclude cross-examinavictim constitutional.
In a prosecution for killing a child, the failure of trial court to rule on a motion to exclude cross-examination by the state of the defendant concerning previous injuries to the child in question does not deny the defendant effective assistance of counsel. Bethea v. State, 251 Ga. 328, 304 S.E.2d 713, 1983 Ga. LEXIS 773 (1983). Failure to limit cross examination
of defendant.
Defendant could not show that trial counsel performed deficiently by failing to object to the prosecutor’s alleged “testimony” because the record did not support the defendant’s assertion that the prosecutor, in posing Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) leading questions to the defendant during cross-examination, “testified” against the defendant. Boatright v. State, 289 Ga. 597, 713 S.E.2d 829, 2011 Ga. LEXIS 511 (2011). Failure to object to search warrant
affidavit from which DNA obtained.
With regard to defendant’s convictions for rape and other crimes, the trial court did not err by concluding that defendant’s trial counsel was not ineffective for failing to object to a search warrant affidavit that led to the police obtaining a DNA swab from defendant, despite defendant’s voluntary statement to the detectives being elicited in violation of Miranda and case law, as the search warrant could be predicated on defendant’s voluntary but unlawfully obtained statements. Brown v. State, 292 Ga. App. 269, 663 S.E.2d 749, 2008 Ga. App. LEXIS 651 (2008).
Failure to object to nurse’s testimony.
Because the defendant’s counsel did not object to a nurse’s testimony summarizing what the victim had told the nurse about the victim’s rape by defendant, this was not ineffective assistance of counsel because the victim’s veracity was at issue, the victim was present at trial, under oath, and subject to cross-examination, and the nurse’s testimony amounted to a prior consistent out-of-court statement, which was admissible. Johnson v. State, 268 Ga. App. 1, 601 S.E.2d 392, 2004 Ga. App. LEXIS 835 (2004), cert. denied, No. S04C1735, 2004 Ga. LEXIS 665 (Ga. Sept. 7, 2004). Because the state’s questions to a witness were not leading, had answers that were obvious, or were answered by the witness or other witnesses, trial counsel was not ineffective for failing to object. Capers v. State, 273 Ga. App. 427, 615 S.E.2d 126, 2005 Ga. App. LEXIS 374 (2005), cert. denied, No. S05C1592, 2005 Ga. LEXIS 546 (Ga. Sept. 19, 2005).
Failure to object to DNA evidence.
— With regard to a defendant’s conviction for statutory rape and two counts of child molestation involving a stepchild, the defendant’s ineffective assistance of counsel claim as a result of failure to object to the state’s DNA evidence was rejected because the defendant failed to show prejudice in that the outcome of the trial would have been no different had the DNA evidence not been admitted. The defendant’s conclusory assertion that the conviction was largely based upon the DNA evidence was contradicted by the totality of the evidence in the record in that: (1) the jury heard direct evidence from the victim that the defendant forced the victim to engage in sex with the defendant over a period of years; (2) the victim testified that the defendant fathered the victim’s twins; and (3) the victim’s mother testified as to the victim’s prior consistent outcry statements, which the mother initially did not believe. Haygood v. State, 289 Ga. App. 187, 656 S.E.2d 541, 2008 Ga. App. LEXIS 42 (2008). Failure to object to psychologist’s
testimony.
A defendant’s conviction for child molestation and related charges was upheld on appeal, and the trial court properly denied the defendant’s motion for remand, as the defendant failed to show ineffective assistance of counsel as a result of defense counsel failing to object to the bolstering testimony of a child psychologist. The defendant failed to show how defense counsel’s strategy, which resulted in leading the expert to qualify the prior bolstering testimony on cross-examination, was unreasonable, as well as failed to show a likelihood that an objection would have led to a different trial outcome necessitating remand. Al-Attawy v. State, 289 Ga. App. 570, 657 S.E.2d 552, 2008 Ga. App. LEXIS 81 (2008), cert. denied, No. S08C1039, 2008 Ga. LEXIS 503 (Ga. June 2, 2008). Although defendant’s trial counsel’s performance fell below objective standard of reasonableness under the first prong of the Strickland ineffective assistance of counsel test, error however was harmless because although defendant’s trial counsel performed deficiently in failing to raise a hearsay objection to admission of victim’s statements contained in the videotaped interview, defendant did not show that trial counsel’s error prejudiced the defense since statements made by the victim during the videotaped interview were merely cumulative of testimony victim had offered at trial and for which victim was cross-examined by trial counsel. Forde v. State, 289 Ga. App. 805, 658 S.E.2d 410, 2008 Ga. App. LEXIS 206 (2008). With regard to convictions for aggravated assault and related crimes, defendant failed to show that trial counsel was ineffective for failing to object or move for a mistrial when a security officer commented on defendant’s pre-arrest silence, namely that defendant did not speak up as to owning the type of vehicle used to perpetrate the crimes; even if testimony on defendant’s pre-arrest silence had been objectionable, defendant failed to show any prejudice since other evidence showed that defendant drove to police station in defendant’s truck and consented to search of that vehicle. Gibson v. State, 291 Ga. App. 183, 661 S.E.2d 850, 2008 Ga. App. LEXIS 436 (2008), cert. denied, No. S08C1442, 2008 Ga. LEXIS 677 (Ga. Sept. 8, 2008). Defendant failed to establish ineffective assistance of counsel; counsel’s failure to object to hearsay testimony about a statement by a non-testifying witness was not ineffective assistance because the statement’s admission was harmless error, the failure to object to hearsay testimony as to venue was not ineffective assistance because admissible evidence established venue, and the failure to make a chain of custody objection was not ineffective assistance because the objection would have been fruitless. White v. State, 283 Ga. 566, 662 S.E.2d 131, 2008 Ga. LEXIS 442 (2008). With regard to defendant’s convictions for child molestation and aggravated sexual battery, the trial court properly rejected defendant’s contention that defendant was rendered ineffective assistance of counsel for defense counsel’s failure to object to the admission of an indictment evidencing defendant’s guilty plea to a prior conviction as such evidence was admissible, and the judgment entered thereon, as a complete record of a witness’s criminal conviction for purposes of impeachment. Further, pretermitting whether defense counsel’s failure to object to the additional document admitted constituted deficient performance, defendant failed to show prejudice from the alleged deficiency as defendant had already admitted to prior convictions during direct examination. Daniel v. State, 292 Ga. App. 560, 665 S.E.2d 696, 2008 Ga. App. LEXIS 681 (2008), cert. denied, No. S08C1931, 2008 Ga. LEXIS 891 (Ga. Oct. 27, 2008).
Failure to object to recorded testimony.
With regard to defendant’s conviction for distributing cocaine, the defendant failed to establish that the defendant was rendered ineffective assistance of counsel based on defense counsel failing to object to the admission of a recorded conversation between defendant and a confidential informant on Sixth Amendment/ right to confrontation grounds. Even if the recorded conversation was objectionable as a violation of defendant’s constitutional rights under the confrontation clause, trial counsel testified to various strategic reasons for keeping the confidential informant out of the courtroom at the hearing on defendant’s motion for a new trial. As such, since that strategy was not patently unreasonable, the trial court did not err in finding that trial counsel’s actions in that regard fell within the broad range of reasonable professional conduct. Beck v. State, 292 Ga. App. 472, 665 S.E.2d 701, 2008 Ga. App. LEXIS 714 (2008), cert. denied, No. S08C1863, 2008 Ga. LEXIS 922 (Ga. Oct. 6, 2008). Failure to object to testimony of
military police.
In a defendant’s prosecution for malice murder and cruelty to children, trial counsel was not ineffective for failing to object to testimony by military police regarding the investigation of a prior difficulty between the defendant and the five-year-old victim as trial counsel had raised a continuing objection to all testimony and evidence regarding prior difficulties and made a specific objection immediately prior to the officers’ consecutive testimony. Wright v. State, 285 Ga. 57, 673 S.E.2d 249, 2009 Ga. LEXIS 102 (2009). Defendant did not show that trial counsel was ineffective. Defense counsel’s failure to object to hearsay because counsel knew that the statements would be corroborated by the defendant’s testimony later in the trial was trial strategy; coun-Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) sel’s failure to object to statements that counsel thought would be admissible as part of the res gestae was reasonable trial strategy; counsel believed that certain testimony was not hearsay and would also work to the defendant’s benefit; counsel chose not to object to prior consistent testimony of the victim because counsel believed that the testimony showed that some of the victim’s testimony was inconsistent and thus would undermine the victim’s credibility; and contrary to the defendant’s contention, certain testimony did not show that the defendant had a prior criminal history. Abernathy v. State, 299 Ga. App. 897, 685 S.E.2d 734, 2009 Ga. App. LEXIS 1020 (2009). Trial counsel was not ineffective for failing to object when the state asked the arresting officer if the defendant made a statement while in custody. The testimony was not given to prove the defendant’s guilt or innocence, but could be characterized as a narrative recitation of the events surrounding the defendant’s arrest by the authorities. Hardy v. State, 301 Ga. App. 115, 686 S.E.2d 789, 2009 Ga. App. LEXIS 1078 (2009). Trial counsel did not provide ineffective assistance by failing to object to the arresting detective’s testimony about what a witness told the defendant just prior to a shooting because although the testimony was inadmissible hearsay since the state failed to lay a proper foundation for the admission of a prior inconsistent statement by not asking the witness about the witness’s statement, the defendant failed to show a reasonable probability that the outcome of the trial would have been different if counsel had objected to the testimony; four eyewitnesses other than the witness testified that those witnesses saw the defendant shoot the victim, and the witnesses independently picked the defendant out of a photographic lineup. Cannon v. State, 288 Ga. 225, 702 S.E.2d 845, 2010 Ga. LEXIS 607 (2010). Failure to object to prosecutorial
misconduct.
Trial counsel did not render ineffective assistance by failing to object to alleged prosecutorial misconduct, the prosecutors questioning of the defendant upon the defendant’s post-arrest silence, as any objection would have been overruled, since the defendant opened the door to that line of questioning, and counsel could not be ineffective for failing to make a meritless objection. Doyle v. State, 291 Ga. 729, 733 S.E.2d 290, 2012 Ga. LEXIS 781 (2012).
Failure to object to defendant’s demeanor.
Defense counsel was not ineffective for failing to object to evidence that the defendant was angry at the victim because the victim failed to pay the defendant for drugs and started buying from another supplier as the evidence was relevant to motive and, thus, admissible. Griffin v. State, 292 Ga. 321, 737 S.E.2d 682, 2013 Ga. LEXIS 67 (2013). Trial counsel was not ineffective for failing to object when an investigator testified that the defendant killed the victim or when a medical examiner testified that the death was a homicide as the identity of the person who caused the victim’s death and the fact that the death was a homicide were not disputed; thus, the failure could not have affected the outcome of the trial. Butler v. State, 292 Ga. 400, 738 S.E.2d 74, 2013 Ga. LEXIS 111 (2013). Failure to object to admission of
cocaine field test.
With regard to defendant’s appeal of a conviction for possessing cocaine, defendant’s argument that defense counsel was ineffective in failing to object to the admission of a cocaine field test was meritless since significant evidence other than the field test supported the jury’s verdict based on the officers finding a residue-laden scale commonly used to measure cocaine on defendant’s person; following arrest, defendant displayed the same physical symptoms seen in persons who had swallowed cocaine when confronted by police; defendant had admitted to two people — an officer and a nurse — to swallowing the cocaine; and on two prior occasions leading to drug convictions, defendant attempted to discard cocaine to avoid detection by authorities. Moreover, defense counsel successfully undermined the field test, establishing through the state’s own expert that the test was merely presumptive and lacked scientific certainty. Hinton v. State, 292 Ga. App. 40, 663 S.E.2d 401, 2008 Ga. App. LEXIS 689 (2008).
Failure to object to toxicologist report’s inadmission.
In a murder prosecution in which the defendant claimed self-defense, a forensic toxicologist testified for the defense that the victim’s blood tested positive for a metabolite of cocaine and that paranoia and aggressiveness were side effects of cocaine use. The defendant’s claim that counsel was ineffective for withdrawing a request to admit the toxicologist’s lab report into evidence failed as the results of the report were read into the record, the toxicologist’s testimony was more extensive than the report, and the defendant’s assertion that admission of the report would have altered the outcome of the trial was mere speculation. Timmreck v. State, 285 Ga. 39, 673 S.E.2d 198, 2009 Ga. LEXIS 49 (2009).
Failure to object to expert testimony.
Defendant failed to establish a claim of ineffective assistance of counsel based on counsel’s failure to object to an agent’s testimony regarding what the agent believed to be a marijuana stalk in a burn pile because expert testimony based on scientific tests was not necessarily required to establish that a substance was marijuana if the identifying witness had the requisite training in the narcotics field; additionally, defense counsel testified that counsel did not think it was all that helpful to focus on the stalk because it may have emphasized that the substance was marijuana before it got burned. Kania v. State, 280 Ga. App. 356, 634 S.E.2d 146, 2006 Ga. App. LEXIS 853 (2006). The defendant’s trial counsel was not ineffective in failing to object when a medical examiner testified that the victim’s death was a homicide and not an accident, and despite the defendant’s contrary claim, the testimony was not an expression of the witness’s opinion on the ultimate issue in the case, as: (1) counsel did not consider the testimony objectionable because there was no dispute that the “manner” of the victim’s death was a homicide, and such tactic was not unreasonable; (2) the ultimate issue for the jury to determine was whether the defendant acted with malice in response to the victim’s provocation, or whether self-defense was an issue; (3) counsel testified that an objection would have been in order had the medical examiner invaded the province of the jury by expressing the opinion that the homicide was a murder; and (4) the defendant failed to show any prejudice by the testimony presented. Berry v. State, 282 Ga. 376, 651 S.E.2d 1, 2007 Ga. LEXIS 529 (2007). Defense counsel was ineffective for failing to object to an expert’s inadmissible hearsay testimony that a holster was designed for a .45 caliber pistol, which was based on the expert’s conversation with a representative of the holster’s manufacturer. The testimony was prejudicial, as it was the only evidence connecting the defendant to a .45 pistol and it buttressed the testimony of the state’s key witness, whose credibility was a serious issue. Cobb v. State, 283 Ga. 388, 658 S.E.2d 750, 2008 Ga. LEXIS 258 (2008). Defendant unsuccessfully contended that defendant’s trial counsel rendered ineffective assistance by failing to object to an FBI agent’s testimony that the crime scene appeared to have been staged and that, based on this scene, burglary was an unlikely motive; furthermore, even if trial counsel had objected to this testimony, there was no reasonable probability that the outcome of defendant’s trial would have been different, given the overwhelming nature of the evidence against the defendant. Bridges v. State, 286 Ga. 535, 690 S.E.2d 136, 2010 Ga. LEXIS 87 (2010). Trial counsel was not ineffective for failing to object to an investigator’s opinion testimony about the proper administration of CPR measures as the investigator was impliedly accepted as such by the trial court and, thus, any objection would have been futile. Butler v. State, 292 Ga. 400, 738 S.E.2d 74, 2013 Ga. LEXIS 111 (2013).
Harmless testimony from detective.
— Defendant’s convictions for murder and other crimes was upheld because the detective’s testimony that an unnamed key witness made an identification, without specifying whom the key witness identi-Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) fied, was harmless beyond a reasonable doubt because the evidence of the defendant’s guilt was overwhelming, including eyewitness identification, cell phone records, and the defendant’s connection to a car near the crime scene. Kingdom v. State, 321 Ga. 363, 914 S.E.2d 778, 2025 Ga. LEXIS 70 (2025). Failure to object to testimony of
crime scene investigator.
Trial counsel was not ineffective for failing to limit the trial testimony of the prosecution’s blood spatter expert because counsel consulted with a qualified expert and counsel’s consultations gave counsel no basis for objecting to the conclusion reached by the prosecution’s expert as the expert consulted reached the same conclusion as the prosecution’s expert. Yancey v. State, 292 Ga. 812, 740 S.E.2d 628, 2013 Ga. LEXIS 372 (2013). Trial counsel’s failure to object to testimony from a crime scene investigator was not deficient because the opinion about the victim’s physical positioning was within the bounds of a crime scene reconstructionist expert. Vanstavern v. State, 293 Ga. 123, 744 S.E.2d 42, 2013 Ga. LEXIS 495 (2013).
Expert testimony as to tests performed by others.
There was no merit to the defendant’s argument that because a lab worker actually conducted the testing on a substance that a forensic chemist testified was cocaine, the defendant had been denied the Sixth Amendment right to confrontation. The chemist testified that the worker was acting under the chemist’s direction and that the chemist reviewed the test results; therefore, the chemist’s test was proper because the chemist arrived at the chemist’s own independent conclusion that the substance was cocaine. Reddick v. State, 298 Ga. App. 155, 679 S.E.2d 380, 2009 Ga. App. LEXIS 620 (2009). Failure to object to use of “victim.” — Trial court’s ruling that it was highly unlikely that a reasonable probability existed that the outcome of the defendant’s case would have been different but for defense counsel’s failure to object to the use of the word “victim”, when referring to the victim, was not clearly erroneous; moreover, defense counsel testified that the defense theory was to show that the prosecution was on a witch hunt against the defendant and not objecting to the state’s use of the word “victim” reinforced that strategy of showing that the state was “paranoid.” This was a matter of tactics and strategy, and whether wise or unwise did not constitute ineffective assistance of counsel. Johnson v. State, 280 Ga. App. 341, 634 S.E.2d 134, 2006 Ga. App. LEXIS 851 (2006), overruled in part, Kimbrough v. State, 300 Ga. 516, 796 S.E.2d 694, 2017 Ga. LEXIS 48 (2017). Failure to object to comment on
victim’s credibility.
Defendant failed to establish ineffective assistance of counsel with regard to defendant’s trial and conviction for child molestation based on trial counsel’s failure to object to certain testimony by the investigating officer that commented upon the victim’s credibility as, even though trial counsel did not object, the trial court gave a curative instruction that specifically informed the jury to disregard the officer’s testimony commenting on the victim’s credibility, which was adequate to correct any harm. Williams v. State, 290 Ga. App. 841, 660 S.E.2d 740, 2008 Ga. App. LEXIS 228 (2008), overruled in part, Hatley v. State, 290 Ga. 480, 722 S.E.2d 67, 2012 Ga. LEXIS 137 (2012), overruled in part as stated in Wadley v. State, 317 Ga. App. 333, 730 S.E.2d 536, 2012 Ga. App. LEXIS 658 (2012).
Failure to present evidence of victim’s violent act.
When the defendant presented a prima facie case of justification, counsel was ineffective in not introducing evidence of a prior act of violence by the victim based on counsel’s mistaken belief that such an act had to have occurred prior to the act being tried in order to be admissible. The error was not harmless, as the assault, which like the charged crime involved an assault with a gun upon a man leaving the residence of the victim’s ex-spouse, was highly relevant to the sole defense of justification. Bennett v. State, 298 Ga. App. 464, 680 S.E.2d 538, 2009 Ga. App. LEXIS 694 (2009). Conceding to reliability of a child
victim’s hearsay testimony.
Defendant failed to establish ineffective assistance of counsel with regard to defendant’s trial and conviction for child molestation based on trial counsel’s failure to object and conceding to the issue of reliability for the admission of the child victim’s hearsay testimony as: (1) defendant failed to point to any evidence indicating that the victim’s statements were unreliable since the statements were videotaped at a neutral location in a room alone with a professional forensic interviewer; (2) the forensic interviewer testified that the victim was very bright and articulate and did not appear to be coached; (3) the victim’s videotaped statements were spontaneous, voluntary, and not coerced; (4) the victim’s videotaped statements were consistent with other out-of-court statements; and (5) significantly, the victim’s statements were consistent with defendant’s statements to police. Williams v. State, 290 Ga. App. 841, 660 S.E.2d 740, 2008 Ga. App. LEXIS 228 (2008), overruled in part, Hatley v. State, 290 Ga. 480, 722 S.E.2d 67, 2012 Ga. LEXIS 137 (2012), overruled in part as stated in Wadley v. State, 317 Ga. App. 333, 730 S.E.2d 536, 2012 Ga. App. LEXIS 658 (2012). Counsel did not concede guilt by
offering alternative theory.
Trial counsel was not ineffective for arguing an alternative theory of insanity based on chronic traumatic encephalopathy (CTE) to support acquittal as counsel did not concede guilt and did not override the defendant’s objective of maintaining innocence. Riley v. State, 321 Ga. 112, 913 S.E.2d 559, 2025 Ga. LEXIS 51 (2025). Introduction of the defendant’s criminal history was proper as a tactical measure where it was done as an explanation of the defendant’s sole defense that the defendant obtained contraband to aid the state. Fountain v. State, 231 Ga. App. 700, 500 S.E.2d 614, 1998 Ga. App. LEXIS 515 (1998).
Introduction of prior conviction.
Counsel was not ineffective by failing to object to introduction of defendant’s prior conviction to because that conviction had been properly obtained and was not subject to attack. Watkins v. State, 206 Ga. App. 575, 426 S.E.2d 26, 1992 Ga. App. LEXIS 1701 (1992), cert. denied, No. S93C0490, 1993 Ga. LEXIS 278 (Ga. Feb. 25, 1993). Defense counsel was not ineffective for failing to object when a witness read into the record a letter the witness received from the jailhouse informant because it was a reasonable trial strategy to introduce the letter so that defense counsel could refute the informant’s claims on more than one occasion. Young v. State, 292 Ga. 443, 738 S.E.2d 575, 2013 Ga. LEXIS 148 (2013).
Failure to make meritless objection.
Trial counsel was not ineffective in failing to raise a constitutional challenge to O.C.G.A. § 16-13-31(e) based on the statute’s allowance of a conviction for trafficking in methamphetamine if a defendant possessed 28 grams or more, regardless of the purity of the methamphetamine mixture, while O.C.G.A. § 16-13-31(a) only allowed a conviction for trafficking in cocaine if the mixture of cocaine had a purity of at least 10 percent; the proposed challenge was not supported by the evidence as the state’s expert testified that 56.2 grams of the 79.0 grams of the substance tested was positive for methamphetamine, and there was no proffer or evidence as to the purity of the mixture or any allegation by defendants that the substance was not methamphetamine. Christopher v. State, 262 Ga. App. 257, 585 S.E.2d 107, 2003 Ga. App. LEXIS 761 (2003), cert. denied, No. S03C1545, 2003 Ga. LEXIS 927 (Ga. Oct. 20, 2003). Defendant was not denied effective assistance of counsel where counsel did not request a misidentification charge, despite misidentification being defendant’s sole defense, because the jury charge as a whole correctly and thoroughly instructed the jury on such issues as the presumption of innocence, reasonable doubt, burden of proof, credibility of witnesses, and impeachment of witnesses, and where there was overwhelming evidence of defendant’s guilt. Brown v. State, 260 Ga. App. 627, 580 S.E.2d 348, 2003 Ga. App. LEXIS 442 (2003), overruled in part, George v. State, 312 Ga. 801, 865 S.E.2d 127, 2021 Ga. LEXIS 679 (2021). Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) Defendant’s claim that defendant was denied effective assistance of counsel failed where counsel’s failure to ask for a curative instruction because of the admission of testimony by a co-conspirator was not an error as the testimony was admissible under the co-conspirator exception to the hearsay rule, and counsel’s failure to object and request a mistrial following certain comments by the assistant district attorney during closing arguments did not amount to ineffective assistance since the gravamen of the argument was to urge the jury to find from the inconsistencies that a witness had lied. Robinson v. State, 278 Ga. 31, 597 S.E.2d 386, 2004 Ga. LEXIS 469 (2004). Trial counsel was not ineffective in failing to make a meritless objection based on the state’s expert’s testimony as to the source of the DNA on a sock, as the possible mechanisms by which epithelial cells ended up on a sock were beyond the ken of the average layman; since the evidence at issue was admissible, defendant’s trial counsel was not required to object. Eley v. State, 266 Ga. App. 45, 596 S.E.2d 660, 2004 Ga. App. LEXIS 295 (2004), overruled in part, State v. Burns, 306 Ga. 117, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (2019). Defendant’s conviction for child molestation was affirmed because defendant did not carry defendant’s burden of showing that defendant’s counsel rendered ineffective assistance as the record showed that counsel adequately prepared for trial, defendant was advised of the possible sentence during plea bargaining, and counsel allowed character evidence in as part of a reasonable trial strategy. Kimmons v. State, 267 Ga. App. 790, 600 S.E.2d 783, 2004 Ga. App. LEXIS 792 (2004). Failure to object to prior acts
against victim.
Defendant’s counsel did not render ineffective assistance under the Strickland standard, as evidence of defendant’s prior acts towards the victim were admissible in defendant’s trial, arising from other acts against the same victim, such that counsel’s failure to object to the admission of such evidence was not a deficiency. Andrews v. State, 275 Ga. App. 426, 620 S.E.2d 629, 2005 Ga. App. LEXIS 991 (2005). Trial counsel did not provide ineffective assistance under Ga. Const. 1983, Art. I, Sec. I, Para. XIV by failing to object when the trial court allowed a partition to be placed between the defendant and the child victim, allegedly in violation of U.S. Const., amend. 6 and Ga. Const. 1983,Art. I, Sec. I, Para. XIV, when they testified in the molestation case; the defendant waived the confrontation claim since the defendant arranged for the partition in order to head off the state’s request for testimony via closed-circuit television pursuant to O.C.G.A. § 17-8-55, and defense counsel’s failure to object, therefore, could not be challenged because this fell into the realm of strategy. Zepp v. State, 276 Ga. App. 466, 623 S.E.2d 569, 2005 Ga. App. LEXIS 1285 (2005), cert. denied, No. S06C0610, 2006 Ga. LEXIS 224 (Ga. Mar. 27, 2006), overruled in part, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56, 2007 Ga. LEXIS 182 (2007), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Defendant failed to establish a claim of ineffective assistance of trial counsel in the defendant’s trial for the murder of the defendant’s spouse based on counsel’s failure to object to evidence that the defendant held an accidental death policy in the amount of $243,750, payable to the defendant in the event of the spouse’s accidental death and to evidence showing that the defendant inquired into the spouse’s compensation and death benefits available through the spouse’s employer; there was independent evidence directly relating the existence of the insurance policies and death benefits to the defendant’s financial motive for the murder; financial gain from the defendant’s marriage to the spouse, clearly including the spouse’s insurance and employment benefits, and the prevention, at all costs, of the loss of such financial gain by virtue of a divorce, provided a compelling motive for the murder, and thus, such evidence was admissible and any attempt to exclude the evidence would have been unsuccessful. Slakman v. State, 280 Ga. 837, 632 S.E.2d 378, 2006 Ga. LEXIS 454 (2006), cert. denied, 549 U.S. 1218, 127 S. Ct. 1273, 167 L. Ed. 2d 95, 2007 U.S. LEXIS 2249 (2007). Two defendants’ attorneys were not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 for failing to object to the trial court’s decision to replace a juror who was late to court with one of the alternate jurors who was fully qualified to sit on the jury under O.C.G.A. § 15-12-169; the juror’s tardiness was a sound basis for dismissal under O.C.G.A. § 15-12-172. Brooks v. State, 281 Ga. 14, 635 S.E.2d 723, 2006 Ga. LEXIS 603 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266, 167 L. Ed. 2d 91, 2007 U.S. LEXIS 2212 (2007). No ineffectiveness of counsel was shown in a defendant’s malice murder trial by the failure of the defendant’s trial counsel to object to the introduction of a prior consistent statement of a witness whose motivation for testifying against the defendant had been vigorously examined in cross-examination; such an objection would have been futile because the veracity of the witness was placed in issue by the cross-examination, rendering the prior consistent statement admissible, and therefore no ineffectiveness of counsel was shown. Green v. State, 281 Ga. 322, 638 S.E.2d 288, 2006 Ga. LEXIS 992 (2006). Failure to object to notebook with
song lyrics.
In a case wherein the defendant was convicted of murder and other related crimes, because the defendant was unable to establish that the trial court’s admission of a notebook containing song lyrics would have constituted an abuse of discretion had trial counsel voiced an objection, there existed no merit in the defendant’s allegation that the defendant was provided ineffective assistance of counsel for the failure of defense counsel to object. Castillo v. State, 281 Ga. 579, 642 S.E.2d 8, 2007 Ga. LEXIS 127 (2007). When it would have been meritless for defense counsel to object to portions of the state’s closing argument and to reserve objections to the jury charge, the failure to make the objections did not support a claim of ineffective assistance of counsel. Sampson v. State, 282 Ga. 82, 646 S.E.2d 60, 2007 Ga. LEXIS 404 (2007). Ineffective assistance of counsel claims regarding the defendant’s initial post-trial counsel’s performance lacked merit, as counsel was neither professionally deficient nor prejudicial because: (1) the defendant waived any right to be present at the two juror interviews; (2) no deficiency could result from counsel’s failure to raise meritless objections; and (3) the trial court specifically found that the defendant adequately understood the nature of the charges, and comprehended the proceedings, despite being under the influence of prescribed anti-depressants, and was capable of aiding the defense. Hampton v. State, 282 Ga. 490, 651 S.E.2d 698, 2007 Ga. LEXIS 723 (2007). Defense counsel did not perform deficiently when defense counsel failed to make a meritless objection to the evidence of the defendant’s conviction for giving false information that was less than 10 years old as former O.C.G.A. § 24-9-84.1(a)(3) and (b) (see now O.C.G.A. § 24-6-609) authorized the admission of convictions 10 years old or less for crimes involving dishonesty or making a false statement, and the trial court did not have to weigh the probative value of the old conviction against the prejudicial effect since the conviction at issue was less than 10 years old. Habersham v. State, 289 Ga. App. 718, 658 S.E.2d 253, 2008 Ga. App. LEXIS 190 (2008). There was no ineffectiveness of the defendant’s trial counsel for failing to object to questions posed to a codefendant and for failing to object to the prosecutor’s closing argument as the testimony and comments by the prosecutor did not suggest to the jury that the defendant was unable to produce an alibi witness; further, the questions were proper, as were the prosecutor’s remarks. Hung v. State, 284 Ga. 796, 671 S.E.2d 811, 2009 Ga. LEXIS 21 (2009). Failure to object to testimony on “cycle of violence.” — In a prosecution for the murder of the defendant’s romantic companion, defense counsel was not ineffective for failing to object to cross-examination of the defendant about “the cycle of violence” that occurred in some domestic Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) relationships. As there was evidence that the defendant assaulted the victim in the past, the question was proper and an objection would have been meritless. Watkins v. State, 285 Ga. 355, 676 S.E.2d 196, 2009 Ga. LEXIS 163 (2009). Trial counsel did not render ineffective assistance by failing to object, request a limiting instruction, or move for a mistrial in response to the testimony of the victim’s cousin regarding an altercation between the victim and the defendant on the night before the shooting because the testimony was admissible under the necessity exception to hearsay as a prior difficulty, showing the defendant’s motive, intent, and bent of mind; trial counsel was not deficient for failing to raise a meritless objection. Evans v. State, 288 Ga. 571, 707 S.E.2d 353, 2011 Ga. LEXIS 92 (2011). Failure to object to investigator’s
testimony.
Defendants’ trial counsel was not ineffective for having failed to object on hearsay grounds to an investigator’s testimony regarding the reasons why the victim’s sibling and the sibling’s spouse could not come to court to testify because the defendant suffered no harm from the admission of the testimony as the testimony had nothing to do with either the charged offenses or with the defendant as the alleged perpetrator of the alleged crimes. Adel v. State, 290 Ga. 690, 723 S.E.2d 666, 2012 Ga. LEXIS 286 (2012).
Failure to object to hearsay testimony of emergency room physician.
— With regard to a defendant’s convictions for aggravated sodomy, rape, and other related crimes, trial counsel’s decision not to object to hearsay testimony of the emergency room physician who treated the victim did not amount to ineffective assistance of counsel as the physician’s testimony was admissible under the hearsay exception set forth in former O.C.G.A. § 24-3-4 (see now O.C.G.A. § 24-8-803) since the challenged statements related to the cause of the victim’s injuries and were made for the purpose of the victim’s diagnosis and treatment. As a result, the trial court did not err in admitting the statements and, therefore, since the statements were admissible, there was no merit to the defendant’s contention that the defendant’s trial counsel’s failure to object to the hearsay testimony was ineffective assistance. Greene v. State, 295 Ga. App. 803, 673 S.E.2d 292, 2009 Ga. App. LEXIS 134 (2009), cert. denied, No. S09C0862, 2009 Ga. LEXIS 259 (Ga. Apr. 28, 2009). Defendant could not establish that the trial court’s admission of a witness’s testimony would have constituted an abuse of discretion had trial counsel voiced an objection because the evidence was admissible under the necessity exception to the hearsay rule, subject to the trial court’s discretion. White v. State, 289 Ga. 511, 712 S.E.2d 834, 2011 Ga. LEXIS 565 (2011).
Ineffective assistance based on unforeseen damaging testimony.
Trial counsel was not ineffective for failing to challenge the decision of the codefendant’s to call a witness because trial counsel made a strategic decision, based on a pre-trial investigation, not to challenge the codefendant’s decision to call the witness; the fact that the witness gave unforeseen damaging testimony did not justify an after the fact adjudication of deficient performance. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661, 2012 Ga. LEXIS 625 (2012). Trial counsel was not ineffective for
failing to make certain objections.
Counsel testified that counsel failed to make certain objections during opening and closing and in regard to witness bolstering for strategic reasons and that counsel decided after extensive discussion not to call the defendant as a witness because counsel believed the potential downside was overwhelming. Rawls v. State, 315 Ga. App. 891, 730 S.E.2d 1, 2012 Ga. App. LEXIS 466 (2012). Defendant failed to show that counsel was ineffective for failing to object to an alleged golden rule violation because there was no such violation, as the prosecutor did not ask the jurors to place themselves in the victim’s position. King v. State, 316 Ga. 611, 889 S.E.2d 851, 2023 Ga. LEXIS 130 (2023). Defendant failed to show that he was prejudiced by trial counsel’s failure to object to the alleged misstatements about the definition of voluntary intoxication and not requesting a clarifying instruction about the interaction between voluntary intoxication and insanity because the theory of the defense at trial was that defendant was temporarily insane and that he was not voluntarily intoxicated. King v. State, 316 Ga. 611, 889 S.E.2d 851, 2023 Ga. LEXIS 130 (2023). Defendant failed to show that trial counsel was ineffective for failing to object to hearsay testimony of a witness because counsel’s cross-examination of the witness effectively undermined the witness’s testimony that she heard neighbors say that defendant shot the victim. The witness admitted that she could not identify the people she saw running after hearing gunshots and she did not know defendant. Burke v. State, 320 Ga. 706, 911 S.E.2d 575, 2025 Ga. LEXIS 16 (2025). Defendant failed to show he was prejudiced due to trial counsel’s failure to object to questions the state asked defendant on cross-examination about whether the police “believed very strongly” that defendant killed the victim based on interviews they had done because defendant’s responses were merely cumulative of the officers’ testimony that the police had identified defendant as the primary suspect soon after their interviews. Burke v. State, 320 Ga. 706, 911 S.E.2d 575, 2025 Ga. LEXIS 16 (2025). Counsel not ineffective for failing to object to admission of party oppo-
nent.
Trial counsel was not ineffective for failing to object to the introduction of an audio recording of a telephone conversation between the second defendant and the second defendant’s girlfriend, which included the second defendant telling the girlfriend that the girlfriend did not have to allow police to search the home, and the girlfriend could be heard describing the substance of a news report about the murder, because the second defendant’s statements on the recording were admissions of a party opponent. Haney v. State, 305 Ga. 785, 827 S.E.2d 843, 2019 Ga. LEXIS 322 (2019). Counsel did not perform deficiently by not making an objection to the affidavit of the appellant because the affidavit, written by the appellant, was hearsay, but it was nevertheless admissible as an admission by a party-opponent and such an admission by a defendant generally was not subject to the Confrontation Clause. Reed v. State, 307 Ga. 527, 837 S.E.2d 272, 2019 Ga. LEXIS 837 (2019).
Motions to sever trial of defendants.
In a case wherein the defendant was convicted of murder and other related crimes, even assuming that defense counsel’s failure to object to the rescission of a severance order constituted deficient performance, it was not an abuse of the trial court’s discretion to deny the motion to sever since the number of defendants tried together was not so great as to create confusion of the evidence, the law applicable to each defendant was substantially the same, and there was no showing the jury was confused. Castillo v. State, 281 Ga. 579, 642 S.E.2d 8, 2007 Ga. LEXIS 127 (2007). Because the charge that was given was adjusted to the evidence and was not erroneously incomplete, defense counsel was not ineffective in failing either to object or to request a more expansive instruction. Roper v. State, 281 Ga. 878, 644 S.E.2d 120, 2007 Ga. LEXIS 299 (2007). Because the defendant’s counsel was not ineffective in failing to make a meritless objection and could not be held to a duty to anticipate changes in the law regarding the use of a nolo plea to impeach a witness, allegations of ineffective assistance of counsel lacked merit. Martin v. State, 281 Ga. 778, 642 S.E.2d 837, 2007 Ga. LEXIS 257 (2007). In a defendant’s prosecution for malice murder and cruelty to children, trial counsel was not ineffective for failing to move to sever the defendant’s trial from that of the codefendant, the parent of the five-year-old victim, as such a decision was a matter of trial strategy and trial counsel was able to cross-examine the parent as to any hearsay statements regarding the defendant’s prior difficulties with the victim. Wright v. State, 285 Ga. 57, 673 S.E.2d 249, 2009 Ga. LEXIS 102 (2009). Failure to object to admissible evidence does not constitute ineffective Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) assistance to counsel. United States v. Costa, 691 F.2d 1358, 1982 U.S. App. LEXIS 23916 (11th Cir. 1982). Trial counsel was not ineffective for failing to object to introduction of evidence that the murder victim had life insurance naming the defendant as beneficiary, where the required nexus was shown between the crime charged and the existence of the insurance. Bagwell v. State, 270 Ga. 175, 508 S.E.2d 385, 1998 Ga. LEXIS 1007 (1998), superseded by statute as stated in Ballin v. State, 307 Ga. 494, 837 S.E.2d 343, 2019 Ga. LEXIS 832 (2019). Defense counsel was not ineffective in failing to file a motion to suppress the gun and knitted caps found in the car, as defendant, a passenger, lacked standing to contest the search of the car; further, the caps were found in a search of the car incident to a lawful arrest. Patterson v. State, 259 Ga. App. 630, 577 S.E.2d 850, 2003 Ga. App. LEXIS 210 (2003). Inmate’s trial counsel was not ineffective for failing to object to the introduction of evidence of other “similar crimes” since there was no reasonable probability that, had defense counsel objected and the “similar crime” issue been addressed on appeal, the trial court’s ruling would have been reversed and a new trial ordered; thus, the inmate was not prejudiced by said failure. Walker v. Houston, 277 Ga. 470, 588 S.E.2d 715, 2003 Ga. LEXIS 956 (2003). Defendant failed to show that counsel provided ineffective assistance in violation of U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. 1, Para. XIV, based on counsel’s failure to have objected to evidence regarding the chain of custody of drugs that were seized from the crime scene, as the evidence showed that the police placed the drugs in a tamper-proof identifiable container and that the crime lab technician who tested it received it in the same container, and there was no indication that there had been any tampering or substitution. Reason v. State, 283 Ga. App. 608, 642 S.E.2d 236, 2007 Ga. App. LEXIS 136 (2007). Trial counsel was not ineffective for failing to object to pre-autopsy photographs of murder victims; each of the photographs was relevant to some point of a forensic pathologist’s testimony, and thus the photographs were admissible. Conway v. State, 281 Ga. 685, 642 S.E.2d 673, 2007 Ga. LEXIS 234 (2007). With respect to presenting chemical testing evidence and pursuing the state’s undisclosed chemical test results, counsel’s failure to present or pursue such evidence did not affect the outcome at trial, and counsel’s performance was not ineffective. The chemical test was consistent with evidence that the state had already presented to the jury; accordingly, the undisclosed evidence was not outcome determinative. Morris v. State, 284 Ga. 1, 662 S.E.2d 110, 2008 Ga. LEXIS 424, cert. denied, 555 U.S. 1074, 129 S. Ct. 731, 172 L. Ed. 2d 734, 2008 U.S. LEXIS 8985 (2008). In a malice murder prosecution, the trial court did not abuse the court’s discretion in admitting testimony concerning the violent relationship between the defendant and the victim (the defendant’s paramour) as the testimony qualified as prior difficulties or similar transaction evidence. Defense counsel was not ineffective for failing to object to such testimony as the objection would have been overruled. Smith v. State, 284 Ga. 304, 667 S.E.2d 65, 2008 Ga. LEXIS 753 (2008). Any error by counsel in failing to object to the contents of a 9-1-1 call was cumulative of admissible evidence and therefore harmless. Eller v. State, 294 Ga. App. 77, 668 S.E.2d 755, 2008 Ga. App. LEXIS 1108 (2008). Trial counsel was not ineffective for failing to object to the testimony of the fire chief and the victim’s boyfriend about what they overheard on speaker phone on the way to the hotel after the fire, because the testimony was admissible and thus, could not support such a claim. Crawford v. State, 318 Ga. App. 270, 732 S.E.2d 794, 2012 Ga. App. LEXIS 807 (2012), cert. denied, No. S13C0412, 2013 Ga. LEXIS 178 (Ga. Feb. 18, 2013). Failure to object to admission of
life insurance.
Trial counsel did not render ineffective assistance by failing to object to the state’s evidence regarding life insurance policies covering the defendant’s spouse because there was a nexus between the life insurance and the spouse’s murder when independent evidence directly related the existence of the insurance policies to the defendant’s motive for murder; the defendant asked the defendant’s employer about insurance proceeds on the day the murder was discovered, the defendant made it clear to others that the defendant wanted and needed the insurance money, and the defendant explained to fellow inmates that, as a result of the defendant’s commission of the murder, the defendant would be receiving a large sum in insurance proceeds. Bridges v. State, 286 Ga. 535, 690 S.E.2d 136, 2010 Ga. LEXIS 87 (2010). Trial counsel did not render ineffective assistance by failing to object to testimony concerning incriminating statements the defendant made to a jail cell informant because the testimony was merely cumulative of the admissible testimony of two other fellow inmates; therefore, the defendant failed to show the requisite prejudice to support defendant’s claim of ineffective assistance, and the trial court did not err in the court’s determination that had trial counsel objected to the testimony, there was not a reasonable probability that the outcome of the trial would have been different. Bridges v. State, 286 Ga. 535, 690 S.E.2d 136, 2010 Ga. LEXIS 87 (2010). Trial strategy and tactics regarding
defense witnesses.
The determination as to which defense witnesses will be called is a matter of trial strategy and tactics. Scapin v. State, 204 Ga. App. 725, 420 S.E.2d 385, 1992 Ga. App. LEXIS 959 (1992). Where the defendant’s trial counsel’s decision to not call a witness at trial was clearly strategic, because the witness was a crack addict and the trial counsel did not believe that the witness would withstand cross-examination, the appellate court was not required to find that trial counsel was deficient just because the defendant and defendant’s appellate attorney presently disagreed with the trial counsel’s decision. Shields v. State, 264 Ga. App. 232, 590 S.E.2d 217, 2003 Ga. App. LEXIS 1451 (2003). In defendant’s convictions for armed robbery, kidnapping, and aggravated assault in connection with robbery of a fast food restaurant, defendant failed to show that trial counsel was ineffective by failing to call three acquaintances as defense witnesses, as two of the witnesses had informed trial counsel that defendant had admitted to them that defendant was involved in the crimes; thus, defendant failed to show that trial counsel’s strategy of not calling the witnesses (whose testimony would have been harmful) was patently unreasonable. Holsey v. State, 291 Ga. App. 216, 661 S.E.2d 621, 2008 Ga. App. LEXIS 445 (2008). Trial counsel was not ineffective for failing to object to a lead investigator’s references to a tip the investigator received from an unnamed source implicating the defendant in a shooting because counsel did object to at least one of the investigator’s references to the tip and to two questions bearing the potential to elicit responses regarding the substance of the tip; because none of the investigator’s references to the tip constituted reversible error, any failure of counsel to object in certain of those instances could not give rise to an ineffectiveness claim. Johnson v. State, 289 Ga. 22, 709 S.E.2d 217, 2011 Ga. LEXIS 261 (2011). Decisions on witnesses and motions province of lawyer, after consulting
client.
The decisions as to what witnesses to call and what motions to file are the exclusive province of the lawyer after consultation with the client. Jackson v. State, 167 Ga. App. 509, 306 S.E.2d 757, 1983 Ga. App. LEXIS 2531 (1983). ranted in law is not ineffective assistance of counsel. McCleskey v. Zant, 580 F. Supp. 338, 1984 U.S. Dist. LEXIS 19860 (N.D. Ga. 1984), aff’d in part and rev’d in part, 753 F.2d 877, 1985 U.S. App. LEXIS 28073 (11th Cir. 1985).
Failure to make a motion unwar-Failure to introduce evidence.
