Neloms v. State

Andrew Neloms was convicted in Fulton County of shooting Octavius Brooks to death at an apartment complex block party after a witness saw him confront and shoot Brooks with a shotgun. On appeal to the Supreme Court of Georgia, Neloms raised three problems with his trial: that the judge should have stopped the trial on his own when an FBI agent mentioned a suppressed statement about a gun in a hotel room, that the judge should have held a hearing on whether Neloms could fire his lawyers and represent himself, and that his trial lawyer was ineffective for not objecting to a District Attorney's investigator repeating what a reluctant witness had told prosecutors before trial. The court rejected all three arguments. It found Neloms never actually asked for a mistrial, so that claim was waived. It found his request to change lawyers came mid-trial and was never a clear request to represent himself, so no special hearing was required. And it found the investigator's testimony was properly admitted as a prior inconsistent statement, so any objection would have failed and the lawyer was not ineffective. The court affirmed the conviction.

The court held that Neloms waived his mistrial claim by not moving for one when the issue arose, that no Faretta hearing was required because his request to switch lawyers mid-trial was not a clear, pre-trial request to represent himself, and that his lawyer was not ineffective because the investigator's testimony was properly admissible.

The decision reinforces that Georgia defendants must object to problems at trial in the moment, particularly by moving for a mistrial right away, or they lose the right to raise the issue on appeal. It also clarifies when mid-trial requests to change lawyers trigger a special court hearing.

Affirmed

1. Georgia law requires a defendant to move for a mistrial right when the objectionable event happens; because Neloms only asked for a curative instruction, which the judge gave without objection, he gave up his right to argue on appeal that a mistrial should have been declared.
2. Under the Faretta v. California rule, a defendant who wants to represent himself instead of using a lawyer must make that request clearly before trial starts, and the judge must then hold a hearing to confirm the choice is informed and voluntary; requests made mid-trial are treated much more skeptically.
3. Because Neloms raised the issue of changing lawyers only on the third day of trial, asked for a different lawyer rather than to represent himself, and then chose to keep his existing lawyer when pressed, his request was neither unequivocal nor made before trial, so no Faretta hearing was needed.
4. To win an ineffective-assistance claim under the Strickland v. Washington standard, a defendant must show both that his lawyer's performance was unreasonably deficient and that this actually hurt the outcome of the case.
5. Georgia's rule on prior inconsistent statements (O.C.G.A. § 24-6-613 (b)) allows another witness to testify about what a first witness said earlier if the first witness is given a chance to explain or deny it and is available for cross-examination; because the reluctant witness's claimed memory loss met this test and he was cross-examined, the investigator's testimony about what he'd said before trial was legally admissible.
6. Since an objection to the investigator's testimony would have failed on the merits, Neloms's trial lawyer could not be found ineffective for choosing not to raise it.

• murder conviction
• mistrial
• right to self-representation
• ineffective assistance of counsel
• hearsay exception