Defense counsel made an informed decision not to focus on the issue of defendant’s proper residence, and as such did not constitute grounds for a new trial based upon a charge of ineffective assistance of counsel. Watts v. State, 223 Ga. App. 412, 477 S.E.2d 852, 1996 Ga. App. LEXIS 1135 (1996). Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) Claim of ineffective assistance based on counsel’s failure to introduce and use medical records to show inconsistent statements of the victim was not supported where the records had neither exculpatory nor impeachment value. Brown v. State, 226 Ga. App. 238, 486 S.E.2d 385, 1997 Ga. App. LEXIS 543 (1997), cert. denied, No. S97C1343, 1997 Ga. LEXIS 855 (Ga. Oct. 3, 1997). Defendant did not demonstrate prejudice from trial counsel’s failure to call an expert witness to testify on DNA analysis; the defendant failed to introduce any evidence that the defendant could have called an expert witness who would have testified that the crime lab’s testing results were unreliable and counsel did employ an expert whose report said the expert had nothing to add to the lab’s report. Ross v. State, 231 Ga. App. 793, 499 S.E.2d 642, 1998 Ga. App. LEXIS 288 (1998), cert. denied, No. S98C1171, 1998 Ga. LEXIS 789 (Ga. Sept. 8, 1998). Counsel was not ineffective for failing to present evidence of the defendant’s prior consistent statements, as this was a matter of considered trial strategy and tactics, and was not due to counsel’s failure to adequately prepare. Furthermore, in a rape prosecution, counsel was not ineffective for not objecting to the state’s cross-examining defendant on the defendant’s failure to state to police, as the defendant did at trial, that the defendant had consensual sex with the victim, as such an objection would have been meritless. Munn v. State, 263 Ga. App. 821, 589 S.E.2d 596, 2003 Ga. App. LEXIS 1330 (2003), cert. denied, No. S04C0464, 2004 Ga. LEXIS 230 (Ga. Mar. 1, 2004). In circumstances in which a trial court found that defense counsel was ineffective for failing to present evidence which supported the defendant’s justification defense, it was illogical to grant a new trial for charges of murder and aggravated assault, but not for possession of a firearm in the commission of a crime; the jury could have acquitted the defendant of the possession charge on the basis of justification. Langlands v. State, 280 Ga. 799, 633 S.E.2d 537, 2006 Ga. LEXIS 490 (2006), modified in part, 282 Ga. 103, 646 S.E.2d 253, 2007 Ga. LEXIS 420 (2007). Defendant received ineffective assistance of counsel relating to charges arising from a fatal accident which occurred at an intersection controlled by a traffic light, based on the defense counsel’s failure to introduce county department of transportation reports which showed, inter alia, that four days before the collision there had been a report that the traffic signals at this intersection were showing “green all 4 ways;” while witnesses testified that the victims had a green light when they entered the intersection, the defendant claimed the defendant, also, had a green light; the fact that there had been equipment malfunctions at this intersection, and reports of the signals holding green all four ways less than a week before this accident, was certainly relevant to the defense. Gibson v. State, 280 Ga. App. 435, 634 S.E.2d 204, 2006 Ga. App. LEXIS 872 (2006), cert. denied, No. S06C2023, 2006 Ga. LEXIS 871 (Ga. Oct. 16, 2006). Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 because defense counsel relied on the testimony of a licensed professional counselor to testify regarding the insanity defense relied upon by the defendant; while the defendant claimed that the defendant would have been able to convince the jury that the defendant was insane if defense counsel had sought the expertise of a licensed psychologist or psychiatrist, this argument failed, as an insanity defense did not require the expert testimony of a psychologist or psychiatrist, and the witness had conducted forensic evaluations, sometimes at the request of a court, more than 25 times, and the witness had been qualified as an expert in forensic counseling between eight and 10 times. Perez v. State, 281 Ga. 175, 637 S.E.2d 30, 2006 Ga. LEXIS 885 (2006). Defendant had not shown ineffective assistance of counsel, as counsel’s failure to attempt to introduce into evidence additional photographs was not deficient performance when counsel testified that the state’s photographs fairly illustrated the area in question and the defendant did not show anything to the contrary; counsel explained that a certain witness had not been called because the witness was clearly hostile toward the defendant, the defendant’s claim that counsel should have introduced certain evidence rested on mere speculation, and the evidence showing the child victim walking through a store would have belied the defendant’s assertion that the child had already been significantly injured before being left in the defendant’s care. Banta v. State, 282 Ga. 392, 651 S.E.2d 21, 2007 Ga. LEXIS 588 (2007). Defendant, who sought to withdraw a guilty plea, failed to show that counsel was ineffective for failing to introduce at a Jackson-Denno hearing evidence of the defendant’s mental health evaluations; thus, the defendant’s motion to withdraw the plea was properly denied. The evaluations were not yet available at the time of the hearing, and neither addressed the issue of the defendant’s competence at the time the defendant gave the incriminating statement. Robertson v. State, 297 Ga. App. 228, 676 S.E.2d 871, 2009 Ga. App. LEXIS 409 (2009), cert. denied, No. S09C1300, 2009 Ga. LEXIS 406 (Ga. June 29, 2009). Trial counsel was not ineffective for failing to obtain either an independent test of the blood on the defendant’s shoes or an independent review of the lab’s practices and procedures because defense counsel did not produce a DNA expert who would testify that the state’s DNA evidence was defective, and the defendant’s unfounded speculation as to the potential for a test result different from that introduced at trial did not constitute a showing of professionally deficient performance by counsel. Lanier v. State, 288 Ga. 109, 702 S.E.2d 141, 2010 Ga. LEXIS 815 (2010). Defendant did not receive ineffective assistance of trial counsel, despite any deficient performance in counsel’s lack of diligence in obtaining witness three’s (W3) testimony at trial as the outcome of the trial would not have been different if W3’s pre-trial testimony had been admitted since it: (1) would have contradicted the defendant’s testimony that witness one (W1) told the victim not to stab the defendant; (2) would have corroborated witnesses one’s (W1) and two’s (W2) testimony that they did not see the victim stab the defendant; and (3) would not have established that W1 and W2 saw the victim with a knife during the altercation. Hill v. State, 291 Ga. 160, 728 S.E.2d 225, 2012 Ga. LEXIS 500 (2012). Inadequate preparation of expert
witness.
Trial counsel were not ineffective for failing to sufficiently prepare a medical expert, even though the expert was unable while testifying to recall a portion of the statement defendant made to police, where the statement was over 90 pages in length, and counsel testified that they had gone over everything with the expert “from A to Z.” Henry v. State, 1998 Ga. LEXIS 812, 269 Ga. 851, 507 S.E.2d 419 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1768, 143 L. Ed. 2d 798 (1999).
Failure to call expert witness.
Defense counsel was not ineffective, notwithstanding the contention that counsel failed to call a psychiatrist retained by the defense and failed to request a continuance when it became apparent that the psychiatrist would not be available to testify since: (1) the psychiatrist never submitted a report to defense counsel expressing an unequivocal opinion that the defendant met the standard of legal insanity and acknowledged that jurors might have some difficulty accepting as a viable defense the psychiatrist’s diagnosis that the defendant experienced a “dissociative reaction”; and (2) by the time defense counsel discovered that the expert was unavailable, numerous other witnesses had already made arrangements to travel significant distances in order to testify for the defense; and (3) defense counsel decided to proceed and to attempt to develop the issue of the client’s mental condition through the testimony of the court-appointed psychologist and lay witnesses. Ucak v. State, 273 Ga. 536, 544 S.E.2d 133, 2001 Ga. LEXIS 202 (2001). Trial counsel was not ineffective for not having retained an independent expert witness to review the physical evidence; the expert that counsel retained for the motion for new trial testified that there was nothing in the evidence that “pre-Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) cluded” the victim’s torso from being 12 to 18 inches off the sofa when the first bullet struck him, but that in any event, the victim was seated, leaning against the back of the sofa, when the third shot was fired into the victim’s mouth from a distance of an inch or two; the evidence showed that the shooting was done with malice, not in self-defense, nor as the result of some provocation. Cooper v. State, 279 Ga. 189, 612 S.E.2d 256, 2005 Ga. LEXIS 243 (2005). Defendant’s trial counsel was not ineffective on the basis that counsel did not attempt to have a defense reconstruction specialist testify, as counsel explained that counsel considered whether another expert was needed, but believed that an officer provided the information which counsel needed to support the sole defense of misfortune or accident, i.e., that the victim was standing in the middle of the road and it was very dark. Defense counsel further stated that the decision not to seek funds for and hire a reconstruction expert was one of trial tactics because the state’s expert provided the needed facts. Corbett v. State, 277 Ga. App. 715, 627 S.E.2d 365, 2006 Ga. App. LEXIS 118 (2006), cert. denied, No. S06C1253, 2006 Ga. LEXIS 710 (Ga. Sept. 8, 2006). Defendant did not receive ineffective assistance of counsel because trial counsel failed to call an expert witness regarding child sexual abuse syndrome as counsel explained that counsel did not employ an expert witness regarding child sexual abuse syndrome because, in counsel’s opinion, it was inapplicable. Tadic v. State, 281 Ga. App. 58, 635 S.E.2d 356, 2006 Ga. App. LEXIS 996 (2006). With regard to a defendant’s convictions on six counts of first degree vehicular homicide and other crimes, the defendant failed to establish ineffective assistance of counsel with regard to defense counsel failing to call a particular witness to testify that the defendant was not driving the vehicle as defense counsel presented seven witnesses who testified that the defendant was not driving the vehicle at issue. Furthermore, defendant failed to establish ineffective assistance of counsel with regard to defense counsel failing to hire an accident reconstruction expert as it was a reasonable strategic decision not to challenge the cause and manner of the accident. Davis v. State, 293 Ga. App. 799, 668 S.E.2d 290, 2008 Ga. App. LEXIS 1076 (2008). Defendant’s argument that counsel was ineffective for not calling a DNA expert was meritless. The defendant did not produce an expert to testify that the state’s DNA evidence was defective, and unlike the case relied upon by the defendant, the DNA evidence was not the sole link between the defendant and the crimes. Williams v. State, 284 Ga. 849, 672 S.E.2d 619, 2009 Ga. LEXIS 17 (2009). In a rape and aggravated sodomy case, the trial court properly rejected the defendant’s claim that trial counsel was ineffective for not introducing evidence on the adult victim’s mental capacity to consent. Because the defendant failed to proffer the testimony of an uncalled witness, the defendant could not prove that there was a reasonable probability that the trial would have ended differently; furthermore, counsel gave a reasonable explanation for not introducing expert testimony in that counsel believed that the victim might have the capacity to consent and that counsel believed that expert testimony on the issue would not sway the jury. Ravon v. State, 297 Ga. App. 643, 678 S.E.2d 107, 2009 Ga. App. LEXIS 498 (2009).
Failure to object to DNA evidence.
— Trial counsel was not ineffective for failing to obtain an independent DNA analysis to challenge the state’s findings because counsel’s strategy in challenging the state’s version of events was reasonable; the strategy was not rendered unreasonable just because another attorney could have approached the case under a different theory that would have required an independent DNA analysis. Wheeler v. State, 290 Ga. 817, 725 S.E.2d 580, 2012 Ga. LEXIS 333 (2012). Reasonable tactical decision not to
call expert witness.
Attorney’s decision not to call a defense expert to challenge the blood stain on defendant’s boot was a deliberate tactical decision. The fact that the blood on the boots matched that of the victim was consistent with the defense’s theory of the case, and the decision not to call expert witnesses concerning the blood stain was reasonable. Williams v. Kemp, 846 F.2d 1276, 1988 U.S. App. LEXIS 6460 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931, 1989 U.S. LEXIS 1647 (1989), cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 108 L. Ed. 2d 965, 1990 U.S. LEXIS 1953 (1990). Trial counsel’s failure to call expert witness did not constitute ineffective assistance where this testimony was not considered necessary and where decision was a reasonable trial tactic. Smith v. State, 207 Ga. App. 290, 428 S.E.2d 95, 1993 Ga. App. LEXIS 160 (1993). Because the jury was fully aware of the fact that hair and fiber samples did not yield any match to defendant, counsel’s failure to call an expert witness on that subject was not ineffective assistance. Ross v. State, 231 Ga. App. 793, 499 S.E.2d 642, 1998 Ga. App. LEXIS 288 (1998), cert. denied, No. S98C1171, 1998 Ga. LEXIS 789 (Ga. Sept. 8, 1998). It was not professionally unreasonable for counsel not to investigate the possibility of rebuttal testimony from an expert pathologist on the evidence of rape. Parker v. Turpin, 60 F. Supp. 2d 1332, 1999 U.S. Dist. LEXIS 18591 (N.D. Ga. 1999), aff’d, 244 F.3d 831, 2001 U.S. App. LEXIS 3942 (11th Cir. 2001). Trial counsel was not ineffective in failing to obtain and use at trial the services of an expert in the field of domestic violence because counsel did not believe it advisable to employ an expert witness to evaluate the defendant and to testify concerning battered person syndrome or other psychiatric disorders as the defendant’s history was replete with violent tendencies that predated the defendant’s relationship with the victim, and made the defendant look really bad; and an expert’s testimony attributing the defendant’s violent response to the defendant’s history with the victim could have opened the door to the state’s adducing rebuttal evidence of the defendant’s violent tendencies that trial counsel sought to have excluded. Martin v. State, 306 Ga. 747, 833 S.E.2d 122, 2019 Ga. LEXIS 604 (2019).
No duty to present cumulative expert testimony.
Where transcript indicated that jury was fully aware that latent prints lifted from crime scenes did not match defendant by virtue of investigator’s testimony, defendant was not denied effective assistance of counsel because counsel did not call an expert to show such evidence. Ross v. State, 231 Ga. App. 793, 499 S.E.2d 642, 1998 Ga. App. LEXIS 288 (1998), cert. denied, No. S98C1171, 1998 Ga. LEXIS 789 (Ga. Sept. 8, 1998). Failure to investigate, interview, or
subpoena not prejudicial.
While defense trial counsel may have been ineffective, there was no prejudice from trial counsel’s failure to investigate leads, interview alibi witnesses, or subpoena witnesses where the testimony at a hearing on a motion for a new trial showed that there was little if any material value to the defense that would have been produced by investigation, interview, or subpoena. Davenport v. State, 172 Ga. App. 848, 325 S.E.2d 173, 1984 Ga. App. LEXIS 3091 (1984). view all of the known witnesses and failure to obtain the complete state witness list did not fall below the standard of effective assistance of counsel, in light of the alibi asserted so vehemently by the defendant, which was supported by several family witnesses interviewed by counsel. Mulligan v. Kemp, 771 F.2d 1436, 1985 U.S. App. LEXIS 26358 (11th Cir. 1985), cert. denied, 480 U.S. 911, 107 S. Ct. 1358, 94 L. Ed. 2d 529, 1987 U.S. LEXIS 1037 (1987). The evidence of record was not sufficient to compel a finding that trial counsel’s performance was deficient or that any deficiency of trial counsel prejudiced the defense because the trial counsel did not call the defendant’s physician to testify regarding a heart condition, which the defendant felt could help explain the defendant’s behavior at the time the defendant was arrested for failure to maintain the defendant’s lane and driving under the influence. Scapin v. State, 204 Ga. Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) App. 725, 420 S.E.2d 385, 1992 Ga. App. LEXIS 959 (1992). No ineffective assistance for failure to call witness where it was never asserted that this witness would provide defendant with an alibi or any other defense. Smith v. State, 209 Ga. App. 540, 433 S.E.2d 694, 1993 Ga. App. LEXIS 897 (1993), cert. denied, No. S93C1712, 1993 Ga. LEXIS 954 (Ga. Oct. 12, 1993). Because defendant failed to show that but for the counsel’s failure to interview certain witnesses, including the victim, the outcome would have been different, the defendant failed to meet the burden of showing that the counsel provided ineffective assistance; counsel observed the witnesses in preliminary hearing matters, reviewed the videotape of the victim, and felt prepared to commence the trial, and there was a lot of hostility between the witnesses and defendant. Osmer v. State, 275 Ga. App. 506, 621 S.E.2d 519, 2005 Ga. App. LEXIS 1011 (2005), cert. dismissed, No. S06C2129, 2006 Ga. LEXIS 897 (Ga. Oct. 30, 2006). Because trial counsel’s strategic decision not to call a close family friend as a witness, who could have rebutted the state’s evidence that the defendant was controlling, was supported by testimony that the witness would not have added anything to the defense and might have diluted the defendant’s voluntary manslaughter theory, counsel was not ineffective in failing have the witness testify. Johnson v. State, 282 Ga. 96, 646 S.E.2d 216, 2007 Ga. LEXIS 418 (2007).
Defense counsel’s failure to inter-Failure to interview witnesses.
Defendant failed to establish that the defendant suffered prejudice due to defense counsel’s failure to interview the defendant’s co-indictees prior to trial because the defendant made no attempt to detail what information could have been revealed pre-trial if counsel interviewed the co-indictees and how such information would have been helpful to the defendant’s defense; defense counsel thoroughly cross-examined both co-indictees and impeached one of the co-indictees with the co-indictee’s various prior inconsistent statements to police investigators. Moore v. State, 288 Ga. 187, 702 S.E.2d 176, 2010 Ga. LEXIS 853 (2010). Trial counsel was not ineffective for failing to conduct a pre-trial interview of an eyewitness when trial counsel testified that counsel twice went to the witness’s house to try to speak with the witness but did not get a chance. Durham v. State, 292 Ga. 239, 734 S.E.2d 377, 2012 Ga. LEXIS 953 (2012). Failure to call witness was tactical
decision.
With regard to a defendant’s conviction for malice murder, the defendant failed to establish that the defendant was rendered ineffective assistance of trial counsel as a result of trial counsel failing to call certain additional witnesses since at the hearing on the defendant’s motion for a new trial, trial counsel testified that various tactical reasons existed for not calling the various additional witnesses. Ventura v. State, 284 Ga. 215, 663 S.E.2d 149, 2008 Ga. LEXIS 527 (2008).
Failure to call witness not ineffective assistance.
Defendant, who claimed that counsel was ineffective, did not show that the outcome of the trial would had been different had a certain eyewitness testified. Because the eyewitness stated that the eyewitness did not see who fired the shots in question, because other witnesses testified consistently with the eyewitness’s pretrial statement that the defendant had been wrestled to the ground, and because those witnesses added that they saw the defendant fire a gun despite being wrestled to the ground, the defendant did not show that if the eyewitness had testified at trial, there was a reasonable probability that the result would have been different. Savior v. State, 284 Ga. 488, 668 S.E.2d 695, 2008 Ga. LEXIS 847 (2008). Defendant claimed that trial counsel was ineffective in failing to secure the presence of the defendant’s father to testify at trial; however, the defendant did not call the father as a witness at the motion for new trial hearing, and without a proffer, was not able to show that trial counsel performed deficiently in not calling the father as a witness at trial. In any event, the evidence of the defendant’s guilt was overwhelming, so no prejudice was shown. Washington v. State, 285 Ga. 541, 678 S.E.2d 900, 2009 Ga. LEXIS 311 (2009). Defendant did not receive ineffective assistance of counsel when defendant’s trial counsel failed to call additional witnesses because the defendant did not identify in the defendant’s brief, nor did the defendant call to testify at the motion for new trial hearing, any witnesses who could have allegedly added the “material evidence” that the defendant claimed was missing from the defendant’s defense. Jennings v. State, 288 Ga. 120, 702 S.E.2d 151, 2010 Ga. LEXIS 816 (2010). Defendant failed to show that the defendant received ineffective assistance of counsel because the defendant did not show that the defendant was prejudiced by counsel’s performance in that counsel did not call an alibi witness to testify at the hearing on the defendant’s motion for new trial or provide a legally recognized substitute for the witness’s testimony; the defendant made no affirmative showing that the purported deficiency in counsel’s representation was indicative of ineffectiveness as opposed to being an example of a conscious, deliberate, and reasonable trial strategy. Newsome v. State, 288 Ga. 647, 706 S.E.2d 436, 2011 Ga. LEXIS 155 (2011). Trial counsel was not ineffective for failing to call the codefendant as a witness because the codefendant was not a consistent witness. Simmons v. State, 289 Ga. 773, 716 S.E.2d 165, 2011 Ga. LEXIS 709 (2011). Claim of ineffective assistance of counsel failed because the defendant could not show prejudice as a result of counsel’s failure to subpoena a witness to testify that another individual committed the alleged offenses when the defendant failed to call the witness at a motion for a new trial or present a legally acceptable substitute to substantiate the claim that the witness would have been forthcoming. Grell v. State, 291 Ga. 615, 732 S.E.2d 741, 2012 Ga. LEXIS 741 (2012).
Adequate cross-examination of codefendant’s intent to obtain plea deal.
— Trial counsel was not ineffective for failing to adequately cross-examine a codefendant regarding the co-defendant’s intention to obtain a plea deal from the state in exchange for the co-defendant’s testimony because the transcript revealed that counsel thoroughly cross-examined the co-defendant on that topic; and the cross-examination of a witness was most often grounded in matters of trial tactics and strategy and, in those instances, provided no basis for finding counsel’s performance deficient. Sullivan v. State, 301 Ga. 37, 799 S.E.2d 163, 2017 Ga. LEXIS 244 (2017). Examination of witness on plea
deal.
Given the lack of evidence of a deal between an accomplice witness and the state, trial counsel was not deficient in failing to cross-examine the witness about whether a deal existed; furthermore. counsel’s representation did not fall outside of the broad range of reasonable professional conduct because counsel did not ask the witness whether the witness had a hope of benefitting from the witness’s testimony. Even assuming arguendo that trial counsel was deficient in failing to cross-examine the witness about whether the witness held any hope of benefit, the defendant did not shown prejudice; the statement the witness initially gave to the police was consistent in material respects with the witness’s trial testimony, and both statements were also corroborative of the victim’s trial testimony. Varner v. State, 297 Ga. App. 799, 678 S.E.2d 515, 2009 Ga. App. LEXIS 549 (2009), cert. denied, No. S09C1545, 2009 Ga. LEXIS 588 (Ga. Sept. 8, 2009).
Eventual testimony and cross-examination vitiates charge of harmfulness.
Defense counsel’s failure to object to testimony of accomplice at time of introduction was not harmful because accomplice eventually testified at hearing and was subject to cross-examination; and as such the testimony objected to on appeal was cumulative of accomplice’s in-court testimony. In re J.B., 223 Ga. App. 429, 477 S.E.2d 874, 1996 Ga. App. LEXIS 1179 (1996).
Failure to interview mitigation witnesses.
Counsel’s failure to interview mitigation witnesses and to present evidence in mitigation is not ineffective assistance where the decision not to call Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) such witnesses is made by the defendant and counsel’s advice is reasonable under the circumstances. Mitchell v. Hopper, 564 F. Supp. 780, 1983 U.S. Dist. LEXIS 16411 (S.D. Ga. 1983), aff’d, 762 F.2d 886, 1985 U.S. App. LEXIS 30164 (11th Cir. 1985). Offer to obtain witnesses declined
by defendant.
Where the record established sufficient time, opportunity, and offer of assistance by the court and counsel to obtain witnesses, which offer was declined by defendant in court, the record did not support appellate counsel’s claim of ineffectiveness of the trial defense counsel. Alexander v. State, 186 Ga. App. 787, 368 S.E.2d 550, 1988 Ga. App. LEXIS 517 (1988). Obligation not to produce false or
misleading evidence.
Defendant’s claim that the defendant’s attorney should have hired a hand-writing expert to show that the defendant did not write a threatening note the victim received was rejected while the record reflected that the defendant told the attorney that the defendant wrote the note. In light of this admission, the attorney’s decision not to produce contrary testimony merely fulfilled the ethical obligation to refrain from producing false or misleading evidence. Williams v. Kemp, 846 F.2d 1276, 1988 U.S. App. LEXIS 6460 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931, 1989 U.S. LEXIS 1647 (1989), cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 108 L. Ed. 2d 965, 1990 U.S. LEXIS 1953 (1990). Hiring of black investigator to talk
to black witnesses.
Denial of defendant’s motion for funds to hire a black investigator who “might” be able to interview black witnesses who had been unwilling to talk to counsel did not prevent counsel from rendering reasonable effective assistance, where counsel was later able to interview many of these witnesses prior to trial. Williams v. State, 257 Ga. 311, 357 S.E.2d 578, 1987 Ga. LEXIS 827 (1987). Guilty plea does not relieve counsel of the responsibility to investigate potential defenses so that the defendant has an informed choice; counsel must assist actually and substantially in the defendant’s decision whether to plead guilty, so that the decision is made knowingly and voluntarily, though counsel’s advice need not be errorless and need not involve every conceivable defense. Dodd v. Williams, 560 F. Supp. 372, 1983 U.S. Dist. LEXIS 18612 (N.D. Ga. 1983). Counsel does not have to present all available mitigating circumstance evidence in general, or all mental illness mitigating evidence in particular, in order to render effective assistance of counsel. Waters v. Thomas, 46 F.3d 1506, 1995 U.S. App. LEXIS 3889 (11th Cir.), cert. denied, 516 U.S. 856, 116 S. Ct. 160, 133 L. Ed. 2d 103, 1995 U.S. LEXIS 6000 (1995). Failure to investigate and present mitigating evidence in death penalty
case.
In a death penalty case, a habeas court properly found that trial counsel was deficient in investigating and presenting mitigating evidence regarding an inmate’s childhood abuse and neglect and the inmate’s history of substance abuse and depression. The inmate suffered prejudice because the evidence that should have been presented, showing that the inmate’s history of abuse and neglect had led to the inmate’s major depression and the inmate’s early exposure to alcohol and drugs, would have greatly undermined the state’s argument that the inmate had freely chosen a life of addiction. Hall v. McPherson, 284 Ga. 219, 663 S.E.2d 659, 2008 Ga. LEXIS 551 (2008). Mitigation strategy adopted by counsel at sentencing was not unreasonable under the circumstances. Turpin v. Mobley, 269 Ga. 635, 502 S.E.2d 458, 1998 Ga. LEXIS 750 (1998).
Failure to present psychiatric evidence at culpability stage.
Because there was no evidence that through reasonable diligence counsel could have obtained an expert to testify favorably on the mental illness defense, defendant was not prejudiced by any alleged error of counsel in failing to present psychiatric evidence during the culpability stage. Parker v. Turpin, 60 F. Supp. 2d 1332, 1999 U.S. Dist. LEXIS 18591 (N.D. Ga. 1999), aff’d, 244 F.3d 831, 2001 U.S. App. LEXIS 3942 (11th Cir. 2001). Failure to present psychiatric
evaluation at sentencing hearing.
Where, although trial counsel was aware well in advance of trial that the defendant had spent at least a brief period of time in a mental hospital shortly before the shooting, and that for some reason a psychiatric evaluation had already been ordered, counsel completely ignored the possible ramifications of those facts as regards the sentencing proceeding. This omission denied the defendant reasonably competent representation at the penalty phase, and the resulting prejudice was clear, as the only testimony the jury heard at sentencing concerning the defendant’s mental history and condition, including the bizarre behavior the defendant occasionally exhibited, was that which was presented by the defendant’s parent. Stephens v. Kemp, 846 F.2d 642, 1988 U.S. App. LEXIS 5265 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189, 102 L. Ed. 2d 158, 1988 U.S. LEXIS 3631 (1988).
Failure to present psychiatric testimony at sentencing.
Absent a showing that testimony concerning the defendant’s psychiatric condition was available and that, had it been requested, it could have materially affected the defendant’s sentence, the trial court did not err by denying the defendant’s motion for new trial on the basis that the defendant’s trial counsel was ineffective because counsel failed to offer testimony during the sentencing phase concerning the defendant’s psychiatric condition. Gilbert v. State, 209 Ga. App. 483, 433 S.E.2d 664, 1993 Ga. App. LEXIS 926 (1993), cert. denied, No. S93C1645, 1993 Ga. LEXIS 886 (Ga. Oct. 5, 1993). Defendant was sentenced to death for murder. Defense counsel was not ineffective for allegedly failing to obtain mental health reports as the defendant would not have been prejudiced by any such failure because those reports contained material that would have been damaging to the defendant’s mitigation case, including statements that the defendant lacked remorse. Whatley v. Terry, 284 Ga. 555, 668 S.E.2d 651, 2008 Ga. LEXIS 824 (2008), cert. denied, 556 U.S. 1248, 129 S. Ct. 2409, 173 L. Ed. 2d 1316, 2009 U.S. LEXIS 3757 (2009). Failure of the state to provide an ric examination so materially interfered with the defendant’s ability “to require the prosecution’s case to survive the crucible of meaningful adversarial testing” as to raise a presumption that the defendant’s counsel could not have been able to provide effective assistance. Blake v. Kemp, 758 F.2d 523, 1985 U.S. App. LEXIS 29146 (11th Cir.), cert. denied, 474 U.S. 998, 106 S. Ct. 374, 88 L. Ed. 2d 367, 1985 U.S. LEXIS 4541 (1985). quired in every death penalty case, and because counsel had ample opportunity to assess the defendant’s state of mind, counsel’s conclusion that further investigation into the defendant’s mental state would be fruitless was entirely reasonable under the circumstances. Mitchell v. Hopper, 564 F. Supp. 780, 1983 U.S. Dist. LEXIS 16411 (S.D. Ga. 1983), aff’d, 762 F.2d 886, 1985 U.S. App. LEXIS 30164 (11th Cir. 1985). Instruction on “mere association”
indigent defendant with a psychiat-Psychological evaluation is not renot ineffective assistance of counsel.
— Defendant’s claims of ineffective assistance of counsel failed because the defendant failed to show that the state could not have provided additional foundational support for the admission of cell phones if counsel had objected to their admission for failure to authenticate and trial counsel was not ineffective in failing to request a jury instruction on “mere association” where the charge, as a whole, was an accurate statement of the applicable law and the “mere association” charge would have added little, if any, to the instructions given. Vivian v. State, 312 Ga. 268, 862 S.E.2d 138, 2021 Ga. LEXIS 569 (2021). Defendant was not denied effective
assistance of counsel.
Although defendant claimed that defense counsel: (1) allegedly met with defendant only three times prior to defendant’s felony murder trial; (2) did not seek the help of an investigator; (3) failed to subpoena witnesses who would have testified on defendant’s behalf; (4) neglected to inform the trial court that defendant had conflicts with two prospective jurors; and (5) failed to have defendant testify at a Jackson-Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) Denno hearing, defendant failed in defendant’s burden of establishing defendant’s claim of ineffective assistance, as the trial court’s credibility determinations on the issue were binding if not clearly erroneous, and the trial court found that defense counsel was not deficient after hearing testimony from defense counsel that defense counsel met with defendant numerous times, investigated the case personally, contacted the witnesses suggested by defendant and did not find them helpful, sought other witnesses, did not recall being told of conflicts with potential jurors, and did not call defendant at the Jackson v. Denno hearing because of a strategic decision to avoid giving the prosecution further “ammunition.” Salyers v. State, 276 Ga. 568, 580 S.E.2d 240, 2003 Ga. LEXIS 378 (2003).
Failure to raise mental illness pretrial.
Trial counsel was not ineffective in failing to raise the issue of mental illness prior to trial, and in failing to present evidence of it at trial where the defendant was examined by both a state psychologist and an independent psychologist, neither of whom found the defendant incompetent to stand trial. Hosick v. State, 262 Ga. 432, 421 S.E.2d 65, 1992 Ga. LEXIS 776 (1992).
Selection of psychiatrist by counsel.
Selecting the only cooperative although not entirely favorable psychiatrist, as opposed to none, was not deficient. Hance v. Zant, 981 F.2d 1180, 1993 U.S. App. LEXIS 177 (11th Cir.), cert. denied, 510 U.S. 920, 114 S. Ct. 317, 126 L. Ed. 2d 263, 1993 U.S. LEXIS 6431 (1993). Counsel’s advice on testifying by
defendant.
Because the evidence showed that the defendant’s counsel discussed with the defendant the right to testify and advised against it, and defendant never affirmatively asked to testify, defendant failed to demonstrate that counsel erroneously deprived the defendant of the choice to testify and that counsel’s deficiency in this regard deprived the defendant of a fair trial. Mobley v. State, 264 Ga. 854, 452 S.E.2d 500, 1995 Ga. LEXIS 41 (1995); Barron v. State, 264 Ga. 865, 452 S.E.2d 504, 1995 Ga. LEXIS 35 (1995). Defendant was not denied effective assistance of counsel at a trial for rape and aggravated sodomy because there was no basis to request a continuance or disallowance of a colposcope printout, which showed the victim’s anal bruising, based on the state’s failure to produce the printout before trial because: (1) defendant already had the assistant’s examination report, which mentioned the picture; (2) defendant’s counsel was permitted to interview the assistant before the assistant’s testimony; (3) the day of the trial was the first time that the prosecutor saw the picture; (4) there was no bad faith by the state; and (5) the printout was cumulative of other testimony. Furthermore, defendant’s counsel was not ineffective for failing to notify defendant of the added sodomy charge because defendant, who had a prior rape conviction, was already facing a mandatory life without parole sentence upon conviction of rape, regardless of the sodomy charge. McMorris v. State, 263 Ga. App. 630, 588 S.E.2d 817, 2003 Ga. App. LEXIS 1280 (2003). Counsel’s failure to request broad
jury instruction on justification.
Defendant did not show that defendant received ineffective assistance of counsel when defendant’s trial counsel did not request a broader jury instruction on justification that would have stated that a victim’s threats and menaces could justify a defendant’s use of deadly force, as the justification charge the trial court gave the jury was adequate; moreover, since defendant’s trial counsel did not testify at defendant’s motion for a new trial, defendant did not show why defendant’s counsel did not request a broader charge, and, thus, defendant did not overcome the presumption that the attorney’s conduct was within the wide range of reasonable professional assistance because the attorney might have had several legitimate reasons for not requesting a broader charge, which also meant defendant could not show one required component of ineffectiveness, that the attorney’s representation was deficient. Garrett v. State, 276 Ga. 556, 580 S.E.2d 236, 2003 Ga. LEXIS 374 (2003). Defendant’s counsel was not ineffective in defendant’s shoplifting case for: (1) not viewing a videotape of defendant’s consent to a search of defendant’s vehicle; and (2) failing to subpoena witnesses or documents from the store to challenge the pricing and identification of the shoplifted items. Given that: (1) the decision not to view the videotape was a matter of trial strategy based upon counsel’s knowledge that the videotape was defective and that the tape would not have been useful because the store manager saw defendant place the items in the trunk of defendant’s car such that the police had probable cause to search the car even without defendant’s valid consent, which, also meant that, even if counsel erred, the error did not prejudice defendant because a suppression motion would not have been successful; and (2) counsel investigated and interviewed witnesses and determined that the value of the merchandise was irrelevant due to defendant’s criminal history and also made the strategic decision not to introduce evidence regarding pricing and valuation, as that would have eliminated counsel’s right to present the opening and concluding remarks during closing argument. Horne v. State, 260 Ga. App. 640, 580 S.E.2d 644, 2003 Ga. App. LEXIS 447 (2003). Counsel’s failure to request charge
on impeachment of witness.
Defendant was not denied effective assistance of counsel where the attorney did not request a charge on impeachment of a witness by a prior conviction of a crime of moral turpitude in light of the overwhelming evidence of defendant’s guilt, even if the convicted witness’s testimony had been discounted. Holt v. State, 260 Ga. App. 826, 581 S.E.2d 257, 2003 Ga. App. LEXIS 482 (2003). Trial court’s determination that the defendant received effective assistance of counsel was not clearly erroneous because: (1) defense counsel failed to object to hearsay evidence that was cumulative, and therefore harmless, as the defendant failed to show that but for the alleged deficiency, the outcome of the proceedings would have been different; and (2) defense counsel failed to object to the defendant’s spouse’s testimony at the presentencing hearing, as there was no showing that the improper evidence prejudiced the defendant. Ingram v. State, 262 Ga. App. 304, 585 S.E.2d 211, 2003 Ga. App. LEXIS 914 (2003). Counsel’s communication on plea
deal and other preliminary matters.
— In a case where defendant was convicted of selling cocaine and obstruction of an officer, defendant failed to establish that counsel was ineffective, because trial counsel insisted that counsel communicated a plea to defendant and that defendant was “adamant” on not accepting the plea, and the record revealed that trial counsel had several meetings with the defendant, conducted discovery, filed pretrial motions, and spoke with most of the state’s witnesses. Trammell v. State, 262 Ga. App. 786, 586 S.E.2d 693, 2003 Ga. App. LEXIS 1021 (2003). Trial counsel was not ineffective in counsel’s cross-examination of a rape victim, after the victim changed the victim’s testimony as: (1) the trial counsel thoroughly cross-examined the victim regarding the changed testimony; (2) the trial counsel pointed out that the victim had testified just minutes before that the victim had talked to the victim’s spouse about the victim’s testimony; and (3) the trial counsel argued to the jury that the victim’s changed testimony was suspect. Furthermore, trial counsel was not ineffective in opening the door to the admission of character evidence by cross-examining a detective who executed a search warrant as to whether defendant lived in the room searched as the examination was a matter of sound trial strategy. Johnson v. State, 263 Ga. App. 443, 587 S.E.2d 775, 2003 Ga. App. LEXIS 1138 (2003). Failure to object to 9-11 comments
from prosecutor.
Defendant’s counsel was not ineffective for failing to object to the prosecutor’s reference to the September 11, 2001, terrorist attacks; there was no evidence in the record as to trial counsel’s perspective because trial counsel did not testify at the hearing on the motion for new trial, and while the appellate court did not condone the analogy’s use so soon after the 9-11 tragedy, it could not conclude that but for trial counsel’s failure to object to its use, the jury would have Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) acquitted defendant. Chalvatzis v. State, 265 Ga. App. 699, 595 S.E.2d 558, 2004 Ga. App. LEXIS 242 (2004). Failure to object to references to
drug use.
When defendant’s counsel did not object to references to defendant’s alleged drug use, this was not ineffective assistance of counsel because the references were relevant to defendant’s argument with the victim when the crimes with which defendant was charged occurred and to whether the victim was afraid of defendant, so they were relevant to the credibility of both defendant and the victim, on which the case ultimately turned. Johnson v. State, 268 Ga. App. 1, 601 S.E.2d 392, 2004 Ga. App. LEXIS 835 (2004), cert. denied, No. S04C1735, 2004 Ga. LEXIS 665 (Ga. Sept. 7, 2004). Evidence supported the trial court’s conclusion that defendant’s trial counsel rendered effective assistance because: (1) counsel did not err in not moving for a directed verdict because the evidence sufficed to sustain defendant’s conviction for possession-of-a-firearm-by-a-convictedfelon charge; (2) counsel’s failure to object to the trial court’s failure to recharge the jury in the second phase of the bifurcated trial was harmless error; (3) counsel’s failure to object to detective’s testimony regarding citizens’ complaints about a drug dealer was appropriate trial strategy because counsel did not want to call more attention to the statement; and (4) counsel’s failure to object to the prosecutor’s closing argument statements was not deficient performance as each of the prosecutor’s statements was a reasonable inference drawn from the evidence. Ballard v. State, 268 Ga. App. 55, 601 S.E.2d 434, 2004 Ga. App. LEXIS 840 (2004).
Failure to object to opinion testimony.
Trial court did not err in denying defendant’s motion for new trial, because, although trial counsel’s failure to object to opinion testimony about the victim’s veracity or request that it be stricken constituted deficient performance, the testimony was not so significant as to have contributed to the jury’s verdict. Accordingly, defendant failed to demonstrate that but for counsel’s failure to object or move to strike, a reasonable probability exists that the result of the trial would have been different. Mealor v. State, 266 Ga. App. 274, 596 S.E.2d 632, 2004 Ga. App. LEXIS 162 (2004), cert. denied, No. S04C1281, 2004 Ga. LEXIS 770 (Ga. Sept. 7, 2004).
Counsel’s questioning on foundation.
Defendant’s ineffective assistance of counsel claim was rejected where defense counsel objected to a specific question on the basis of foundation, and then informed the trial court what the proper foundation would be for the introduction of the sought-after testimony; it was not error to interpose a foundational objection in a manner consistent with the ability to secure appellate review of the trial court’s ruling. McCullough v. State, 268 Ga. App. 445, 602 S.E.2d 181, 2004 Ga. App. LEXIS 942 (2004). Counsel for convicted child molester: (1) adequately investigated; (2) employed a recognized trial tactic of not calling expert and other witnesses to testify that child’s testimony was based on dreams or family background and not reality in order to preserve the final word in closing argument; and (3) was not shown to have engaged in performance that affected the outcome of the trial by not objecting to testimony under O.C.G.A. § 24-3-36 regarding to the defendant’s failure to respond to the state’s investigator, and under O.C.G.A. § 24-9-85(b), by not requesting a special instruction regarding the child’s alleged false swearing. Bruce v. State, 268 Ga. App. 677, 603 S.E.2d 33, 2004 Ga. App. LEXIS 930 (2004), cert. denied, No. S04C2046, 2004 Ga. LEXIS 976 (Ga. Oct. 25, 2004). Prejudice to defendant not shown
by counsel’s actions.
Defendant failed to show that the counsel rendered ineffective assistance, in violation of U.S. Const., amend. 6, on the basis that the counsel did not object when one of the victims testified that defendant stabbed the victim on purpose and not by accident, as there was no support for the proposition that such a statement was inadmissible opinion testimony under O.C.G.A. § 24-9-65; even if it were deemed inadmissible, no prejudice was shown to defendant. Brown v. State, 275 Ga. App. 99, 619 S.E.2d 789, 2005 Ga. App. LEXIS 899 (2005), cert. denied, No. S06C0003, 2006 Ga. LEXIS 53 (Ga. Jan. 17, 2006). Defendant failed to show that the counsel rendered ineffective assistance under the Strickland standard in defendant’s criminal trial, as counsel’s performance during trial was not shown to be deficient; moreover, defendant’s claims that the counsel sought money in order to make a deal with the district attorney, that the counsel failed to file certain motions requested by defendant, and that counsel failed to provide a list of witnesses in a timely manner, were specifically denied by the counsel in open court and further, defendant failed to show any prejudice resulted from the alleged failures of the counsel. Isaac v. State, 275 Ga. App. 254, 620 S.E.2d 483, 2005 Ga. App. LEXIS 942 (2005).
Failure to explore victim’s dangerous propensity.
In a prosecution of defendant for the murder of the defendant’s mother’s boyfriend, defense counsel failure to investigate the victim’s violent nature was not ineffective; the jury was given considerable information concerning the victim’s violent nature, that the victim had beaten defendant’s mother, and had consumed cocaine; even with further investigation, the outcome of the trial would not have changed; the jury rejected both the justification defense and the lesser charge because there was overwhelming evidence that defendant committed malice murder. Cooper v. State, 279 Ga. 189, 612 S.E.2d 256, 2005 Ga. LEXIS 243 (2005). Because, inter alia, defendant’s counsel requested a full and complete recordation of the trial, there was no evidence that a change of venue was warranted, counsel thoroughly investigated the case, and there was no evidence of prosecutorial misconduct, defendant failed to demonstrate any deficiency by trial counsel or that defendant was prejudiced thereby. Hampton v. State, 279 Ga. 625, 619 S.E.2d 616, 2005 Ga. LEXIS 520 (2005). Counsel’s failure to anticipate
change in law.
Because the U.S. Supreme Court case of Crawford had not yet been decided when defendant’s criminal trial was held, defendant’s counsel could not have been deemed ineffective under U.S. Const., amend. 6 for failing to anticipate a change in the law and make such an argument with respect to the admissibility of a deceased witness’s statement; rather, the statement was properly admitted under the necessity exception to the hearsay rule, pursuant to O.C.G.A. § 24-3-1(b), as there was no indication that the statement was not accompanied by indicia of reliability, and in any event, admission thereof was harmless because it was cumulative of other evidence admitted in the trial. Redwine v. State, 280 Ga. 58, 623 S.E.2d 485, 2005 Ga. LEXIS 863 (2005). Statements by defendant’s co-conspirator to a third person regarding defendant’s actions during the criminal project bore sufficient indicia of reliability to be admissible in defendant’s criminal trial, pursuant to O.C.G.A. § 24-3-5, and any objection on the grounds of the confrontation clause under U.S. Const., amend. 6 or on hearsay grounds would have lacked merit; accordingly, defendant’s counsel was not ineffective for failing to object to the admission thereof. Redwine v. State, 280 Ga. 58, 623 S.E.2d 485, 2005 Ga. LEXIS 863 (2005). Despite the defendant’s claims that trial counsel failed to: (1) discuss the possibility of a plea or engage in plea negotiations with the state; (2) advise defendant of the consequences of being sentenced as a recidivist; and (3) advise defendant of the consequences of a speedy trial demand, the defendant’s ineffective assistance of counsel claims failed because the record showed that the state never made a plea offer and the defendant failed to show that the outcome of the trial would have been different but for trial counsel’s alleged remaining errors. Cater v. State, 280 Ga. App. 891, 635 S.E.2d 246, 2006 Ga. App. LEXIS 973 (2006), cert. denied, No. S06C2148, 2006 Ga. LEXIS 910 (Ga. Oct. 30, 2006). Because trial counsel was not ineffective in: (1) failing to seek suppression of criminal acts which took place in other jurisdictions and to which the defendant Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) was connected because they were part of the crime spree that began with the murder of the victim, as such was admissible; (2) failing to seek a mistrial when an objection to the state’s opening statement, although overruled, had some merit; (3) failing to object to jury instructions on mere presence and parties to a crime, as the charges were correct statements of the law and supported by the evidence; (4) making statements in closing argument that were actually in furtherance of the defense’s theory of the case; (5) entering into a stipulation with the prosecutor; and (6) failing to move for a directed verdict of acquittal, as the evidence supported the defendant’s convictions, the defendant’s ineffective assistance of counsel claims lacked merit. Pruitt v. State, 282 Ga. 30, 644 S.E.2d 837, 2007 Ga. LEXIS 347 (2007). Counsel’s advice on plea deal not
ineffective.
Trial counsel’s trial tactics and strategy could not form the basis of an ineffective assistance of counsel claim. Moreover, although the defendant initially wanted to accept a plea offer, when the defendant decided to go to trial instead, an ineffective assistance of counsel claim attached to said decision lacked merit, as the defendant failed to show that counsel’s advice in this regard was insufficient or erroneous. Starks v. State, 283 Ga. 164, 656 S.E.2d 518, 2008 Ga. LEXIS 29 (2008).
Counsel’s decision on use of pretrial statement.
A defendant had not shown that counsel was ineffective for putting a witness’s pretrial statement into evidence. Counsel testified that the statement was put into evidence so that the jury could see the inconsistencies between it and the witness’s testimony in court, and the portion of the statement describing the defendant as the individual who stabbed the victim in the chest merely echoed the witness’s trial testimony. Stanley v. State, 283 Ga. 36, 656 S.E.2d 806, 2008 Ga. LEXIS 26 (2008). Counsel’s treatment of eyewitness
statement.
Defendant had not shown that counsel was ineffective for not seeking to strike certain eyewitness testimony: it was clear that the eyewitness’s statement that the victim had died because the defendant stabbed the victim in the chest was not expert testimony, and any error was nonprejudicial in light of the overwhelming evidence that the defendant inflicted the stab wound to the victim’s chest and the uncontradicted evidence that the victim died as the result of that wound. Stanley v. State, 283 Ga. 36, 656 S.E.2d 806, 2008 Ga. LEXIS 26 (2008). Defendant’s ineffective assistance of counsel claims lacked merit because the defendant failed to: (1) show prejudice resulting from counsel’s alleged ineffectiveness by failing to impeach two witnesses on cross-examination with prior statements they made; and (2) make and, in all likelihood, could not have made, a strong showing that the identification testimony would have been suppressed had trial counsel so moved. Rivers v. State, 283 Ga. 1, 655 S.E.2d 594, 2008 Ga. LEXIS 10 (2008). Defendant had not shown ineffective assistance of counsel because it was not unreasonable for counsel to allow defendant’s statement to come into evidence, as it allowed counsel to place defendant’s version of events before the jury without subjecting defendant to cross-examination; further, chain of custody objection would not have been meritorious, it was not improper for an officer to come to the defendant’s house to investigate information received from an anonymous tip, it was highly probable that erroneous testimony did not contribute to the verdict, and defendant had not shown how further cross-examination of a certain witness would have produced a different result. Felton v. State, 283 Ga. 242, 657 S.E.2d 850, 2008 Ga. LEXIS 191 (2008). Defendant’s ineffective assistance of counsel argument failed. The fact that trial counsel did not introduce every single piece of evidence at a Jackson-Denno hearing that another lawyer might have introduced did not require a finding of inadequate representation, and the defendant had not shown that additional evidence would have altered the outcome of the trial; counsel could not be faulted for seeking funds for an expert when the expert’s testimony would have been inadmissible; and the defendant’s assertions that trial counsel failed to impeach a witness and to consult with the defendant about lesser included charges were belied by the record. Allen v. State, 283 Ga. 304, 658 S.E.2d 580, 2008 Ga. LEXIS 251 (2008), overruled in part, Clark v. State, 315 Ga. 423, 883 S.E.2d 317, 2023 Ga. LEXIS 13 (2023). Trial court properly denied the defendant’s motion to withdraw a guilty plea to a charge of malice murder, because sufficient evidence was presented to support a finding that: (1) counsel did not render ineffective assistance in advising the defendant as to said plea; (2) counsel attempted, albeit unsuccessfully to pursue a voluntary manslaughter defense and plea deal with the state; (3) the defendant was generally competent at the time of the murder; (4) a statement by a proposed expert witness in support of said defense would have been inadmissible as an opinion on the ultimate issue and could not, in any event, have helped the defendant’s case; and (5) the viability of any type of voluntary manslaughter defense was highly unlikely. Trauth v. State, 283 Ga. 141, 657 S.E.2d 225, 2008 Ga. LEXIS 145 (2008). There was no merit to a defendant’s ineffective assistance of counsel claims. A motion to suppress incriminating letters would have been meritless because the defendant’s friend willingly handed the letters over to police and the letters were not discovered as a result of an illegal search; counsel did not have a witness testify because counsel did not believe that the witness was credible; and given the fact that the defendant would have been subject to extensive and potentially damaging cross-examination about the letters had the defendant testified, counsel was not deficient in advising the defendant not to testify and the defendant had not been prejudiced by not testifying. Lockheart v. State, 284 Ga. 78, 663 S.E.2d 213, 2008 Ga. LEXIS 541 (2008). Defendant did not show ineffective assistance of counsel when there was no evidence that recusal of the trial judge was warranted and there was no evidentiary support for the defendant’s claim that trial counsel did not adequately involve the defendant in the pretrial and trial proceedings. Furthermore, the defendant did not show how the alleged deficiencies would have affected the outcome of the trial. Allen v. State, 284 Ga. 310, 667 S.E.2d 54, 2008 Ga. LEXIS 738 (2008). Defendant did not demonstrate that counsel’s failure to call certain witnesses at trial or to investigate and present expert testimony on eyewitness identification constituted deficient performance. Although the defendant asserted in a new trial motion that certain witnesses had material evidence relating to the case, at the new trial hearing the defendant neither identified these witnesses nor put forward any evidence as to the testimony the witnesses would have given. Crane v. State, 294 Ga. App. 321, 670 S.E.2d 123, 2008 Ga. App. LEXIS 1178 (2008). Defendant did not prove that trial counsel was ineffective when the defendant did not cite to any facts in the record to support the claim, when the defendant failed to present any admissible evidence regarding what an alleged alibi witness would have said if counsel had called the witness to testify at trial, and when contrary to the defendant’s claim, counsel cross-examined the victim about past drug convictions. Moreover, even if counsel was ineffective, the evidence of the defendant’s guilt was overwhelming, so the defendant did not show prejudice. Rouse v. State, 295 Ga. App. 61, 670 S.E.2d 869, 2008 Ga. App. LEXIS 1346 (2008). Defendant’s ineffective assistance of counsel claim based on counsel’s failure to strike a juror and to make certain objections failed. The juror stated that the juror did not think the juror would be biased against the defendant and would try to base the juror’s decision solely on the evidence; incriminating statements by the defendant were admissible as an exception to the hearsay rule as admissions against interest; a physician who testified that the victim’s demeanor was consistent with that of a sexual assault victim was not bolstering the victim’s testimony; even if trial counsel erred in failing to object to Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) the prosecutor’s statement that trial counsel should make the defendant show the defendant’s teeth, no prejudice had been shown given counsel’s rebuttal in closing and the significant evidence of guilt; and the prosecutor was not offering the prosecutor’s personal belief about the veracity of an eyewitness and the victim, but instead was arguing that based on the facts and reasonable inferences drawn therefrom, the jury should conclude that those witnesses were telling the truth. Brown v. State, 293 Ga. App. 564, 667 S.E.2d 410, 2008 Ga. App. LEXIS 1010 (2008). As a defendant failed to show that but for defense counsel’s failure to review the state’s file, it was reasonably probable the defendant would have accepted the state’s plea offer, the defendant was not entitled to new trial based on ineffective counsel. As the defendant had continued to deny involvement in the crime in the face of overwhelming evidence of guilt, it strained credulity for the defendant to assert that the defendant would have ever pled guilty. Cleveland v. State, 285 Ga. 142, 674 S.E.2d 289, 2009 Ga. LEXIS 72 (2009). Counsel was not ineffective under the Sixth Amendment with regard to questioning of two witnesses. Contrary to the defendant’s argument, the first witness had not seen a statement that the defendant claimed counsel should have asked the witness about; counsel’s cross- examination of the second witness was extensive and thorough; and the defendant’s claim that the second witness exonerated one defendant and implicated the other did not withstand scrutiny, as the witness’s trial testimony implicated both defendants. Anderson v. State, 285 Ga. 496, 678 S.E.2d 84, 2009 Ga. LEXIS 295 (2009). Because the defendant failed to offer proof at a motion for a new trial hearing that the defendant’s trial counsel was ineffective, in that counsel failed to elicit sufficient testimony from an expert at a hearing about the defendant’s mental abilities and condition when the defendant made a statement to the police, the defendant failed to demonstrate prejudice and the defendant’s claim of ineffective assistance was properly denied. Watkins v. State, 289 Ga. 359, 711 S.E.2d 655, 2011 Ga. LEXIS 474 (2011). Defendant’s claim of ineffective assistance of counsel failed because counsel could not be ineffective for failing to object to testimony that did not affect the outcome of the trial, nor was counsel deficient in eliciting an arresting officer’s testimony that the officer had heard over the police radio that the defendant was armed with a gun and prepared to use the gun as the question was designed to show that the officer was being overly dramatic, which it did and was not a patently unreasonable tactic. Westbrook v. State, 291 Ga. 60, 727 S.E.2d 473, 2012 Ga. LEXIS 441 (2012). Claim of ineffective assistance of counsel lacked merit because the defendant failed to prove that trial counsel advised defendant that the defendant’s juvenile record could be used to impeach the defendant or to show prejudice from trial counsel’s failure to impeach a detective’s testimony regarding the defendant’s failure to raise an alibi defense in the defendant’s interview with police. Cartwright v. State, 291 Ga. 498, 731 S.E.2d 353, 2012 Ga. LEXIS 683 (2012). Defendant’s claim of ineffective assistance of counsel failed because, inter alia, the evidence showed that trial counsel adequately investigated the case, conferred with a well known ballistics expert, but concluded that such expert opinion would not be helpful. Faniel v. State, 291 Ga. 559, 731 S.E.2d 750, 2012 Ga. LEXIS 700 (2012). Claim of ineffective assistance of counsel failed, as counsel presented mitigation witnesses and conducted a reasonable investigation as to mitigating circumstances to present at sentencing; counsel was not ineffective for failing to develop and present evidence of the victim’s methamphetamine use at the time of the crimes to explain the victim’s behavior, because the only evidence of such use was from two to three days prior to the incident and thus, would have been irrelevant and inadmissible; and counsel was not ineffective for failing to present the testimony of the victim’s girlfriend regarding a recent altercation between the victim and the victim’s cousin, as the girlfriend testified at the motion for a new trial that no such fight occurred, only a scuffle in which the victim was not hit. Barrett v. State, 292 Ga. 160, 733 S.E.2d 304, 2012 Ga. LEXIS 798 (2012), cert. denied, 571 U.S. 834, 134 S. Ct. 71, 187 L. Ed. 2d 56, 2013 U.S. LEXIS 5600 (2013). As the defendant had decided to turn himself in and had already revealed to a law enforcement officer that the defendant had killed the victim, claiming self defense, and that the defendant had attempted to conceal the body, trial counsel’s decision to permit the defendant to cooperate in the interrogations and searches did not amount to ineffective assistance of counsel. Woods v. State, 291 Ga. 804, 733 S.E.2d 730, 2012 Ga. LEXIS 844 (2012). Trial counsel’s failure to convince the trial court to admit statements about the involvement of others and failure to make objection to the admission of a recorded statement did not amount to ineffective assistance because the arguments and objections sought were meritless. Bradley v. State, 292 Ga. 607, 740 S.E.2d 100, 2013 Ga. LEXIS 259 (2013). Trial counsel was not ineffective for failing to offer a “timeline” to show that the defendant’s girlfriend delayed taking the victim to the hospital because the girlfriend never provided exact times in her testimony and nothing indicated that any delay in seeking medical treatment contributed to the victim’s death. Jones v. State, 292 Ga. 593, 740 S.E.2d 147, 2013 Ga. LEXIS 260 (2013). Defense counsel was not ineffective for failing to move to redact the portion of the autopsy report that said the manner of death was homicide because it was undisputed that the victim was killed by someone and the ultimate issue for the jury was whether the defendant was the killer. Young v. State, 292 Ga. 443, 738 S.E.2d 575, 2013 Ga. LEXIS 148 (2013). Defendant’s claim of ineffective assistance of counsel failed because the defendant failed to show either professional deficiencies by counsel or prejudice in regard to the defendant’s complaints about a jury instruction on “no duty to retreat,” the alleged criminal history of a witness, and the detective’s alleged bolstering of a witness’s testimony, claims for which the supreme court found no support. Hoffler v. State, 292 Ga. 537, 739 S.E.2d 362, 2013 Ga. LEXIS 206 (2013). Defense counsel could not have been ineffective for failing to demand the trial court extend use immunity to a defense witness who invoked the Fifth Amendment right to remain silent as there was not current Georgia authority for such action. Ward v. State, 292 Ga. 637, 740 S.E.2d 112, 2013 Ga. LEXIS 266 (2013). Counsel was not ineffective for failing to advocate for the defendant to have makeup, a wig, and personal grooming tools to enable the defendant to look nicer at trial because it was a reasonable trial strategy for counsel to want to present the defendant in a way that made the defendant look like a psychologically defeated and traumatized young woman who had been victimized by an abusive and violent husband. Schutt v. State, 292 Ga. 625, 740 S.E.2d 163, 2013 Ga. LEXIS 263 (2013). Defendant’s claims of ineffective assistance of counsel failed, as, inter alia, counsel was not ineffective for failing to object to an agent’s testimony that the agent’s investigation led the agent to believe that the defendant killed the victim as the defendant did not inquire into the reason for such failure and failed to overcome the presumption that counsel’s actions fell within the broad range of reasonable professional conduct. Nor was counsel ineffective for failing to object to the district attorney’s opening statement, closing argument, or other alleged misconduct as the jury was instructed that the opening statement was not evidence, the prosecutor drew reasonable inferences from the evidence in closing argument, and any factual issues were for the jury. Hall v. State, 292 Ga. 701, 743 S.E.2d 6, 2013 Ga. LEXIS 303 (2013). Trial counsel could not be ineffective for failing to object to a jury instruction that did not affect the outcome of the trial or for failing to object to testimony, a tactical decision. Gaither v. State, 321 Ga. App. 643, 742 S.E.2d 158, 2013 Ga. App. LEXIS 362 (2013). Claim of ineffective assistance of counsel failed because cell phone records and a Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) 9-1-1 call log were cumulative of other testimony and thus, the defendant was not prejudiced by counsel’s failure to object to their admission; the prejudicial effect of a misstatement in counsel’s opening statement was mitigated by the trial court charging the jury that opening statements were not evidence; counsel was not ineffective for failing to make a meritless object to the admission of a witness’s prior consistent statement, admissible because the witness’s veracity was placed at issue; and the failure to request a charge on self-defense did not amount to ineffective assistance when the evidence did not support such a charge and it would have been inconsistent with the defense theory. Williams v. State, 292 Ga. 844, 742 S.E.2d 445, 2013 Ga. LEXIS 379 (2013). Trial counsel was not ineffective for inadvertently opening the door to the state’s question about the defendant’s silence in trial counsel’s attempt to highlight the accomplice’s behavior of giving multiple versions of an event in an effort to point fingers at everyone except the accomplice personally. Goodman v. State, 293 Ga. 80, 742 S.E.2d 719, 2013 Ga. LEXIS 503 (2013). Defendant’s claim of ineffective assistance of counsel failed because the defendant failed to show what evidence might have been revealed if counsel had cross-examined the defendant’s cousin about an unrelated indictment to show any bias the cousin might have had to color the cousin’s testimony in favor of the state and how it would have produced a different result. Mathis v. State, 293 Ga. 35, 743 S.E.2d 393, 2013 Ga. LEXIS 440 (2013). Claim of ineffective assistance of counsel failed because the defendant made no showing that the defendant’s text requests for the victim’s mother to call the defendant as soon as possible harmed the defendant’s case, and counsel’s decision not to call an expert, after a pediatrician concluded that the victim’s injuries could have been caused by CPR, was a reasonable, strategic decision. Holloman v. State, 293 Ga. 151, 744 S.E.2d 59, 2013 Ga. LEXIS 501 (2013). Claim of ineffective assistance failed because the defendant failed to prove that the outcome would have been different if counsel had moved to redact from the indictment a charge that the defendant violated the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., though a pattern of criminal activity in furtherance of a pimping enterprise, and testimony regarding events leading up to the arrest of the defendant and another allowed counsel to argue that the weapon did not belong to the defendant but to the other individual. Holmes v. State, 293 Ga. 229, 744 S.E.2d 701, 2013 Ga. LEXIS 557, cert. denied, 571 U.S. 1096, 134 S. Ct. 787, 187 L. Ed. 2d 598, 2013 U.S. LEXIS 8844 (2013). Trial counsel’s decision not to cross-examine two witnesses about certain criminal charges did not amount to ineffective assistance because it could not be said that no reasonable attorney would have decided against attempting to ask about the charges given their limited probative value to show bias and the cross-examination that counsel did conduct. Romer v. State, 293 Ga. 339, 745 S.E.2d 637, 2013 Ga. LEXIS 600 (2013). Ineffective assistance of counsel claims failed based on unavailability of records, the defendant’s failure to show prejudice from counsel’s decisions, the defendant’s failure to show that strategic decisions were unreasonable, the defendant’s failure to show that counsel’s cross-examination was deficient, and the fact that counsel did, but was not required to provide the defendant, with discovery prior to trial. Lee v. State, 318 Ga. 412, 897 S.E.2d 856, 2024 Ga. LEXIS 31 (2024). tencing trial was not ineffective in allegedly failing properly to investigate, prepare and present evidence of the defendant’s mental condition and family background. The defendant did not demonstrate a reasonable probability that, if adduced at trial, the psychiatric and background evidence presented in the habeas proceeding would have caused the sentencer to conclude that the balance of aggravating and mitigating circumstances did not warrant death. Hance v. Kemp, 258 Ga. 649, 373 S.E.2d 184, 1988 Ga. LEXIS 417 (1988), cert. denied, 490 U.S. 1012, 109 S. Ct. 1658, 104 L. Ed. 2d 172, 1989 U.S. LEXIS 1679 (1989).
Counsel at the defendant’s resen-Psychiatric testimony that defendant legally sane.
Alleged lack of a “meaningful” psychiatric examination did not render the defendant’s counsel ineffective insofar as the presentation of a defense of mental illness was concerned, because the defendant called as a witness the examining psychiatrist, who expounded upon the psychiatrist’s written report and testified that the psychiatrist had concluded that the defendant was legally sane, although suffering from schizophrenia. Heflin v. State, 183 Ga. App. 149, 358 S.E.2d 298, 1987 Ga. App. LEXIS 2683 (1987).
Denial of motion for psychiatric assistance.
Where the record disclosed no evidence that the defendant’s sanity at the time of the offenses charged would be a significant factor at trial nor even that the defendant’s mental condition was seriously in question, there was no abuse of discretion in the trial court’s denial of the defendant’s “motion for psychiatric assistance,” and the defendant also suffered no deprivation of effective assistance of counsel resulting from the trial court’s denial of the defendant’s motion. Davidson v. State, 183 Ga. App. 557, 359 S.E.2d 372, 1987 Ga. App. LEXIS 2725 (1987), cert. denied, 183 Ga. App. 905.
“Spare him for science” argument.
— The contention that use of the “spare him for science” argument constitutes ineffective assistance of counsel finds no support. Waters v. Thomas, 46 F.3d 1506, 1995 U.S. App. LEXIS 3889 (11th Cir.), cert. denied, 516 U.S. 856, 116 S. Ct. 160, 133 L. Ed. 2d 103, 1995 U.S. LEXIS 6000 (1995). Defendant’s failure to testify on the defendant’s own behalf could not be attributed to the defendant’s trial counsel who was not ineffective therefore. Rachell v. State, 210 Ga. App. 106, 435 S.E.2d 480, 1993 Ga. App. LEXIS 1106 (1993).
Failure to allow defendant to testify.
Defendant’s claim that trial counsel’s failure to call the defendant as a witness despite the defendant’s insistence that the defendant testify, constituted ineffective assistance of counsel, and, as it was raised for the first time on appeal, warranted remand. Robbins v. State, 207 Ga. App. 556, 428 S.E.2d 450, 1993 Ga. App. LEXIS 257 (1993). Trial counsel’s decision not to call the defendant and the defendant’s alibi witness did not fall below standard of reasonableness. Phillips v. State, 233 Ga. App. 557, 504 S.E.2d 762, 1998 Ga. App. LEXIS 1023 (1998). Where counsel had sound strategic reasons for advising a defendant not to testify at defendant’s murder trial, and defendant was aware that defendant could testify despite counsel’s advice but never requested to do so, counsel was not ineffective for refusing to allow defendant to testify. Furthermore, defendant’s contention that counsel improperly failed to investigate the murder case and call essential witnesses was rejected since no prejudice to defendant was shown from the alleged ineffective assistance of counsel and since defendant made no proffer as to what a thorough investigation would have uncovered or what the allegedly essential witnesses would have said. Domingues v. State, 277 Ga. 373, 589 S.E.2d 102, 2003 Ga. LEXIS 1000 (2003). Defendant’s claim that counsel was ineffective for advising defendant not to testify on defendant’s own behalf was without merit because defendant made this decision on defendant’s own after being advised by counsel. Simpson v. State, 277 Ga. 356, 589 S.E.2d 90, 2003 Ga. LEXIS 997 (2003). Defendant’s trial counsel was not ineffective in the criminal trial in refusing to allow defendant to testify, as counsel ultimately left the decision to defendant and defendant decided against testifying, and it was not in defendant’s best interest to testify because the defendant’s version of events would have put the defendant in the vicinity of the crime; defendant failed to establish that the counsel prevented the defendant from testifying, and the defendant could not complain of the election to follow the reasonable tactical advice of the lawyer. Todd v. State, 275 Ga. App. 459, 620 S.E.2d 666, 2005 Ga. App. LEXIS 992 (2005). Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) In a malice murder trial, trial counsel was not ineffective in advising the defendant not to testify even though only the defendant could have supplied the details surrounding the shooting, given the weakness of the state’s case, the trial court’s permission to argue justification without using the word, the defendant’s reluctance to testify, the belief that the state’s rebuttal witnesses would be very hostile, and the desire to eliminate the possibility of a voluntary manslaughter instruction. Muller v. State, 284 Ga. 70, 663 S.E.2d 206, 2008 Ga. LEXIS 530 (2008). In a defendant’s prosecution for, inter alia, felony murder, defense counsel’s opening statement that the defendant would testify to explain why the defendant carried a gun was not ineffective assistance for causing a negative inference when the defendant did not testify as defense counsel used proper strategy in not having the defendant testify after concluding that the state failed to carry the state’s burden during trial. Watkins v. State, 285 Ga. 107, 674 S.E.2d 275, 2009 Ga. LEXIS 138 (2009), cert. denied, 558 U.S. 1121, 130 S. Ct. 1070, 175 L. Ed. 2d 900, 2010 U.S. LEXIS 323 (2010). Failure to call accused’s relative as
witness.
Trial counsel was not ineffective in failing to call any witnesses in defendant’s defense, especially because counsel believed those potential witnesses would not have helped the defense, counsel wished to preserve the right to opening and closing argument, and the witness’s testimony could be suspect due to their relationship to defendant. Sims v. State, 278 Ga. 587, 604 S.E.2d 799, 2004 Ga. LEXIS 998 (2004). Failure to interview or otherwise obtain information from any of the state’s witnesses listed on the indictment falls below the standard required of reasonably effective counsel. House v. Balkcom, 562 F. Supp. 1111, 1983 U.S. Dist. LEXIS 17753 (N.D. Ga. 1983), rev’d, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir. 1984).
Calling of character witnesses.
Defense counsel’s decision during the sentencing phase to present some character witnesses and to exclude others notwithstanding their willingness to testify was a tactical decision, reasonable under the circumstances. Solomon v. Kemp, 735 F.2d 395, 1984 U.S. App. LEXIS 21632 (11th Cir. 1984), cert. denied, 469 U.S. 1181, 105 S. Ct. 940, 83 L. Ed. 2d 952, 1985 U.S. LEXIS 2986 (1985).
Failure to call character witness.
Failure to call character witness was a legitimate trial tactic designed to rely upon defendant’s own testimony to raise the good character defense and did not result in ineffective assistance. Avans v. State, 207 Ga. App. 329, 427 S.E.2d 826, 1993 Ga. App. LEXIS 203 (1993). Defendant did not receive ineffective assistance of counsel by defendant’s attorney’s failure to call witnesses to testify to the nature of defendant’s acquaintance with the victim and to impeach the victim’s testimony that the victim had never “partied” or smoked marijuana with defendant as: (1) the proffered testimony went merely to the details of the admitted acquaintance between defendant and the victim before the incident, not to the facts surrounding the incident itself or the charges against defendant; (2) the only purpose of the evidence was to impeach the victim’s testimony regarding how well the victim knew defendant, an issue on which trial counsel cross-examined the victim; and (3) defendant was not prejudiced by the absence of the evidence. Joyner v. State, 267 Ga. App. 309, 599 S.E.2d 286, 2004 Ga. App. LEXIS 631 (2004). Defendant did not show ineffective assistance when trial counsel used a third party’s confession to challenge the thoroughness of the police investigation, but instead focused on challenging the voluntariness of the defendant’s taped statement. The defendant did not show that this strategic decision was an unreasonable one or that the defense was prejudiced by counsel’s decision not to call the third party based on counsel’s assessment that the party lacked credibility. Boseman v. State, 283 Ga. 355, 659 S.E.2d 364, 2008 Ga. LEXIS 298 (2008).
Calling one good clean witness instead of numerous witnesses.
Defendant failed to demonstrate that trial counsel rendered ineffective assistance by failing to call additional witnesses because the defendant failed to overcome the strong presumption that counsel’s tactical decision to forego putting the subject witnesses on the stand was within the broad range of reasonable professional conduct; trial counsel testified that counsel decided not to present the other witnesses because counsel thought that the witnesses would not “stand up well to cross-examination,” that the jury would perceive variances in the testimony, that counsel was worried about credibility issues, and that counsel thought the defendant’s “best chance” at establishing an alibi was with “one good clean witness.” Smiley v. State, 288 Ga. 635, 706 S.E.2d 425, 2011 Ga. LEXIS 164 (2011).
Failure to present self-serving testimony of client.
Failure to present self-serving testimony of the defendant, a grandparent, and a neighbor did not constitute ineffective assistance of counsel at the defendant’s trial for child molestation, because graphic testimony of the young victims and the strongly corroborative testimony of the parent of one of them made it unlikely that the outcome of the trial would have been affected. Ray v. State, 183 Ga. App. 57, 357 S.E.2d 877, 1987 Ga. App. LEXIS 2677 (1987).
Failure to present character evidence.
Counsel’s failure to present character evidence at the mitigation phase of a capital case did not deprive the defendant of the defendant’s right to reasonable representation. Stanley v. Zant, 697 F.2d 955, 1983 U.S. App. LEXIS 30642 (11th Cir. 1983), cert. denied, 467 U.S. 1219, 104 S. Ct. 2667, 81 L. Ed. 2d 372, 1984 U.S. LEXIS 2427 (1984). It was reasonable for the attorney of a defendant convicted of murder to assume that the presentation of any character evidence at the sentencing hearing might motivate the state to introduce the defendant’s prior conviction when it might not introduce it otherwise, even though it had the right to present the conviction in the absence of mitigating character witnesses, and to assume that the conviction would substantially outweigh any testimony as to good character. Mitchell v. Kemp, 762 F.2d 886, 1985 U.S. App. LEXIS 30164 (11th Cir. 1985), cert. denied, 483 U.S. 1026, 107 S. Ct. 3248, 97 L. Ed. 2d 774, 1987 U.S. LEXIS 2931 (1987). Counsel’s decision not to place defendant’s character in issue was a matter of trial tactics. Owens v. State, 207 Ga. App. 153, 427 S.E.2d 529, 1993 Ga. App. LEXIS 110 (1993).
Presentment of character evidence.
— Trial counsel was not ineffective in offering evidence of good character, considering the overwhelming evidence of defendant’s guilt. Hayes v. State, 263 Ga. 15, 426 S.E.2d 557, 1993 Ga. LEXIS 270 (1993).
Failure to counter witness’s testimony.
Defendant demonstrated no deficiency in counsel’s representation for failure to counter minister’s testimony regarding defendant’s church attendance. Etheridge v. State, 210 Ga. App. 96, 435 S.E.2d 292, 1993 Ga. App. LEXIS 1040 (1993).
Failure to object to bolstering.
Defendant failed to prove that trial counsel was ineffective for failing to object to an investigator’s testimony allegedly bolstering testimony of the defendant’s girlfriend because there were several reasons a lawyer might not have objected, including not wanting to signal to the jury that defense counsel was worried about the testimony. Jones v. State, 292 Ga. 593, 740 S.E.2d 147, 2013 Ga. LEXIS 260 (2013). ments for admission of acts of vio-
Failure to meet notice requirelence by victim.
In a prosecution for malice murder, failure of defendant’s counsel to meet the notice requirements for the admission of specific acts of violence by the victim was sufficient to support defendant’s motion for a new trial on the basis of ineffective assistance of counsel. Johnson v. State, 266 Ga. 380, 467 S.E.2d 542. Failure of counsel to file timely or sufficient notice of specific acts of violence by the victim did not fall below an objective standard of reasonableness where neither defendant nor an investigator were able to produce viable evidence. Ball v. State, 232 Ga. App. 107, 501 S.E.2d 281. Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) Decision of defense counsel not to seek an autopsy of the murder victim to identify the murder weapon was a reasonable, tactical one. Willis v. Newsome, 771 F.2d 1445, 1985 U.S. App. LEXIS 23274 (11th Cir. 1985), cert. denied, 475 U.S. 1050, 106 S. Ct. 1273, 89 L. Ed. 2d 581, 1986 U.S. LEXIS 635 (1986). Failure to object to clearing of
courtroom for young victim’s testimony.
With regard to defendant’s convictions on two counts of cruelty to children in the first degree and one count of aggravated battery, defendant failed to establish that defense counsel was ineffective for failing to object to the clearing of the courtroom when the child victim testified as defense counsel testified at the new trial hearing that defense counsel did not object to the closing of the courtroom because defense counsel recognized that the victim was very young and defense counsel believed it to be appropriate under the circumstances. As a result, defense counsel’s decision not to object clearly constituted an exercise of reasonable professional judgment. Glover v. State, 292 Ga. App. 22, 663 S.E.2d 772, 2008 Ga. App. LEXIS 702 (2008). Failure to make motion for directed
verdict of acquittal not ineffective.
Defendant’s contention that the defendant did not receive effective assistance of counsel because counsel made no motion for a directed verdict of acquittal based on insufficiency of the evidence was without merit. Galloway v. State, 165 Ga. App. 536, 301 S.E.2d 894, 1983 Ga. App. LEXIS 1937 (1983). Defense counsel’s failure to move for a directed verdict did not constitute ineffective assistance because the evidence presented was sufficient to sustain defendant’s conviction for armed robbery; therefore, defendant was not entitled to a directed verdict and counsel’s failure to move for the same did not entitle defendant to a new trial. The failure of counsel to pursue a meritless motion did not constitute ineffective assistance of trial counsel. Range v. State, 289 Ga. App. 727, 658 S.E.2d 245, 2008 Ga. App. LEXIS 184 (2008). Counsel’s failure to object to the prosecutor’s comments on the ground that the prosecutor improperly commented on the defendant’s exercise of the defendant’s right to remain silent by remarking on the defendant’s failure to testify at trial did not amount to deficient performance because the challenged remarks were not improper; the prosecutor made the comments while seeking to persuade the jury that the defendant’s statements and behavior shortly after the crimes were inconsistent with the defendant’s theory of self-defense, and the remarks were not intended to comment on the defendant’s failure to testify or would have been received as such by the jury. Lacey v. State, 288 Ga. 341, 703 S.E.2d 617, 2010 Ga. LEXIS 842 (2010).
Failure to except to jury charges.
No ineffective assistance of counsel where defendant failed to establish with reasonable probability that allegedly erroneous jury instructions would have affected the result of the trial. Peavy v. State, 262 Ga. 782, 425 S.E.2d 654, 1993 Ga. LEXIS 200 (1993); Davis v. State, 209 Ga. App. 187, 433 S.E.2d 366, 1993 Ga. App. LEXIS 821 (1993). The defendant was not entitled to the reversal of the defendant’s conviction based on the defendant’s trial counsel’s failure to submit jury charges regarding the limited scope of admission of similar transactions because the court covered the issue in its charge and the defendant failed to show prejudice. McClarity v. State, 234 Ga. 348, 506 S.E.2d 392. Defense counsel’s failure to object to instructions on kidnapping with bodily injury and unanimity did not deprive defendant of a fair sentencing hearing nor did the instruction jeopardize the reliability of the sentencing recommendation. Parker v. Turpin, 60 F. Supp. 2d 1332, 1999 U.S. Dist. LEXIS 18591 (N.D. Ga. 1999), aff’d, 244 F.3d 831, 2001 U.S. App. LEXIS 3942 (11th Cir. 2001). Defendant did not show defendant was deprived of the effective assistance of counsel because defense counsel did not make certain objections or request certain jury charges, as defendant did not show that this prejudiced defendant’s defense, and counsel’s decisions in this area were a matter of trial strategy. Martin v. State, 266 Ga. App. 392, 597 S.E.2d 445, 2004 Ga. App. LEXIS 302 (2004). Defendant failed to meet the burden to show that the counsel rendered ineffective assistance at trial, pursuant to the Strickland standard under U.S. Const., amend. 6, as the failure to request instructions was shown to be a trial strategy, for which no prejudice was shown, and there was no need to object to an instruction which was a correct statement of the law and was supported by the evidence; further, appellate counsel was not shown to be ineffective because no prejudice was shown and because certain issues which were not raised in defendant’s new trial motion, pursuant to O.C.G.A. § 5-5-23, were procedurally barred from review on appeal. Godfrey v. State, 274 Ga.App. 237, 617 S.E.2d 213, 2005 Ga. App. LEXIS 722 (2005).
Failure to object to jury pool.
Claim that trial counsel rendered constitutionally ineffective assistance failed as the defendant could not show that any competent attorney would have decided not to object further to the composition of the jury pool. Leslie v. State, 292 Ga. 368, 738 S.E.2d 42, 2013 Ga. LEXIS 107 (2013).
Failure to object to jury charge.
Trial counsel was not ineffective for failing to object to the trial court’s inclusion of a simple assault charge after the charge conference at which the trial court stated that the charge would not be given, in violation of O.C.G.A. § 5-5-24(b), as the jury found defendant guilty of simple assault on one of the aggravated assault charges, so defendant failed to show how the failure to object prejudiced defendant’s defense. Osterhout v. State, 266 Ga. App. 319, 596 S.E.2d 766, 2004 Ga. App. LEXIS 363 (2004). Defense counsel’s decision not to object to testimony about defendant’s failure to tell a police officer that defendant was on the scene to pick up defendant’s friends, including both what defendant said and what defendant did not say, was a matter of trial strategy and was not ineffective assistance of counsel; defense counsel thought that the testimony was helpful to defendant because it tended to show defendant’s ignorance of the codefendants’ intent to commit a crime. Botelho v. State, 268 Ga. App. 129, 601 S.E.2d 494, 2004 Ga. App. LEXIS 862 (2004). Because an erroneous jury instruction on an offense of aggravated child molestation violated an inmate’s due process rights by allowing the jury to convict in a manner not charged in the indictment, and the inmate’s trial counsel was ineffective in failing to object to the instruction, the inmate was properly granted habeas relief. Hall v. Wheeling, 282 Ga. 86, 646 S.E.2d 236, 2007 Ga. LEXIS 413 (2007). Trial counsel was not ineffective in failing to request charges on voluntary manslaughter, self-defense, and accident as such instructions were contrary to the defense strategy based on the defendant’s testimony of contending that the defendant did not have a gun in the defendant’s hands until the fighting and shooting were finished. Savior v. State, 284 Ga. 488, 668 S.E.2d 695, 2008 Ga. LEXIS 847 (2008). Defense counsel was not ineffective for failing to object to an instruction that if the jury found the defendant was not guilty of armed robbery, the jury could not find the defendant guilty of possession of a firearm during the commission of a felony, O.C.G.A. § 16-11-106(b). As the commission of the underlying felony was an essential element of § 16-11-106(b), the instruction was a correct statement of the law. Soloman v. State, 294 Ga. App. 520, 669 S.E.2d 430, 2008 Ga. App. LEXIS 1175 (2008). With regard to a defendant’s convictions for aggravated sodomy, rape, and other related crimes, trial counsel’s decision not to object to the jury charge on kidnapping with bodily injury did not amount to ineffective assistance of counsel as the trial court employed the language of the relevant statute, O.C.G.A. § 16-5-40, and instructed the jury that the offense of kidnapping with bodily injury occurs when a person abducts “or” steals away any person. The fact that the indictment charged the defendant with abducting “and” stealing away the victim did not require trial counsel to object to the jury Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) charge as the statute provided only one way in which kidnapping can be committed, namely by abducting or stealing away the victim, and the jury charge using the statutory language was appropriate, even though the indictment used the conjunctive. Greene v. State, 295 Ga. App. 803, 673 S.E.2d 292, 2009 Ga. App. LEXIS 134 (2009), cert. denied, No. S09C0862, 2009 Ga. LEXIS 259 (Ga. Apr. 28, 2009). In a malice murder prosecution, defense counsel was not ineffective for not reserving objections to the trial court’s jury charge generally as this procedure was not allowed under O.C.G.A. § 17-8-58. Marshall v. State, 285 Ga. 351, 676 S.E.2d 201, 2009 Ga. LEXIS 148 (2009). Defendant was not denied effective assistance of trial counsel due to counsel’s failure to object to an allegedly sequential jury instruction and to attempt to exclude an allegedly prejudicial charge on adultery because the trial court’s charge was not improperly sequential, and counsel could not be considered professionally deficient for failing to object to the charge; the charge on adultery did not prevent the jurors from considering adultery as provocation for a verdict of voluntary manslaughter because the trial court specifically charged the jury that they could consider voluntary manslaughter if it was shown by the evidence that the killing was done by the defendant without malice and not in the spirit of revenge but under a violent, sudden impulse of passion created in the mind of the defendant by ongoing adultery or recent discovery of past adultery. Loadholt v. State, 286 Ga. 402, 687 S.E.2d 824, 2010 Ga. LEXIS 84 (2010). Although the defendant claimed that the defense attorney failed to object to a portion of the charge to the jury regarding the defense of justification, the existence of a mere verbal inaccuracy in the jury instruction, resulting from a palpable slip of the tongue and which could not have misled or confused the jury, did not provide a basis for reversal of the conviction. Therefore, the defendant did not prevail on the defendant’s ineffective assistance of counsel claim because the defendant could not show that a reasonable probability existed that, but for counsel’s errors the outcome at trial would have been more favorable. Render v. State, 288 Ga. 420, 704 S.E.2d 767, 2011 Ga. LEXIS 9 (2011). Because no reversible error occurred with respect to the instruction that the jury could consider the intelligence of the witnesses to decide the witnesses credibility, the codefendant could not succeed on the alternative claim that trial counsel rendered ineffective assistance in failing to object to that instruction. Howard v. State, 288 Ga. 741, 707 S.E.2d 80, 2011 Ga. LEXIS 179 (2011). Trial counsel was not ineffective for failing to bring errors in the jury charges to the trial court’s attention because the complained of jury charges were proper, and trial counsel’s conduct fell well within the broad range of reasonable professional conduct; there is no reasonable likelihood of a different outcome had trial counsel raised the arguments the defendant asserted counsel should have raised. Davis v. State, 290 Ga. 757, 725 S.E.2d 280, 2012 Ga. LEXIS 332 (2012). Trial counsel was not ineffective because, at the time of the defendant’s trial, the appellate court had held that a charge similar to the one given in the defendant’s case was not a “presumption-of-truthfulness” instruction like the charge disapproved in the case law and was a permissible charge. Reed v. State, 314 Ga. 534, 878 S.E.2d 217, 2022 Ga. LEXIS 237 (2022). Failure to object to opening or clos-
ing argument.
Trial counsel was not ineffective for failing to object during opening statements when the prosecutor referred to the victim as a “nice kid” because the jury was instructed that opening statements were not evidence; the isolated comment was contradicted by actual evidence that the victim was a drug dealer and accused child molester; and there was no reasonable probability that the result of the defendant’s trial would have been different had counsel responded to the remark differently given the strength of the evidence against the defendant. Babbage v. State, 296 Ga. 364, 768 S.E.2d 461, 2015 Ga. LEXIS 2 (2015). Counsel not ineffective for failing
to object to prosecutor’s closing arguments.
Trial counsel was not ineffective for failing to object when the prosecutor told the jury during closing arguments that defendant’s own testimony precluded a self-defense verdict because the prosecutor’s view of the evidence that defendant traveled to Atlanta to kill the victim was a reasonable inference based on the evidence, including evidence that defendant had recently said that he was going to have to kill the victim because he was in fear for his family and his livelihood due to the victim’s threats. Rayton v. State, 314 Ga. 29, 875 S.E.2d 708, 2022 Ga. LEXIS 170 (2022). Trial counsel was not ineffective for failing to object when the prosecutor told the jury during closing arguments that defendant’s own testimony precluded a self-defense verdict because the prosecutor’s view of that the law precluded defendant from claiming self-defense because he traveled to Atlanta for the purpose of buying cocaine was a fair paraphrase of applicable law that the trial court charged the jury and was supported by defendant’s own testimony and other evidence at trial. Rayton v. State, 314 Ga. 29, 875 S.E.2d 708, 2022 Ga. LEXIS 170 (2022).
Failure to object to closing arguments.
Defendant failed to show that trial counsel was ineffective for failing to object to burden-shifting during the prosecutor’s closing argument because it did not shift the burden of proof to defendant as the remarks were made in rebuttal of defendant’s closing argument that there was reasonable doubt without a particular witness’s testimony and explained why the state chose not to call the witness. Burke v. State, 320 Ga. 706, 911 S.E.2d 575, 2025 Ga. LEXIS 16 (2025). Failure of defense counsel to object to unconstitutional burden-shifting jury charge on intent, standing alone, did not constitute error so serious that counsel was not functioning as the “counsel” guaranteed by U.S. Const., amend. 6. Carter v. Montgomery, 769 F.2d 1537, 1985 U.S. App. LEXIS 21496 (11th Cir. 1985).
Failure to request limiting instruction.
Trial counsel’s action in failing to request limiting instructions as to “bad character” evidence could have been strategic, so as not to highlight the evidence, and was thus presumed strategic, rather than deficient, in the absence of testimony to the contrary; since defense counsel did not testify at the motion for new trial, the defendant failed to show that any purported deficiencies in the defendant’s representation amounted to ineffective assistance. Tarver v. State, 280 Ga. App. 89, 633 S.E.2d 415, 2006 Ga. App. LEXIS 756 (2006). Trial counsel did not provide ineffective assistance of counsel in failing to request a jury instruction on specific forcible felonies since even assuming that trial counsel was deficient, the defendant could not show prejudice as the trial court charged the jury on the presumption of innocence, reasonable doubt, the burden of proof, and the defense of justification, including the definition of a forcible felony; the jury was fairly informed as to when a homicide was justified and there was not a reasonable probability that the jury would have reached a different result if an instruction on specific forcible felonies had also been given. Lott v. State, 281 Ga. App. 373, 636 S.E.2d 102, 2006 Ga. App. LEXIS 1106 (2006). Trial counsel was not ineffective for failing to request a jury instruction on accessory after the fact because regardless of whether any evidence would have authorized the jury to conclude that the defendant’s connection with the crime of murder charged in the bill of indictment was that of an accessory after the fact, the trial court would not have been authorized to give any charge on accessory after the fact when the defendant was not indicted for both murder and hindering the apprehension of a criminal or any other offense in the nature of an obstruction of justice. Vergara v. State, 287 Ga. 194, 695 S.E.2d 215, 2010 Ga. LEXIS 402 (2010).
Failure to request charge on lesser-included offense.
Since no instruction on lesser included offenses was required, trial counsel was not ineffective for failing to request such an instruction; also, in light of the attack on a detective’s techniques in interviewing an alleged child victim of molestation made by trial counsel in cross-examination and closing argu-Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) ment, the defendant failed to show that there would have been a different outcome had counsel requested funds and called an expert witness similarly to attack those techniques, and failed to establish a claim of ineffective assistance in this regard; finally, trial counsel’s decision to not call two witnesses was based on sound strategy and the defendant failed to show prejudice from the failure. Tyler v. State, 279 Ga. App. 809, 632 S.E.2d 716, 2006 Ga. App. LEXIS 700 (2006), cert. denied, No. S06C1818, 2006 Ga. LEXIS 810 (Ga. Oct. 2, 2006), overruled in part, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56, 2007 Ga. LEXIS 182 (2007), overruled in part, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). Failure to file motion to suppress
evidence.
The mere failure to file a motion to suppress evidence does not constitute per se ineffective assistance of counsel. Ponder v. State, 201 Ga.App. 388, 411 S.E.2d 119, 1991 Ga. App. LEXIS 1342 (1991). With regard to defendant’s convictions for aggravated assault and related crimes, defendant failed to show that trial counsel was ineffective for failing to file motion to suppress victim’s pre-trial photographic lineup and subsequent in-court identifications of defendant, as there was no basis upon which trial counsel could have successfully moved to have the identifications suppressed since the photographic lineup was not shown to have been unduly suggestive and in-court identification was unquestionably admissible; thus, there was no possibility that suppression motion would have been successful. Gibson v. State, 291 Ga. App. 183, 661 S.E.2d 850, 2008 Ga. App. LEXIS 436 (2008), cert. denied, No. S08C1442, 2008 Ga. LEXIS 677 (Ga. Sept. 8, 2008). Failure to pursue lesser-included
offense.
Trial counsel’s failure to request a charge on lesser-included offenses could be considered as a trial tactic legitimately providing effective assistance of counsel. Sydenstricker v. State, 209 Ga. App. 418, 433 S.E.2d 644, 1993 Ga. App. LEXIS 920 (1993), cert. denied, No. S93C1669, 1993 Ga. LEXIS 961 (Ga. Oct. 12, 1993). Counsel’s failure to request charge
of mistake of fact.
Defense counsel did not provide ineffective assistance of counsel by failing to request a charge of mistake of fact under O.C.G.A. § 16-3-5 since the charge was not supported by the evidence as defendant testified that defendant was totally unaware of any of the codefendants’ plans for breaking or entering the house; thus, the defense was a lack of knowledge of the crime, not that the defendant knew they had broken into the victim’s house, but believed that they were authorized to do so, and the trial court charged the jury on mere presence, mere association, and the requirement that the state prove beyond a reasonable doubt that defendant knew that a crime was being committed. Botelho v. State, 268 Ga. App. 129, 601 S.E.2d 494, 2004 Ga. App. LEXIS 862 (2004).
Failure to request charge on mutual combat.
Trial counsel did not perform deficiently by failing to request a charge on mutual combat because there was no evidence of a mutual intention to fight; at trial, the defendant presented the defense of accident and asserted that the defendant lacked any intention to shoot the victim, but there was no evidence reflected that the defendant and the victim mutually agreed to fight each other. Boatright v. State, 289 Ga. 597, 713 S.E.2d 829, 2011 Ga. LEXIS 511 (2011).
Failure to question jurors deliberating too soon.
Where, during a recess at the guilt phase of the trial, the court received a note from one of the jurors that some deliberation had begun and the court instructed the jury not to begin its deliberations until it had heard all of the evidence and had been instructed by the court on the law, but defense counsel did not ask the court to question the jurors to determine if any of them had formed fixed and unyielding opinions at this point, counsel’s inaction here simply did not fall outside the wide range of reasonable professional assistance. Williams v. State, 258 Ga. 281, 368 S.E.2d 742, 1988 Ga. LEXIS 276 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606, 1989 U.S. LEXIS 3313 (1989). Failure of counsel to poll the jury did not constitute ineffective assistance where there was nothing in the record to indicate that any juror was uncertain of the verdict. United States v. Costa, 691 F.2d 1358, 1982 U.S. App. LEXIS 23916 (11th Cir. 1982). A jury sent a question to the trial court, but before the court could respond, the jury reached a verdict. The defendant’s trial counsel was not ineffective for not demanding that the jury be polled; moreover, the defendant failed to show it was reasonably probable that had the jury been polled, a problem with the verdict would have become apparent. Soloman v. State, 294 Ga. App. 520, 669 S.E.2d 430, 2008 Ga. App. LEXIS 1175 (2008).
Failure to request mistrial not ineffective assistance.
Where the prosecutor asked an isolated, prejudicial question expressing an opinion as to a witness’s credibility, a prompt and properly worded instruction by the judge to the jury cured and rendered harmless any prejudice arising from the question. Therefore, defense counsel’s informed decision to forego requesting a mistrial fell within the wide range of reasonable professional assistance defense attorneys are supposed to provide. Truitt v. Jones, 614 F. Supp. 1342, 1985 U.S. Dist. LEXIS 19013 (S.D. Ga. 1985), aff’d, 791 F.2d 940, 1986 U.S. App. LEXIS 25392 (11th Cir. 1986). Where the defendant’s counsel objected to an improper argument by the prosecutor based on O.C.G.A. § 17-8-76 and the trial court sustained the objection and instructed the jury accordingly, counsel’s failure to move for a mistrial did not constitute ineffective assistance since the defendant was not deprived of a fair sentencing trial. Hammond v. State, 264 Ga. 879, 452 S.E.2d 745, 1995 Ga. LEXIS 23, cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 54, 1995 U.S. LEXIS 5611 (1995). Trial counsel was not ineffective in failing to object or move for a mistrial with respect to the trial court’s direction that a witness be allowed to finish the witness’s answer as any objection or motion for mistrial would have been without merit; the failure to raise a meritless objection cannot constitute ineffective assistance of counsel. Patterson v. State, 259 Ga. App. 630, 577 S.E.2d 850, 2003 Ga. App. LEXIS 210 (2003). Counsel for a defendant was not shown to have been ineffective in the defendant’s criminal trial when counsel failed to seek a mistrial upon the admission of testimony that the defendant had committed prior sexual abuse on a family member as the jury was admonished to ignore the remark and the jury was given a curative instruction, and counsel chose not to seek a mistrial as a matter of trial strategy. Carroll v. State, 292 Ga. App. 795, 665 S.E.2d 883, 2008 Ga. App. LEXIS 865 (2008). Trial counsel was not ineffective in failing to move for a mistrial or request a curative instruction when the State of Georgia showed the jury two photographs of the murder victim’s body at the crime scene, which the trial court had previously ordered the state not to show on the ground that the photographs were duplicative of other photographs. Given that the two photographs did not show the jury more than other crime scene photographs, and given the strength of the evidence against the defendant, the defendant failed to show that, even if the trial counsel had moved for a mistrial or requested a curative instruction, there was a reasonable probability that the trial court would have granted a mistrial or that the outcome of the trial otherwise would have been different. Watkins v. State, 289 Ga. 359, 711 S.E.2d 655, 2011 Ga. LEXIS 474 (2011).
Objecting to a mistrial.
No ineffective assistance proven by defense counsel’s objection to a mistrial where counsel explained that counsel thought the detective’s inconsistency, exposed upon cross-examination, could be helpful in establishing reasonable doubt as to the defendant’s guilt. Coney v. State, 209 Ga. App. 9, 432 S.E.2d 812, 1993 Ga. App. LEXIS 726 (1993), cert. denied, No. S93C1458, 1993 Ga. LEXIS 919 (Ga. Oct. 5, 1993). No prejudice from error on limits
for closing argument.
While the defendant met the burden of showing trial counsel’s deficient performance based on a Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) misimpression that counsel was entitled to only one hour to make a closing argument, instead of two as permitted by O.C.G.A. § 17-8-73, the defendant failed to show that but for said error, trial counsel could have convinced the jury that defendant was innocent of the crimes charged. Hardeman v. State, 281 Ga. 220, 635 S.E.2d 698, 2006 Ga. LEXIS 485 (2006). Counsel not ineffective for failing
to object to duplicative testimony.
First defendant’s counsel was not ineffective for failing to object to the testimony of the first defendant’s mother and the detective about the car used during the robbery and murder as the car was identified through other evidence, and their testimony about the car was duplicative of admissible testimony. Haney v. State, 305 Ga. 785, 827 S.E.2d 843, 2019 Ga. LEXIS 322 (2019).
Failure to pursue appeal.
Habeas court’s order denying an inmate’s verified petition, which asserted that trial counsel rendered ineffective assistance, was reversed, as the allegations contained in said petition served as sufficient evidence to support the inmate’s claim that counsel failed to file a notice of appeal after being instructed by the inmate to do so. Rolland v. Martin, 281 Ga. 190, 637 S.E.2d 23, 2006 Ga. LEXIS 877 (2006). Failure to produce independent
medical testimony.
The mere possibility that another medical expert might draw conclusions different from those drawn by the State’s witnesses did not sufficiently support the suggestion that defense counsel was ineffective in failing to produce independent medical testimony. Pugh v. State, 250 Ga. 668, 300 S.E.2d 504, 1983 Ga. LEXIS 1024 (1983). Failure to advise regarding nature
of rights waived.
Where the record does not affirmatively reflect that the defendant’s counsel adequately advised the defendant concerning the nature of the rights the defendant waived and the effect thereof, and since the record is silent on this matter and the defendant has challenged the effectiveness of counsel, the court could not presume, that the defendant received adequate advice and counsel from the defendant’s attorney. Watt v. State, 204 Ga. App. 839, 420 S.E.2d 769, 1992 Ga. App. LEXIS 1022 (1992), cert. denied, No. S92C1310, 1992 Ga. LEXIS 758 (Ga. Sept. 11, 1992).
Failure to advise defendant of prosecution as recidivist.
Atrial court did not err in denying defendant’s motion for new trial on the grounds of ineffective assistance of counsel with regard to the defendant’s drug-related convictions, based on defense counsel failing to advise defendant that the state intended to prosecute defendant as a recidivist since defendant did not testify that defendant would have accepted a plea offer had defendant known that defendant was facing the prospect of being sentenced as a recidivist; thus, defendant failed to show that counsel’s alleged deficiency affected the end result of the case. Furthermore, defendant did not show in the record that the state made or was amenable to any plea negotiations. Heard v. State, 291 Ga. App. 550, 662 S.E.2d 310, 2008 Ga. App. LEXIS 568 (2008).
Raising issue of parole.
Counsel was not ineffective by raising the issue of defendant’s possible eligibility for parole if given a life sentence rather than the death penalty because, by addressing the issue directly, counsel was able to answer questions which, in all probability, inevitably arise during the jury’s deliberations of a death case. Parker v. Turpin, 60 F. Supp. 2d 1332, 1999 U.S. Dist. LEXIS 18591 (N.D. Ga. 1999), aff’d, 244 F.3d 831, 2001 U.S. App. LEXIS 3942 (11th Cir. 2001).
Failure to advise defendant regarding ineligibility for parole.
The failure of trial counsel to advise the defendant that no portion of the defendant’s 15-year sentence could be served on parole did not constitute ineffective assistance of counsel. Williams v. Duffy, 270 Ga. 580, 513 S.E.2d 212, 1999 Ga. LEXIS 177 (1999), overruled, Alexander v. State, 297 Ga. 59, 772 S.E.2d 655, 2015 Ga. LEXIS 293 (2015). ity for parole leading to guilty plea. — Defense counsel was ineffective since counsel incorrectly advised the defendant that eligibility for parole would be after serving ten years in prison. Defendant would not have accepted a negotiated plea if counsel had correctly advised defendant of the requirement to serve the entire 20 years in prison on a kidnapping charge. Crabbe v. State, 248 Ga. App. 314, 546 S.E.2d 65, 2001 Ga. App. LEXIS 265 (2001). A defendant was properly allowed to withdraw a guilty plea to armed robbery, and the probation revocation that this plea triggered was properly reversed, as counsel had been ineffective in wrongly advising the defendant that the defendant would be eligible for parole if a guilty plea was entered. Instead, under O.C.G.A. § 17-10-7(b)(2), the defendant’s second conviction for a serious violent felony mandated a sentence of life imprisonment without the possibility of parole. Tillman v. Gee, 284 Ga. 416, 667 S.E.2d 600, 2008 Ga. LEXIS 803 (2008). Failure to give correct advice on
Incorrect advice regarding eligibilmandatory minimum sentence.
It was proper to deny a defendant’s motion for new trial based on ineffective assistance. There were opposing arguments, each supported by the record, as to whether the defendant would have pled guilty had counsel correctly informed the defendant of the mandatory minimum sentence, which presented factual matters primarily for resolution by the trial court. Childrey v. State, 294 Ga. App. 896, 670 S.E.2d 536, 2008 Ga. App. LEXIS 1339 (2008), cert. denied, No. S09C0520, 2009 Ga. LEXIS 106 (Ga. Mar. 9, 2009). Order of the habeas court vacating the defendant’s convictions based on ineffective assistance of trial and appellate counsel was vacated because the habeas court was required to make a finding based on evidence in the record as to whether the defendant would have accepted the state’s plea offer if the defendant had been afforded effective assistance of trial counsel who adequately informed the defendant that the defendant would face a mandatory life sentence upon conviction of the kidnapping charge. Gramiak v. Beasley, 304 Ga. 512, 820 S.E.2d 50, 2018 Ga. LEXIS 653 (2018). Failure to provide service within
expected range of competency.
If defense counsel is so ill-prepared that counsel fails to understand the client’s factual claims or the legal significance of those claims or that counsel fails to understand the basic procedural requirements applicable in court, the Court of Appeals has held that counsel fails to provide service within the range of competency expected of members of the criminal defense bar. Young v. Zant, 677 F.2d 792, 1982 U.S. App. LEXIS 19269 (11th Cir. 1982).
Public defender assisting.
Defendant was not denied effective assistance of counsel based on fact that public defender was appointed for arraignment only and thereafter when defendant had failed to employ his own counsel he was instructed to represent himself with assistance of public defender. Durden v. State, 165 Ga. App. 48, 299 S.E.2d 107, 1983 Ga. App. LEXIS 1760 (1983). equately investigate the matter of an insanity defense, does not adequately inform and advise the client as to the advisability of utilizing such a defense, and did not raise and press the issue of disqualification of the judge, due process and adequate representation by counsel are lacking. Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff’d, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979). Defendant unrepresented until 15
If defense counsel does not adminutes before trial.
Indigent defendant, who was charged with misdemeanor theft by receiving, was denied effective assistance of counsel, because the defendant was only able to retain an attorney 15 or 20 minutes before trial, after the defendant’s parent agreed to “come up” with the money for the attorney’s fee. Lowrance v. State, 183 Ga. App. 421, 359 S.E.2d 196, 1987 Ga. App. LEXIS 1999 (1987).
Counsel appointed seven days before trial.
Where counsel, appointed seven days before trial, moved unsuccessfully for a continuance, interviewed the defendant, examined the scene of the crime, contacted witnesses and observed the trial of the codefendant, and to some extent chose to forego filing certain motions and pursuing certain areas of inquiry, but these choices were reasonable strategic decisions given the time con-Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) straints of the situation, counsel’s assistance in this area was effective. Davis v. Kemp, 829 F.2d 1522, 1987 U.S. App. LEXIS 12938 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262, 1988 U.S. LEXIS 996 (1988).
Time allowed for preparation.
When counsel was appointed to represent a defendant charged with rape, assault, possession of a knife during the commission of a crime, and cruelty to children on the Friday before the week trial was scheduled to begin, and was given a one-week continuance, counsel should have had more time to prepare, given the gravity of the charges, but defendant showed no prejudice from counsel’s short preparation time, as it was not shown that any of the things counsel would have done, given more time, would have resulted in evidence favorable to defendant or a different result of the trial in which he was found guilty. Johnson v. State, 268 Ga. App. 1, 601 S.E.2d 392, 2004 Ga. App. LEXIS 835 (2004), cert. denied, No. S04C1735, 2004 Ga. LEXIS 665 (Ga. Sept. 7, 2004). Representation at different stages
by counsel from same public defender’s office.
Even though the defendant was represented by counsel employed by the same public defender’s office, both when the defendant negotiated a guilty plea and at the hearing on the defendant’s motion to withdraw the plea, there was no conflict of interest requiring appointment of a private attorney to assert a claim of ineffective assistance of counsel as the basis for withdrawal of the plea. Boyette v. State, 217 Ga. App. 593, 458 S.E.2d 397, 1995 Ga. App. LEXIS 529 (1995). sonably effective is not to be based solely upon counsel’s performance at trial; there must be consideration of the “totality of circumstances,” which encompasses the quality of counsel’s assistance from time of appointment or retention through appeal. Fleming v. Zant, 560 F. Supp. 525, 1983 U.S. Dist. LEXIS 18252 (M.D. Ga. 1983), aff’d, 748 F.2d 1435, 1984 U.S. App. LEXIS 16373 (11th Cir. 1984). Absence of counsel during state’s
Determination of whether the assistance rendered by counsel is reaargument.
Under no theory can it be maintained that it is error to permit appointed counsel to leave the courtroom during the state’s argument and thereby depriving the defendant of the right of counsel under U.S. Const., amend. 6 and U.S. Const., amend. 14. Bryant v. State, 229 Ga. 60, 189 S.E.2d 435, 1972 Ga. LEXIS 499 (1972). Counsel has broad discretion in
conduct of trial.
In the conduct of a trial, broad latitude of advice, direction, and policy in the interest of the client is essentially vested in counsel. Counsel often waive apparently important points in the bona fide belief that, on the whole, greater advantage will be gained indirectly than might have been gained directly by insisting on them, and such a waiver either express or implied would ordinarily not tend to show incompetency. No lawyer is infallible, and the constitutional guarantees of the benefit of counsel, and of due process, do not contemplate such infallibility. Wilcoxon v. Aldredge, 193 Ga. 661, 19 S.E.2d 499, 1942 Ga. LEXIS 449, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506, 1942 U.S. LEXIS 274 (1942).
Counsel’s handling of case in retrospect.
While other lawyers, had they represented the defendant, might have conducted the defense in a different manner, and might have exercised different judgments, the fact that the attorney chose to try the defendant’s case in the manner in which it was tried and made certain decisions as to the conduct of the defense with which the defendant and the defendant’s presently employed attorneys now disagree, does not require a finding that counsel’s representation of the defendant was so inadequate as to amount to a denial to the defendant of the effective assistance of counsel. Johnson v. Caldwell, 228 Ga. 776, 187 S.E.2d 844, 1972 Ga. LEXIS 906 (1972); Chapman v. State, 154 Ga. App. 532, 268 S.E.2d 797, 1980 Ga. App. LEXIS 2271 (1980); Lewis v. State, 246 Ga. 101, 268 S.E.2d 915, 1980 Ga. LEXIS 979 (1980). That the case could have been tried differently on behalf of the defendant does not mean that the defendant failed to receive a vigorous and competent defense. Fegan v. State, 154 Ga. App. 791, 270 S.E.2d 211, 1980 Ga. App. LEXIS 2392 (1980); Jordan v. State, 177 Ga. App. 637, 340 S.E.2d 269, 1986 Ga. App. LEXIS 2453 (1986). The fact that another attorney may have handled defendant’s defense differently is not indicative of trial counsel’s ineffective assistance. Hammond v. State, 157 Ga. App. 647, 278 S.E.2d 188, 1981 Ga. App. LEXIS 1951 (1981). Although another lawyer may have conducted the defense in a different way, asked different questions, and made different objections, etc., the fact that the defendant’s counsel made decisions during the trial with which the defendant and the defendant’s current counsel now disagree does not require a finding that the original representation of the defendant was so inadequate as to amount to a denial of effective assistance of counsel. Cherry v. State, 178 Ga. App. 483, 343 S.E.2d 510, 1986 Ga. App. LEXIS 2544 (1986). The fact that the case could have been tried differently on behalf of the defendant does not mean that the defendant failed to receive a vigorous and competent defense. Sleeth v. State, 201 Ga. App. 324, 411 S.E.2d 79, 1991 Ga. App. LEXIS 1372 (1991). Attorney’s “silent trial” tactic in representing a defendant was not so defective as to entitle the defendant to constitutional relief without a showing that the attorney’s conduct prejudiced the defendant. Warner v. Ford, 752 F.2d 622, 1985 U.S. App. LEXIS 28066 (11th Cir. 1985). Communication with client as to
plea options.
Objective professional standards dictated that the defendant’s counsel, under the circumstances, should have communicated the opportunity to plead guilty to voluntary manslaughter for a long-term sentence rather than go to trial on a murder indictment and risk a life sentence. However, because there was no inference from the evidence that the defendant would have accepted the offer as made or something similar, (the unmistakable conclusion was that she would not have accepted or even considered the offer to plead guilty to voluntary manslaughter), the evidence supported a finding that counsel was reasonably effective. Lloyd v. State, 258 Ga. 645, 373 S.E.2d 1, 1988 Ga. LEXIS 418 (1988). Defendant would be entitled to relief for ineffective assistance of counsel if the defendant demonstrated that the defendant would have accepted a plea bargain absent counsel’s errors. Muff v. State, 210 Ga. App. 309, 436 S.E.2d 47, 1993 Ga. App. LEXIS 1184 (1993). Ineffective assistance was not shown by failure of counsel to properly inform the defendant of the statutory ramifications of a guilty plea because there was evidence that, before the defendant entered a guilty plea, the defendant was informed of the specific consequences by the defendant’s parole officer and repetition of that information by counsel would not have altered the defendant’s decision to enter the plea of guilty. Pendley v. State, 217 Ga. App. 394, 457 S.E.2d 681, 1995 Ga. App. LEXIS 454 (1995). Counsel not ineffective if actions come within ambit of trial tactics and
strategy.
Counsel’s decision to have the defendant display the defendant’s teeth to the jury and then agreeing to the state’s cross-examination of the defendant on the issue of the defendant’s teeth; counsel’s handling of a motion to suppress identification testimony; and counsel’s failure to object to certain hearsay testimony came within the ambit of trial tactics and strategy and fell within the range of reasonably effective assistance. Heard v. State, 177 Ga. App. 802, 341 S.E.2d 459, 1986 Ga. App. LEXIS 2469 (1986). Counsel’s stipulation of nonuse of a tape recording obtained in a surveillance was not constitutionally infirm assistance of counsel, where there was no showing that the tape was relevant to the determination of guilt or innocence, much less that it was favorable to defendant. McCarthy v. State, 196 Ga. App. 839, 397 S.E.2d 178, 1990 Ga. App. LEXIS 1129 (1990). When defendant’s counsel did not object to an officer’s testimony which bolstered the victim, this was not ineffective assistance of counsel because the officer’s statements were elicited by counsel’s line of Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) questioning, which was not an unreasonable trial strategy, because it was consistent with counsel’s announced trial strategy of trying to brand the victim as a liar. Johnson v. State, 268 Ga. App. 1, 601 S.E.2d 392, 2004 Ga. App. LEXIS 835 (2004), cert. denied, No. S04C1735, 2004 Ga. LEXIS 665 (Ga. Sept. 7, 2004). Because defendant’s claim that statements were made in the hope of receiving benefits was found to lack merit, based on the defendant’s contradictory testimony by the lead counsel’s regarding a plea agreement, there was no showing that the counsel was ineffective in allowing those statements to have been admitted in defendant’s criminal trial; further, allowing the statements was a reasonable strategic decision after a plea agreement requiring defendant to testify truthfully had been previously made. Redwine v. State, 280 Ga. 58, 623 S.E.2d 485, 2005 Ga. LEXIS 863 (2005). Allegation that counsel was ineffective in violation of Ga. Const. 1983, Art. I, Sec. I, Para. XIV for failing to object on Sixth Amendment confrontation grounds to the admission of the codefendant’s statement to police implicating defendant in a burglary failed; defense counsel’s failure to raise the Sixth Amendment issue was a strategic decision, based on defendant’s desire to be tried with the codefendants and to present a unified front. Vincent v. State, 276 Ga. App. 415, 623 S.E.2d 255, 2005 Ga. App. LEXIS 1265 (2005).
Failure to use battered woman syndrome defense.
Counsel’s decision not to pursue a defense based on the battered woman syndrome was a reasonable choice of trial strategy. Lewis v. State, 265 Ga. 451, 457 S.E.2d 173, 1995 Ga. LEXIS 368, cert. denied, 516 U.S. 964, 116 S. Ct. 418, 133 L. Ed. 2d 335, 1995 U.S. LEXIS 7436 (1995). Where trial counsel investigated battered woman syndrome and determined that assertion of the syndrome defense was unrealistic, such decision did not equate to ineffective assistance of counsel. Smith v. State, 231 Ga. App. 677, 499 S.E.2d 663, 1998 Ga. App. LEXIS 319 (1998), cert. denied, No. S98C1172, 1998 Ga. LEXIS 788 (Ga. Sept. 8, 1998).
Failure to research mitigating evidence constitutes ineffective assistance.
Defense counsel’s performance during the sentencing phase of the defendant’s capital trial, by failing to conduct a reasonable search for mitigation evidence, which would have uncovered numerous mitigation witnesses, and by failing to offer the client’s clean criminal record, resulted in no evidence being offered and amounted to ineffective assistance of counsel. Johnson v. Kemp, 615 F. Supp. 355, 1985 U.S. Dist. LEXIS 17016 (S.D. Ga. 1985), aff’d, 781 F.2d 1482, 1986 U.S. App. LEXIS 21524 (11th Cir. 1986). Counsel’s failure to investigate and present mitigating evidence fell below an objective standard of reasonableness under prevailing professional norms. Thomas v. Kemp, 796 F.2d 1322, 1986 U.S. App. LEXIS 27515 (11th Cir.), cert. denied, 479 U.S. 996, 107 S. Ct. 602, 93 L. Ed. 2d 601, 1986 U.S. LEXIS 5061 (1986). Trial attorneys’ performance during the sentencing phase of the defendant’s murder trial was unreasonable in light of prevailing professional norms, because they failed to investigate and present mitigating evidence, and one of the attorneys attacked the client’s character and separated said attorney from the client. Horton v. Zant, 941 F.2d 1449, 1991 U.S. App. LEXIS 20577 (11th Cir. 1991), cert. denied, 503 U.S. 952, 112 S. Ct. 1516, 117 L. Ed. 2d 652, 1992 U.S. LEXIS 1943 (1992).
Failure to search for mitigating circumstances in client’s background.
Counsel’s decision not to mount an all-out investigation into a murder defendant’s background in search of mitigating circumstances was supported by reasonable professional judgment, because there was a reasonable basis for counsel’s strategic decision that an explanation of defendant’s history would not have minimized the risk of the death penalty. Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638, 1987 U.S. LEXIS 3047 (1987). Because defendant’s trial and appellate counsel did not investigate after being notified of defendant’s history of mental problems, the habeas court properly concluded that they were ineffective and that defendant was prejudiced thereby. Martin v. Barrett, 279 Ga. 593, 619 S.E.2d 656, 2005 Ga. LEXIS 526 (2005).
Failure to put on mitigating evidence at a sentencing hearing, etc.
Failure to put on mitigating evidence at a sentencing hearing is not per se ineffective. Davis v. Kemp, 829 F.2d 1522, 1987 U.S. App. LEXIS 12938 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262, 1988 U.S. LEXIS 996 (1988). Trial court erred in concluding that the defendant was denied effective assistance of counsel in the sentencing phase as to the presentation of mitigation evidence as a reasonable lawyer might reasonably have concluded that the mitigating value of the testimony family members might have given was less than the potential downside of such testimony, which conflicted with expert testimony. State v. Worsley, 293 Ga. 315, 745 S.E.2d 617, 2013 Ga. LEXIS 597 (2013). Failure to present character during
sentencing phase.
In a prosecution for armed robbery and felony murder, defense counsels were ineffective in the sentencing phase of the trial where (1) despite their acknowledgment that the sentencing phase was the most important part of the trial, defense counsels’ examination of the witnesses was minimal and they sought to elicit very little relevant evidence about the defendant’s character; (2) with respect to a number of witnesses, defense counsel sought only their opinion of the defendant’s reputation for truth and veracity, which was a matter wholly irrelevant to the issue before the jury; and (3) even when defense counsel departed from the truth-and-veracity line of questioning, the testimony elicited was of a nature that could not reasonably have aided the jury in its sentence determination. Collier v. Turpin, 177 F.3d 1184, 1999 U.S. App. LEXIS 5900 (11th Cir. 1999).
Failure to obtain psychiatric assistance.
Trial counsel was ineffective in counsel’s failure to obtain an independent psychiatric or psychological examination of a murder defendant, where defendant’s competence and sanity were not only significant factors at the trial, but the only issues. Curry v. Zant, 258 Ga. 527, 371 S.E.2d 647, 1988 Ga. LEXIS 360 (1988). Where it is clear from the record already before the court that trial counsel’s failure to seek additional psychiatric assistance or otherwise further investigate the petitioner’s mental condition before trial for the purpose of presenting an insanity or other diminished responsibility defense at trial did not deny the petitioner the effective assistance of counsel in the guilt phase of the trial, evidence of the petitioner’s reduced mental capacity could in no way effect the conclusion in this regard and was not entitled to an evidentiary hearing in the district court to support the defendant’s claim of ineffective assistance of counsel in the guilt phase of the defendant’s trial. Stephens v. Kemp, 846 F.2d 642, 1988 U.S. App. LEXIS 5265 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189, 102 L. Ed. 2d 158, 1988 U.S. LEXIS 3631 (1988). Defendant who was convicted of voluntary manslaughter did not show that defense counsel provided ineffective assistance because counsel did not challenge the judgment of medical personnel that the defendant was competent to stand trial. Morton v. State, 265 Ga. App. 421, 594 S.E.2d 664, 2004 Ga. App. LEXIS 136 (2004).
Failure to obtain mitigating testimony.
Because none of the prospective witnesses who the defendant claimed should have been called in mitigation testified at the hearing on the motion for new trial, and the record did not show what they might have testified, the defendant failed to show that their testimony probably would have resulted in a different verdict. Williams v. State, 258 Ga. 281, 368 S.E.2d 742, 1988 Ga. LEXIS 276 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606, 1989 U.S. LEXIS 3313 (1989). tencing hearing, etc. Defendant’s vestigated and presented mitigating evidence in sentencing hearing was rejected where, although defendant later Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) produced nine affidavits of persons who stated that they would have gladly testified on defendant’s behalf had they been asked, a review of the affidavits indicates that they contained statements by friends and relatives which were substantially similar to the evidence attorney presented at the hearing. Consequently, these affidavits alone were insufficient to rebut the strong presumption that attorney’s conduct fell within the wide range of reasonable professional assistance. Williams v. Kemp, 846 F.2d 1276, 1988 U.S. App. LEXIS 6460 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931, 1989 U.S. LEXIS 1647 (1989), cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 108 L. Ed. 2d 965, 1990 U.S. LEXIS 1953 (1990). Defendant was sentenced to death for murder. Counsel’s investigation into the defendant’s abuse at the hands of relatives was not deficient, because the defense investigator contacted the relatives’ child, who testified at trial, and the defendant told counsel and testified at trial that the defendant had an ideal childhood while living with the relatives. Whatley v. Terry, 284 Ga. 555, 668 S.E.2d 651, 2008 Ga. LEXIS 824 (2008), cert. denied, 556 U.S. 1248, 129 S. Ct. 2409, 173 L. Ed. 2d 1316, 2009 U.S. LEXIS 3757 (2009).
Defendant’s claim that attorney inadequately investigated and presented mitigating evidence in senclaim that attorney inadequately in-Timing of testimony.
Even if none of the medical experts giving testimony knew that the trial counsel intended that he or she testify as to mitigating circumstances during the guilt phase, and not the penalty phase of the trial, that fact would not constitute ineffective assistance of counsel. Waters v. Thomas, 46 F.3d 1506, 1995 U.S. App. LEXIS 3889 (11th Cir.), cert. denied, 516 U.S. 856, 116 S. Ct. 160, 133 L. Ed. 2d 103, 1995 U.S. LEXIS 6000 (1995). ment can be characterized as a trial tactic which cannot be equated to the ineffective assistance of counsel. Warner v. State, 155 Ga. App. 495, 271 S.E.2d 636, 1980 Ga. App. LEXIS 2633 (1980). The failure of a defendant’s counsel to make an opening statement did not constitute ineffective assistance of counsel. United States v. Costa, 691 F.2d 1358, 1982 U.S. App. LEXIS 23916 (11th Cir. 1982). Shortness of trial counsel’s opening statement does not show ineffective assistance. Cook v. State, 255 Ga. 565, 340 S.E.2d 843, 1986 Ga. LEXIS 607, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4139 (1986). Failure to object to order of argu-
Mere waiver of an opening statements.
Since defendant did not have a “constitutional privilege” to both present evidence in his defense and open and conclude the closing arguments of the guilt/innocence phase of trial, trial counsel was not ineffective for failing to object the order of closing arguments set forth in O.C.G.A. § 17-8-71. Hammond v. State, 264 Ga. 879, 452 S.E.2d 745, 1995 Ga. LEXIS 23, cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 54, 1995 U.S. LEXIS 5611 (1995). Because the jury was informed of a stipulation and were read the contents of the victim’s post-mortem toxicology reports, the trial court properly limited defense counsel’s closing arguments; defense counsel was not ineffective for failing to ask that closing argument be reported or for failing to request a jury charge on manslaughter, since defendant claimed that the shooting was accidental. Williams v. State, 279 Ga. 600, 619 S.E.2d 649, 2005 Ga. LEXIS 522 (2005). Duty of counsel where defendant
indicates desire to plead guilty.
When a person indicates a desire to enter a guilty plea, the duty of counsel is limited to ascertaining whether the decision so to plead is voluntarily and knowingly made. Brown v. Jernigan, 622 F.2d 914, 1980 U.S. App. LEXIS 15189 (5th Cir.), cert. denied, 449 U.S. 958, 101 S. Ct. 368, 66 L. Ed. 2d 224, 1980 U.S. LEXIS 3794 (1980). Same duty is not owed by appointed counsel to an accused who pleads guilty as to one who decides to go to trial. Walker v. Caldwell, 476 F.2d 213, 1973 U.S. App. LEXIS 10733 (5th Cir. 1973).
Advice regarding plea must be competent.
The advice of counsel to a defendant entering a guilty plea must be within the range of competence demanded of attorneys in criminal cases. Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff’d, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979). Reasonably effective assistance is an easier standard to meet in the context of a guilty plea than in a trial, but counsel still must render competent service. It is the lawyer’s duty to ascertain if the plea is entered voluntarily and knowingly. He must actually and substantially assist his client in deciding whether to plead guilty. It is his job to provide the accused an understanding of the law in relation to the facts. The advice he gives need not be perfect, but it must be reasonably competent. His advice should permit the accused to make an informed and conscious choice. In other words, if the quality of counsel’s service falls below a certain minimum level, the client’s guilty plea cannot be knowing and voluntary because it will not represent an informed choice. McBryar v. McElroy, 510 F. Supp. 706, 1981 U.S. Dist. LEXIS 12844 (N.D. Ga. 1981). Defendant’s due process rights were violated where throughout the state and federal habeas proceedings the defendant was induced to plead guilty by defendant’s counsel’s erroneous advice that the plea bargain would enable defendant to serve the federal and state sentences concurrently. Thus, the attorney provided ineffective assistance to defendant as the guilty plea was not knowing, intelligent and voluntary. Finch v. Vaughn, 67 F.3d 909, 1995 U.S. App. LEXIS 30983 (11th Cir. 1995).
Advice to plead guilty.
Defendant’s guilty plea was the result of ineffective assistance of counsel in that counsel’s advice was based upon an incorrect understanding of the law, as the defendant could not have been convicted, as counsel alleged, of aggravated assault; further, the result of the defendant’s guilty plea was that the defendant received a harsher sentence then the defendant would have been received had the defendant gone to trial and been convicted. Petty v. Smith, 279 Ga. 273, 612 S.E.2d 276, 2005 Ga. LEXIS 303 (2005). dant to plead guilty on patently erroneous advice, the defendant has been denied the effective assistance of counsel, as well as due process. Walker v. Caldwell, 476 F.2d 213, 1973 U.S. App. LEXIS 10733 (5th Cir. 1973). After an inmate’s counsel affirmatively misinformed the inmate that if the inmate entered a plea of guilty to a first offender offense of violating the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., that such would not impair the inmate’s ability to become a lawyer, nor would it impact the inmate’s immigration status, the trial court erred in denying the inmate’s petition for a writ of habeas corpus pursuant to O.C.G.A. § 9-14-5 because under the Strickland analysis, the inmate’s counsel was ineffective, as the inmate had graduated law school and passed the Bar, but the inmate’s admission was held up due to the conviction, and deportation proceedings had been commenced against the inmate. Thus, since the inmate relied upon a lawyer’s misinformation about collateral consequences stemming from a guilty plea, the inmate had grounds to argue that counsel provided ineffective representation pursuant to U.S. Const., amend. 6, and such claims are to be analyzed under the two-part Strickland test. Rollins v. State, 277 Ga. 488, 591 S.E.2d 796, 2004 Ga. LEXIS 1 (2004). Duty to determine voluntariness of
Where counsel has induced defenguilty plea.
Because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts, which is the function of the accused’s appointed counsel. Walker v. Caldwell, 476 F.2d 213, 1973 U.S. App. LEXIS 10733 (5th Cir. 1973). The requirement that a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant’s lawyer withstand retrospective examination in a post-conviction hearing. Lambert v. United States, 392 F. Supp. 113, 1975 U.S. Dist. LEXIS 12810 (N.D. Ga. 1975). It is the defendant’s lawyer’s duty to ascertain whether a plea of guilty is entered voluntarily and knowingly. Carbo v. United States, 581 F.2d 91, 1978 U.S. App. Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) LEXIS 8774 (5th Cir. 1978); Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff’d, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979). Counsel must actually and substantially assist the defendant in deciding whether to plead guilty by providing an understanding of the law in relation to the facts. Counsel’s advice need not be perfect but it must be reasonably competent so as to permit the accused to make an informed and conscious choice. Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff’d, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979). Because defendant was advised by the court and trial counsel of the rights and the consequences of pleading guilty, the plea proceedings complied with Ga. Unif. Super. Ct. R. 33 and established that the guilty plea was knowing and voluntary; because counsel’s actions fell well within the wide range of reasonable professional conduct, the trial court properly denied defendant’s motion to withdraw the guilty plea. Jones v. State, 268 Ga. App. 723, 603 S.E.2d 73, 2004 Ga. App. LEXIS 1004 (2004).
Examination of plea where imprisonment or death at stake.
What is at stake for an accused facing death or imprisonment demands utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure the accused has a full understanding of what the plea connotes and of its consequence, and forestalls the spin-off of collateral proceedings that seek to probe murky memories. Phillips v. Smith, 300 F. Supp. 130, 1969 U.S. Dist. LEXIS 8396 (S.D. Ga. 1969).
Basis for attack on plea.
A defendant’s plea of guilty, based on reasonably competent advice, is not open to attack on the ground that counsel may have misjudged the admissibility of a confession. In such a case, a defendant’s only recourse is to attack the voluntary and intelligent character of the plea, which may in some instances include an attack on the competence of counsel. Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff’d, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979). Dispute of attorney’s authority to
enter guilty plea must be timely.
It would be trifling with the trial court to allow the client, after keeping silent in the presence of the court while the attorney entered a plea of guilty in the client’s behalf and the court acting thereon imposed the sentence, to deny thereafter the authority of the attorney to enter the plea or to deny approval of such action by attorney. Had the defendant had any objection, he should have made it known at the time and before the court acted thereon. Cobb v. Dutton, 222 Ga. 11, 148 S.E.2d 399, 1966 Ga. LEXIS 384 (1966). Trial court did not abuse its discretion in denying defendant’s motion to withdraw the plea, because defendant’s appointed counsel had conducted a sufficient investigation of the case to determine that defendant had a viable defense and to advise defendant to adhere to the nolo contendere plea defendant had entered. Hopkins v. State, 274 Ga. App. 872, 619 S.E.2d 368, 2005 Ga. App. LEXIS 847 (2005). selves with Georgia’s presentence hearing law falls below the standard required of reasonably effective counsel and requires that the death sentence be set aside. House v. Balkcom, 562 F. Supp. 1111, 1983 U.S. Dist. LEXIS 17753 (N.D. Ga. 1983), rev’d, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir. 1984). Counsel’s failure to research the missibility of prior convictions in capital sentencing trials in Georgia is not ineffective assistance where counsel’s position is that since the state had not given counsel “proper” notice prior to trial of statutory aggravating circumstances, no evidence of such circumstances could be offered, and where any misconception that counsel had concerning the law on the admissibility of prior convictions did not affect the defendant’s decision not to take the stand. Mitchell v. Hopper, 564 F. Supp. 780, 1983 U.S. Dist. LEXIS 16411 (S.D. Ga. 1983), aff’d, 762 F.2d 886, 1985 U.S. App. LEXIS 30164 (11th Cir. 1985). Counsel’s failure to research the clear statutory law regarding the requirement of actual — but not written — notice of aggravating circumstances, and his reliance on a strict construction of the statutory notice requirement, does not amount to ineffective assistance, where the law of Georgia was not clear on this point at the time of the trial. Mitchell v. Hopper, 564 F. Supp. 780, 1983 U.S. Dist. LEXIS 16411 (S.D. Ga. 1983), aff’d, 762 F.2d 886, 1985 U.S. App. LEXIS 30164 (11th Cir. 1985). Presentation of evidence in capital
Counsels’ failure to acquaint themclear statutory law regarding the admurder sentencing hearing.
No lawyer can foretell what will or will not convince 12 jurors to have mercy and give a sentence of life instead of death in a murder case; all a constitutionally effective lawyer can be required or expected to do is to make the informed decision of what mitigating evidence, if any, should be presented and how or through what witnesses it can most effectively be presented. Fleming v. Zant, 560 F. Supp. 525, 1983 U.S. Dist. LEXIS 18252 (M.D. Ga. 1983), aff’d, 748 F.2d 1435, 1984 U.S. App. LEXIS 16373 (11th Cir. 1984). Failure to dispute the amount of restitution ordered as a condition of probation may have been an error, but that of itself would not constitute ineffective assistance. Johnston v. State, 165 Ga. App. 792, 302 S.E.2d 708, 1983 Ga. App. LEXIS 2020 (1983). Counsel were less than reasonably effective in failing to file a motion for a new trial based on newly discovered evidence that murder victim was seen alive after being seen in the defendant’s vicinity. House v. Balkcom, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir.), cert. denied, 469 U.S. 870, 105 S. Ct. 218, 83 L. Ed. 2d 148, 1984 U.S. LEXIS 3789 (1984). Improper conflict of interest not
found.
The fact that, more than three years before the defendant’s trial, the defendant’s attorney had represented a prosecution witness in an unrelated criminal matter did not create an improper conflict of interest. Hill v. State, 269 Ga. 23, 494 S.E.2d 661, 1998 Ga. LEXIS 39 (1998).
Preparation of defendant as a witness.
Trial counsel was not ineffective in counsel’s preparation of the defendant as a witness where trial counsel met with the defendant and discussed the questions counsel would ask the defendant in a general way, and the defendant did not show that but for counsel’s failure to prepare the defendant there was a reasonable probability that the outcome of the trial would have been different. Mallon v. State, 266 Ga. App. 394, 597 S.E.2d 497, 2004 Ga. App. LEXIS 384 (2004).
Mental incompetency.
Trial court erred by refusing to conduct a hearing or to rule on defendant’s motion for a new trial based upon its finding that defendant was, at that time, mentally incompetent and unable to assist counsel in challenging the conviction, as defendant’s current mental incompetence provided no logical basis to delay a post-conviction proceeding to address whether defendant was incompetent at trial, whether the trial court should have been on notice of defendant’s incompetency and conducted a hearing during trial, or whether trial counsel was ineffective for failing to timely raise the competency issue. Florescu v. State, 276 Ga. App. 264, 623 S.E.2d 147, 2005 Ga. App. LEXIS 1226 (2005).
Waiver of jury trial.
Trial counsel was not ineffective in advising defendant to waive defendant’s right to a jury trial based on the unpleasant photographs of the victim as defendant seemed to grasp the reason for the advice, which was also given in the presence of defendant’s father, and was given both before and after defendant began treatment for defendant’s bipolar disorder. Mallon v. State, 266 Ga. App. 394, 597 S.E.2d 497, 2004 Ga. App. LEXIS 384 (2004). On a claim that trial counsel was ineffective in advising a defendant to waive the right to a jury trial, the proper inquiry is whether the defendant has demonstrated a reasonable probability that the outcome of the proceeding would have been different had the defendant not waived the right to a jury trial on advice of counsel. Given the strength of the evidence against the defendant, the defendant failed to demonstrate a reasonable probability that the outcome of the trial Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) would have been different if tried before a jury; accordingly, the defendant’s claim that counsel was ineffective in advising the defendant to waive a jury trial failed. Hendrix v. State, 284 Ga. 420, 667 S.E.2d 597, 2008 Ga. LEXIS 811 (2008). Failure to object to rulings belied
by record.
Defendant failed to prove ineffective assistance during a criminal trial, as a police officer’s testimony that the defendant said that the defendant slept with the defendant’s child was met with a vigorous defense, including a successful directed verdict motion on one count, by the defendant’s trial counsel; the defendant’s claim that the trial counsel failed to object when the trial court ruled that the defendant’s silence when asked whether the defendant slept in the same bed as the child, constituted an admission that was contradicted by the clear evidence of the trial proceedings contained in the record. Allen v. State, 275 Ga. App. 826, 622 S.E.2d 54, 2005 Ga. App. LEXIS 1118 (2005). Counsel present at all critical
stages.
Defendant was not denied effective assistance of counsel where counsel was appointed approximately three months prior to trial and was present at all “critical stages” of the case. Ramsey v. State, 183 Ga. App. 48, 357 S.E.2d 869, 1987 Ga. App. LEXIS 1869 (1987), cert. denied, 183 Ga. App. 905.
Futile objections not required.
Defendant was not denied effective assistance of counsel at a trial for aggravated child molestation because it would have been futile to object to the 10-year old victim’s videotaped statement, which was admissible under the exception in O.C.G.A. § 24-3-16 for a child’s statement of sexual abuse, since there was sufficient indicia of reliability and the child was available to testify at trial. Campos v. State, 263 Ga. App. 119, 587 S.E.2d 264, 2003 Ga. App. LEXIS 1136 (2003). Because variances in the pronunciation and spelling of proper names were immaterial, an objection based on such variances would have been futile and trial counsel was not ineffective for failing to object. Walker v. State, 280 Ga. App. 457, 634 S.E.2d 93, 2006 Ga. App. LEXIS 743 (2006), cert. denied, No. S06C2003, 2006 Ga. LEXIS 799 (Ga. Oct. 2, 2006).
Failure to object to aggravating evidence.
Because, at the sentencing phase of the trial, the state offered in aggravation an indictment and the defendants’ plea of guilty to the indictment, and the sentence imposed under the Georgia First Offender Act, O.C.G.A. § 42-8-60 et seq., for the offenses of entering an automobile and theft by taking, and the defendant’s lawyer did not object to this evidence, since evidence in aggravation is not limited to convictions, and reliable information tending to show a defendant’s general bad character is admissible in aggravation, failure to object was not ineffective assistance. Williams v. State, 258 Ga. 281, 368 S.E.2d 742, 1988 Ga. LEXIS 276 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606, 1989 U.S. LEXIS 3313 (1989). That defendant’s lawyer objected to nesses was not deficient, even if the objections lacked merit. The defendant’s case could not have been prejudiced by this attempt. Williams v. State, 258 Ga. 281, 368 S.E.2d 742, 1988 Ga. LEXIS 276 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606, 1989 U.S. LEXIS 3313 (1989).
damaging testimony of state’s wit-Failure to impeach witness.
Defendant failed to demonstrate a claim of ineffective assistance of counsel based on counsel’s failure to impeach an eyewitness with prior inconsistent statements since counsel testified that the witness was very argumentative and that the counsel questioned the witness as well as possible, and since counsel did impeach the witness with the prior statement in several respects; that counsel may not have impeached the witness in every respect did not show that counsel’s performance fell outside the broad range of reasonable professional conduct. In any event, the exploration of additional inconsistencies in the witness’s testimony would not have changed the outcome of the trial. Sims v. State, 280 Ga. 606, 631 S.E.2d 656, 2006 Ga. LEXIS 394 (2006). With regard to defendant’s convictions for first degree arson, criminal damage to property in the second degree, threatening a witness in an official proceeding by unlawfully causing economic harm to a family member, and use of intimidation with the intent of influencing a witness to change the witness’s testimony in an official proceeding, defendant was not denied the right to legal representation free from conflicts of interest because defendant’s attorney also represented codefendant as defendant’s alibi defense was not inconsistent with codefendant’s, rather, the alibis were corroborative of each other and mutually supportive since defendant and codefendant both stated that each returned to codefendant’s house without incident and defendant thereafter went to defendant’s parent’s house. The defenses were synergistic rather than antagonistic, and the representation by the same attorney did not give rise to any conflict of interest, potential or actual. Shelnutt v. State, 289 Ga. App. 528, 657 S.E.2d 611, 2008 Ga. App. LEXIS 144 (2008), cert. denied, No. S08C0977, 2008 Ga. LEXIS 518 (Ga. June 2, 2008). With regard to defendant’s conviction for arson and other related crimes, defendant failed to establish that defense counsel rendered ineffective assistance by failing to impeach a witness with evidence that the witness previously had committed arson as instances of specific misconduct cannot be used to impeach a witness’s character or veracity unless the misconduct resulted in the conviction of a crime involving moral turpitude, and the proper method of proving such a conviction was by the introduction of a certified copy of the conviction. Since no conviction existed, defense counsel could not be charged with deficient performance in failing to attempt to introduce inadmissible evidence. Shelnutt v. State, 289 Ga. App. 528, 657 S.E.2d 611, 2008 Ga. App. LEXIS 144 (2008), cert. denied, No. S08C0977, 2008 Ga. LEXIS 518 (Ga. June 2, 2008). Trial counsel did not fail to adequately question and impeach the state’s witness because counsel did not question the witness about potential deals, favorable treatment, or why the witness was handcuffed since the witness was arrested on a material witness warrant and had no pending cases about which to make a deal; the defendant could not show prejudice because the state had already elicited from the witness information about prior drug convictions and that the witness was jailed the preceding day for failing to appear to testify in the defendant’s case. Johnson v. State, 290 Ga. 382, 721 S.E.2d 851, 2012 Ga. LEXIS 78 (2012). Trial counsel’s decision not to impeach a witness with a prior criminal history was not patently unreasonable in light of counsel’s testimony that counsel impeached the witness by showing inconsistencies between the witness’s testimony and a prior statement to police. Romer v. State, 293 Ga. 339, 745 S.E.2d 637, 2013 Ga. LEXIS 600 (2013). State’s barrage of questions to a non-testifying co-indictee violated
defendant’s right.
In a defendant’s trial for trafficking in methamphetamine, trial counsel provided ineffective assistance of counsel by failing to object to a prosecutor’s litany of suggestive questions to a co-indictee, who refused to answer any of the questions, and to admission of the co-indictee’s guilty plea. The impression left by the questions undermined the defense theory and suggested that the defendant had threatened the co-indictee; the impression was too powerful to be overcome by a jury instruction that questions by the attorneys were not evidence. Cabrera v. State, 303 Ga. App. 646, 694 S.E.2d 720, 2010 Ga. App. LEXIS 387 (2010). Closing argument implying, but not
expressly conceding, guilt.
If guilt was to some degree implied in what defense counsel said in the closing argument, it was a weak implication at best, and arguably unavoidable in light of the overwhelming evidence. There was no express concession of guilt. Consequently, the defendant was unable to show that counsel’s “errors” were so serious that the defendant was deprived of a fair trial. Messer v. Kemp, 760 F.2d 1080, 1985 U.S. App. LEXIS 30003 (11th Cir. 1985), cert. denied, 474 U.S. 1088, 106 S. Ct. 864, 88 L. Ed. 2d 902, 1986 U.S. LEXIS 1173 (1986). Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d)
Initial doubt cast on counsel’s effectiveness.
Defendant’s allegations that trial counsel did not interview the prosecution witnesses, call defense witnesses the defendant requested, conduct basic investigation, or make discovery demands; and that the defendant, not the defendant’s counsel, subpoenaed the government witnesses’ criminal records, were sufficient to cast initial doubt on the effectiveness of counsel, especially since the federal Court of Appeals had also noted that the defendant’s trial counsel could have discovered that the codefendant had made statements favorable to the defendant’s defense if it had conducted appropriate discovery. United States v. Yizar, 956 F.2d 230, 1992 U.S. App. LEXIS 4507 (11th Cir. 1992).
Counsel ineffective in capital murder case, but no prejudice present.
Trial counsel, in a capital murder case, who did not file a notice of appeal, filed a brief only after the Georgia Supreme Court threatened to impose sanctions, which brief included only five pages of argument, failed to attend oral arguments, and failed to heed a court request that counsel file a supplemental brief was woefully inadequate and likely ineffective, but no prejudice accrued as the federal court later remedied the only constitutional deficiency of the trial. Morgan v. Zant, 743 F.2d 775, 1984 U.S. App. LEXIS 18388 (11th Cir. 1984), overruled in part, Peek v. Kemp, 784 F.2d 1479, 1986 U.S. App. LEXIS 22736 (11th Cir. 1986).
Failure to honor requests.
Where defendant had no right to have voir dire and closing arguments fully recorded, trial counsel’s failure to request such did not result in ineffective assistance. Anderson v. State, 206 Ga. App. 354, 426 S.E.2d 6, 1992 Ga. App. LEXIS 1633 (1992). Failure to redact defendant’s name from records of prior convictions
used to impeach witnesses.
Because the defense counsel introduced certified copies of convictions of state’s witnesses to impeach them, but failed to redact the portion that implicated defendant as a participant in those crimes, which were identical or incidental to the crimes for which defendant was on trial, counsel’s performance was deficient; as the main evidence against defendant was the testimony from those witnesses and there was no physical evidence that linked defendant to the crimes, the fact that defendant was involved with those same defendants in prior similar crimes could have led the jury to conclude that the same pattern was being repeated, and there was a reasonable probability that, but for counsel’s ineffective assistance, the outcome of the trial would have been different, and defendant was entitled to a new trial pursuant to O.C.G.A. § 5-5-25. Whitaker v. State, 276 Ga. App. 226, 622 S.E.2d 916, 2005 Ga. App. LEXIS 1212 (2005). Failure to request instructions on
lesser offense.
Defendant was not denied ineffective assistance of counsel by counsel’s failure in aggravated assault trial to request jury instructions on the lesser offenses of pointing a pistol at another or reckless conduct. Fambro v. State, 164 Ga. App. 359, 297 S.E.2d 111, 1982 Ga. App. LEXIS 2800 (1982). Defendant’s counsel was entitled to rely on defendant’s claim that defendant was not present when a victim was killed, counsel acted reasonably when counsel decided to defend charges of malice murder and felony murder by attacking the credibility of defendant’s co-conspirators and when counsel decided not to ask that the jury be instructed on voluntary manslaughter as a lesser included offense of murder; furthermore, the trial court did not err because it did not give the jury an instruction on voluntary manslaughter, sua sponte. Sparks v. State, 277 Ga. 72, 586 S.E.2d 645, 2003 Ga. LEXIS 732 (2003). Defendant’s trial counsel was not ineffective in failing to request jury instruction on reckless conduct as lesser-included offense of aggravated assault as there was no evidence that would support a finding that defendant’s driving a vehicle directly at a deputy and not stopping at a police roadblock was criminally negligent rather than intentional; further, trial counsel testified that the decision to not request a jury charge on the lesser included offense was a matter of trial strategy to pursue an all or nothing defense for the aggravated assault charge. Taul v. State, 290 Ga. App. 288, 659 S.E.2d 646, 2008 Ga. App. LEXIS 212 (2008). In a malice murder prosecution, defense counsel was not ineffective in failing to request an instruction on voluntary manslaughter as the defendant was fully advised on this issue and decided to pursue an “all or nothing” strategy and rely solely on self-defense. Brown v. State, 285 Ga. 324, 676 S.E.2d 221, 2009 Ga. LEXIS 146 (2009). Court’s failure to charge language ceedings upon plea of insanity), by failing to include the phrase “if ever” when explaining when a court is allowed to release a defendant from a mental health facility, was not reversible error, nor did it deprive the defendant of a fair trial or effective assistance of counsel. The charge given specified that the court would retain control over the defendant’s release and did not imply that the court would be required at some point to order his release. Levin v. State, 222 Ga. App. 123, 473 S.E.2d 582, 1996 Ga. App. LEXIS 776 (1996).
of O.C.G.A. § 17-7-131(b)(3)(A) (pro-Dispensing with lesser-included offense charge.
A defendant was not denied the effective assistance of counsel where the defendant’s attorney made a reasonable tactical decision to dispense with a lesser-included offense charge and there was no evidence that a lack of consultation with the defendant, if any, either reflected a lack of investigation or caused an unknowing waiver of a constitutional right by the defendant. Maynor v. Green, 547 F. Supp. 264, 1982 U.S. Dist. LEXIS 15861 (S.D. Ga. 1982).
Erroneous sentence estimate by defense counsel.
The United States Constitution does not guarantee every criminal defendant the assistance of perfect, errorless counsel, or counsel judged by hindsight, nor will the court grant habeas relief upon a mere showing that the defense counsel’s strategy foundered. Even an erroneous sentence estimate by defense counsel does not vitiate the voluntariness of the defendant’s plea. McBryar v. McElroy, 510 F. Supp. 706, 1981 U.S. Dist. LEXIS 12844 (N.D. Ga. 1981). Defendant must live with a plea if
advised by competent counsel.
When the system of competent counsel advising a defendant about a plea of guilty functions satisfactorily, it is both fair and reasonable to expect that defendant who has made the choice and received whatever benefits flow therefrom be required to live by that choice. In any particular case in which the system fails, however, it is the court’s duty to supply relief. McBryar v. McElroy, 510 F. Supp. 706, 1981 U.S. Dist. LEXIS 12844 (N.D. Ga. 1981).
Plea based on ineffective assistance.
Where petitioner does not receive the effective assistance of counsel the plea of guilty is consequently not intelligent and voluntary. McBryar v. McElroy, 510 F. Supp. 706, 1981 U.S. Dist. LEXIS 12844 (N.D. Ga. 1981). Habeas court was clearly erroneous in denying defendant’s petition for a writ of habeas corpus and in finding that defendant received effective assistance of counsel where: (1) trial counsel testified that counsel did not know of a potentially exculpatory witness disclosed by the state at the plea hearing; (2) as counsel was not aware of the witness, counsel’s failure to explore the possible defense could not have been a matter of trial strategy; (3) the plea transcript showed counsel’s apparent anger at defendant for initially denying defendant’s guilt and thwarting the plea proceedings, which raised questions about the voluntariness of the pleas; and (4) there was a reasonable probability that, had defendant been advised of the serious problems with the state’s case against defendant, including the existence of the potentially exculpatory witness, defendant would have insisted on going to trial. Heyward v. Humphrey, 277 Ga. 565, 592 S.E.2d 660, 2004 Ga. LEXIS 67 (2004). Because defense counsel went over the voluntary manslaughter statute with defendant and explained intent to defendant, defendant failed to show that counsel was ineffective; because defendant’s plea was freely and voluntarily made, the trial court did not err in denying defendant’s motion for new trial. Howard v. Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) State, 274 Ga. App. 861, 619 S.E.2d 363, 2005 Ga. App. LEXIS 844 (2005).
Failure to pursue appeal constitutes ineffective assistance.
Defendant was denied effective assistance of counsel where trial counsel wrote the defendant that counsel would “prepare a brief and submit it to the Court of Appeals” if new trial was not granted but failed to pursue the appeal and failed to inform the defendant of status of appeal despite the defendant’s repeated written inquiries. Webb v. State, 254 Ga. 130, 327 S.E.2d 224, 1985 Ga. LEXIS 635 (1985). Because the defendant did not consent to foregoing an appeal of defendant’s conviction, the failure of counsel to protect the defendant’s right to appeal by filing a timely notice of appeal or by obtaining an extension of time constituted ineffectiveness. Glass v. State, 248 Ga. App. 91, 545 S.E.2d 360, 2001 Ga. App. LEXIS 122 (2001). Ineffective assistance will justify reversing judgment only if deficiencies were reasonably likely to have altered the verdict. Uren v. State, 174 Ga. App. 804, 331 S.E.2d 642, 1985 Ga. App. LEXIS 1963 (1985).
Drug use by counsel.
Defendant failed to show that the defendant’s attorney’s representation fell below an objective standard of reasonableness, where there was no specific evidence that the attorney’s drug use or dependency impaired the attorney’s actual conduct at trial. Kelly v. United States, 820 F.2d 1173, 1987 U.S. App. LEXIS 8433 (11th Cir.), cert. denied, 484 U.S. 966, 108 S. Ct. 458, 98 L. Ed. 2d 398, 1987 U.S. LEXIS 4965 (1987).
Tiredness of counsel.
Continuing court until 11:00 p.m. on one day of trial did not sufficiently fatigue defendant’s trial counsels to result in the provision of ineffective assistance. Hill v. State, 263 Ga. 37, 427 S.E.2d 770, 1993 Ga. LEXIS 315, cert. denied, 510 U.S. 950, 114 S. Ct. 396, 126 L. Ed. 2d 344, 1993 U.S. LEXIS 6773 (1993).
Refusal to withdraw as trial counsel after defendant filed bar complaint.
In defendant’s convictions for armed robbery, kidnapping, and aggravated assault in connection with robbery of a fast food restaurant, defendant failed to show trial counsel performed deficiently by failing to withdraw as counsel despite existence of conflict of interest created by defendant having filed a bar complaint against trial counsel; evidence supported trial court’s determination that defendant failed to carry the burden of proving that trial counsel’s refusal to withdraw constituted ineffective assistance. Holsey v. State, 291 Ga. App. 216, 661 S.E.2d 621, 2008 Ga. App. LEXIS 445 (2008).
Community pressure claim invalid.
— Petitioner’s claim asserting that trial counsel’s representation was “chilled” by community pressure and news coverage, did not state a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Givens v. Green, 12 F.3d 1041, 1994 U.S. App. LEXIS 1473 (11th Cir. 1994).
Conflict of interest.
Even though circumstances surrounding defense attorney’s representation of defendant in the pre-trial stage were sufficient to create a substantial risk of a conflict of interest because the attorney’s professional colleagues in the public defender’s office were representing defendant’s codefendants, and those codefendants were the persons whom defendant blamed for the crime, defendant failed to show that the attorney performed in a manner that in any way reflected the divided loyalties of the defense attorney’s office. Reynolds v. Chapman, 253 F.3d 1337, 2001 U.S. App. LEXIS 13493 (11th Cir. 2001). Defendant was entitled to habeas relief on the basis that defendant’s attorney labored under a conflict of interest in the immediate post-trial stage of defendant’s case because the attorney represented defendant and the codefendant, both of whom had spent the entire trial attempting to foist blame on the other, and the conflict had an effect upon the representation that defendant received. Reynolds v. Chapman, 253 F.3d 1337, 2001 U.S. App. LEXIS 13493 (11th Cir. 2001).
Violation of attorney-client privilege not found.
Defendant was not entitled to relief because trial counsel allegedly violated the attorney-client privilege by giving the state a copy of a list of witnesses and a summary of their testimony that defendant had prepared; counsel provided the list as part of the reciprocal discovery process, and defendant failed to show how the outcome of this case would have been different if defense counsel had not provided this list. Weathersby v. State, 263 Ga. App. 341, 587 S.E.2d 836, 2003 Ga. App. LEXIS 1207 (2003). Failure to strike jurors allegedly
related to victim.
Petitioner was entitled to an evidentiary hearing on the petitioner’s claim that counsel’s failure to strike jurors allegedly related to the victim constituted ineffective assistance of counsel. Assuming that counsel knew or had reason to know that the jury was composed in part of persons disqualifiable under Georgia law, and had no reasonable basis for failing to strike these jurors, counsel’s performance at the voir dire would fall outside the range of professionally competent assistance. Smith v. Gearinger, 888 F.2d 1334, 1989 U.S. App. LEXIS 17458 (11th Cir. 1989). Ineffectiveness in voir dire not
shown.
Defendant contended that counsel improperly failed to require voir dire to be recorded; however, no prejudice to defendant was shown from the alleged ineffective assistance of counsel since defendant did not assert that anything harmful or prejudicial transpired during voir dire. Domingues v. State, 277 Ga. 373, 589 S.E.2d 102, 2003 Ga. LEXIS 1000 (2003). When the defendant alleged defense counsel was deficient during the voir dire of two jurors regarding the jurors’ possible bias, as the defendant failed to show that, if the jurors had been further questioned, it would have become apparent that the jurors either had a fixed opinion about guilt or could not decide the case based on the evidence and instructions; the defendant failed to satisfy the prejudice prong of the ineffectiveness claim. Cade v. State, 289 Ga. 805, 716 S.E.2d 196, 2011 Ga. LEXIS 717 (2011).
Effectiveness of pretrial investigation.
Although counsel has the duty to conduct pre-trial investigation, the standard for evaluating the effectiveness of counsel’s pretrial investigation is reasonableness under the circumstances. Greene v. United States, 880 F.2d 1299, 1989 U.S. App. LEXIS 12362 (11th Cir. 1989), cert. denied, 494 U.S. 1018, 110 S. Ct. 1322, 108 L. Ed. 2d 498, 1990 U.S. LEXIS 1233 (1990). Habeas court properly denied habeas petition based on ineffective assistance of trial counsel where although it was error to rule against appellant on ground that appellant, who had pleaded guilty to drug possession charges, had expressed satisfaction with trial counsel at a plea hearing, habeas court had also ruled against appellant on the ground that it did not find that appellant’s testimony regarding attorney’s performance was credible. Jackson v. State, 283 Ga. 462, 660 S.E.2d 525, 2008 Ga. LEXIS 342 (2008).
Death sentence vitiated by counsel’s failure to present mitigating evidence.
Petitioner’s death sentence could not stand, in view of trial counsel’s failure to present mitigating evidence at the penalty phase of petitioner’s trial for murder, combined with a closing argument that did not even constitute an adequate plea for mercy. Mathis v. Zant, 704 F. Supp. 1062, 1989 U.S. Dist. LEXIS 752 (N.D. Ga.), amended in part, 708 F. Supp. 339, 1989 U.S. Dist. LEXIS 2444 (N.D. Ga. 1989). Vacation of a death sentence was warranted where defendant’s trial counsel was deficient in the conduct of the sentencing phase due to inadequate investigation and presentation of the mitigation case. Turpin v. Christenson, 269 Ga. 226, 497 S.E.2d 216, 1998 Ga. LEXIS 377, cert. denied, 525 U.S. 869, 119 S. Ct. 163, 142 L. Ed. 2d 133, 1998 U.S. LEXIS 5596 (1998).
Failure to object to improper arguments by prosecution.
Where appellant urges that the trial court erred in finding that trial counsel had afforded the defendant effective assistance despite counsel’s failure to object in several instances to allegedly improper argument by counsel for the State, when the totality of the representation was adequate even Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) assuming that one or more of appellant’s cited instances would constitute improper argument, the failure of appellant’s trial counsel to object would not warrant the grant of a new trial when the totality of the representation was adequate. Green v. State, 191 Ga. App. 807, 383 S.E.2d 134, 1989 Ga. App. LEXIS 807 (1989). There was no reasonable probability that the result of the proceeding would have been different but for counsel’s failure to call expert witnesses on the issues of fingerprints, fibers and hair. Ross v. State, 231 Ga. App. 793, 499 S.E.2d 642. Trial counsel was not ineffective for failing to object and move for a mistrial during closing argument when the prosecutor said that the jury had an opportunity to define what was acceptable in the community; read in context, the prosecutor appropriately urged the jury to speak on behalf of the community and rid the community of robbers and murderers. Furthermore, counsel was not ineffective because the defendant did not testify, as the evidence showed that counsel and the defendant discussed whether the defendant should testify, that counsel informed the defendant that the decision was the defendant’s to make, and that the defendant decided not to testify. Gibson v. State, 283 Ga. 377, 659 S.E.2d 372, 2008 Ga. LEXIS 303 (2008). Failure to object to opening or clos-
ing argument.
Because the trial result would not have been different if counsel had objected to the prosecutor’s argument, defendant failed to show that counsel was ineffective. Hunter v. State, 273 Ga. App. 52, 614 S.E.2d 179, 2005 Ga. App. LEXIS 406 (2005). Defendant failed to establish a claim of ineffective assistance of counsel based on counsel’s failure to object to the state’s closing argument, in which the prosecutor incorrectly stated that the burden of proof was on the defendant because defense counsel testified that counsel did not object because counsel knew that the trial court would instruct the jury that the attorney’s argument was not evidence, and then would tell the jury that the state had the burden of proof; additionally, the trial judge instructed the jury that the state had the burden of proof and that the burden never shifted to the defendant. Kania v. State, 280 Ga. App. 356, 634 S.E.2d 146, 2006 Ga. App. LEXIS 853 (2006). Prosecutor’s remark was unlikely to be interpreted as a comment on the defendant’s failure to testify and was not intended to comment on the defendant’s decision not to testify, but was instead intended to address, albeit inartfully, the defendant’s closing argument challenging the veracity and motives of those witnesses who were involved in the subject crimes. Thus, the failure of trial counsel to object to the remarks did not constitute deficient performance. Rosser v. State, 284 Ga. 335, 667 S.E.2d 62, 2008 Ga. LEXIS 752 (2008). Even assuming that the prosecutor’s request that the jury not turn the defendant loose on the streets was an improper comment on the defendant’s future dangerousness, and that defense counsel’s failure to object constituted deficient performance, in light of evidence that the defendant confessed to a murder to an accomplice, a cellmate, and an officer, the assumed deficient performance created little, if any, actual prejudice. Patterson v. State, 285 Ga. 597, 679 S.E.2d 716, 2009 Ga. LEXIS 396 (2009), cert. denied, 558 U.S. 1117, 130 S. Ct. 1051, 175 L. Ed. 2d 892, 2010 U.S. LEXIS 296 (2010). Trial counsel was not ineffective for failing to object and/or to move for a mistrial due to a statement the assistant district attorney made during closing argument because the defendant did not demonstrate that any statement by the prosecution was not a reasonable inference from the evidence; the defendant did not show that but for a lack of objection or moving for a mistrial, there was the reasonable probability that the outcome of the defendant’s trial would have been different. Sanford v. State, 287 Ga. 351, 695 S.E.2d 579, 2010 Ga. LEXIS 395 (2010), cert. denied, 562 U.S. 1237, 131 S. Ct. 1514, 179 L. Ed. 2d 336, 2011 U.S. LEXIS 1697 (2011). Counsel was not deficient in failing to object to the prosecutor’s victim impact argument during opening statement because negative characterizations of the victim were proper since the characterizations were relevant to evidence later offered to explain the context in which the drug-related crimes occurred, and the prosecutor’s allusion to the fact that the victim was no longer alive was relevant to the murder charge; a witness’s testimony and photographs of the witness’s injuries were directly relevant and admissible to prove the charge against the defendant of committing aggravated assault on the witness. Lacey v. State, 288 Ga. 341, 703 S.E.2d 617, 2010 Ga. LEXIS 842 (2010). Trial court did not err in denying the defendant a new trial on the ground that the defendant’s trial counsel’s failure to object to the prosecutor’s statement during closing argument amounted to ineffective assistance because the defendant could not demonstrate that the deficiency in trial court’s performance prejudiced the defendant; the evidence of the defendant’s guilt was overwhelming, and there was no reasonable probability that the outcome of the defendant’s trial would have been more favorable had trial counsel objected, even successfully, to the prosecutor’s statement in argument. Jones v. State, 288 Ga. 431, 704 S.E.2d 776, 2011 Ga. LEXIS 11 (2011). Defendant failed to show that trial counsel was ineffective for failing to object to the prosecutor’s improper argument because even assuming that an objection to the offending argument would have had merit, the defendant did not show a reasonable probability that the outcome of the trial would have been different had counsel made the objection. Jeffers v. State, 290 Ga. 311, 721 S.E.2d 86, 2012 Ga. LEXIS 9 (2012). Failure to object to reference to
redacted count of indictment.
Trial counsel’s decision not to move for a mistrial when the trial court mentioned the redacted count of possession of a firearm by a convicted felon did not amount to ineffective assistance because the decision was based on counsel’s belief that the single mention would not have any influence on the jury and the fact that the trial court gave an adequate curative instruction. Vanstavern v. State, 293 Ga. 123, 744 S.E.2d 42, 2013 Ga. LEXIS 495 (2013). Trial counsel was not ineffective in failing to object or request a mistrial when a witness made reference to the defendant’s prior incarceration because counsel’s decision not to draw attention to that remark by making an objection neither constituted deficient performance nor, given the weight of the evidence against the defendant, resulted in any prejudice. Babbage v. State, 296 Ga. 364, 768 S.E.2d 461, 2015 Ga. LEXIS 2 (2015). Failure to introduce star witness’s
prior inconsistent testimony.
Attorney’s failure to impeach the star witness by introducing the witness’s prior inconsistent testimony constituted ineffective assistance of counsel, because such failure sacrificed an opportunity to greatly weaken the witness’s inculpatory testimony. Nixon v. Newsome, 888 F.2d 112, 1989 U.S. App. LEXIS 16991 (11th Cir. 1989). Failure to seek financial assistance
for an investigator.
Unless the defendant can demonstrate that the defendant has been injured by the defense attorney’s failure to seek financial assistance from the court for an investigator, such failure cannot constitute ineffective assistance of counsel. Herndon v. State, 235 Ga. App. 258, 509 S.E.2d 142, 1998 Ga. App. LEXIS 1486 (1998). Defendant must show retained
counsel’s acts deprived trial of fundamental fairness.
Whenever the actions of retained counsel operate to deprive the trial of fundamental fairness, then the due process clause of U.S. Const., amend. 14 has been violated, notwithstanding any kind of specific involvement by a particular state official. Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff’d, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979); United States v. Cowart, 590 F.2d 603, 1979 U.S. App. LEXIS 16552 (5th Cir. 1979).
State involvement through knowledge of responsible state official.
If retained counsel’s actions in representing the defendant do not violate fundamental fairness, but are challenged as less than reasonably effective in violation of U.S. Const., amend. 6, state involvement through actual or constructive awareness Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) of the error by the judge, prosecutor, or other responsible official who could have corrected it, must be shown. Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff’d, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979); United States v. Cowart, 590 F.2d 603, 1979 U.S. App. LEXIS 16552 (5th Cir. 1979). For a discussion of trial tactics which did not constitute ineffective assistance of counsel, see Adams v. Balkcom, 688 F.2d 734, 1982 U.S. App. LEXIS 24941 (11th Cir. 1982). What action by counsel constitutes
effective assistance.
Where counsel makes three motions for a mistrial, participates in the question of a possible juror disqualification, moves for a directed verdict on one count of the indictment, tries to get the court to accept appellant’s guilty plea and presents argument during the sentencing hearing, at which hearing the judge informs counsel that the judge is persuaded somewhat by counsel’s argument and sentences appellant to a lesser sentence than the judge originally planned, counsel’s representation of appellant is not so inadequate as to amount to a denial of effective assistance of counsel. Warner v. State, 155 Ga. App. 495, 271 S.E.2d 636, 1980 Ga. App. LEXIS 2633 (1980). Where the attorney submits an affidavit stating that the attorney has investigated the case prior to trial by interviewing several witnesses, has performed all legal research felt necessary to represent the appellant, has entered into plea negotiations with the district attorney’s office, and has conferred privately with the appellant at great length before the case is called, and where at the close of the state’s case, the trial court appoints an additional attorney to assist with the defense, grants a one-week recess to allow time to secure witnesses, and indicates the state would pay the expenses, and also grants the appellant leave to file any motions deemed desirable, no support exists for the claim of ineffective assistance of counsel. Clayton v. State, 156 Ga. App. 285, 274 S.E.2d 682, 1980 Ga. App. LEXIS 3035 (1980). Where record indicated that trial defense counsel was familiar with facts of case; vigorously cross-examined all witnesses, made objections and was sustained on some, one of which kept out evidence prejudicial to defendant; moved for directed verdict on several grounds, and made final argument, defendant was not denied reasonably effective assistance of counsel. Beecher v. State, 164 Ga. App. 54, 296 S.E.2d 374, 1982 Ga. App. LEXIS 3275 (1982). Despite a lack of experience in capital cases, court-appointed counsel rendered reasonably effective assistance where counsel (a) moved to sever for purposes of trial the four count indictment; (b) demanded a list of witnesses; (c) demanded the appointment of an expert at state expense; (d) conducted discovery; (e) objected to introduction of certain evidence at trial; (f) cross-examined the state’s witnesses; and (g) presented witnesses and evidence on behalf of the appellant’s case. Jackson v. State, 249 Ga. 751, 295 S.E.2d 53, 1982 Ga. LEXIS 1195 (1982). Trial counsel’s alleged failure to file motions to suppress, to conduct adequate voir dire, to give opening statement and to make certain objections did not amount to ineffective assistance where the record showed that counsel had filed several pretrial motions and orally presented several more, and succeeded in getting material fingerprint evidence excluded and otherwise handicapping the prosecution. Jamison v. State, 164 Ga. App. 63, 295 S.E.2d 203, 1982 Ga. App. LEXIS 3277 (1982). The decision to stipulate to the insured status of banks which defendant was charged with robbing was more a tactical decision than an infringement on an “inherently personal right of fundamental importance,” regarding which any decision by counsel would require the client’s consent. Poole v. United States, 832 F.2d 561, 1987 U.S. App. LEXIS 15234 (11th Cir. 1987), cert. denied, 488 U.S. 817, 109 S. Ct. 54, 102 L. Ed. 2d 33, 1988 U.S. LEXIS 3389 (1988). Defense counsel did not render ineffective assistance in permitting the defendant to submit to a three-hour interrogation in which the defendant incriminated the defendant several times, because counsel had agreed to the interrogation in the hope of obtaining some benefit for the defendant in return for information regarding an accomplice. Bowley v. State, 261 Ga. 278, 404 S.E.2d 97, 1991 Ga. LEXIS 213 (1991). Defense counsel’s error in not challenging the sufficiency of the evidence underlying the defendant’s armed robbery conviction was not sufficient to show that counsel was generally ineffective, where any errors were extremely unlikely to have affected the jury’s verdict on the question of guilt or innocence. Lobosco v. Thomas, 928 F.2d 1054, 1991 U.S. App. LEXIS 6008 (11th Cir. 1991). Defendant showed no prejudice by defense counsel’s performance in failing to object to allegedly patently objectionable questions, failing to question prosecution witnesses about a civil suit they brought against defendant and failing to adequately lay out defendant’s theory of defense. Rogers v. State, 210 Ga. App. 164, 435 S.E.2d 457, 440 S.E.2d 266, 1993 Ga. App. LEXIS 1076 (1993). Defendant showed no prejudice by defense counsel’s performance because defendant was informed by counsel that the defendant had a right to explain the defendant’s cross-examination answers. Stephens v. State, 210 Ga. App. 77, 435 S.E.2d 463, 1993 Ga. App. LEXIS 1036 (1993). Where the trial court found that trial counsel and the team of paraprofessionals counsel led spent an inordinate amount of time preparing for trial; that the defendant took over the defendant’s representation during the presentation of the state’s case; and that the motions suggested by the defendant would have been denied had they been filed, counsel’s professional assistance was reasonable. Yizar v. State, 263 Ga. 312, 431 S.E.2d 114, 1993 Ga. LEXIS 524 (1993). Failure to call defendant to stand was a reasonable trial strategy not amounting to ineffective assistance as was trial counsel’s extensive cross-examination which focused on one particular witness who had identified defendant. Evans v. State, 207 Ga. App. 358, 427 S.E.2d 837, 1993 Ga. App. LEXIS 188 (1993). Counsel was not ineffective for introducing in evidence the defendant’s videotaped statement to police without redacting portions after the defendant invoked the right to counsel and asked God to have mercy on the defendant’s soul as it did not amount to an improper comment on the right to remain silent, but showed invocation of the right to counsel after giving a lengthy statement. Martin v. State, 290 Ga. 901, 725 S.E.2d 313, 2012 Ga. LEXIS 357 (2012). lief on ineffectiveness of counsel
District court properly denied reclaim.
See McCleskey v. Kemp, 753 F.2d 877, 1985 U.S. App. LEXIS 28073 (11th Cir. 1985), aff’d, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262, 1987 U.S. LEXIS 1817 (1987).
Ineffective counsel established.
The haphazard defense, the failure to develop strategy of any consequence and absence of counsel during crucial portions of the trial constituted ineffective counsel. House v. Balkcom, 725 F.2d 608, 1984 U.S. App. LEXIS 25536 (11th Cir.), cert. denied, 469 U.S. 870, 105 S. Ct. 218, 83 L. Ed. 2d 148, 1984 U.S. LEXIS 3789 (1984). Habeas court erred in granting the petitioner’s application for habeas corpus relief because it should not have reached the petitioner’s claims of ineffective assistance since those claims had been waived; the petitioner never claimed that appellate counsel committed ineffective assistance by failing to timely raise claims that trial counsel was ineffective. Tompkins v. Hall, 291 Ga. 224, 728 S.E.2d 621, 2012 Ga. LEXIS 573 (2012). Habeas court erred in granting the petitioner’s application for habeas corpus relief because the petitioner could not show that but for the errors of appellate counsel, the outcome of the appeal would have been different in reasonable probability; irrespective of any contention that there was ineffective assistance, the petitioner remained a fugitive from justice, and the petitioner’s appeal would have been dismissed. Tompkins v. Hall, 291 Ga. 224, 728 S.E.2d 621, 2012 Ga. LEXIS 573 (2012). Failure to seek to redact portion of Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d)
prior plea.
Trial counsel was ineffective in failing to seek to redact the portion of a defendant’s first offender plea that related to carrying a concealed weapon. The plea to carrying a concealed weapon, a misdemeanor, was not an element of the current charge of the possession of a firearm by a first offender probationer under O.C.G.A. § 16-11-131(b). Cobb v. State, 283 Ga. 388, 658 S.E.2d 750, 2008 Ga. LEXIS 258 (2008). Because a defendant, charged with murder, rape and burglary, among other crimes, was represented at trial by two attorneys, each of whom actively participated in the defense, and each attorney espoused a defense at odds with that of the other, causing a discernible split within the ranks of the defense team that prevented counsel from, among other things, effective performance of the duty to assist petitioner in the decision whether to testify in the defendant’s own defense, the defendant did not receive the effective assistance of counsel guaranteed the defendant by the constitution. Ross v. Kemp, 260 Ga. 312, 393 S.E.2d 244, 1990 Ga. LEXIS 286 (1990). The defendant was denied effective assistance of trial counsel, where counsel had no particular strategy for selecting a jury, was confused about applicable rules of evidence, and failed to question witnesses about prior inconsistent statements. Wilson v. State, 199 Ga. App. 900, 406 S.E.2d 293, 1991 Ga. App. LEXIS 703 (1991). Trial counsel’s deficient performance in failing to present the sentencing jury with any evidence regarding the defendant’s mental retardation, the defendant’s socioeconomic background, the defendant’s reputation as a good worker, and the defendant’s positive reputation as a member of the defendant’s community prejudiced the defendant’s ability to receive an individualized sentence. Cunningham v. Zant, 928 F.2d 1006, 1991 U.S. App. LEXIS 4864 (11th Cir. 1991). Trial court’s finding that the performance of the defendant’s attorney in a rape/child molestation case was not deficient was clearly erroneous, where defense counsel failed to object to similar transaction evidence, questions about the defendant’s prior visits to the sex crime unit and questions regarding whether the defendant had sex with two underaged juveniles. Bryant v. State, 204 Ga. App. 856, 420 S.E.2d 801, 1992 Ga. App. LEXIS 1029 (1992). Counsel was ineffective because the defendant’s trial counsel failed to make minimal inquiries that would have revealed that the arrest of the defendant was predicated on warrants issued without any showing of probable cause before the issuing magistrate; the warrants for the defendant’s arrest were apparently issued solely on the basis of the attached affidavits that, although satisfying the requirements of O.C.G.A. § 17-4-41, did not supply the magistrate with sufficient judgment that probable cause existed for the issuance of the warrants. Pitts v. State, 209 Ga. App. 47, 432 S.E.2d 643, 1993 Ga. App. LEXIS 741 (1993). When defendant showed that defense counsel, when informed that defendant had no recollection of the incident from which the charge of serious injury by vehicle arose, but that a co-worker may have been driving the involved vehicle, made no effort to locate the co-worker and, although unfamiliar with the elements of the offense, advised defendant’s client to plead guilty, made no effort to determine if the evidence established those elements, and, rather than preserving a meaningful adversarial atmosphere, vilified the client before the court, defendant established that defendant was prejudiced by counsel’s deficiencies such that, if not for those deficiencies, defendant would not have pled guilty. The record supported a finding that there was a reasonable probability that, had the case been investigated, and a determination made that the co-employee was driving, defendant, who did not know who was driving, would have insisted on going to trial, especially as the evidence did not suit the elements of the crime as to some charges. Heath v. State, 268 Ga. App. 235, 601 S.E.2d 758, 2004 Ga. App. LEXIS 893 (2004). Petitioner’s appellate counsel was ineffective by: (1) allowing thirty-three months to pass without making any attempt to obtain a hearing on a motion for new trial; (2) losing the petitioner’s case file; and (3) failing to ask that the motion for new trial hearing be transcribed, which resulted in an insufficient record to support a potentially meritorious appellate claim. White v. Smith, 281 Ga. 271, 637 S.E.2d 686, 2006 Ga. LEXIS 963 (2006).
Failure to object to shackling during sentencing.
A defendant was sentenced to death for murder. The defendant argued trial counsel was ineffective in failing to object to the defendant’s visible shackling during the sentencing phase of the trial; the defendant was not entitled to relief as there was no showing that there was a reasonable probability that the shackling affected the outcome of the trial. Whatley v. Terry, 284 Ga. 555, 668 S.E.2d 651, 2008 Ga. LEXIS 824 (2008), cert. denied, 556 U.S. 1248, 129 S. Ct. 2409, 173 L. Ed. 2d 1316, 2009 U.S. LEXIS 3757 (2009). Strategic decisions did not result in
ineffective assistance.
Defendant did not receive ineffective assistance of counsel when defendant’s trial counsel failed to object to testimony by the victim’s parent that placed the defendant’s character in issue because counsel made a reasonable strategic decision not to object to the parent’s passing reference to the defendant as “bad news” and the parent’s testimony that the parent had seen the defendant “at the jail” where the parent worked; counsel wanted the jury to see that the parent hated the defendant and believed that the parent’s testimony would show that the parent was simply biased against the defendant. Jennings v. State, 288 Ga. 120, 702 S.E.2d 151, 2010 Ga. LEXIS 816 (2010).
Ineffective counsel not established.
— See Jacobson v. State, 201 Ga.App. 749, 412 S.E.2d 859, 1991 Ga. App. LEXIS 1581 (1991); Anderson v. State, 206 Ga. App. 354, 426 S.E.2d 6, 1992 Ga. App. LEXIS 1633 (1992); York v. State, 207 Ga. App. 494, 428 S.E.2d 113, 1993 Ga. App. LEXIS 222 (1993); Causey v. State, 215 Ga. App. 723, 452 S.E.2d 564, 1994 Ga. App. LEXIS 1348 (1994), cert. denied, No. S95C0617, 1995 Ga. LEXIS 399 (Ga. Mar. 17, 1995); White v. State, 216 Ga. App. 583, 455 S.E.2d 117, 1995 Ga. App. LEXIS 206 (1995); Jones v. State, 217 Ga. App. 722, 458 S.E.2d 894, 1995 Ga. App. LEXIS 595 (1995); McKenzie v. State, 223 Ga. App. 108, 476 S.E.2d 868; Brooks v. State, 231 Ga. App. 561, 500 S.E.2d 11; Whitaker v. State, 269 Ga. 462, 499 S.E.2d 888; Jordan v. State, 247 Ga. App. 551, 544 S.E.2d 731, 2001 Ga. App. LEXIS 40 (2001); Potter v. State, 273 Ga. 325, 540 S.E.2d 184, 2001 Ga. LEXIS 34 (2001); Grier v. State, 273 Ga. 363, 541 S.E.2d 369, 2001 Ga. LEXIS 56 (2001); Nickerson v. State, 248 Ga. App. 829, 545 S.E.2d 587, 2001 Ga. App. LEXIS 142 (2001), cert. denied, No. S01C1044, 2001 Ga. LEXIS 661 (Ga. Sept. 7, 2001); Head v. Carr, 273 Ga. 613, 544 S.E.2d 409, 2001 Ga. LEXIS 251, cert. denied, 534 U.S. 905, 122 S. Ct. 238, 151 L. Ed. 2d 172, 2001 U.S. LEXIS 6785 (2001); Penny v. State, 248 Ga. App. 772, 547 S.E.2d 367, 2001 Ga. App. LEXIS 395 (2001); Bogan v. State, 249 Ga. App. 242, 547 S.E.2d 326, 2001 Ga. App. LEXIS 357 (2001); Williams v. State, 248 Ga. App. 628, 548 S.E.2d 350, 2001 Ga. App. LEXIS 268 (2001), cert. denied, No. S01C1030, 2001 Ga. LEXIS 657 (Ga. Sept. 7, 2001); Thigpen v. State, 248 Ga. App. 301, 546 S.E.2d 60, 2001 Ga. App. LEXIS 249 (2001); Williams v. State, 248 Ga. App. 316, 546 S.E.2d 74, 2001 Ga. App. LEXIS 262 (2001); Gosnell v. State, 247 Ga. App. 508, 544 S.E.2d 477, 2001 Ga. App. LEXIS 17 (2001), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020); Eggleston v. State, 247 Ga. App. 540, 544 S.E.2d 722, 2001 Ga. App. LEXIS 28 (2001), cert. denied, No. S01C0684, 2001 Ga. LEXIS 500 (Ga. June 12, 2001); Dorsey v. Chapman, 262 F.3d 1181, 2001 U.S. App. LEXIS 18749 (11th Cir. 2001), cert. denied, 535 U.S. 1000, 122 S. Ct. 1567, 152 L. Ed. 2d 489, 2002 U.S. LEXIS 2558 (2002); Hagins v. United States, 267 F.3d 1202, 2001 U.S. App. LEXIS 21132 (11th Cir. 2001), cert. denied, 537 U.S. 1022, 123 S. Ct. 545, 154 L. Ed. 2d 432, 2002 U.S. LEXIS 8397 (2002); Putman v. Head, 268 F.3d 1223, 2001 U.S. App. LEXIS 21688 (11th Cir. 2001), cert. denied, 537 U.S. 870, 123 S. Ct. 278, 154 L. Ed. 2d 119, 2002 U.S. LEXIS 5921 (2002); Bravo v. Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) State, 269 Ga. App. 242, 603 S.E.2d 669, 2004 Ga. App. LEXIS 1056 (2004), cert. denied, No. S05C0088, 2004 Ga. LEXIS 1061 (Ga. Nov. 22, 2004). Defendant’s claim of ineffective assistance of counsel was properly dismissed because the defendant’s trial counsel discussed the advantages and disadvantages of presenting such evidence with the defendant and it was mutually decided as a matter of trial strategy that neither the defendant nor the codefendant would be called to testify and because there was no reasonable probability that the result of the proceeding would have been different had these witnesses been called. Robinson v. State, 203 Ga. App. 759, 417 S.E.2d 404, 1992 Ga. App. LEXIS 618 (1992), cert. denied, No. S92C0913, 1992 Ga. LEXIS 460 (Ga. June 4, 1992). In a child molestation case, where, during the trial, the state made a request to introduce similar transaction evidence of which the defense had not received the required notice, it was not ineffective assistance of counsel for defense counsel to refuse continuance because defense counsel indicated the counsel was not actually surprised by the testimony and was aware of the previous interviews and video tapes of alleged victim of uncharged offenses and the decision was part of a valid trial strategy. Penaranda v. State, 203 Ga. App. 740, 417 S.E.2d 683, 1992 Ga. App. LEXIS 614 (1992), cert. denied, No. S92C0967, 1992 Ga. LEXIS 465 (Ga. June 4, 1992). Where defense counsel did not object to the opinion testimony of a psychiatric resident and county social worker regarding whether the alleged victim was sexually molested but did discredit their testimonies on cross, defendant was not denied effective assistance of counsel. Penaranda v. State, 203 Ga. App. 740, 417 S.E.2d 683, 1992 Ga. App. LEXIS 614 (1992), cert. denied, No. S92C0967, 1992 Ga. LEXIS 465 (Ga. June 4, 1992). Where the trial record indicates that trial counsel conducted thorough and sifting cross-examinations of the state’s witnesses, timely interposed objections, presented evidence on defendant’s behalf and made strong arguments to the jury, there was no showing of a reasonable probability that, but for trial counsel’s alleged deficiencies, the result of the proceeding would have been different. Taylor v. State, 203 Ga. App. 210, 416 S.E.2d 554, 1992 Ga. App. LEXIS 470 (1992). Defendant’s attorney did not act deficiently in making tactical decisions not to present testimony from certain witnesses, where the attorney explained that the attorney chose not to present psychiatric testimony because the attorney concluded that the doctor’s testimony would be more harmful than helpful and failure to call the defendant’s relatives to impeach the state’s primary witness was similarly a tactical decision made during the trial. Gross v. State, 262 Ga. 232, 416 S.E.2d 284, 1992 Ga. LEXIS 515 (1992). Asserted counsel’s failure to request charge on circumstantial evidence, to request charge on manslaughter, to request curative instructions and to adequately investigate the case did not give rise to an ineffective assistance claim where there was not reasonable probability that but for these alleged errors the result of the proceeding would have been different. Barner v. State, 263 Ga. 365, 434 S.E.2d 484, 1993 Ga. LEXIS 648 (1993). Trial counsel was not ineffective for not attempting to suppress evidence found in the defendant’s home as a result of a search warrant as counsel chose, instead, to challenge a prior patdown search of the defendant which led to the granting of the search warrant on the theory that a successful challenge to the patdown would have led to the exclusion of the evidence found in the defendant’s home, as well. Sikes v. State, 247 Ga. App. 855, 545 S.E.2d 73, 2001 Ga. App. LEXIS 80 (2001). In a prosecution for murder in which the evidence of guilt was overwhelming, the defendant was not denied effective assistance of counsel since: (1) the defendant maintained that, despite an entry of a plea of not guilty and defendant’s desire to seek a verdict of not guilty, trial counsel pursued a strategy to obtain a guilty but mentally ill verdict, requiring defendant to give false testimony in which defendant admitted to committing the crimes; (2) trial counsel knew that the defendant’s proposed version of the events at issue was untrue and believed presentation of it would have offended the intelligence of the jury and cost the lawyers all of their credibility with the jury resulting in the return of a death sentence; and (3) trial counsel testified that after explaining to the defendant why it was best to do as counsel suggested “there was no disagreement after that.” Hicks v. Scott, 273 Ga. 348, 541 S.E.2d 634, 2001 Ga. LEXIS 53 (2001). The defendant failed to establish ineffective assistance of counsel based on a conflict of interest of his attorney arising from the attorney’s prior representation of a witness (defendant’s former spouse) in a civil action against the defendant to modify child custody since the witness’s assertion of attorney-client privilege would have prevented any attorney, and not just defense counsel, from asking the witness about statements the witness had made to the witness’s attorney during that prior representation. Turner v. State, 273 Ga. 340, 541 S.E.2d 641, 2001 Ga. LEXIS 58, cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54, 2001 U.S. LEXIS 5836 (2001). The defendant failed to satisfy the prejudice prong of the Sixth Amendment analysis with regard to defendant’s claim that defense counsel’s performance was deficient in the sentencing proceeding as the scale was so heavily weighted with aggravating evidence that there was no reasonable probability that the defendant’s sentence would have been different if defense counsel had performed in a different manner. Moon v. Head, 285 F.3d 1301, 2002 U.S. App. LEXIS 4302 (11th Cir. 2002), cert. denied, 537 U.S. 1124, 123 S. Ct. 863, 154 L. Ed. 2d 807, 2003 U.S. LEXIS 121 (2003). Defendant did not overcome the strong presumption that trial counsel’s conduct fell within the broad range of reasonable professional conduct in using a good character defense where defendant did not obtain testimony from defendant’s trial counsel at defendant’s motion for new trial; defendant made no affirmative showing that the purported evidentiary deficiencies in the trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy. Parnell v. State, 260 Ga. App. 213, 581 S.E.2d 263, 2003 Ga. App. LEXIS 249 (2003). Trial court’s determination that defendant did not receive ineffective assistance of counsel was not clearly erroneous, as defendant did not show anything defendant’s trial counsel did or failed to do that was objectionable or that would have changed the outcome of defendant’s case. Dorsey v. State, 261 Ga. App. 181, 582 S.E.2d 158, 2003 Ga. App. LEXIS 569 (2003). Trial court did not err in denying defendant’s motion for a new trial on the ground that defendant received ineffective assistance of counsel as defendant did not show that defendant received ineffective assistance of counsel, especially since defendant’s trial counsel did not testify at defendant’s motion for a new trial and, thus, defendant didn’t overcome the presumption that defendant’s trial counsel’s conduct fell within the wide range of reasonable professional assistance; moreover, defendant did not show defendant’s trial counsel was ineffective for failing to present an insanity defense, as the trial court’s finding that defendant was not insane at the time the defendant committed the crimes, but was voluntarily under the influence of cocaine, was not clearly erroneous. Gardner v. State, 261 Ga. App. 188, 582 S.E.2d 167, 2003 Ga. App. LEXIS 585 (2003). Trial court’s denial of defendant’s ineffective assistance of counsel claim was not clearly erroneous, as the record showed that trial counsel’s decisions were either strategic in nature or the result of defendant’s insistence; accordingly, defendant did not show that trial counsel was inadequately prepared or that trial counsel otherwise rendered ineffective assistance. Cummings v. State, 261 Ga. App. 281, 582 S.E.2d 231, 2003 Ga. App. LEXIS 611 (2003), cert. denied, No. S03C1353, 2003 Ga. LEXIS 811 (Ga. Sept. 22, 2003), cert. denied, 543 U.S. 824, 125 S. Ct. 40, 160 L. Ed. 2d 35, 2004 U.S. LEXIS 5717 (2004). Defendant did not show that defendant received ineffective assistance of counsel when trial counsel did not request a lim-Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) iting instruction when the state introduced evidence that defendant had previously been convicted for possession of cocaine with intent to distribute; although defendant wanted that instruction to say that such evidence was limited to a firearms charge against defendant, and should not be considered in connection with the other charge against defendant of possession of cocaine with intent to distribute, the trial court was not required to give that instruction because such evidence was admissible to show defendant’s identity, and, thus, trial counsel was not ineffective for not requesting that instruction. Laye v. State, 261 Ga. App. 327, 582 S.E.2d 505, 2003 Ga. App. LEXIS 619 (2003). Trial court did not commit clear error in denying defendant’s motion to withdraw defendant’s guilty plea, as defendant did not show that defense counsel rendered ineffective assistance of counsel and caused defendant’s plea of guilt to first-degree homicide by vehicle to be entered unknowingly and involuntarily; indeed, the record showed that defense counsel properly prepared defendant’s case and advised defendant even though the trial court entered a slightly longer sentence than defendant had expected, and as a result, defendant entered defendant’s plea knowing the nature of the charges and consequences of the plea. David v. State, 261 Ga. App. 468, 583 S.E.2d 135, 2003 Ga. App. LEXIS 609 (2003), cert. denied, No. S03C1430, 2003 Ga. LEXIS 881 (Ga. Oct. 6, 2003). Defendant did not show that defendant received ineffective assistance of counsel when trial counsel did not object to the testimony of an officer who stated that the officer believed defendant was the driver of the van involved in the accident, as trial counsel’s decision not to object to testimony that had already been introduced through another witness, but, instead, to attack it on the cross-examination of the officer was a matter of trial tactics and strategy, and did not show that defendant received ineffective assistance of counsel. Lanning v. State, 261 Ga. App. 480, 583 S.E.2d 160, 2003 Ga. App. LEXIS 665 (2003). Defendant did not receive ineffective assistance of counsel when defendant’s trial counsel called alibi witnesses who in pretrial interviews told stories that were consistent with defendant’s story that defendant was not present at the time of the purse snatchings for which defendant was on trial, but who on cross-examination told stories that were inconsistent, often conflicting, and harmful to defendant’s alibi; the decision to call such witnesses involved a matter of trial strategy and did not amount to ineffective assistance of counsel. Browne v. State, 261 Ga. App. 648, 583 S.E.2d 496, 2003 Ga. App. LEXIS 733 (2003). Trial court did not err in denying defendant’s ineffective assistance of counsel claim, as even assuming that defendant’s counsel did not object to the admission of certain physical and hearsay evidence, defendant failed to establish the existence of a reasonable probability that the outcome of defendant’s trial would have been different had defense counsel objected, especially since the evidence of defendant’s guilt was overwhelming. Ferguson v. State, 262 Ga. App. 28, 584 S.E.2d 618, 2003 Ga. App. LEXIS 658 (2003), cert. denied, No. S03C1592, 2003 Ga. LEXIS 908 (Ga. Oct. 20, 2003). Defendant did not show that defendant received ineffective assistance of counsel, even though defendant alleged that defense counsel failed to impeach a witness using a purported prior inconsistent statement, that defense counsel did not present a defense of coercion based on the fact that defendant’s crimes were committed with another man, and that defense counsel did not call character witnesses, as the trial court’s finding on denying defendant’s motion for a new trial that the alleged actions all involved strategic decisions by defense counsel was not clearly erroneous. Washington v. State, 276 Ga. 655, 581 S.E.2d 518, 2003 Ga. LEXIS 539 (2003). Defendant did not show that defendant received ineffective assistance of counsel when trial counsel asked defendant at trial about a prior conviction, when trial counsel did not attempt to exclude evidence that right before the crime was committed that defendant was using marijuana, and when trial counsel did not redact part of a first statement about whether defendant would take a polygraph test, as defendant did not show that trial counsel’s actions, which involved strategic decisions, prejudiced defendant. Collins v. State, 276 Ga. 726, 583 S.E.2d 26, 2003 Ga. LEXIS 606 (2003). Defendant failed to meet defendant’s burden of showing that defendant’s trial counsel was deficient for failing to inform defendant that counsel filed a motion in limine the day defendant entered a guilty plea, because the motion would not have excluded testimony that went to the essential elements of the crimes with which defendant was charged, and counsel on numerous prior occasions had told defendant that counsel planned to file the motion. Jones v. State, 265 Ga. App. 584, 594 S.E.2d 761, 2004 Ga. App. LEXIS 194 (2004). Trial court properly denied defendant’s motion for a new trial as defense counsel did not give ineffective assistance of counsel by failing to request a Jackson-Denno hearing as there was no basis to object to the introduction of defendant’s statement to an investigator as: (1) defendant was not under arrest at the time of the statement, nor would a reasonable person have understood that the person was under arrest; (2) there was no evidence that the officer sent to ensure that defendant did not leave the hospital before the investigator arrived had any contact with defendant; (3) that defendant was in pain or taking pain medication did not render defendant’s statement involuntary; and (4) defendant failed to show that defendant was prejudiced by the failure to request the hearing. Alwin v. State, 267 Ga. App. 236, 599 S.E.2d 216, 2004 Ga. App. LEXIS 562 (2004), cert. denied, No. S04C1581, 2004 Ga. LEXIS 689 (Ga. Sept. 7, 2004). Defendant’s ineffective assistance of counsel claim failed as defendant failed to show that defendant was prejudiced by counsel’s failure to admit a copy of the book-in sheet, which showed that defendant was not wearing a white cap when defendant was booked; although the victim testified that the assailant was wearing a white cap at the time of the crime, the fact that defendant was not wearing a white cap when defendant was booked did not indicate that defendant was not wearing a white cap at the time of the crime. Lawrence v. State, 267 Ga. App. 515, 600 S.E.2d 444, 2004 Ga. App. LEXIS 701 (2004). Defense counsel did not provide ineffective assistance of counsel in failing to request a charge on individual determination of guilt as the trial court charged the jury that, although four individuals were indicted together, the jury was only to consider the case against defendant. Botelho v. State, 268 Ga. App. 129, 601 S.E.2d 494, 2004 Ga. App. LEXIS 862 (2004). Applying the Strickland standard, the supreme court found no merit in defendant’s ineffective assistance of counsel claim, as a review of the transcript of the hearing on defendant’s motion for new trial revealed that trial counsel met and communicated with defendant numerous times in the months before trial and consulted with defendant on all possible defenses; defendant failed to present any evidence of how further cross-examination of witnesses or the submission of additional photographs of the crime scene would have been necessary or beneficial to the defense. Jackson v. State, 277 Ga. 592, 592 S.E.2d 834, 2004 Ga. LEXIS 139 (2004). Trial counsel’s failure to object when the court gave jury instructions before closing arguments did not amount to ineffective assistance of counsel where trial counsel explained the process to defendant and defendant agreed to the reversal of the usual process. Williams v. State, 277 Ga. 853, 596 S.E.2d 597, 2004 Ga. LEXIS 412 (2004). Counsel’s failure to object or move in limine to exclude testimony that defendant “always” carried a gun, evidence that defendant alleged constituted bad character evidence, did not amount to ineffective assistance since the evidence did not have the prejudicial effect attributed to it by defendant. Williams v. State, 277 Ga. 853, 596 S.E.2d 597, 2004 Ga. LEXIS 412 (2004). Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) Counsel’s failure to object when the state asked a police officer whether the “stories” defendant told made sense in light of other evidence did not amount to ineffective assistance since the question and its negative response were not prejudicial to defendant in light of defendant’s own testimony in which defendant referred to defendant’s several different statements to the police as “stories.” Williams v. State, 277 Ga. 853, 596 S.E.2d 597, 2004 Ga. LEXIS 412 (2004). Where defendant did not prove that trial counsel failed to investigate defendant’s mental state or move for a directed verdict, defendant did not prove that defendant was prejudiced by counsel’s actions. Hightower v. State, 278 Ga. 39, 597 S.E.2d 362, 2004 Ga. LEXIS 457 (2004). Defendant’s claims of ineffective assistance of counsel, alleging a failure to request a mistrial or curative instructions when defendant’s sister testified as to defendant’s character, a failure to object to testimony of an officer who had an arrest warrant for defendant and allegedly testified on the ultimate issue in the case, and a failure to object to improper statements by the prosecutor during closing arguments failed where defendant failed to show prejudice as a result of any of the alleged errors made by trial counsel. Fulton v. State, 278 Ga. 58, 597 S.E.2d 396, 2004 Ga. LEXIS 456 (2004). Trial court properly found that defense counsel was not ineffective by failing to present a pre-trial plea in bar claim to bar the entry of two separate convictions and sentences in a prosecution of both armed robbery and hijacking a motor vehicle offenses, as defendant’s argument that the double jeopardy clause prohibited the imposition of separate sentences lacked merit insofar as defendant failed to adequately show how O.C.G.A. § 16-5-44.1(d) violated defendant’s double jeopardy rights. Holman v. State, 272 Ga. App. 890, 614 S.E.2d 124, 2005 Ga. App. LEXIS 389 (2005), cert. denied, No. S05C1295, 2005 Ga. LEXIS 606 (Ga. Sept. 19, 2005). Because a child victim testified of defendant’s sexual abuse and that defendant showed the victim “pictures or movies in which people didn’t have any clothes on,” the trial court properly admitted the videotapes and determined that a psychotherapist’s testimony was admissible under O.C.G.A. § 24-3-16; consequently, defendant failed to show that trial counsel was ineffective. Johnson v. State, 274 Ga. App. 69, 616 S.E.2d 848, 2005 Ga. App. LEXIS 671 (2005), cert. denied, No. S05C1834, 2005 Ga. LEXIS 696 (Ga. Oct. 11, 2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671, 2006 U.S. LEXIS 3611 (2006), overruled in part, Miller v. State, 285 Ga. 285, 676 S.E.2d 173, 2009 Ga. LEXIS 143 (2009). Because trial counsel met with defendant personally on several occasions, thoroughly interviewed defendant, exchanged correspondence with defendant either by mail or by telephone, discussed discovery in depth with defendant personally after mailing it to defendant in advance and giving defendant the opportunity to ask questions, and detailed the steps counsel took in preparing defendant’s case for trial defendant failed to carry the burden of showing that trial counsel’s handling of the case was outside the bounds of reasonable professional conduct, and the trial court properly rejected defendant’s claims of ineffective assistance of counsel. Mitchell v. State, 279 Ga. 158, 611 S.E.2d 15, 2005 Ga. LEXIS 233 (2005). Because defendant failed to support the proposition that defendant would have to serve 20 years before being considered for parole, defendant failed to show that counsel was ineffective. Seabolt v. State, 279 Ga. 518, 616 S.E.2d 448, 2005 Ga. LEXIS 450 (2005). Because the state proved venue through testimony that the address of the crime scene was in a specific county and because counsel’s actions were within the bounds of reasonable professional conduct, the trial court properly denied defendant’s motion for a new trial. Henry v. State, 279 Ga. 615, 619 S.E.2d 609, 2005 Ga. LEXIS 504 (2005). Defendant failed to show that defendant’s counsel rendered ineffective assistance, as the fact that defendant’s counsel only visited defendant one time while defendant was incarcerated did not show that counsel was not adequately prepared because there was evidence that they frequently corresponded by letters and had many phone calls. Copeland v. State, 276 Ga. App. 834, 625 S.E.2d 100, 2005 Ga. App. LEXIS 1381 (2005). Although defendant’s trial counsel failed to request a limiting instruction as to similar transaction evidence in defendant’s criminal trial, as the trial court gave that instruction in its final charge to the jury, defendant was unable to show that but for counsel’s deficiency, the outcome of the trial would have been different; accordingly, defendant did not show that defendant’s counsel was ineffective. Copeland v. State, 276 Ga. App. 834, 625 S.E.2d 100, 2005 Ga. App. LEXIS 1381 (2005). Counsel was not ineffective for failing to make a motion for a change of venue because the defendant had not shown that the jury pool was biased and because the trial court itself had found that not making such a motion was wise as no jury in the county had sentenced a defendant to death; counsel made a tactical decision to refrain from a Batson challenge, no prejudice was shown by admission of certain testimony, the defendant had not shown that testimony of one of the defendant’s relatives would have been relevant and favorable to defendant, and the record did not establish that trial counsel was aware of a viable alibi defense via the defendant’s former girlfriend and the girlfriend’s siblings. Stokes v. State, 281 Ga. 825, 642 S.E.2d 82, 2007 Ga. LEXIS 174 (2007), overruled on other grounds, State v. Lane, 308 Ga. 10, 838 S.E.2d 808, 2020 Ga. LEXIS 98 (2020). When a witness had originally given a statement that supported the defendant’s self-defense claim, but later recanted this statement, defense counsel was not ineffective for calling the witness; the defendant had insisted that the witness be called, and doing so at least allowed the jury to hear the witness’s original statement, and furthermore there was no evidence that a change of venue would have been granted or that defense counsel was unprepared for trial. Shelton v. State, 281 Ga. 660, 641 S.E.2d 536, 2007 Ga. LEXIS 167 (2007). Defendants’ ineffective assistance of counsel claims failed where although defendants claimed that counsel was ineffective for failing to rebut testimony that a driver’s death could not have been prevented by a seat belt, defendants had not shown that such rebuttal evidence existed; counsel was also not ineffective for failing to seek a directed verdict of acquittal because the evidence was sufficient to support defendants’ convictions, defendants were not prejudiced by counsel’s failure to request a charge on proximate cause because there was no evidence that the driver’s death could have been avoided by a seat belt, defendants by not questioning counsel’s reasons for not requesting certain charges had not overcome the presumption that counsel acted reasonably, no curative need had arisen to give a charge on one defendant’s right not to testify, and a Jackson-Denno hearing was not required because incriminating statements made by one defendant were not made during police interrogation, but to a nurse treating him at a hospital. Mitchell v. State, 282 Ga. 416, 651 S.E.2d 49, 2007 Ga. LEXIS 586 (2007). A defendant who claimed that defense counsel failed to discuss “important issues” with the defendant, but who did not identify the issues in the defendant’s brief or testify at the new trial hearing about what might have been discussed, did not show ineffective assistance of counsel. Furthermore, counsel was not ineffective for failing to make objections that would have been fruitless. Judkins v. State, 282 Ga. 580, 652 S.E.2d 537, 2007 Ga. LEXIS 776 (2007). Ineffective assistance of counsel claims regarding the defendant’s initial post-trial counsel’s performance lacked merit, as counsel was neither professionally deficient nor prejudicial because: (1) the defendant waived any right to be present at the two juror interviews; (2) no deficiency could result from counsel’s failure to raise meritless objections; and (3) the trial court specifically found that the defendant adequately understood the nature of the charges, comprehended the proceedings, despite being under the influence of pre-Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) scribed anti-depressants, and was capable of aiding the defense. Hampton v. State, 282 Ga. 490, 651 S.E.2d 698, 2007 Ga. LEXIS 723 (2007). Court of appeals rejected the defendant’s ineffective assistance of counsel claim, because, even if: (1) the arrest warrant had been excluded; (2) two witnesses had been cross-examined regarding their identification of the defendant as the shooter, and (3) the non-testifying eyewitnesses’statements had not been relayed to the jury by the police officer, there was no reasonable probability that the defendant would have been acquitted of both crimes. Bradley v. State, 283 Ga. 45, 656 S.E.2d 842, 2008 Ga. LEXIS 30 (2008). Because the trial court was entitled to believe counsel’s testimony at the hearing on the motion for new trial that counsel advised the defendant of the right to testify at trial and that counsel met numerous times with the defendant, with ample opportunity to discuss all aspects of the case with counsel, the defendant’s ineffective assistance of counsel claim in support of a motion for a new trial had to be rejected. Warren v. State, 283 Ga. 42, 656 S.E.2d 803, 2008 Ga. LEXIS 28 (2008). Despite the defendant’s twenty-one ineffective assistance of counsel claims, the Supreme Court of Georgia analyzed only five of these claims, and found that the defendant failed to show prejudice due to counsel’s failure to ask for a continuance, and that the remaining four claims addressed lacked merit. Moreover, the court declined to analyze the deficient performance prong of the defendant’s remaining claims of ineffectiveness, as the defendant could not show how any of those deficiencies were prejudicial. Ruffin v. State, 283 Ga. 87, 656 S.E.2d 140, 2008 Ga. LEXIS 18 (2008). Because the defendant failed to show that any prejudice resulted from trial counsel’s alleged ineffectiveness in failing to discover and introduce the criminal record of one of the witnesses for the prosecution for impeachment purposes, the defendant’s convictions were upheld on appeal. Rivers v. State, 283 Ga. 108, 657 S.E.2d 210, 2008 Ga. LEXIS 149 (2008). Defendant had not shown ineffective assistance of counsel where, on a motion for a change of venue, defendant had not shown how live evidence or a citizen survey could have accomplished any more than the introduction in evidence of existing pretrial publicity or voir dire, and counsel’s failure to prepare defendant for testimony before date of trial was not deficient performance because defendant did not indicate until the morning of trial that defendant wished to testify, defendant had not proffered evidence as to what a more thorough investigation would have uncovered, and Ga. Unif. Super. Ct. R. 31.3 did not entitle a defendant to evidentiary hearing with live witnesses to determine the admissibility of similar transaction evidence. Harvey v. State, 284 Ga. 8, 660 S.E.2d 528, 2008 Ga. LEXIS 352 (2008). Defendant did not show that counsel was ineffective as the trial court found that if a witness that counsel failed to locate had testified, the testimony would not have been helpful in light of the witness’s demeanor and credibility problems; counsel made a good faith effort to find another witness but had limited information about the witness; counsel’s failure to timely notify the state of a witness’s testimony was not prejudicial because the testimony would not have been helpful to the defendant and would not have been admissible at trial; and counsel was not ineffective for requesting charges on both accident and self-defense because both were warranted. Hudson v. State, 284 Ga. 595, 669 S.E.2d 94, 2008 Ga. LEXIS 860 (2008). Trial counsel was not ineffective for failing to conduct a more extensive cross-examination of a codefendant as counsel testified that counsel did not consider the codefendant to be a believable witness, the weight of the evidence was clearly against the codefendant, and counsel’s strategy was to try to keep the defendant in the background and avoid responsibility for the crimes. Freeman v. State, 284 Ga. 830, 672 S.E.2d 644, 2009 Ga. LEXIS 12 (2009). Defendant failed to establish ineffective assistance of counsel based on counsel’s failure to object, request further curative instructions, or move for mistrial after the jury discovered unrelated shell casings and bullets in an evidence bag containing the victim’s clothes because, although the defendant argued that the two gunpowder particles found on the shirt could have been deposited by the unrelated cartridges in the evidence bag, a firearms expert refuted this claim, and the defendant offered no evidence to the contrary. Thus, the defendant’s theory that the extraneous cartridges may have contaminated the shirt was pure speculation and was insufficient to establish the prejudice prong of Strickland. Glover v. State, 285 Ga. 461, 678 S.E.2d 476, 2009 Ga. LEXIS 289 (2009). Habeas court erred in granting a petitioner a new sentencing trial based on trial counsel’s ineffectiveness because the absence of the deficiencies in trial counsel’s performance would not in reasonable probability have resulted in a different outcome in either the guilt or innocence phase of the petitioner’s trial when although trial counsel performed well below basic professional standards by choosing not to discuss issues other than guilt and innocence with the petitioner and the petitioner’s family, there was no reasonable probability that a reasonable investigation of the petitioner’s background would have led to counsel’s having access to the type of specialized neuropsychological testimony that the petitioner presented in the habeas court; evidence of the petitioner’s moderate slowness would not have had a significant effect on the jury’s sentencing phase deliberations, particularly in light of the evidence showing that the petitioner functioned normally in society apart from the petitioner’s criminal behavior, and new evidence of the petitioner’s subtle neurological impairments, even when considered together with the other mitigating evidence that was or should have been presented at trial, would not in reasonable probability have changed the outcome of the sentencing phase if that evidence had been presented at trial. Hall v. Lance, 286 Ga. 365, 687 S.E.2d 809, 2010 Ga. LEXIS 69, cert. denied, 561 U.S. 1026, 130 S. Ct. 3510, 177 L. Ed. 2d 1093, 2010 U.S. LEXIS 5502 (2010). Defendant failed to meet defendant’s burden of showing deficient performance and prejudice from trial counsel’s actions because trial counsel’s decisions to not give an opening statement and to not cross-examine the state’s witnesses were reasonable trial strategies and did not amount to ineffective assistance; at the hearing on the defendant’s motion for new trial, counsel testified that counsel made a strategic decision not to give an opening statement in order to “leave the door open” for counsel to pursue whatever strategy would turn out to be the most advantageous for the defendant after hearing the evidence that the state would present, and the defendant failed to show what favorable evidence could have been elicited from the witnesses who were not cross-examined by defendant’s trial attorney. Lawrence v. State, 286 Ga. 533, 690 S.E.2d 801, 2010 Ga. LEXIS 65 (2010). Trial counsel did not perform deficiently by failing to object to the trial court’s instruction on possession of a firearm by a convicted felon when the defendant was charged with use of a firearm by a convicted felon because there was no need for counsel to object to the charge since the district attorney immediately advised the trial court of the error, and the jury was recalled and given instructions with regard to the crime as charged. Higginbotham v. State, 287 Ga. 187, 695 S.E.2d 210, 2010 Ga. LEXIS 405 (2010). Defendant’s trial counsel did not render ineffective assistance because none of the alleged failures on the part of trial counsel, who was the chief assistant public defender with more than 20 years of criminal experience and 100 jury trials, were so serious as to deprive the defendant of a fair trial, a trial whose result was reliable; even if it could be said that trial counsel was deficient in counsel’s performance, the defendant failed to show that, but for counsel’s unprofessional errors, there was a reasonable probability that the outcome of the trial would have been different. Gresham v. State, 289 Ga. 103, 709 S.E.2d 780, 2011 Ga. LEXIS 291 (2011). Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) Trial court did not err when the court denied the portion of the codefendant’s motion for new trial alleging ineffective assistance of trial counsel because the alleged deficiencies in trial counsel’s performance were either without factual basis or were decisions made as matters of trial strategy; trial counsel did not speak with the deputy medical examiner who performed the autopsy before trial because the autopsy report was favorable to the codefendant’s version of events, and trial counsel testified counsel did not ask for a jury instruction on voluntary manslaughter because it would have required an admission that the codefendant had committed an unlawful act. Smith v. State, 290 Ga. 428, 721 S.E.2d 892, 2012 Ga. LEXIS 85 (2012). Because the defendant did not seek a hearing on the motion for a new trial or present evidence in support of the claim that trial counsel was ineffective for failing to redact bad character evidence from a witness’s testimony, the defendant failed to show that trial counsel was deficient in the handling of the evidence or that there was a reasonable probability that the outcome of the trial would have been different if the testimony had been excluded. Newkirk v. State, 290 Ga. 581, 722 S.E.2d 760, 2012 Ga. LEXIS 196 (2012). Claim of ineffective assistance of counsel failed because trial counsel understood the significance of gunpowder travel testimony, but chose not to concentrate on it because counsel did not think that the distance between the defendant and the victim was significant, and the evidence showed that the defendant intentionally grabbed the pistol and fired the pistol, creating a foreseeable risk of death that was inherently dangerous. Harris v. State, 291 Ga. 175, 728 S.E.2d 178, 2012 Ga. LEXIS 447 (2012). Inmate was not entitled to habeas relief based on alleged ineffective assistance of counsel because, inter alia, no prejudice resulted from trial counsel’s failure to retain an expert with greater expertise in police interrogation tactics and the possibility of a false confession, because the question of whether someone might be persuaded to give a false confession through persuasive interrogation techniques was “not beyond the ken of the average juror,” and any deficient performance by trial counsel in failing to disclose a psychologist’s testimony regarding whether the inmate’s lack of emotion at the scene was due to a personality disorder was not significantly prejudicial. Humphrey v. Riley, 291 Ga. 534, 731 S.E.2d 740, 2012 Ga. LEXIS 696 (2012).
Failure to object to jury instructions.
Defendant did not receive ineffective assistance of counsel when his trial counsel failed to assert his right to address the jury after the trial court charged the jury on parties to a crime because the trial court properly instructed the jury on parties to a crime; a witness’s testimony establishing that another person could have been involved in the crime authorized the trial court to charge the jury on parties to a crime. Jennings v. State, 288 Ga. 120, 702 S.E.2d 151, 2010 Ga. LEXIS 816 (2010).
Failure to move for severance.
Trial counsel’s failure to renew a motion to sever did not constitute deficient performance because the strategic decision fell within the wide latitude of presumptively reasonable conduct engaged in by trial attorneys; counsel testified that counsel did not renew the motion to sever because counsel had impeached the codefendant on cross-examination and believed that the trial court would not grant severance at that stage of the proceedings. Glass v. State, 289 Ga. 706, 715 S.E.2d 85, 2011 Ga. LEXIS 673 (2011). Defendant failed to show either that trial counsel performed deficiently in failing to request a bifurcated trial on the charge alleging possession of firearm by a convicted felon or that the defendant was prejudiced because trial counsel chose as part of the trial strategy not to seek bifurcation, and due to the lack of evidence, the trial court granted a directed verdict on the firearm possession count. Newkirk v. State, 290 Ga. 581, 722 S.E.2d 760, 2012 Ga. LEXIS 196 (2012).
Failure to file timely appeal.
The trial court properly denied the defendant’s motion for an out-of-time appeal, as the motion failed to show any meritorious ground, and the defendant’s failure to timely file an appeal did not result from the ineffective assistance of trial counsel, as it was apparent from the transcript of the plea hearing that the issues sought to be raised in the out-of-time appeal completely lacked merit. Hicks v. State, 281 Ga. 836, 642 S.E.2d 31, 2007 Ga. LEXIS 119 (2007). The appeals court rejected the defendant’s ineffective assistance of counsel claim, based on trial counsel’s failure to move for mistrial or seek the removal of a juror who became nauseated during the state’s cross-examination of the defendant and left the courtroom with the bailiff, but who thereafter indicated a willingness to continue and was allowed to remain on the jury, as: (1) nothing showed either that the juror was rendered unable by illness to continue or that anything improper occurred while the juror was separated from the others during the juror’s temporary illness; (2) the defendant failed to show any prejudice by the lack of an inquiry; and (3) the defendant was not entitled to a presumption of prejudice due to an irregularity in the conduct of a juror. Jones v. State, 282 Ga. 47, 644 S.E.2d 853, 2007 Ga. LEXIS 354 (2007). Evidentiary hearing as to claim of
ineffective assistance.
If a post-conviction defendant has requested an evidentiary hearing regarding ineffectiveness of trial counsel, but has not had an opportunity for one, the defendant is not barred from proceeding with this claim, and a claim of ineffectiveness of post-conviction counsel. Yizar v. State, 262 Ga. 33, 413 S.E.2d 448, 1992 Ga. LEXIS 167 (1992), overruled in part, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669, 2003 Ga. LEXIS 775 (2003). Defense counsel was not ineffective for allowing co-counsel to give the closing argument; lack of experience alone could not constitute grounds for an ineffective assistance of counsel claim, and upon questioning by the trial court, the defendant expressly agreed that the defendant was “comfortable” with the decision to allow co-counsel to handle closing. Cooper v. State, 281 Ga. 760, 642 S.E.2d 817, 2007 Ga. LEXIS 245 (2007). Trial court’s finding upheld unless
clearly erroneous.
A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. Timberlake v. State, 200 Ga. App. 64, 406 S.E.2d 537, 1991 Ga. App. LEXIS 754 (1991), cert. denied, No. S91C1324, 1991 Ga. LEXIS 599 (Ga. Sept. 3, 1991), cert. denied, 502 U.S. 1106, 112 S. Ct. 1200, 117 L. Ed. 2d 440, 1992 U.S. LEXIS 1351 (1992). Failure to object to admission of
dying declaration.
Trial counsel was not ineffective for failing to challenge the admission of testimony regarding the victim’s dying declaration because the statement satisfied the requirements for admission of a dying declaration under former O.C.G.A. § 24-3-6 (see now O.C.G.A. § 24-8-804); the defendant identified no valid basis for objection. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661, 2012 Ga. LEXIS 625 (2012).
Prosecutor’s action was not inappropriate.
Trial counsel was not ineffective for failing to object during closing arguments when the state commented on the defendant’s right to remain silent and failure to come forward because the prosecutor did not act inappropriately; the defendant initially placed the evidence before the jury that the defendant fled and did not go to police after the shooting. Kendrick v. State, 290 Ga. 873, 725 S.E.2d 296, 2012 Ga. LEXIS 350 (2012). Right to be present at bench conference. Trial counsel was not ineffective for failing to object to the defendant’s absence at the bench conferences as the defendant made no attempt to show that the defendant had a right to be present at any of the identified bench conferences except the one bench conference during voir dire in which the prospective juror with the medical condition was questioned; and, even if the appellate court were to assume that the defendant’s trial counsel performed deficiently in waiving the defendant’s presence at that conference, the defendant failed to show that the defendant’s counsel’s waiver caused the defendant any prejudice. Reed v. State, 314 Ga. 534, 878 S.E.2d 217, 2022 Ga. LEXIS 237 (2022). Right to Counsel (Cont’d) 5. Duties and Effectiveness of Counsel (Cont’d) Missing portions of transcript. Trial counsel was not ineffective for failing to ensure a complete transcription of the defendant’s trial, in particular the unrecorded bench conferences, because, even if the appellate court assumed that trial counsel was deficient in that regard, the defendant failed to show any prejudice resulting from the missing portions of the transcript in the defendant’s ability to prepare the defendant’s appeal; and the defendant could not show a reasonable probability that the incomplete transcript affected the outcome of the trial, as required to establish a claim of ineffective assistance of counsel. Reed v. State, 314 Ga. 534, 878 S.E.2d 217, 2022 Ga. LEXIS 237 (2022). 6. Waiver Right to counsel of choice may be
waived.
Just as other constitutional and statutory rights may be waived intelligently by an accused, so too, the constitutional guarantees of the benefit of counsel of choice may be waived by action or declaration. Williams v. Gooding, 226 Ga. 549, 176 S.E.2d 64, 1970 Ga. LEXIS 591 (1970); Bradley v. State, 135 Ga. App. 865, 219 S.E.2d 451, 1975 Ga. App. LEXIS 1853 (1975); Phipps v. State, 200 Ga. App. 18, 406 S.E.2d 493, 1991 Ga. App. LEXIS 741 (1991); Singleton v. State, 240 Ga. App. 240, 522 S.E.2d 734, 1999 Ga. App. LEXIS 1251 (1999), vacated in part, 243 Ga. App. 429, 533 S.E.2d 457, 2000 Ga. App. LEXIS 474 (2000).
“Waiver” defined.
In determining whether or not an accused has adequately waived the right to counsel and elected to exercise the constitutional right to self-representation, the courts will apply the standard that a waiver is ordinarily an intentional relinquishment of a known right or privilege. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339, 1975 Ga. LEXIS 1359 (1975); Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49, 1981 Ga. LEXIS 681 (1981).
Effect of waiver.
A defendant who has knowingly waived the right to counsel could not later complain of a lack of counsel when the defendant determines that the court’s warnings were valid. Reviere v. State, 231 Ga. App. 329, 498 S.E.2d 332. Strict standard must be applied to waiver of counsel whether at trial or in pretrial proceedings. Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49, 1981 Ga. LEXIS 681 (1981). Constitutional waiver requires more than a comprehension of rights; there must also be a relinquishment of rights. Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49, 1981 Ga. LEXIS 681 (1981).
Establishing valid waiver.
When an accused has invoked the right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that the accused responded to further police-initiated custodial interrogation even if the accused has been advised of the accused’s rights. Barksdale v. State, 161 Ga. App. 155, 291 S.E.2d 18, 1981 Ga. App. LEXIS 3248 (1981).
Pretrial hearing is preferred procedure for determining waiver.
Although a pretrial hearing is the preferred procedure to determine waiver of the right to counsel, the failure to hold such a hearing is not itself constitutional error. As long as the record establishes that the defendant understood the risks of self-representation and freely chose to face them, the waiver may be valid. Strozier v. Newsome, 926 F.2d 1100, 1991 U.S. App. LEXIS 4303 (11th Cir.), cert. denied, 502 U.S. 930, 112 S. Ct. 350, 116 L. Ed. 2d 289, 1991 U.S. LEXIS 6182 (1991). To avoid ambiguity in direct appeals and collateral challenges, the state or federal trial court should conduct a searching pretrial inquiry to determine whether a waiver is knowing and intelligent. Strozier v. Newsome, 926 F.2d 1100, 1991 U.S. App. LEXIS 4303 (11th Cir.), cert. denied, 502 U.S. 930, 112 S. Ct. 350, 116 L. Ed. 2d 289, 1991 U.S. LEXIS 6182 (1991). Overall trial record indicated that the combination of advice from lawyers and the trial judge before trial sufficiently informed the defendant of the disadvantages of self-representation so that the defendant’s choice to proceed pro se was knowing and intelligent. Strozier v. Newsome, 926 F.2d 1100, 1991 U.S. App. LEXIS 4303 (11th Cir.), cert. denied, 502 U.S. 930, 112 S. Ct. 350, 116 L. Ed. 2d 289, 1991 U.S. LEXIS 6182 (1991). Evidentiary hearing was required to determine whether the defendant had knowingly, voluntarily and intelligently waived the right to counsel, where the defendant stated before the trial court that the defendant thought the defendant had counsel but the attorney the defendant thought was representing the defendant was not present, and the court required the defendant to proceed pro se without further questioning. Smith v. State, 231 Ga. App. 68, 498 S.E.2d 561, 1998 Ga. App. LEXIS 344 (1998), overruled, Mullins v. State, 270 Ga. 450, 511 S.E.2d 165, 1999 Ga. LEXIS 47 (1999).
Waiver must be knowing and intelligent.
An accused may waive the right to counsel, provided the accused is capable of doing so and it appears that the accused did so knowingly and intelligently. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, 1964 Ga. App. LEXIS 940, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337, 1964 U.S. LEXIS 180 (1964); Brown v. State, 122 Ga. App. 570, 177 S.E.2d 801, 1970 Ga. App. LEXIS 953 (1970); Cooper v. Griffin, 455 F.2d 1142, 1972 U.S. App. LEXIS 11426 (5th Cir. 1972); United States v. Shea, 508 F.2d 82, 1975 U.S. App. LEXIS 16091 (5th Cir.), cert. denied, 423 U.S. 847, 96 S. Ct. 87, 46 L. Ed. 2d 69, 1975 U.S. LEXIS 2551 (1975); Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, 1980 Ga. LEXIS 977, cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 136, 1980 U.S. LEXIS 3545 (1980); Redd v. State, 264 Ga. 399, 444 S.E.2d 776, 1994 Ga. LEXIS 461 (1994). When a defendant pleads not guilty and proceeds to trial without benefit of counsel, the state must show the decision to proceed pro se was made knowingly and intelligently. Kirkland v. State, 202 Ga. App. 356, 414 S.E.2d 502, 1991 Ga. App. LEXIS 1776 (1991); Wilson v. State, 230 Ga. App. 74, 495 S.E.2d 330, 1997 Ga. App. LEXIS 1528 (1997). Because the record contained nothing showing that the defendant was made aware of the right to counsel or of the dangers of proceeding without counsel, the court was unable to conclude that the defendant validly chose to proceed pro se after voluntarily and knowingly waiving the right to counsel, especially as the trial transcript showed that, acting as the defendant’s own counsel, the defendant failed to do anything at the trial to defend against the charges. Heard v. State, 236 Ga. App. 625, 513 S.E.2d 35, 1999 Ga. App. LEXIS 274 (1999). Defendant made a knowing and voluntary waiver of the right to be represented by counsel, pursuant to U.S. Const., amend. 6, where trial counsel sought withdrawal, the defendant agreed on the record with such an action and indicated that the defendant wanted to hire the defendant’s own counsel, and that until such time, the defendant wished to proceed pro se; the record clearly reflected that prior to releasing appointed counsel, the trial court admonished the defendant of the dangers of self-representation, that the defendant indicated that the defendant understood, and the defendant signed a waiver of the defendant’s right to counsel on the face of the indictment. Phillips v. State, 267 Ga. App. 733, 601 S.E.2d 147, 2004 Ga. App. LEXIS 769 (2004). Because the record showed that the defendant reinitiated further communication with police and made a knowing and intelligent waiver of any right to counsel previously invoked, the record did not support the defendant’s claim that the investigators’ accommodation of the defendant’s request to speak to the defendant’s wife in some way undermined the rule in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L. Ed. 2d 378 (1981) by prompting the defendant’s request to reinitiate contact with the police. Rivera v. State, 282 Ga. 355, 647 S.E.2d 70, 2007 Ga. LEXIS 486 (2007). Waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishment thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter in Right to Counsel (Cont’d) 6. Waiver (Cont’d) order to be valid. Gann v. Gough, 79 F. Supp. 912, 1948 U.S. Dist. LEXIS 2396 (D. Ga.), rev’d, 170 F.2d 473, 1948 U.S. App. LEXIS 2667 (5th Cir. 1948); Campbell v. State, 128 Ga. App. 74, 195 S.E.2d 664, 1973 Ga. App. LEXIS 1395 (1973); Blue v. State, 144 Ga. App. 378, 241 S.E.2d 36, 1977 Ga. App. LEXIS 2703 (1977); Rogers v. State, 156 Ga. App. 466, 274 S.E.2d 815, 1980 Ga. App. LEXIS 3069 (1980).
Waiver depends on facts and circumstances of the case.
The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Bradley v. State, 135 Ga. App. 865, 219 S.E.2d 451, 1975 Ga. App. LEXIS 1853 (1975); United States v. White, 617 F.2d 1131, 1980 U.S. App. LEXIS 17212 (5th Cir. 1980); Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49, 1981 Ga. LEXIS 681 (1981). tioner is aware of the right to appointed counsel, if the defendant is in fact indigent, it cannot be said that the defendant intentionally abandoned or waived that right. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339, 1975 Ga. LEXIS 1359 (1975). Judge must make penetrating and
Absent any showing that a peticomprehensive examination of circumstances.
A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered. Phillips v. Smith, 300 F. Supp. 130, 1969 U.S. Dist. LEXIS 8396 (S.D. Ga. 1969); Campbell v. State, 128 Ga. App. 74, 195 S.E.2d 664, 1973 Ga. App. LEXIS 1395 (1973); Blue v. State, 144 Ga. App. 378, 241 S.E.2d 36, 1977 Ga. App. LEXIS 2703 (1977); Rogers v. State, 156 Ga. App. 466, 274 S.E.2d 815, 1980 Ga. App. LEXIS 3069 (1980). Trial judge cannot rely solely upon an assumption that the solicitor has done everything necessary to determine whether waiver is knowing and intelligent. Campbell v. State, 128 Ga. App. 74, 195 S.E.2d 664, 1973 Ga. App. LEXIS 1395 (1973). Trial judge has the serious and weighty responsibility of determining whether there is an intelligent and competent waiver by the accused. Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49, 1981 Ga. LEXIS 681 (1981). Right cannot be waived unless an offer of counsel has been made. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, 1964 Ga. App. LEXIS 940, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337, 1964 U.S. LEXIS 180 (1964).
No valid waiver.
Trial court’s decision that defendant’s custodial statements were not admissible when made after defendant invoked defendant’s right to counsel, but an officer continued to speak to defendant, as the officer repeatedly questioned defendant about defendant’s attorney and stressed that, once defendant obtained counsel, the officer “really needed” to talk to defendant, and, therefore, defendant had not validly waived counsel when defendant made the statements, was not clearly erroneous. State v. Langlands, 276 Ga. 721, 583 S.E.2d 18, 2003 Ga. LEXIS 602 (2003). State failed to prove a valid waiver of the right to counsel, and a trial court erred in allowing the defendant to proceed pro se since the trial court never informed the defendant of the dangers of proceeding without counsel; appointed stand-by counsel sat through the trial with the defendant, but provided no assistance during the trial, and, before trial, potentially made things worse by failing to voir dire any potential jurors and by failing to object to the defendant being visibly handcuffed and shackled during the trial or even to request a curative instruction that the restraints should not have been considered evidence of defendant’s guilt, so there was no reason to conclude that the conviction was independent of the defendant’s decision to proceed pro se. Davis v. State, 279 Ga. App. 628, 631 S.E.2d 815, 2006 Ga. App. LEXIS 660 (2006). Suspect can always make a spontaneous, voluntary statement which would be admissible at trial. Therefore, a defendant did not knowingly and intelligently waive the Sixth Amendment right to counsel by executing a Miranda waiver as the defendant signed the waiver only after police erroneously told the defendant that signing the waiver was a precondition to telling the defendant’s “side of the story.” State v. Darby, 284 Ga. 271, 663 S.E.2d 160, 2008 Ga. LEXIS 544 (2008). State did not show that the defendant made a knowing and intelligent waiver of the right to counsel. There was no evidence that the defendant was adequately informed of the nature of the charges, the possible punishments the defendant faced, the dangers of proceeding pro se, and other circumstances that might affect the defendant’s ability to adequately represent the defendant’s own self; furthermore, the absence of a trial transcript prevented any consideration of whether the failure to obtain a knowing and voluntary waiver was harmless. Cook v. State, 297 Ga. App. 701, 678 S.E.2d 160, 2009 Ga. App. LEXIS 542 (2009). If the trial court merely ascertains that appellant is going to proceed pro se but it does not ascertain that appellant is aware of the right to counsel, there has not been an intelligent and knowing waiver of the right of counsel. Rogers v. State, 156 Ga. App. 466, 274 S.E.2d 815, 1980 Ga. App. LEXIS 3069 (1980). vidual does not want a lawyer is not required to show that the individual waived the right to have one present. All that the prosecution must show is that the defendant was effectively advised of the defendant’s rights and that the defendant then intelligently and understandingly declined to exercise them. United States v. Daniel, 441 F.2d 374, 1971 U.S. App. LEXIS 10911 (5th Cir. 1971).
Express statement that an indi-Defendant’s rejection of public defender.
The trial court was authorized to find that the defendant’s rejection of the assistance of a public defender, coupled with the defendant’s insistence upon the appointment of counsel of the defendant’s own choosing, was the functional equivalent of a knowing and voluntary waiver of counsel, and, in this situation, the trial court could proceed to trial with the defendant acting pro se. Mercier v. State, 203 Ga. App. 494, 417 S.E.2d 430, 1992 Ga. App. LEXIS 532 (1992). Knowing and intelligent waiver of appointed counsel can never be lightly presumed; on the contrary, the presumption is against waiver. Campbell v. State, 128 Ga. App. 74, 195 S.E.2d 664, 1973 Ga. App. LEXIS 1395 (1973). Presumption is against waiver of the benefit of counsel, which must be done voluntarily, knowingly and intelligently. Rose v. State, 128 Ga. App. 370, 196 S.E.2d 683, 1973 Ga. App. LEXIS 1482 (1973); Blue v. State, 144 Ga. App. 378, 241 S.E.2d 36, 1977 Ga. App. LEXIS 2703 (1977). efit of counsel is a strong one. Phillips v. Smith, 300 F. Supp. 130, 1969 U.S. Dist. LEXIS 8396 (S.D. Ga. 1969). Presumption against waiver of the right to assistance of counsel must be overcome and clearly shown by the record. Blue v. State, 144 Ga. App. 378, 241 S.E.2d 36, 1977 Ga. App. LEXIS 2703 (1977). lent record is impermissible. Purvis v. Connell, 227 Ga. 764, 182 S.E.2d 892, 1971 Ga. LEXIS 836 (1971), overruled on other grounds, Lejeune v. McLaughlin, 296 Ga. 291, 766 S.E.2d 803, 2014 Ga. LEXIS 938 (2014). Whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 1938 U.S. LEXIS 896 (1938), overruled in part as stated in Wilkins v. Bowersox, 145 F.3d 1006, 1998 U.S. App. LEXIS 11798 (8th Cir. 1998), overruled in part as stated in United States v. Leon-Delfis, 203 F.3d 103, 2000 U.S. App. LEXIS 2259 (1st Cir. 2000), overruled in part as stated in United States v. Russell, 205 F.3d 768, 2000 U.S. App. LEXIS 3103 (5th Cir. 2000); Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49, 1981 Ga. LEXIS 681 (1981). It is the responsibility of the court to clearly determine whether there has been a proper waiver. The trial judge must Right to Counsel (Cont’d) 6. Waiver (Cont’d) investigate as long and as thoroughly as the circumstances of the case before the judge demand. Campbell v. State, 128 Ga. App. 74, 195 S.E.2d 664, 1973 Ga. App. LEXIS 1395 (1973); Rogers v. State, 156 Ga. App. 466, 274 S.E.2d 815, 1980 Ga. App. LEXIS 3069 (1980). New counsel cannot waive by filing
Presumption against waiver of ben-Presumption of waiver from a sinotice of appeal.
Decisions holding that the issue of the effectiveness of trial counsel has been waived if new counsel elects to file a direct notice of appeal rather than a motion for new trial, are contrary to the controlling authority of the Supreme Court and are hereby overruled. King v. State, 208 Ga. App. 77, 430 S.E.2d 640, 1993 Ga. App. LEXIS 418 (1993). It must be affirmatively shown that the court furnished the accused with the necessary information upon which the accused could make a voluntary, knowing, and intelligent decision regarding the right to counsel. Rose v. State, 128 Ga. App. 370, 196 S.E.2d 683, 1973 Ga. App. LEXIS 1482 (1973). Although no “magic words” regarding specific risks or benefits are necessary to prove a waiver, the totality of the evidence in the record must show that the trial court provided sufficient information, assistance, and support to allow defendant to make a truly informed decision to knowingly relinquish the right to counsel. Hamilton v. State, 233 Ga. App. 463, 504 S.E.2d 236, 1998 Ga. App. LEXIS 925 (1998), cert. denied, No. S98C1780, 1998 Ga. LEXIS 1190 (Ga. Nov. 20, 1998). Trial judge must make a clear record of a proper waiver. Phillips v. Smith, 300 F. Supp. 130, 1969 U.S. Dist. LEXIS 8396 (S.D. Ga. 1969). Defendant was improperly denied assistance of counsel at trial, where the transcript revealed only that at the beginning of the trial the judge informed the jury that defendant had chosen to proceed pro se, and the record was devoid of any evidence that the trial court either informed the defendant of the perils of proceeding pro se or made a finding that the defendant had knowingly and intelligently waived the right to counsel. Black v. State, 194 Ga. App. 660, 391 S.E.2d 432, 1990 Ga. App. LEXIS 286 (1990), cert. denied, No. S90C0803, 1990 Ga. LEXIS 769 (Ga. Apr. 5, 1990).
Determination of waiver should appear on record.
While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record. Butler v. State, 198 Ga. App. 217, 401 S.E.2d 43, 1990 Ga. App. LEXIS 1576 (1990), cert. denied, No. S91C0518, 1991 Ga. LEXIS 455 (Ga. Jan. 31, 1991). Where the record reflected only defendant’s request for an attorney or silence, there was not an adequate waiver of the right to counsel. Butler v. State, 198 Ga. App. 217, 401 S.E.2d 43, 1990 Ga. App. LEXIS 1576 (1990), cert. denied, No. S91C0518, 1991 Ga. LEXIS 455 (Ga. Jan. 31, 1991). When an indigent criminal defendant elects to waive the right to counsel and proceed pro se during post-conviction proceedings, the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of the right to counsel and the dangers of proceeding without counsel. Carver v. State, 198 Ga. App. 676, 403 S.E.2d 230, 1991 Ga. App. LEXIS 248 (1991).
What record must show.
The record must disclose that the defendant voluntarily, knowingly, and intelligently waived counsel and in doing so the defendant must be advised of the right to counsel, if the defendant cannot afford counsel, and the consequences of the defendant’s refusal to accept counsel. Purvis v. Connell, 227 Ga. 764, 182 S.E.2d 892, 1971 Ga. LEXIS 836 (1971), overruled on other grounds, Lejeune v. McLaughlin, 296 Ga. 291, 766 S.E.2d 803, 2014 Ga. LEXIS 938 (2014); Walker v. Caldwell, 476 F.2d 213, 1973 U.S. App. LEXIS 10733 (5th Cir. 1973); Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339, 1975 Ga. LEXIS 1359 (1975); Blue v. State, 144 Ga. App. 378, 241 S.E.2d 36, 1977 Ga. App. LEXIS 2703 (1977); Rogers v. State, 156 Ga. App. 466, 274 S.E.2d 815, 1980 Ga. App. LEXIS 3069 (1980); Miller v. State, 156 Ga. App. 469, 274 S.E.2d 818, 1980 Ga. App. LEXIS 3071 (1980). When an indigent criminal defendant elects to waive the right to counsel and proceed pro se during post-conviction proceedings, the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se and the record should also show that this choice was made after the defendant was made aware of the right to counsel and the dangers of proceeding without counsel. Weber v. State, 203 Ga. App. 356, 416 S.E.2d 868, 1992 Ga. App. LEXIS 416 (1992), overruled in part, Allen v. Daker, 311 Ga. 485, 858 S.E.2d 731, 2021 Ga. LEXIS 264 (2021). There is no “magic language” a trial judge must use in explaining the implications of a defendant’s waiver of the right to counsel; rather, the judge’s dialogue with the defendant and the determination as to waiver depend on the circumstances of the case. Reviere v. State, 231 Ga. App. 329, 498 S.E.2d 332, 1998 Ga. App. LEXIS 401 (1998), cert. denied, No. S98C1131, 1998 Ga. LEXIS 832 (Ga. Sept. 14, 1998).
Waiver deemed invalid.
Defendant’s assault conviction was reversed, where nothing in the record showed that the defendant was advised of the right to counsel before announcing the defendant was ready for trial or that an attorney would be appointed by the court to represent the defendant if the defendant could not afford counsel, and the trial court did not determine whether the defendant knowingly and voluntarily waived the right to counsel. Cain v. State, 201 Ga. App. 317, 411 S.E.2d 92, 1991 Ga. App. LEXIS 1340 (1991). Because the defendant apparently did not understand the consequences, dangers, and permanency of waiving the right to counsel at the time the defendant sought dismissal of court appointed counsel, and the defendant was then unable to obtain counsel despite diligent efforts, the defendant had not waived the right to appointed counsel and a new trial was warranted. Hasty v. State, 215 Ga. App. 155, 450 S.E.2d 278, 1994 Ga. App. LEXIS 1156 (1994). The state failed to show that the defendant voluntarily relinquished the right to counsel since the defendant’s trial apparently was not reported, and the hearing transcript on the defendant’s motion for supersedeas bond contained only a statement by the prosecutor which was insufficient to show that the trial court met its heavy burden of ensuring that the defendant knowingly relinquished the right to counsel. Spears v. State, 247 Ga. App. 626, 545 S.E.2d 36, 2001 Ga. App. LEXIS 64 (2001). There was nothing in the record showing that the trial court made defendant aware of the dangers of self-representation prior to trial, nor did defendant’s background, experience, or conduct of the trial show defendant was aware of the dangers and capable of making a valid waiver of counsel. When defendant tried the case on defendant’s own, the defendant raised bizarre, ineffective defenses and made an incoherent mess of the case; thus, the appellate court concluded that there was no valid waiver of counsel and defendant was entitled to a new trial. Ross v. State, 258 Ga. App. 346, 574 S.E.2d 406, 2002 Ga. App. LEXIS 1454 (2002). Claims of ineffective assistance were not properly before the court on appeal because they were not raised as ineffective assistance claims in the defendant’s motion for new trial. Bryant v. State, 282 Ga. 631, 651 S.E.2d 718, 2007 Ga. LEXIS 718 (2007). Waiver must be made knowingly
and intelligently.
Defendant’s waiver of defendant’s right to counsel was found to be inadequate where the state did not meet its heavy burden of showing that defendant made a knowing, voluntary, free, and intelligent decision to represent oneself in defendant’s trial for aggravated assault and false imprisonment; although the trial court engaged defendant in a colloquy about self-representation, there was no showing that defendant was made aware of the dangers of self-representation in that defendant’s defense was confused and convoluted and defendant was unfamiliar with the evidentiary rules, which limited defendant’s ability to defend oneself. Banks v. State, 260 Ga. App. Right to Counsel (Cont’d) 6. Waiver (Cont’d) 515, 580 S.E.2d 308, 2003 Ga. App. LEXIS 422 (2003), cert. denied, No. S03C1065, 2003 Ga. LEXIS 684 (Ga. July 14, 2003). Factors to consider in determining whether juvenile’s waiver of counsel
is voluntary.
There are several factors to be considered among the totality of the circumstances in determining whether a juvenile’s waiver of counsel was made knowingly and voluntarily: (1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge and the nature of the accused’s rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends, or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogations; (7) length of interrogations; (8) whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extrajudicial statement at a later date. Howe v. State, 250 Ga. 811, 301 S.E.2d 280, 1983 Ga. LEXIS 627 (1983), overruled in part, Clark v. State, 315 Ga. 423, 883 S.E.2d 317, 2023 Ga. LEXIS 13 (2023) (burden of showing understanding waiver met). ing waiver of the right of a juvenile to counsel depends on the totality of the circumstances. Howe v. State, 250 Ga. 811, 301 S.E.2d 280, 1983 Ga. LEXIS 627 (1983), overruled in part, Clark v. State, 315 Ga. 423, 883 S.E.2d 317, 2023 Ga. LEXIS 13 (2023) (burden of showing understanding waiver met). State has a heavy burden in showing that a juvenile did understand and waive the juvenile’s rights. See Howe v. State, 250 Ga. 811, 301 S.E.2d 280, 1983 Ga. LEXIS 627 (1983), overruled in part, Clark v. State, 315 Ga. 423, 883 S.E.2d 317, 2023 Ga. LEXIS 13 (2023) (burden of showing understanding waiver met). Where Miranda warnings are given and the defendant acknowledges the defendant understands them, and on cross-examination on trial, the defendant affirmatively acknowledges that the defendant knew the defendant had the right to counsel when previously interviewed, this course of conduct clearly shows a waiver of the presence of retained counsel. Williams v. State, 244 Ga. 485, 260 S.E.2d 879, 1979 Ga. LEXIS 1304 (1979). Statements to police in absence of
Question of a voluntary and knowcounsel.
Any statements given to police, by a defendant, prior to consultation with the defendant’s attorney would, in the absence of a subsequent waiver, be inadmissible, but where a defendant voluntarily gives statements to police without the defendant’s attorney present after being informed that the attorney had been appointed to represent the defendant, the statements would be admissible because the accused would have waived the right to have the attorney present. Berryhill v. Ricketts, 242 Ga. 447, 249 S.E.2d 197, 1978 Ga. LEXIS 1247 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2418, 60 L. Ed. 2d 1073 (1979).
Defendant initiated conversations.
— Even though the defendant made a request for counsel, because the defendant initiated a conversation with police officers and intelligently waived the right to have counsel present, videotaping of the defendant’s confession did not violate the defendant’s fifth or Sixth Amendment rights. Mosher v. State, 268 Ga. 555, 491 S.E.2d 348, 1997 Ga. LEXIS 624 (1997). A defendant had knowingly and intelligently waived the defendant’s right to counsel in speaking to an investigator and to an assistant district attorney (ADA) outside the presence of the defendant’s attorney; the defendant had initiated these conversations and had insisted on talking after being reminded by the investigator and the ADA that they could not discuss the case in the absence of the defendant’s attorney. Davis v. State, 281 Ga. 871, 644 S.E.2d 113, 2007 Ga. LEXIS 296 (2007). When after the defendant had requested an attorney, he initiated further discussions with police, was re-apprised of the Miranda rights in full, and signed a written waiver prior to giving a statement, the taint of a prior Edwards violation with regard to two earlier statements was overcome and the last statement was properly admitted into evidence; furthermore, the trial court had considered conflicting expert testimony in conjunction with other evidence of the defendant’s intelligence and had concluded that the defendant understood the defendant’s rights and the consequences of waiving them. Height v. State, 281 Ga. 727, 642 S.E.2d 812, 2007 Ga. LEXIS 233 (2007). It was not error to refuse to suppress the statements the defendant made during an interview with police because the defendant pointed to nothing in the record that showed the defendant had previously invoked the defendant’s Fifth Amendment right to have counsel present during custodial interrogation; the fact that counsel was appointed for the defendant at a prior appearance before the trial court did not afford the defendant relief under the Sixth Amendment, and, furthermore, the interview was at the defendant’s instigation. Dixon v. State, 294 Ga. 40, 751 S.E.2d 69, 2013 Ga. LEXIS 891 (2013).
Government-initiated conversations invalidating waiver.
Once a criminal defendant invokes the defendant’s Sixth Amendment right to counsel, the defendant’s subsequent waiver of that right, even if knowing and voluntary, is presumptively invalid if secured pursuant to government-initiated conversation, and statements obtained in violation of that rule may not be admitted in the state’s case-in-chief. Starks v. State, 262 Ga. 244, 416 S.E.2d 520, 1992 Ga. LEXIS 428 (1992). Waiver invalid notwithstanding
earlier brief consultation with attorney.
Defendant’s waiver of the defendant’s right to counsel, made at a police-initiated interrogation after the defendant had invoked the right to counsel, was invalid, notwithstanding the fact that the defendant had earlier been allowed to consult with an attorney briefly on the afternoon of the defendant’s interrogation. Roper v. State, 258 Ga. 847, 375 S.E.2d 600, 1989 Ga. LEXIS 54, cert. denied, 493 U.S. 923, 110 S. Ct. 290, 107 L. Ed. 2d 270, 1989 U.S. LEXIS 4958 (1989).
Effect of guilty plea.
Where a person, without counsel, admits the person’s guilt of crime and does not ask for or desire a trial, but wishes rather to plead guilty and submit to the mercy of the court, and freely and voluntarily enters such plea, the person’s conduct is a competent and intelligent waiver of the person’s constitutional right to assistance of counsel. Erwin v. Sanford, 27 F. Supp. 892, 1939 U.S. Dist. LEXIS 2739 (D. Ga. 1939). If the defendant is denied the contance of counsel during the critical stage of arraignment, the defendant’s guilty plea cannot be said to have been entered intelligently and voluntarily and it is error to refuse the defendant’s motion to withdraw the plea. Cannon v. State, 136 Ga. App. 479, 221 S.E.2d 674, 1975 Ga. App. LEXIS 1392 (1975). If the accused has no counsel at the time of the accused’s conviction a heavy burden rests upon the state to prove an effective waiver. It must substantiate a knowing waiver by evidence which is not so deficient in form that there is doubt as to whether the constitutional requirements have been observed. Phillips v. Smith, 300 F. Supp. 130, 1969 U.S. Dist. LEXIS 8396 (S.D. Ga. 1969). Defendant who escaped during trial did not automatically waive the right to counsel at sentencing. Golden v. Newsome, 755 F.2d 1478, 1985 U.S. App. LEXIS 28517 (11th Cir. 1985). sence of unequivocal request for
stitutional right to effective assis-Interrogation not suspended in abcounsel.
Because the defendant was informed of the defendant’s Miranda rights three times immediately preceding the interrogation in question, and where the defendant spoke with the defendant’s spouse on the phone during a break in that interrogation, the defendant’s statement to police that “my wife informed me to go get an attorney” could not be considered an equivocal request for counsel that required the officers to suspend the interrogation and seek clarification of the request. State v. Summers, 173 Ga. App. 24, 325 S.E.2d 419, 1984 Ga. App. LEXIS 3099 (1984). Although a child molestation defendant initially made a selective waiver of the defendant’s right to counsel, agreeing to answer some questions but not others, the defendant later made an unequivocal as-Right to Counsel (Cont’d) 6. Waiver (Cont’d) sertion of the defendant’s right to counsel, at which point police should have ceased the interrogation. Admission of the defendant’s statements thereafter required reversal of the defendant’s convictions. Wheeler v. State, 289 Ga. 537, 713 S.E.2d 393, 2011 Ga. LEXIS 558 (2011). dant’s request for counsel centered on specific function to be served, such as counsel’s presence at the administration of a polygraph test, continued interrogation without presence of counsel was not a violation of the defendant’s right to counsel. Berry v. State, 254 Ga. 101, 326 S.E.2d 748, 1985 Ga. LEXIS 624 (1985). Where a defendant fails to sign the fic Citation Summons and Accusation, that the defendant has been advised of the right to counsel, and the judge fails to sign the portion stating that the judge has advised the defendant of this right, and there is no evidence in the record that the defendant voluntarily waived the right to counsel, a defendant who has been convicted under such circumstances has been denied the right to counsel, and the conviction is subject to reversal. Swinney v. City of Atlanta, 176 Ga. App. 823, 338 S.E.2d 52, 1985 Ga. App. LEXIS 2910 (1985).
If, during interrogation, defenacknowledgement in a Uniform Traf-Hearing.
Because an accused who conducts the accused’s own defense thereby relinquishes many of the important benefits associated with the right to counsel, a trial judge must conduct a waiver hearing to make sure that the accused understands the dangers and disadvantages of proceeding pro se. Hance v. Zant, 696 F.2d 940, 1983 U.S. App. LEXIS 31169 (11th Cir. 1983), cert. denied, 463 U.S. 1210, 103 S. Ct. 3544, 77 L. Ed. 2d 1393, 1983 U.S. LEXIS 780 (1983), overruled in part, Brooks v. Kemp, 762 F.2d 1383, 1985 U.S. App. LEXIS 30625 (11th Cir. 1985), overruled in part as stated in, Sutton v. Waddington, No. C07-1462-MJP-MAT, 2008 U.S. Dist. LEXIS 60732 (W.D. Wash. Aug. 5, 2008).; 463 U.S. 1210, 103 S. Ct. 3544, 77 L. Ed. 2d 1393 (1983). A trial judge must conduct a waiver hearing to make sure that the accused understands the risks of proceeding pro se. Jackson v. James, 839 F.2d 1513, 1988 U.S. App. LEXIS 3354 (11th Cir. 1988). Statement admissible even where counsel requested and subsequently
waived.
Even where a defendant requests an attorney and subsequently waives that right and makes a statement, such statement will be admissible if found to be voluntarily made. Unless clearly erroneous, a trial court’s finding as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. Baker v. State, 157 Ga. App. 746, 278 S.E.2d 462, 1981 Ga. App. LEXIS 2000 (1981). Defendant’s statement to the officer that the defendant would talk but would not sign anything not only waived the right to remain silent but the right to the assistance of an attorney. Graves v. State, 180 Ga. App. 446, 349 S.E.2d 519, 1986 Ga. App. LEXIS 2738 (1986). Appellant’s actions constituted
waiver of counsel.
See Singleton v. State, 176 Ga. App. 733, 337 S.E.2d 350, 1985 Ga. App. LEXIS 2525 (1985).
Effective waiver of counsel.
See Callahan v. State, 175 Ga. App. 303, 333 S.E.2d 179, 1985 Ga. App. LEXIS 2797 (1985). There was competent evidence, though conflicting, to authorize the trial court’s finding that the state carried its burden of showing the defendant’s initiation of the defendant’s statements and the defendant’s knowing, intelligent, and voluntary waiver of the defendant’s right to counsel. Brown v. State, 258 Ga. 315, 368 S.E.2d 481, 1988 Ga. LEXIS 223, cert. denied, 488 U.S. 945, 109 S. Ct. 374, 102 L. Ed. 2d 363, 1988 U.S. LEXIS 5046 (1988). Although the defendant asserted the trial court compelled the defendant to proceed to trial without benefit of counsel and to represent the defendant, the record, when examined in toto, revealed that the defendant requested to have appointed counsel relieved and when this failed, by a combination of words and conduct, elected voluntarily, knowingly, and intelligently to represent oneself after adequately being advised, by the trial court during the hearing on the defendant’s request, of the defendant’s right to appointed counsel and of the perils of self-representation. The defendant’s conduct throughout the trial was consistent with this election, and the trial court’s finding that the election was freely and knowingly made was not reversed. Stevens v. State, 199 Ga. App. 563, 405 S.E.2d 713, 1991 Ga. App. LEXIS 592 (1991). By merely asking if an attorney was present, the defendant did not make an unambiguous request for counsel during a custodial interrogation; because a detective testified that the detective interviewed the defendant for only 35 to 40 minutes immediately after the defendant’s arrest and that the defendant was able to understand the detective and respond appropriately to questions, and because the trial court heard the audiotape of the interview, the trial court did not err in finding that the defendant knowingly and voluntarily waived the right to counsel, and admission of the statement was not improper. Simon v. State, 279 Ga. App. 844, 632 S.E.2d 723, 2006 Ga. App. LEXIS 728 (2006). A defendant’s videotaped statement was properly admitted into evidence after a detective advised the defendant of the right to an attorney and repeatedly asked the defendant if the defendant wanted an attorney before the defendant ultimately rejected the right to counsel. Swanson v. State, 282 Ga. 39, 644 S.E.2d 845, 2007 Ga. LEXIS 351 (2007).
Unauthorized waiver by counsel.
Where the state submitted the affidavit of trial counsel who averred only that at arraignment in this matter counsel waived jury trial but the defendant also submitted an affidavit in which the defendant stated that trial counsel never discussed with the defendant at any time during the defendant’s representation the advantages and disadvantages of a jury trial and further asserted that the defendant did not “knowingly, intelligently, and willingly” waive the right to a jury trial, nor did the defendant “ask or permit” trial counsel to make such a representation at arraignment, the defendant was granted a new trial since the state had not met the burden of showing the waiver was made both intelligently and knowingly. Hill v. State, 181 Ga. App. 473, 352 S.E.2d 651, 1987 Ga. App. LEXIS 1439 (1987).
Mass arraignment.
Municipal court failed to meet its responsibility to determine whether there had been a proper waiver of the right to counsel when, in the context of a mass arraignment, it informed defendant and other defendants of their rights, including the right to counsel. Washington v. City of Atlanta, 201 Ga.App. 876, 412 S.E.2d 624, 1991 Ga. App. LEXIS 1625 (1991). The acceptance of a guilty plea during a mass arraignment outside the presence of defendant’s appointed public defender without any inquiry regarding defendant’s relinquishment of her right to counsel required reversal. Waire v. State, 211 Ga. App. 69, 438 S.E.2d 142, 1993 Ga. App. LEXIS 1397 (1993).
Burden of proof of waiver.
The burden is upon the prosecution to affirmatively establish a valid waiver of the right to counsel, and waiver may not be presumed from a silent record. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339, 1975 Ga. LEXIS 1359 (1975).
Standard of proof of waiver.
The burden rests upon the state to demonstrate clearly that the defendant knowingly and intelligently waived the right to counsel. Smith v. State, 132 Ga. App. 491, 208 S.E.2d 351, 1974 Ga. App. LEXIS 1725 (1974). Burden of proof that waiver was
invalid.
Where a defendant, without counsel, acquiesces in a trial resulting in the defendant’s conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon the defendant to establish that the defendant did not competently and intelligently waive the constitutional right to assistance of counsel. This rule applies with even greater force if the judgment is entered upon an uncoerced plea of guilty freely and voluntarily made. Erwin v. Sanford, 27 F. Supp. 892, 1939 U.S. Dist. LEXIS 2739 (D. Ga. 1939). Trial court’s conclusions as to waiver must be upheld unless clearly
erroneous.
Because the trial court concludes that the accused had freely and Right to Counsel (Cont’d) 6. Waiver (Cont’d) voluntarily waived the rights to silence and an attorney and had chosen to give a statement, the appellate court must accept those factual determinations by the trial court unless those findings are shown to be clearly erroneous. Lawrence v. State, 235 Ga. 216, 219 S.E.2d 101, 1975 Ga. LEXIS 832 (1975). Right to counsel after the right has
been waived.
Trial court erred in telling a defendant that the defendant could not change defendant’s mind once having decided to waive the Sixth Amendment right to counsel and represent oneself in defendant’s murder trial, because the right to counsel did not evaporate following a valid waiver, and a defendant may make a post-waiver request for counsel if, for example, the defendant discovers the defendant is overwhelmed by the trial process. However, the defendant’s failure to object to the statement or to make a post-waiver request for counsel barred the defendant from asserting the error on appeal. Wilkerson v. State, 286 Ga. 201, 686 S.E.2d 648, 2009 Ga. LEXIS 726 (2009). 7. Self-Representation Defendant has right to proceed
without counsel.
A defendant in a criminal trial has a constitutional right to proceed without counsel when the defendant voluntarily and intelligently elects to do so, and the state may not force a lawyer upon a defendant who properly asserts that right. Lepiscopo v. United States, 469 F.2d 650, 1972 U.S. App. LEXIS 6504 (5th Cir. 1972); Taylor v. Ricketts, 239 Ga. 501, 238 S.E.2d 52, 1977 Ga. LEXIS 1226 (1977); Chapman v. United States, 553 F.2d 886, 1977 U.S. App. LEXIS 13024 (5th Cir. 1977); Burney v. State, 244 Ga. 33, 257 S.E.2d 543, 1979 Ga. LEXIS 1093 (1979), cert. denied, 444 U.S. 970, 100 S. Ct. 463, 62 L. Ed. 2d 385, 1979 U.S. LEXIS 3895 (1979), superseded by statute as stated in Nelms v. Georgian Manor Condominium Asso., 253 Ga. 410, 321 S.E.2d 330, 1984 Ga. LEXIS 959 (1984); Rogers v. State, 156 Ga. App. 466, 274 S.E.2d 815, 1980 Ga. App. LEXIS 3069 (1980); Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49, 1981 Ga. LEXIS 681 (1981); Hayes v. State, 203 Ga. App. 143, 416 S.E.2d 347, 1992 Ga. App. LEXIS 381 (1992), cert. denied, No. S92C0753, 1992 Ga. LEXIS 346 (Ga. Apr. 24, 1992). A state may not constitutionally hale a person into its criminal courts and force a lawyer upon that person, when that person insists that the person wants to conduct one’s own defense. Taylor v. Hopper, 596 F.2d 1284, 1979 U.S. App. LEXIS 13939 (5th Cir. 1979), cert. denied, 444 U.S. 1083, 100 S. Ct. 1039, 62 L. Ed. 2d 768, 1980 U.S. LEXIS 800 (1980). sented by counsel is in court’s discre-
Self representation when repretion.
If a party is represented by counsel, it is a matter within the sound discretion of the trial judge upon timely request as to whether such party may or may not conduct part or all of the cause. Such limitation does not violate the constitutional right of an individual to defend oneself. Hiatt v. State, 144 Ga. App. 298, 240 S.E.2d 894, 1977 Ga. App. LEXIS 2681 (1977), superseded by statute as stated in Cargill v. State, 255 Ga. 616, 340 S.E.2d 891, 1986 Ga. LEXIS 616 (1986). There is no constitutional right for a defendant to act as co-counsel. Cross v. United States, 893 F.2d 1287, 1990 U.S. App. LEXIS 1770 (11th Cir.), cert. denied, 498 U.S. 849, 111 S. Ct. 138, 112 L. Ed. 2d 105, 1990 U.S. LEXIS 4187 (1990). A defendant is not entitled to represent oneself and also be represented by an attorney. Moss v. State, 196 Ga. App. 81, 395 S.E.2d 363, 1990 Ga. App. LEXIS 811 (1990). Neither the state nor federal constitution provides a defendant with a right to simultaneous representation by counsel and self-representation. Loden v. State, 199 Ga. App. 683, 406 S.E.2d 103, 1991 Ga. App. LEXIS 609 (1991). An individual does not have a right to hybrid representation. Rather, the decision to permit a defendant to proceed as cocounsel rests in the sound discretion of the trial court. Cross v. United States, 893 F.2d 1287, 1990 U.S. App. LEXIS 1770 (11th Cir.), cert. denied, 498 U.S. 849, 111 S. Ct. 138, 112 L. Ed. 2d 105, 1990 U.S. LEXIS 4187 (1990). Pro se demand invalid if defendant
has counsel.
Because, at the time defendants filed their pro se demand for discharge pursuant to O.C.G.A. § 17-7-170 they were represented by counsel, the trial court was clearly authorized to find that that pro se demand was of no legal effect whatsoever. Goodwin v. State, 202 Ga. App. 655, 415 S.E.2d 472, 1992 Ga. App. LEXIS 144 (1992).
Motion seeking new counsel insufficient to invoke self representation.
— Because the defendant never unequivocally asserted the right to self-representation but only filed a motion seeking appointment of new counsel, the defendant’s right to self-representation under the federal and state constitution was not violated. Oliver v. State, 305 Ga. 678, 827 S.E.2d 639, 2019 Ga. LEXIS 287 (2019). Defendant did not timely assert right to defend pro se because the defendant made the request after arguments on pre-trial motions, a jury had been selected and sworn, and completion of direct examination of the state’s first witness, although the defendant had stated this wish several weeks earlier, but was discouraged by counsel. Williams v. State, 207 Ga. App. 595, 428 S.E.2d 648, 1993 Ga. App. LEXIS 272 (1993). Denial of defendant’s request to for self-representation, a request made after the testimony of the state’s third witness, could not serve as the basis for reversal since a defendant cannot frivolously change one’s mind in midstream by asserting the right to self-representation in the middle of the trial. Thaxton v. State, 260 Ga. 141, 390 S.E.2d 841, 1990 Ga. LEXIS 162 (1990). counsel upon a defendant who has raised the right to self-representation. Potts v. State, 259 Ga. 812, 388 S.E.2d 678, 1990 Ga. LEXIS 54 (1990). Defendant is not deprived of the defendant’s constitutional rights when a trial court honors the defendant’s request to conduct the defendant’s own defense. Taylor v. Hopper, 596 F.2d 1284, 1979 U.S. App. LEXIS 13939 (5th Cir. 1979), cert. denied, 444 U.S. 1083, 100 S. Ct. 1039, 62 L. Ed. 2d 768, 1980 U.S. LEXIS 800 (1980). Demand for self-representation must be honored as timely if made before the jury is selected, absent an affirmative showing that it was a tactic to secure delay. Chapman v. United States, 553 F.2d 886, 1977 U.S. App. LEXIS 13024 (5th Cir. 1977).
Trial judge may not impose co-To invoke right, clear request required.
In order to invoke the right to self-representation and trigger the need for a hearing on the issue, a defendant must unambiguously communicate to the court the desire to proceed pro se. The request must be so clear that no reasonable person can say that the request was not made. United States v. Moody, 763 F. Supp. 589, 1991 U.S. Dist. LEXIS 5969 (M.D. Ga. 1991), aff’d, 977 F.2d 1420, 1992 U.S. App. LEXIS 25576 (11th Cir. 1992). Because the defendant failed to make an unequivocal assertion of a right to self-representation, and raised no objection after being informed that defense counsel and an associate would assist in the defense, that right was not violated. Moore v. State, 280 Ga. App. 894, 635 S.E.2d 253, 2006 Ga. App. LEXIS 974 (2006), cert. dismissed, No. S06C2155, 2006 Ga. LEXIS 896 (Ga. Oct. 30, 2006). Effect of improper questioning of
defendant’s knowledge of death penalty law.
Death penalty defendant was improperly denied the defendant’s constitutional right to self-representation because the trial court properly found the defendant was mentally competent to waive the defendant’s right to counsel, but, instead of determining if the defendant knowingly and intelligently waived the right to counsel, questioned the defendant about the knowledge of death penalty law, which was irrelevant to the defendant’s ability to waive the defendant’s right to counsel, and the record showed the defendant had a sound general knowledge of the charges against the defendant and the trial process, understood the dangers of self-representation that were explained to the defendant, and knew the benefit counsel could provide. Lamar v. State, 278 Ga. 150, 598 S.E.2d 488, 2004 Ga. LEXIS 536 (2004). tion has been invoked initially, the trial court must conduct a hearing or Right to Counsel (Cont’d) 7. Self-Representation (Cont’d) engage the defendant in a colloquy to ensure that the defendant’s decision is made knowingly, voluntarily, and intelligently. Cross v. United States, 893 F.2d 1287, 1990 U.S. App. LEXIS 1770 (11th Cir.), cert. denied, 498 U.S. 849, 111 S. Ct. 138, 112 L. Ed. 2d 105, 1990 U.S. LEXIS 4187 (1990). ing on the record in which the judge ensures that the decision to proceed pro se is being made knowingly and voluntarily. The judge should do more than ask pro forma questions; the judge should explain the difficulties inherent in any criminal trial, including the importance of evidentiary rules. Strozier v. Newsome, 871 F.2d 995, 1989 U.S. App. LEXIS 5553 (11th Cir. 1989). Waiver hearing is beneficial though
Once the right to self-representa-Trial court should conduct a hearnot essential.
Although a waiver hearing explaining the disadvantages of proceeding pro se is not essential under the Sixth Amendment, it is extremely beneficial. Greene v. United States, 880 F.2d 1299, 1989 U.S. App. LEXIS 12362 (11th Cir. 1989), cert. denied, 494 U.S. 1018, 110 S. Ct. 1322, 108 L. Ed. 2d 498, 1990 U.S. LEXIS 1233 (1990). Although a defendant need not have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, the defendant should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that the defendant knows what the defendant is doing and the choice is made with eyes open. Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49, 1981 Ga. LEXIS 681 (1981). Record should contain findings as to validity of choice to proceed pro se. — Recognizing the dilemma facing trial courts when an accused expresses a desire to represent oneself, in future cases, the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of the defendant’s right to counsel and the dangers of proceeding without counsel. Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49, 1981 Ga. LEXIS 681 (1981). Where the record showed that the defendant was first represented by appointed counsel, discharged that attorney and hired counsel at the defendant’s own expense, and later fired that attorney, it was clear that the defendant’s choice was made after the defendant was aware of the right to counsel and that the defendant was aware of the dangers of proceeding without counsel. Harris v. State, 196 Ga. App. 796, 397 S.E.2d 68, 1990 Ga. App. LEXIS 1055 (1990).
Defendant did not choose to proceed pro se.
Where defendant contended that defendant was wrongly convicted of four traffic misdemeanors because the trial court forced defendant to trial without counsel, the trial court’s affidavit regarding its usual procedure in dealing with defendants who refused appointed counsel did not meet the state’s burden to show that defendant made a knowing and intelligent decision to proceed pro se after being warned of the risks inherent in that choice; accordingly, a new trial was required. Jones v. State, 260 Ga. App. 251, 581 S.E.2d 315, 2003 Ga. App. LEXIS 351 (2003). quiry of the defendant as to the defendant’s background or experience and to warn the defendant of the dangers of proceeding without counsel was harmless error, where the court appointed an attorney to sit with the defendant during trial in order to advise the defendant as to procedural matters, where the court gave the defendant considerable latitude in the defendant’s cross-examination and in the presentation of the defendant’s defense, and the record disclosed that the defendant was well prepared to defend pro se and did so in a credible fashion. McCook v. State, 178 Ga. App. 276, 342 S.E.2d 757, 1986 Ga. App. LEXIS 2522 (1986).
Trial court’s failure to make in-Nature of colloquy.
Defendant was improperly held in contempt and sentenced to two days imprisonment because a trial court failed to inform defendant of the dangers of self-representation and did not obtain from defendant a knowing waiver of the constitutional right to counsel where the only mention of counsel was a vague colloquy between defendant and the trial court. Merritt v. State, 261 Ga. App. 597, 583 S.E.2d 283, 2003 Ga. App. LEXIS 741 (2003). dant is placed in issue, it is not permissible to let a possibly incompetent defendant represent oneself without the concurrent assistance of counsel. Almond v. State, 180 Ga. App. 475, 349 S.E.2d 482, 1986 Ga. App. LEXIS 2736 (1986). dant freedom to self-representation if competent to make the choice, even if the defendant obviously lacks the skill and knowledge necessary to present a good defense, and even if it seems that the choice would foreclose any likelihood of success because a defendant’s technical legal knowledge, as such, is not relevant to an assessment of the defendant’s knowing exercise of the right to proceed pro se. Bell v. Hopper, 511 F. Supp. 452, 1981 U.S. Dist. LEXIS 11690 (S.D. Ga. 1981). Defendant’s admitted inability to
When the competency of a defen-Trial court cannot deny the defenrepresent oneself.
Where defendant requested self representation at trial but, upon hearing the trial court’s warnings about self-representation admitted to being incapable of self-representation, the trial court did not err by proceeding with the trial with the previously appointed counsel representing defendant. Furthermore, the subsequent failure of defense counsel to object to the trial court’s refusal of self representation was not ineffective assistance of counsel. Lovelace v. State, 262 Ga. App. 690, 586 S.E.2d 386, 2003 Ga. App. LEXIS 991 (2003), cert. denied, No. S03C1862, 2004 Ga. LEXIS 47 (Ga. Jan. 12, 2004). Denial of request when waiver not
voluntary.
Defendant’s complete lack of knowledge of the law and the basic essentials of conducting the defendant’s own defense and lack of understanding of the nature of the defense being offered, meant that the defendant was not waiving the right to counsel knowingly and voluntarily. Williams v. State, 207 Ga. App. 595, 428 S.E.2d 648, 1993 Ga. App. LEXIS 272 (1993).
Defendant must abide by consequences of the defendant’s choice.
A necessary corollary to the doctrine that a trial court cannot deny a defendant the freedom to choose to represent oneself so long as the defendant is competent to make the choice is that a defendant who makes this choice must abide by the consequences of this choice. Bell v. Hopper, 511 F. Supp. 452, 1981 U.S. Dist. LEXIS 11690 (S.D. Ga. 1981). No error after proper advice and
assistance of counsel.
Because the defendant chose to proceed pro se after being informed of the defendant’s right to counsel and the dangers of proceeding without counsel, and after counsel was made available for the defendant’s consultation and that attorney participated in the defense, there was no error in permitting the defendant to proceed pro se, particularly given the strength and simplicity of state’s evidence. Graham v. State, 172 Ga. App. 660, 324 S.E.2d 518, 1984 Ga. App. LEXIS 3077 (1984). To constitute reversible error, the trial court’s denial of an accused’s request for self-representation must come after the defendant has made an unequivocal assertion of the right to represent oneself. Hayes v. State, 203 Ga. App. 143, 416 S.E.2d 347, 1992 Ga. App. LEXIS 381 (1992), cert. denied, No. S92C0753, 1992 Ga. LEXIS 346 (Ga. Apr. 24, 1992). Defendant’s request not to proceed
pro se.
Because the defendant announced after the jury was empaneled that the defendant had dismissed the defendant’s attorney and had no confidence in the attorney, the defendant also admitted that “I’m not qualified to defend myself, Your Honor . . . I do want an attorney, but I’d like to have one that I have confidence in,” it was evident the defendant requested different counsel rather than unequivocally asserting the desire to proceed pro se. Hayes v. State, 203 Ga. App. 143, 416 S.E.2d 347, 1992 Ga. App. LEXIS 381 (1992), cert. denied, No. S92C0753, 1992 Ga. LEXIS 346 (Ga. Apr. 24, 1992). Request for change of counsel as
dilatory tactic.
Where the trial court was authorized to conclude that defendant was attempting to use the demand for a change of counsel as a dilatory tactic, which was the functional equivalent of a knowing and voluntary waiver of ap-Right to Counsel (Cont’d) 7. Self-Representation (Cont’d) pointed counsel, the court could properly proceed to trial with the defendant as pro se counsel. Staples v. State, 209 Ga. App. 802, 434 S.E.2d 757, 1993 Ga. App. LEXIS 1017 (1993), cert. denied, No. S93C1717, 1993 Ga. LEXIS 1028 (Ga. Oct. 29, 1993). Failure of pro se defendant or court-appointed cocounsel to raise
objection.
In prosecution for burglary, a defendant who elected to serve as the defendant’s own lead counsel at trial in conjunction with appointed assistant counsel and made no objection when stipulated testimony was read into evidence could not contend that the defendant was denied effective assistance of counsel because the defendant’s assistant counsel did not object to the testimony’s being read into evidence. Wallis v. State, 170 Ga. App. 354, 317 S.E.2d 331, 1984 Ga. App. LEXIS 1897 (1984).
Refusal of cocounsel status not unconstitutional.
Defendant was not deprived of the defendant’s constitutional right of self-representation through the trial court’s refusal to permit the defendant to serve as cocounsel in the defendant’s own defense. Cargill v. State, 255 Ga. 616, 340 S.E.2d 891, 1986 Ga. LEXIS 616 (1986), cert. denied, 479 U.S. 1101, 107 S. Ct. 1328, 94 L. Ed. 2d 180, 1987 U.S. LEXIS 887 (1987), overruled in part, Manzano v. State, 282 Ga. 557, 651 S.E.2d 661, 2007 Ga. LEXIS 591 (2007), overruled in part as stated in Jacobs v. State, 299 Ga. App. 368, 683 S.E.2d 64, 2009 Ga. App. LEXIS 885 (2009). fendant fails to act as counsel valid. — Although the trial judge had originally given the defendant the right to self-representation but retracted that right and reappointed a public defender after the defendant refused to participate in the trial, the defendant was not denied the right to represent oneself. Spencer v. State, 176 Ga. App. 313, 335 S.E.2d 661, 1985 Ga. App. LEXIS 2297 (1985). Demand for law library by one in
Appointment of counsel after destate custody.
A criminal defendant certainly has a right, correlative with the right to assistance of counsel, to dispense with counsel, and conduct the defense in propria persona, but having asserted this right, the defendant in the lawful custody of the state does not have the right to demand and receive for the defendant’s use a $15,000.00 law library. Bell v. Hopper, 511 F. Supp. 452, 1981 U.S. Dist. LEXIS 11690 (S.D. Ga. 1981). Prisoner who wishes to represent oneself on appeal is entitled protection against any unconstitutional discrimination or abuse of discretion in the dispensing of those privileges granted to the prison population as a whole. Lee v. Stynchcombe, 347 F. Supp. 1076, 1972 U.S. Dist. LEXIS 11943 (N.D. Ga. 1972). Violation of the accused’s right to represent oneself as cocounsel may be harmless error. Clarke v. Zant, 247 Ga. 194, 275 S.E.2d 49, 1981 Ga. LEXIS 681 (1981).
Public defender may provide assistance to defendant.
The trial court did not abuse its discretion in acceding to the defendant’s expressed preference to represent oneself rather than be represented by the public defender, while instructing the public defender to sit at the defense table and provide the defendant with such assistance during the trial as the defendant might desire. Turner v. State, 199 Ga. App. 836, 406 S.E.2d 512, 1991 Ga. App. LEXIS 716 (1991). 8. Counsel on Appeal
On certiorari.
There is no constitutional right to representation of counsel on certiorari. The constitutional right extends only through the prosecution of a direct appeal. Paino v. State, 263 Ga. 456, 435 S.E.2d 24 (1993).
Accused as witness.
Trial court properly found that defense counsel was not ineffective in the representation of defendant, insofar as in advising defendant against testifying, the counsel adequately advised defendant against doing so in order to avoid: (1) corroboration of the victim’s testimony; (2) subjecting defendant to the state’s cross-examination on that issue; and (3) opening the door to testimony surrounding defendant’s acquaintance and the circumstances of the acquaintance’s death a few days after the offenses defendant allegedly committed. Holman v. State, 272 Ga. App. 890, 614 S.E.2d 124, 2005 Ga. App. LEXIS 389 (2005), cert. denied, No. S05C1295, 2005 Ga. LEXIS 606 (Ga. Sept. 19, 2005). sel must be provided a criminal de-
Adequate representation by counfendant through appeal.
Effective assistance of counsel “through appeal” means “through” to the very end of that first appeal. Moye v. Georgia, 330 F. Supp. 290, 1971 U.S. Dist. LEXIS 11927 (N.D. Ga. 1971). Purpose of right to counsel for in-
digents on appeal.
An indigent has the right to be represented by counsel on appeal of the defendant’s conviction because a rich person enjoys the benefit of counsel’s examination of the record, research of the law, and marshaling of arguments on person’s behalf, while the indigent without counsel is forced to shift for oneself. Reid v. State, 235 Ga. 378, 219 S.E.2d 740, 1975 Ga. LEXIS 887 (1975).
Rights of indigent on appeal generally.
Indigent defendant is entitled to the appointment of counsel to assist the defendant on the defendant’s first appeal and that appointed counsel must function in the active role of an advocate. Goforth v. Dutton, 409 F.2d 651, 1969 U.S. App. LEXIS 13068 (5th Cir. 1969). On an appeal granted or by right an indigent may not be denied assistance of counsel. Moye v. Georgia, 330 F. Supp. 290, 1971 U.S. Dist. LEXIS 11927 (N.D. Ga. 1971). Indigent has the right to appointed counsel to assist on direct appeal. Roberts v. Caldwell, 230 Ga. 223, 196 S.E.2d 444, 1973 Ga. LEXIS 865 (1973). An indigent defendant has the right to be represented by counsel upon appeal of a criminal conviction, and the defendant has the right to be advised of and insist upon the right of appeal, subject to the right of appointed counsel not to be required to pursue a wholly frivolous appeal. Reid v. State, 235 Ga. 378, 219 S.E.2d 740, 1975 Ga. LEXIS 887 (1975). An indigent defendant is entitled to have counsel appointed to represent the defendant on the first level of appellate review. Weber v. State, 203 Ga. App. 356, 416 S.E.2d 868, 1992 Ga. App. LEXIS 416 (1992), overruled in part, Allen v. Daker, 311 Ga. 485, 858 S.E.2d 731, 2021 Ga. LEXIS 264 (2021). Indigency may not foreclose any
phase of appellate review.
If the petitioner is granted an appeal in forma pauperis, all subsequent necessary proceedings until final decision on appeal represent steps in the trial of the case at which the petitioner is entitled to counsel. The fact that the appeal in forma pauperis is allowed is a finding by the court that the trial is not ended, but extends until final determination upon appeal. Reid v. Sanford, 42 F. Supp. 300, 1941 U.S. Dist. LEXIS 2427 (D. Ga. 1941). Once the state chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty. Moye v. Georgia, 330 F. Supp. 290, 1971 U.S. Dist. LEXIS 11927 (N.D. Ga. 1971). Indigent who intends to appeal
need not specifically request appointment of counsel.
An individual desiring an appeal need not, once a responsible state authority knows of the desire to appeal and knows of the status of indigency, specifically request appointment of appellate counsel. Roberts v. Caldwell, 230 Ga. 223, 196 S.E.2d 444, 1973 Ga. LEXIS 865 (1973). Failure to provide indigent with
appellate counsel.
The failure to grant an indigent defendant seeking initial review of the defendant’s conviction the services of an advocate violates the petitioner’s rights to fair procedure and equality under U.S. Const., amend. 14. Chenoweth v. Smith, 225 Ga. 572, 170 S.E.2d 235, 1969 Ga. LEXIS 567 (1969). Lack of counsel for indigent during
appeal of right.
Where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel in a state criminal case, there has been a discrimination between the rich and the poor which violates U.S. Const., amend. 14. Chenoweth v. Smith, 225 Ga. 572, 170 S.E.2d 235, 1969 Ga. LEXIS 567 (1969). Constitutional right of counsel does not apply in a habeas corpus proceeding, which is not a criminal prosecution. Chadwick v. Smith, 227 Ga. 753, Right to Counsel (Cont’d) 8. Counsel on Appeal (Cont’d) 182 S.E.2d 896, 1971 Ga. LEXIS 830 (1971); Hatton v. Smith, 228 Ga. 378, 185 S.E.2d 388, 1971 Ga. LEXIS 570 (1971), cert. denied, 407 U.S. 921, 92 S. Ct. 2466, 32 L. Ed. 2d 807, 1972 U.S. LEXIS 2151 (1972); Brown v. Holland, 228 Ga. 628, 187 S.E.2d 246, 1972 Ga. LEXIS 869 (1972); Dixon v. Caldwell, 228 Ga. 658, 187 S.E.2d 292, 1972 Ga. LEXIS 880 (1972); Wayman v. Caldwell, 229 Ga. 2, 189 S.E.2d 74, 1972 Ga. LEXIS 481 (1972); Moore v. Caldwell, 229 Ga. 132, 189 S.E.2d 396, 1972 Ga. LEXIS 529 (1972); Nolley v. Caldwell, 229 Ga. 441, 192 S.E.2d 151, 1972 Ga. LEXIS 640 (1972); Wyatt v. Caldwell, 229 Ga. 597, 193 S.E.2d 607, 1972 Ga. LEXIS 692 (1972); Grace v. Caldwell, 231 Ga. 407, 202 S.E.2d 49, 1973 Ga. LEXIS 722 (1973); Moye v. Hopper, 234 Ga. 230, 214 S.E.2d 920, 1975 Ga. LEXIS 1090 (1975); Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, 1979 Ga. LEXIS 980, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979). Dismissal of an inmate’s habeas petition without a hearing was proper as the petition failed to state any viable claim for pre-conviction habeas corpus relief since: (1) the inmate was not entitled to appointed counsel in the habeas corpus proceeding; (2) the habeas court was not required to make a determination of the inmate’s mental state as it was an issue to be addressed in the context of the criminal prosecution; and (3) the inmate did not seek issuance of the writ on the ground that the inmate had tendered proper bail in connection with the inmate’s thenpending prosecution on the criminal charge. Britt v. Conway, 281 Ga. 189, 637 S.E.2d 43, 2006 Ga. LEXIS 887 (2006).
Appeal from denial of habeas corpus.
There is no constitutional or statutory right to the assistance of appointed counsel on appeal of the denial of habeas corpus. Yates v. Brown, 235 Ga. 391, 219 S.E.2d 729, 1975 Ga. LEXIS 890 (1975).
Right to appointed counsel in habeas proceedings.
The United States Supreme Court has never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions; in federal habeas proceedings, appointment of counsel prior to an evidentiary hearing is necessary only when the process or the “interests of justice” require it. McBride v. Sharpe, 25 F.3d 962, 1994 U.S. App. LEXIS 15164 (11th Cir.), cert. denied, 513 U.S. 990, 115 S. Ct. 489, 130 L. Ed. 2d 401, 1994 U.S. LEXIS 7914 (1994). State is not required to pay an indigent petitioner’s expenses in habeas corpus proceedings. State v. Davis, 246 Ga. 200, 269 S.E.2d 461, 1980 Ga. LEXIS 1044, cert. denied, 449 U.S. 1057, 101 S. Ct. 631, 66 L. Ed. 2d 511 (1980). No right to state funds for experts
or investigators in habeas corpus.
A defendant has no right to receive or spend state funds for the appointment of experts or investigators in habeas corpus proceedings, even in death penalty cases. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, 1979 Ga. LEXIS 980, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979). Record need not reflect that the ligent decision not to appeal before the defendant can be precluded from appellate review. Murphy v. Balkcom, 245 Ga. 13, 262 S.E.2d 784, 1980 Ga. LEXIS 666 (1980).
defendant made a knowing and intel-Valid waiver of appellate counsel.
— The defendant knowingly, voluntarily, and intelligently waived the defendant’s right to appellate counsel; furthermore, since the Sixth Amendment does not require the court to appoint standby counsel or counsel to assist in specific technical matters, the court will not do so. United States v. Moore, 903 F. Supp. 44, 1995 U.S. Dist. LEXIS 16078 (S.D. Ga. 1995), aff’d, 106 F.3d 415, 1997 U.S. App. LEXIS 1567 (11th Cir. 1997). Self-representation during appeal
not ineffective.
Trial court’s denial of defendant’s motion to allow an out-of-time appeal without conducting an evidentiary appeal was not an abuse of discretion as defendant explained to the trial court that defendant decided, as a matter of strategy, to file a pro se motion in arrest of judgment under O.C.G.A. § 17-9-61 rather than an immediate direct appeal; there was no need to inquire further into whether defendant received ineffective assistance of counsel in failing to file an immediate direct appeal. Smith v. State, 263 Ga. App. 414, 587 S.E.2d 787, 2003 Ga. App. LEXIS 1147 (2003), cert. denied, No. S04C0206, 2004 Ga. LEXIS 81 (Ga. Jan. 20, 2004). Duty of attorney as to decision
whether to appeal.
An attorney renders effective assistance of counsel with regard to the decision whether to appeal when the attorney advises the client of the client’s appellate rights and does not preempt the client’s decision to appeal. Murphy v. Balkcom, 245 Ga. 13, 262 S.E.2d 784, 1980 Ga. LEXIS 666 (1980). Merely filing notice of appeal does
not discharge that duty.
The requirement of effective assistance of counsel on appeal is not met by the mere filing of the notice to appeal without the submission of the requisite enumeration of errors, a brief, and oral argument. Moye v. Georgia, 330 F. Supp. 290, 1971 U.S. Dist. LEXIS 11927 (N.D. Ga. 1971). Appointed counsel has no duty to tant recipients as part of the defendant’s right to counsel on appeal. Dixon v. Hopper, 237 Ga. 811, 229 S.E.2d 656, 1976 Ga. LEXIS 1400 (1976). Procedure where counsel believes
press counsel’s services upon relucappeal to be frivolous.
If counsel finds the case for appeal to be wholly frivolous, after a conscientious examination of it, counsel should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed the indigent to raise any points that the indigent chooses; the court, not counsel, then proceeds, after a full examination of all the proceeding, to decide whether the case is wholly frivolous. Byrd v. Smith, 407 F.2d 363, 1969 U.S. App. LEXIS 9070 (5th Cir. 1969); Moye v. Georgia, 330 F. Supp. 290, 1971 U.S. Dist. LEXIS 11927 (N.D. Ga. 1971); Bolick v. State, 127 Ga. App. 542, 194 S.E.2d 302, 1972 Ga. App. LEXIS 1503, 1972 Ga. App. LEXIS 1505, 1972 Ga. App. LEXIS 946 (1972); Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683, 1974 Ga. LEXIS 712 (1974); Reid v. State, 235 Ga. 378, 219 S.E.2d 740, 1975 Ga. LEXIS 887 (1975); Fegan v. State, 154 Ga. App. 791, 270 S.E.2d 211, 1980 Ga. App. LEXIS 2392 (1980). Counsel not required to prepare
brief setting forth meritless grounds.
— The Constitution does not require an appeal of meritorious grounds by the counsel of an indigent defendant to be accompanied by a brief prepared by the counsel of meritless grounds urged by the defendant. Reid v. State, 235 Ga. 378, 219 S.E.2d 740, 1975 Ga. LEXIS 887 (1975). Grounds as to which defendant, but
not counsel, urges review.
An indigent defendant’s right to be represented by counsel on appeal does not include the right to insist that appointed counsel enumerate as error specified rulings of the trial court as to which defendant, but not counsel, urges appellate review. Reid v. State, 235 Ga. 378, 219 S.E.2d 740, 1975 Ga. LEXIS 887 (1975). If the court finds the appeal frivolous it may grant the request to withdraw and dismiss the appeal. Byrd v. Smith, 407 F.2d 363, 1969 U.S. App. LEXIS 9070 (5th Cir. 1969); Fegan v. State, 154 Ga. App. 791, 270 S.E.2d 211, 1980 Ga. App. LEXIS 2392 (1980). If the court finds any of the issues arguable on their merits, it must then furnish counsel to argue the appeal. Byrd v. Smith, 407 F.2d 363, 1969 U.S. App. LEXIS 9070 (5th Cir. 1969); Fegan v. State, 154 Ga. App. 791, 270 S.E.2d 211, 1980 Ga. App. LEXIS 2392 (1980). Unless counsel appointed to argue meritorious issues on appeal, a defendant is deprived of adequate representation of counsel on appeal in violation of U.S. Const., amend. 14. Byrd v. Smith, 407 F.2d 363, 1969 U.S. App. LEXIS 9070 (5th Cir. 1969). lowed, constitutional requirements may yet be satisfied where the appellate court has carefully reviewed the transcript of the trial and given full consideration to all legal points that might be involved. Bolick v. State, 127 Ga. App. 542, 194 S.E.2d 302, 1972 Ga. App. LEXIS 1503, 1972 Ga. App. LEXIS 1505, 1972 Ga. App. LEXIS 946 (1972). Right to Counsel (Cont’d) 8. Counsel on Appeal (Cont’d) amined the record, researched the law, and evaluated the arguments, the constitutional requirements have been met and the obligations of appellate counsel have been satisfied. Reid v. State, 235 Ga. 378, 219 S.E.2d 740, 1975 Ga. LEXIS 887 (1975). Refusal of attorney to pursue an appeal of the defendant’s conviction, where the defendant has escaped from custody and rendered the appeal dismissible as moot, does not constitute ineffective representation of counsel. Johnson v. Caldwell, 458 F.2d 505, 1972 U.S. App. LEXIS 10217 (5th Cir. 1972). What constitutes denial of counsel
Although this procedure is not fol-Where appointed counsel has exon appeal.
To constitute denial of right to counsel where trial attorney is retained it must be known to the court or some other responsible state official that the defendant is indigent and that the defendant desires to appeal. However, when the defendant is represented by court-appointed counsel a different standard applies, and the focus of the inquiry is not on what the defendant made known to the state, but on what the state, acting through court-appointed counsel, revealed to the defendant. Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683, 1974 Ga. LEXIS 712 (1974). Trial court did not err in failing to appoint counsel to prosecute the defendant’s motion for out-of-time appeal because the defendant did not file a motion to withdraw the guilty plea which, if timely, would have triggered the right to appointed counsel; because a motion for an out-of-time appeal cannot be construed as part of a criminal defendant’s first appeal of right, a defendant is not entitled to the assistance of appointed counsel. Pierce v. State, 289 Ga. 893, 717 S.E.2d 202, 2011 Ga. LEXIS 817 (2011). Denial of assistance of counsel on
appeal.
Trial court erred in denying defendant’s motion for an out-of-time appeal of the denial of the defendant’s motion to withdraw the defendant’s guilty plea. It was obvious that defendant had attempted to appeal the denial of the defendant’s motion to withdraw and that the defendant’s request for counsel to help the defendant pursue the defendant’s appeal had never been ruled upon; prejudice was presumed and the harmless error analysis did not apply since there had been a total denial of the assistance of counsel. Stockton v. State, 298 Ga. App. 84, 679 S.E.2d 109, 2009 Ga. App. LEXIS 568 (2009).
Standard of assistance on appeal.
— Trial counsel did not render ineffective assistance in direct appeal of defendant’s case. Claims that counsel could have written more effectively, cited additional cases, and presented issues in a more articulate manner failed to demonstrate that counsel’s assistance fell below the standard of reasonably effective assistance; a court does not grade counsel’s performance when assessing an ineffective assistance claim. Hammond v. State, 264 Ga. 879, 452 S.E.2d 745, 1995 Ga. LEXIS 23, cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 54, 1995 U.S. LEXIS 5611 (1995). Claim for ineffective assistance of
appellate counsel failed.
Defendant failed to establish a reasonable probability of a different outcome had the defendant’s absence from the juror colloquy been prevented or corrected, and the defendant’s claim for ineffective assistance of appellate counsel failed. Griffin v. Terry, 291 Ga. 326, 729 S.E.2d 334, 2012 Ga. LEXIS 640, cert. denied, 568 U.S. 1051, 133 S. Ct. 765, 184 L. Ed. 2d 506, 2012 U.S. LEXIS 9329 (2012). Failure to fully inform client of ap-
pellate rights.
Representation is inadequate and the right of appeal is denied where appointed counsel fails to fully inform the client of the client’s appellate rights. Gregory v. United States, 446 F.2d 498, 1971 U.S. App. LEXIS 8977 (5th Cir. 1971); Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683, 1974 Ga. LEXIS 712 (1974). An indigent accused is denied effective assistance of counsel at a critical stage of the criminal process when the court-appointed attorney fails to advise the accused of the right to appeal, the procedure and time limits involved, and of the accused’s right to appointed counsel on appeal. Lumpkin v. Smith, 439 F.2d 1084, 1971 U.S. App. LEXIS 11311 (5th Cir. 1971). Defendant’s Sixth Amendment right to counsel was violated because a trial court failed to advise the defendant of the dangers associated with proceeding without counsel on appeal prior to accepting defendant’s waiver of the right to counsel for a direct appeal of the defendant’s convictions. Merriweather v. Chatman, 285 Ga. 765, 684 S.E.2d 237, 2009 Ga. LEXIS 625 (2009). Abandonment of appeal by counsel
without notice or consent.
Counsel’s abandonment of a criminal appeal, without notice and without the defendant’s consent, deprives the defendant of the right to counsel and the right to appeal. Chapman v. United States, 469 F.2d 634, 1972 U.S. App. LEXIS 6938 (5th Cir. 1972).
Abandonment of appeal by appointed counsel without consent.
The right to appeal is violated if the appointed lawyer deliberately foregoes the direct appeal without first obtaining the client’s consent. Gregory v. United States, 446 F.2d 498, 1971 U.S. App. LEXIS 8977 (5th Cir. 1971); Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683, 1974 Ga. LEXIS 712 (1974).
Abandonment of appeal by retained counsel without notice.
Petitioner is denied the constitutionally protected right of counsel when the petitioner’s retained trial counsel abandons the petitioner’s requested appeal without notice. Williams v. Hopper, 243 Ga. 475, 254 S.E.2d 854, 1979 Ga. LEXIS 946 (1979). sel to perfect an appeal, when requested to do so, amounts to such a dereliction of duty as to deprive the defendant of both the effective aid of counsel at a critical stage of the proceedings and the right to appeal. Chapman v. United States, 469 F.2d 634, 1972 U.S. App. LEXIS 6938 (5th Cir. 1972).
Failure of privately-retained coun-Defendant may not complain of effectiveness of retained counsel.
If the defendant has privately retained counsel, counsel’s tactics and abilities are attributed to the defendant, and the defendant cannot therefore complain of the ineffectiveness of counsel. Allen v. Hopper, 234 Ga. 642, 217 S.E.2d 156, 1975 Ga. LEXIS 1213 (1975). Proof of denial of appellate counsel where defendant retained counsel at
trial.
If the defendant is represented by retained counsel at the trial there are two prerequisites in showing denial of counsel for purposes of appeal: (1) it must be known to the court that the criminal defendant is indigent, and (2) it must be known to the court that the defendant wishes to appeal. Goforth v. Dutton, 409 F.2d 651, 1969 U.S. App. LEXIS 13068 (5th Cir. 1969). Failure of counsel to seek appeal
despite belief that grounds exist.
If trial counsel, although believing that there are meritorious grounds for an appeal, deliberately fails to move for a new trial or to file a notice of appeal and also fails to advise the client of the grounds and of the time limits on taking an appeal, counsel is ineffective to the extent that U.S. Const., amend. 6’s standards are not met. Worts v. Dutton, 395 F.2d 341, 1968 U.S. App. LEXIS 6657 (5th Cir. 1968). Dismissal of an appeal because of counsel’s failure to timely file an appeal is a violation of due process because the defendant is thereby deprived of the effective assistance of counsel. Campbell v. State, 178 Ga. App. 814, 344 S.E.2d 745, 1986 Ga. App. LEXIS 2573 (1986). Counsel not necessary on appeal of
probation-revocation order concerning evidentiary question.
If the only question on appeal of a probation-revocation order is an evidentiary one, or one that addresses itself to the discretion of the probation authorities, appointment of counsel will not be necessary. Chamlee v. State, 251 Ga. 519, 307 S.E.2d 501, 1983 Ga. LEXIS 890 (1983). Free transcript for collateral attack
on sentence.
While there is a basic right to a free transcript to perfect a timely direct appeal, there is no absolute right to a free transcript just so the prisoner may have it, and some justification for use in a habeas corpus or related proceeding must be shown in order to be entitled to such records in a collateral attack on the sentence. Garrett v. State, Right to Counsel (Cont’d) 8. Counsel on Appeal (Cont’d) 159 Ga. App. 27, 282 S.E.2d 683, 1981 Ga. App. LEXIS 2468 (1981). Effective assistance of counsel at
trial and on first appeal.
The State of Georgia recognizes the right to effective assistance of counsel at trial and on first appeal as of right and has provided for ameliorative relief in the form of an out-of-time appeal.An appellant who is denied effective assistance of counsel in attempting to appeal a conviction shall be allowed, if the appellant so desires, to file an out of time appeal to the proper appellate court. Brantley v. State, 190 Ga. App. 642, 379 S.E.2d 627, 1989 Ga. App. LEXIS 370 (1989). Hearing required on motion for
substitute counsel.
When the issue of the effectiveness of appointed counsel is raised in motions for substitute counsel and for a new trial, the trial court, in order to insure that the defendant’s Sixth Amendment right has been and will continue to be afforded, should conduct a hearing as to the basis of the defendant’s motion for appointment of new counsel. Thus, the trial court’s failure to conduct a hearing on the defendant’s claim of ineffective assistance of counsel was error. DeLoach v. State, 198 Ga. App. 880, 403 S.E.2d 866, 1991 Ga. App. LEXIS 329 (1991).
Effectiveness of appellate counsel.
— Trial court erred in denying petitioner’s application for habeas corpus relief, as petitioner’s appellate counsel was ineffective for failing to contend on appeal that the state failed to establish the chain of custody of the substance identified at trial as cocaine, as any competent attorney would have raised that issue on appeal, the appellate attorney provided deficient representation in failing to do so, and the error was prejudicial to the petitioner because the error, if raised, would have led to a different outcome on appeal. Phillips v. Williams, 276 Ga. 691, 583 S.E.2d 4, 2003 Ga. LEXIS 551 (2003). Strategic differences between trial
and appellate counsel.
With regard to a defendant’s convictions for malice murder and other crimes, the defendant failed to demonstrate that trial counsel’s decision to forego an insanity or delusional compulsion defense, instead of pursuing the same as prior trial counsel had intended, was unreasonable as the evidence showed that defendant and trial counsel collectively agreed that the success of raising such a defense was highly unlikely. Further, the fact that trial counsel would have pursued a different strategy than the defendant’s prior counsel did not render trial counsel’s strategy unreasonable. Martinez v. State, 284 Ga. 138, 663 S.E.2d 675, 2008 Ga. LEXIS 563 (2008).
at commitment hearing.
Where accused is not indicted by grand jury, court-appointed counsel representing the accused at a commitment hearing is not entitled to payment by the county for legal services. 1962 Ga. Op. Att’y Gen. 120.
public defenders.
Lawyers employed in the circuit public defender office in the same judicial circuit may not represent codefendants when a single lawyer would have an impermissible conflict of interest in doing so. However, it is only when it is decided that a public defender has an impermissible conflict in representing multiple defendants that the conflict is imputed to the other attorneys in that public defender’s office. Thus, a per se rule of disqualification of a circuit public defender’s office is not created prior to the determination that an impermissible conflict of interest exists. Adv. Op. No. 10-01 (April 15, 2013) approved by Sup. Ct. (July 11, 2013).
Am. Jur. 2d.
3B Am. Jur. 2d, Aliens, § 1770. 16AAm. Jur. 2d, Constitutional Law, § 412. 17 Am. Jur. 2d, Contempt, § 176. 21 Am. Jur. 2d, Criminal Law, § 455 et seq. 21A Am. Jur. 2d, Criminal Law, §§ 926 et seq., 1034 et seq, 1144. 32 Am. Jur. 2d, Federal Courts, § 413. 38 Am. Jur. 2d, Grand Jury, § 18. 41 Am. Jur. 2d, Indictments and Information, §§ 54, 94. 47 Am. Jur. 2d, Jury, § 95 et seq. 54 Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, § 476. 70 Am. Jur. 2d, Sedition, Subversive Activities, and Treason, § 77. 75 Am. Jur. 2d, Trial, §§ 34, 334. 75A Am. Jur. 2d, Trial, §§ 666, 724.
Am. Jur. Trials.
Defending Against Claim of Ineffective Assistance of Counsel, 30 Am. Jur. Trials 607. Strategies for Enforcing the Right to Effective Representation, 46 Am. Jur. Trials 571.
C.J.S.
3 C.J.S., Aliens, § 21. 3A C.J.S., Aliens, § 1221 et seq. 4 C.J.S., Appeal and Error, § 44. 15A C.J.S., Compounding Offenses, § 4. 16A C.J.S., Constitutional Law, § 725. 16C C.J.S., Constitutional Law, § 1827. 16D C.J.S., Constitutional Law, § 2026 et seq. 17 C.J.S., Contempt, § 60. 18 C.J.S., Convicts, § 20. 23A C.J.S., Criminal Procedure, § 1534 et seq. 29A C.J.S., Eminent Domain, § 474 et seq. 35A C.J.S., Federal Civil Procedure, § 117 et seq. 42 C.J.S., Indians, § 164. 47A C.J.S., Internal Revenue, § 3 et seq. 57 C.J.S., Military Justice, § 402 et seq. 72A C.J.S., Prohibition, § 22. 73 C.J.S., Public Administrative Law and Procedure, § 20. 81A C.J.S., States, § 56. 98 C.J.S., Witnesses, § 583 et seq. 101A C.J.S., Zoning and Land Planning, § 215.
ALR.
Discharge of accused under a limitation statute as a bar to a subsequent prosecution for the same offense, 3 A.L.R. 519. Right of defendant in criminal case to conduct defense in person, 17 A.L.R. 266; 77 A.L.R.2d 1233. Right to jury trial in case of seizure of property alleged to be illegally used, 17 A.L.R. 568; 50 A.L.R. 97. Incompetency, negligence, illness or the like of counsel as ground for new trial or reversal in criminal case, 24 A.L.R. 1025; 64 A.L.R. 436. Constitutionality of statute making certificate of result of chemical analysis evidence, 29 A.L.R. 289. Presence of accused during view by jury, 30 A.L.R. 1357; 90 A.L.R. 597. Constitutionality of statute requiring party demanding jury to pay jury fees or charges incidental to summoning or impaneling of jurors, 32 A.L.R. 865. Constitutional guaranty of right to appear by counsel as applicable to misdemeanor case, 42 A.L.R. 1157. Remedy for delay in bringing accused to trial or to retrial after reversal, 58 A.L.R. 1510. Comment by prosecution on failure of defendant to call character witnesses, 80 A.L.R. 227. Statutes in relation to subject-matter or form of instructions by court as impairing constitutional right to jury trial, 80 A.L.R. 906. Brevity of time between assignment of counsel and trial as affecting question whether accused is denied right to assistance of counsel, 84 A.L.R. 544. Constitutionality of statute permitting state to take or use in evidence depositions in criminal case, 90 A.L.R. 377. Brief voluntary absence of defendant from courtroom during trial of criminal case as ground of error, 100 A.L.R. 478. Waiver of right to jury trial as operative after expiration of term during which is was made, or as regards subsequent trial, 106 A.L.R. 203. Constitutional or statutory right of accused to speedy trial as affected by his incarceration for another offense, 118 A.L.R. 1037. Waiver or loss of defendant’s right to speedy trial in criminal case, 129 A.L.R. 572; 57 A.L.R.2d 302. Admissibility of plea of guilty at preliminary hearing, 141 A.L.R. 1335. Right of defendant to waive right of trial by jury where he is not represented by counsel, 143 A.L.R. 445. Revival of judgment by constructive service of process upon nonresident, as affected by due process and full faith and credit clauses, 144 A.L.R. 403. Relief in habeas corpus for violation of accused’s right to assistance of counsel, 146 A.L.R. 369. Duty of court when appointing counsel for defendant to name attorney other than one employed by, or appointed, for, a codefendant, 148 A.L.R. 183. Plea of guilty without advice of counsel, 149 A.L.R. 1403. Exclusion of public during criminal trial, 156 A.L.R. 265; 48 A.L.R.2d 1436. Competency of juror as affected by his participation in a case of similar character, but not involving the party making the objection, 160 A.L.R. 753. Right to aid of counsel in application or hearing for habeas corpus, 162 A.L.R. 922. Requiring submission to physical examination or test as violation of constitutional rights. 164 A.L.R. 967; 25 A.L.R.2d 1407. Effect of, and remedies for, exclusion of eligible class of persons from jury to list in civil case, 166 A.L.R. 1422. Duty to advise accused as to right to assistance of counsel, 3 A.L.R.2d 1003. Exclusion of women from grand or trial jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction, 9 A.L.R.2d 661. Absence of accused during making of tests or experiments as affecting admissibility of testimony concerning them, 17 A.L.R.2d 1078. Absence of accused at return of verdict in felony case, 23 A.L.R.2d 456. Mandamus or prohibition as remedy to enforce right to jury trial, 41 A.L.R.2d 780. Claim of privilege by a witness as justifying the use in criminal case of his testimony given on a former trial or preliminary examination, 45 A.L.R.2d 1354. Withdrawal of waiver of right to jury trial in criminal case, 46 A.L.R.2d 919. Accused’s right to poll of jury, 49 A.L.R.2d 619. Right of indigent defendant in criminal case to aid of state as regards new trial or appeal, 55 A.L.R.2d 1072. Right to an appointment of counsel in juvenile court proceedings, 60 A.L.R.2d 691. Counsel’s right in civil case to argue law or to read lawbooks to the jury, 66 A.L.R.2d 9. Power to try, in his absence, one charged with misdemeanor, 68 A.L.R.2d 638. Incompetency of counsel chosen by accused as affecting validity of conviction, 74 A.L.R.2d 1390; 2 A.L.R.4th 27; 2 A.L.R.4th 807. Right of accused to have his witnesses free from handcuffs, manacles, shackles, or the like, 75 A.L.R.2d 762. Delay between filing of complaint or other charge and arrest of accused as violation of right to speedy trial, 85 A.L.R.2d 980. Exclusion or absence of defendant, pending trial of criminal case, from courtroom, or from conference between court and attorneys, during argument on question of law, 85 A.L.R.2d 1111; 23 A.L.R.4th 955. Right to counsel in insanity or incompetency adjudication proceedings, 87 A.L.R.2d 950. Calling accused’s counsel as a prosecution witness as improper deprivation of right to counsel, 88 A.L.R.2d 796. Admissibility of confession, admission, or incriminatory statement of accused as affected by fact that it was made after indictment and in the absence of counsel, 90 A.L.R.2d 732. Sufficiency of waiver of full jury, 93 A.L.R.2d 410. Constitutionally protected right of indigent accused to appointment of counsel in state court prosecution, 93 A.L.R.2d 747. Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof, 97 A.L.R.2d 549. Accused’s right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1269. Scope and extent and remedy or sanctions for infringement, of accused’s right to communicate with his attorney, 5 A.L.R.3d 1360. Right of defendant in criminal case to inspection of statement of prosecution’s witness for purposes of cross-examination or impeachment, 7 A.L.R.3d 181. Earlier prosecution for offense during which homicide was committed as bar to prosecution for homicide, 11 A.L.R.3d 834. Maintenance of lawyer reference system by organization having no legal interest in proceedings, 11 A.L.R.3d 1206. Accused’s right to interview witness held in public custody, 14 A.L.R.3d 652. Right to trial by jury in criminal prosecution for driving while intoxicated or similar offense, 16 A.L.R.3d 1373. Right in equity suit to jury trial of counterclaim involving legal issue, 17 A.L.R.3d 1321. Right of attorney appointed by court for indigent accused to, and court’s power to award, compensation by public, in absence of statute or court rule, 21 A.L.R.3d 819. Right of motorist stopped by police officers for traffic offense to be informed at that time of his federal constitutional rights under Miranda v. Arizona, 25 A.L.R.3d 1076. What constitutes “custodial interrogation” within rule of Miranda v. Arizona requiring that suspect be informed of his federal constitutional rights before custodial interrogation, 31 A.L.R.3d 565. Right to assistance by counsel in administrative proceedings, 33 A.L.R.3d 229. Circumstances giving rise to conflict of interest between or among criminal codefendants precluding representation by same counsel, 34 A.L.R.3d 470. Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime, 34 A.L.R.3d 652. Right of indigent defendant in criminal case to aid of state by appointment of investigator or expert, 34 A.L.R.3d 1256; 71 A.L.R.4th 638; 72 A.L.R.4th 874; 74 A.L.R.4th 388; 81 A.L.R.4th 259; 85 A.L.R.4th 19. Permitting documents or tape recordings containing confessions of guilt or incriminating admissions to be taken into jury room in criminal case, 37 A.L.R.3d 238. Propriety and prejudicial effect, in criminal case, of placing jury in charge of officer who is a witness in the case, 38 A.L.R.3d 1012. Right to assistance of counsel at proceedings to revoke probation, 44 A.L.R.3d 306. Right of exonerated arrestee to have fingerprints, photographs, or other criminal identification or arrest records expunged or restricted, 46 A.L.R.3d 900. Statute reducing number of jurors as violative of right to trial by jury, 47 A.L.R.3d 895. Censorship of convicted prisoners’ “legal” mail, 47 A.L.R.3d 1150. Censorship of convicted prisoners’ “nonlegal” mail, 47 A.L.R.3d 1192. Right of accused to have press or other media representatives excluded from criminal trial, 49 A.L.R.3d 1007. Propriety and prejudicial effect of prosecutor’s remarks as to victim’s age, family circumstances, or the like, 50 A.L.R.3d 8. Choice of venue to which transfer is to be had, where change is sought because of local prejudice, 50 A.L.R.3d 760. Right to counsel in contempt proceedings, 52 A.L.R.3d 1002. Admissibility of videotape film in evidence in criminal trial, 60 A.L.R.3d 333; 41 A.L.R.4th 812; 41 A.L.R.4th 877. Sufficiency of notice and hearing before revocation or suspension of motor vehicle driver’s license, 60 A.L.R.3d 427. Validity and construction of statute creating presumption or inference of intent to sell from possession of specified quantity of illegal drugs, 60 A.L.R.3d 1128. Right to withdraw guilty plea in state criminal proceeding where court refuses to grant concession contemplated by plea bargain, 66 A.L.R.3d 902. Indigent accused’s right to choose particular counsel appointed to assist him, 66 A.L.R.3d 996. Separation of jury in criminal case before introduction of evidence — modern cases, 72 A.L.R.3d 100. Separation of jury in criminal case during trial — modern cases, 72 A.L.R.3d 131. Separation of jury in criminal case after submission of cause — modern cases, 72 A.L.R.3d 248. Law enforcement officers as qualified jurors in criminal cases, 72 A.L.R.3d 895. Former law enforcement officers as qualified jurors in criminal cases, 72 A.L.R.3d 958. Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance, 73 A.L.R.3d 725. Right to a jury trial on motion to vacate judgment, 75 A.L.R.3d 894. Propriety and prejudicial effect of trial court’s inquiry as to numerical division of jury, 77 A.L.R.3d 769. Illness or incapacity of judge, prosecuting officer, or prosecution witness as justifying delay in bringing accused speedily to trial — state cases, 78 A.L.R.3d 297. Antagonistic defenses as ground for separate trials of codefendants in criminal case, 82 A.L.R.3d 245. Right of defendants in prosecution for criminal conspiracy to separate trials, 82 A.L.R.3d 366. Right to cross-examine witness as to his place of residence, 85 A.L.R.3d 541. Sufficiency of courtroom facilities as affecting rights of accused, 85 A.L.R.3d 918. Propriety and prejudicial effect of permitting nonparty to be seated at counsel table, 87 A.L.R.3d 238. Disruptive conduct of accused in presence of jury as ground for mistrial or discharge of jury, 89 A.L.R.3d 960. Propriety and prejudicial effect of gagging, shackling, or otherwise physically restraining accused during course of state criminal trial, 90 A.L.R.3d 17. Interference with defense counsel’s pretrial interrogation of witnesses, 90 A.L.R.3d 1231. Admissibility of former testimony of nonparty witness, present in jurisdiction, who refuses to testify at subsequent trial without making claim of privilege, 92 A.L.R.3d 1138. Admissibility, as against interest, in criminal case of declaration of commission of criminal act, 92 A.L.R.3d 1164. Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case, 94 A.L.R.3d 15. Request before submitting to chemical sobriety test to communicate with counsel as refusal to take test, 97 A.L.R.3d 852. Validity and efficacy of accused’s waiver of unanimous verdict, 97 A.L.R.3d 1253. Accused’s right to represent himself in state criminal proceedings — modern state cases, 98 A.L.R.3d 13. Validity, construction, and application of interstate agreement on detainers, 98 A.L.R.3d 160. Right to cross-examine prosecuting witness as to his pending or contemplated civil action against accused for damages arising out of same transaction, 98 A.L.R.3d 1060. Excusing, on account of public, charitable, or educational employment, one qualified and not specifically exempted as juror in state criminal case as ground of complaint by accused, 99 A.L.R.3d 1261. Modern status of rules and standards in state courts as to adequacy of defense counsel’s representation of criminal client, 2 A.L.R.4th 27. Waiver or estoppel in incompetent legal representation cases, 2 A.L.R.4th 807. Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury, 3 A.L.R.4th 374. Adequacy of defense counsel’s representation of criminal client regarding right to and incidents of jury trial, 3 A.L.R.4th 601. Right of accused in criminal prosecution to presence of counsel at court-appointed or -approved psychiatric examination, 3 A.L.R.4th 910. Adequacy of defense counsel’s representation of criminal client regarding speedy trial and related matters, 6 A.L.R.4th 1208. Adequacy of defense counsel’s representation of criminal client regarding confessions and related matters, 7 A.L.R.4th 180. Adequacy of defense counsel’s representation of criminal client regarding venue and recusation matters, 7 A.L.R.4th 942. Validity of state statute prohibiting award of government contract to person or business entity previously convicted of bribery or attempting to bribe state public employee, 7 A.L.R.4th 1202. Adequacy of defense counsel’s representation of criminal client regarding plea bargaining, 8 A.L.R.4th 660. Adequacy of defense counsel’s representation of criminal client regarding entrapment defense, 8 A.L.R.4th 1160. Waiver, after not guilty plea, of jury trial in felony case, 9 A.L.R.4th 695. Adequacy of defense counsel’s representation of criminal client regarding guilty pleas, 10 A.L.R.4th 8. Right of indigent criminal defendant to polygraph test at public expense, 11 A.L.R.4th 733. Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues, 12 A.L.R.4th 318. Adequacy of defense counsel’s representation of criminal client regarding postplea remedies, 13 A.L.R.4th 533. Adequacy of defense counsel’s representation of criminal client regarding appellate and postconviction remedies, 15 A.L.R.4th 582. Continuances at instance of state public defender or appointed counsel over defendant’s objections as excuse for denial of speedy trial, 16 A.L.R.4th 1283. Conditions interfering with accused’s view of witness as violation of right of confrontation, 19 A.L.R.4th 1286. Waiver of right to counsel by insistence upon speedy trial in state criminal case, 19 A.L.R.4th 1299. Sufficiency of court’s statement, before accepting plea of guilty, as to waiver of right to jury trial being a consequence of such plea, 23 A.L.R.4th 251. Sufficiency of access to legal research facilities afforded defendant confined in state prison or local jail, 23 A.L.R.4th 590. Right of accused to be present at suppression hearing or at other hearing or conference between court and attorneys concerning evidentiary questions, 23 A.L.R.4th 955. Existence and extent of right of litigant in civil case, or of criminal defendant, to represent himself before state appellate courts, 24 A.L.R.4th 430. Validity and efficacy of minor’s waiver of right to counsel — modern cases, 25 A.L.R.4th 1072. Disruptive conduct of spectators in presence of jury during criminal trial as basis for reversal, new trial, or mistrial, 29 A.L.R.4th 659. Necessity and content of instructions to jury respecting reasons for or inferences from accused’s absence from state criminal trial, 31 A.L.R.4th 676. Validity of jury selection as affected by accused’s absence from conducting of procedures for selection and impaneling of final jury panel for specific case, 33 A.L.R.4th 429. Propriety of order forbidding news media from publishing names and addresses of jurors in criminal cases, 36 A.L.R.4th 1126. Right of accused, in state criminal trial, to insist, over prosecutor’s or court’s objection, on trial by court without jury, 37 A.L.R.4th 304. Admissibility or use in criminal trial of testimony given at preliminary proceeding by witness not available at trial, 38 A.L.R.4th 378. Application of speedy trial statute to dismissal or other termination of prior indictment and bringing of new indictment or information, 39 A.L.R.4th 899. Admissibility of visual recording of event or matter giving rise to litigation or prosecution, 41 A.L.R.4th 812. Admissibility of visual recording of event or matter other than that giving rise to litigation or prosecution, 41 A.L.R.4th 877. Constitutionality with respect to accused’s rights to information or confrontation, of statute according confidentiality to sex crime victim’s communications to sexual counselor, 43 A.L.R.4th 395. Drunk driving: motorist’s right to private sobriety test, 45 A.L.R.4th 11. Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution, 45 A.L.R.4th 310. Admissibility, at criminal prosecution, of expert testimony on reliability of eyewitness testimony, 46 A.L.R.4th 1047. Automobiles: validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations, 48 A.L.R.4th 367. Paternity proceedings: right to jury trial, 51 A.L.R.4th 565. Exclusion of public from state criminal trial in order to preserve confidentiality of undercover witness, 54 A.L.R.4th 1156. Exclusion of public from state criminal trial in order to prevent disturbance by spectators or defendant, 55 A.L.R.4th 1170. Exclusion of public from state criminal trial in order to avoid intimidation of witness, 55 A.L.R.4th 1196. False light invasion of privacy — accusation or innuendo as to criminal conduct, 58 A.L.R.4th 902. Closed-circuit television witness examination, 61 A.L.R.4th 1155. Relief available for violation of right to counsel at sentencing in state criminal trial, 65 A.L.R.4th 183. Ineffective assistance of counsel: misrepresentation, or failure to advise, of immigration consequences of guilty plea — state cases, 65 A.L.R.4th 719. Validity of law or rule requiring state court party who requires jury trial in civil case to pay costs associated with jury, 68 A.L.R.4th 343. Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time, 70 A.L.R.4th 632. Right of indigent defendant in state criminal case to assistance of ballistics experts, 71 A.L.R.4th 638. Right of indigent defendant in state criminal case to assistance of fingerprint expert, 72 A.L.R.4th 874. Right of indigent defendant in state criminal case to assistance of expert in social attitudes, 74 A.L.R.4th 330. Right of indigent defendant in state criminal case to assistance of chemist, toxicologist, technician, narcotics expert, or similar nonmedical specialist in substance analysis, 74 A.L.R.4th 388. Standing of media representatives or organizations to seek review of, or to intervene to oppose, order closing criminal proceedings to public, 74 A.L.R.4th 476. Search and seizure of telephone company records pertaining to subscriber as violation of subscriber’s constitutional rights, 76 A.L.R.4th 536. Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of foreign language speaking defendant, 79 A.L.R.4th 1102. Right of indigent defendant in state criminal case to assistance of investigators, 81 A.L.R.4th 259. What constitutes assertion of right to counsel following Miranda warnings — state cases, 83 A.L.R.4th 443. Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist, 85 A.L.R.4th 19. When does delay in imposing sentence violate speedy trial provision, 86 A.L.R.4th 340. Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of hearing-impaired defendant, 86 A.L.R.4th 698. Necessity that waiver of accused’s right to testify in own behalf be on the record, 90 A.L.R.4th 586. Ineffective assistance of counsel: compulsion, duress, necessity, or “hostage syndrome” defense, 8 A.L.R.5th 713. Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871. Criminal defendant’s representation by person not licensed to practice law as violation of right to counsel, 19 A.L.R.5th 351. Use of peremptory challenges to exclude ethnic and racial groups, other than black Americans, from criminal jury—post-Batson state cases, 20 A.L.R.5th 398; 47 A.L.R.5th 259. Determination of indigency entitling accused in state criminal case to appointment of counsel on appeal, 26 A.L.R.5th 765. Right to appointment of counsel in contempt proceedings, 32 A.L.R.5th 31. Right of accused to have evidence or court proceedings interpreted, because accused or other participant in proceedings is not proficient in the language used, 32 A.L.R.5th 149. Admissibility of evidence of voice identification of defendant as affected by allegedly suggestive voice lineup procedures, 55 A.L.R.5th 423. Adequacy of defense counsel’s representation of criminal client — issues of mental matters concerning persons, other than counsel’s client, who are involved in criminal case, 80 A.L.R.5th 55. Examination and challenge of state case jurors on basis of attitudes toward homosexuality, 80 A.L.R.5th 469. Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving — cases focusing on presence of inculpatory evidence other than statements by accused and cases focusing on absence of particular inculpatory evidence, 90 A.L.R.5th 225. Adequacy of defense counsel’s representation of criminal client-conduct at trial regarding issues of insanity, 95 A.L.R.5th 125. Denial of, or interference with, accused’s right to have attorney initially contact accused, 96 A.L.R.5th 327. Comment note: requests for advisory or standby counsel in state courts, 76 A.L.R.7th 3. Recovery of fees and costs for jury consultation, focus group, or mock trial, 78 A.L.R.7th 4. Validity and efficacy of minor’s waiver of right to counsel — cases decided since application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), 101 A.L.R.5th 351. Right to jury trial in child neglect, child abuse, or termination of parental rights proceedings, 102 A.L.R.5th 227. Denial of accused’s request for initial contact with attorney — drunk driving cases, 109 A.L.R.5th 611. Validity and application of computerized jury selection practice or procedure, 110 A.L.R.5th 329. Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues — Motions and objections during trial and matters other than pretrial motions, 117 A.L.R.5th 513. Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving — Cases focusing on presence of inculpatory statements, 124 A.L.R.5th 1. Propriety and Prejudicial Effect of Comments by Prosecutor Vouching for Credibility of Victim or Complaining Witness Where Response to Defense Not Discussed as Factor — State Cases, 83 A.L.R.7th 4. Propriety and Prejudicial Effect of Comments by Prosecutor Vouching for Credibility of Law Enforcement Witness, and Other Prosecution-Related Witnesses, Where Response to Defense Was Not Discussed as Factor — State Cases, 84 A.L.R.7th 2. Modern status of rule as to test in federal court of effective representation by counsel, 26 A.L.R. Fed. 218. Circumstances giving rise to prejudicial conflict of interests between criminal defendant and defense counsel — Federal cases, 53 A.L.R. Fed. 140. Ineffective assistance of counsel: misrepresentation, or failure to advise, of immigration consequences of guilty plea—federal cases, 90 A.L.R. Fed. 748. Adequacy of counsel’s representation of alien in deportation proceedings, 91 A.L.R. Fed. 394. Adequacy of counsel’s representation of alien in exclusion proceedings, 92 A.L.R. Fed. 656. Ineffective assistance of counsel: failure to seek judicial recommendation against deportation under § 241(b) of Immigration and Nationality Act of 1952 (8 USCS § 1251(b)), 94 A.L.R. Fed. 868. Trial court’s order that accused and his attorney not communicate during recess in trial as reversible error under Sixth Amendment guaranty of right to counsel, 95 A.L.R. Fed. 601. Waiver of minor’s right to counsel in deportation proceedings, 98 A.L.R. Fed. 879. Excessiveness or adequacy of awards of compensatory damages in civil actions for deprivation of rights under 42 USCS § 1983 — modern cases, 99 A.L.R. Fed. 501. Ineffective assistance of counsel: misrepresentation, or failure to advise, of immigration consequences of waiver of jury trial, 103 A.L.R. Fed. 867. Grounds for disqualification of criminal defendant’s chosen and preferred attorney in federal prosecution, 127 A.L.R. Fed. 667. Who are “agricultural laborers” exempt from coverage of National Labor Relations Act § 2(3) (29 USCS § 152(3)), 130 A.L.R. Fed. 1. Right of enemy combatant to counsel, 184 A.L.R. Fed. 527. When does use of taser constitute violation of constitutional rights, 45 A.L.R.6th 1. Construction and application of Article III of Interstate Agreement on Detainers (IAD) — issues related to “speedy trial” requirement, and construction of essential terms, 70 A.L.R.6th 361. Construction and application of safe harbor provision of 18 U.S.C.A. § 1957(f)(1), exempting transfers of fees and funds that preserve right to legal representation guaranteed by Sixth Amendment from criminal prosecution for money laundering under 18 U.S.C.A. § 1957(a), 81 A.L.R. Fed. 2d 321. Construction and application of Sixth Amendment confrontation clause — Supreme Court cases, 83 A.L.R. Fed. 2d 385. Construction and application of Sixth Amendment right to speedy trial — Supreme Court cases, LL.M., 17 A.L.R. Fed. 3d 4. Pretrial Motion Time Periods Excludable from Speedy Trial Time Limits Under 18 U.S.C.A. § 3161(h)(1)(D), 88 A.L.R. Fed. 3d Art. 2.

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