Polk v. State, 483 S.E.2d 687 (Ga. Ct. App. 1997). · Go Syfert
Polk v. State, 483 S.E.2d 687 (Ga. Ct. App. 1997). Cases Citing This Book View Copy Cite
48 citation events (25 in the last 25 years) across 2 distinct courts.
Strongest positive: State v. Lane (ga, 2020-02-10)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. Lane
Ga. · 2020 · confidence medium
Grant v. State, 305 Ga. 170, 179 (5) (h) ( 824 SE2d 255 ) (2019); Daniels v. State, 302 Ga. 90, 105 (8) ( 805 SE2d 80 ) (2017); Rivers v. State, 296 Ga. 396, 405 (12) ( 768 SE2d 486 ) (2015); Woodall v. State, 294 Ga. 624, 634 (11) ( 754 SE2d 335 ) (2014); Rice v. State, 292 Ga. 191, 212 (11) ( 733 SE2d 755 ) (2012), disapproved on other grounds by Willis v. State, 304 Ga. 686, 694 (3) (f) ( 820 SE2d 640 ) (2018); Humphrey v. Lewis, 291 Ga. 202, 219 (VI) ( 728 SE2d 603 ) (2012); Reese v. State, 289 Ga. 446, 450-451 (4) (c) ( 711 SE2d 717 ) (2011); Perkins v. Hall, 288 Ga. 810, 831 (VI) (B) ( 7…
discussed Cited as authority (rule) Ellis v. State
Ga. Ct. App. · 2006 · confidence medium
Further, each error must stand or fall on its own merits, “and is not aided or aggravated by the accumulative effect of other claims of error.” (Citations and punctuation omitted.) Polk v. State, 225 Ga. App. 257, 259 (1) (d) ( 483 SE2d 687 ) (1997).
discussed Cited as authority (rule) Adams v. State
Ga. Ct. App. · 2005 · confidence medium
See Sharp v. State, 278 Ga. 352, 353-354 (3) ( 602 SE2d 591 ) (2004) (defense counsel believed the State had valid reasons for its use of peremptory strikes and defendant failed to show the State used its strikes improperly so as to support a Batson challenge); Polk v. State, 225 Ga. App. 257, 259 (1) (d) ( 483 SE2d 687 ) (1997) (counsel testified that he did not believe, based on the racial constitution of the jury pool, that there was a viable Batson challenge).
discussed Cited as authority (rule) Botelho v. State
Ga. Ct. App. · 2004 · confidence medium
(Citation and punctuation omitted.) Polk v. State, 225 Ga. App. 257, 258 (1) (a) ( 483 SE2d 687 ) (1997). (b) Similarly, when questioned about his decision not to reserve exceptions to the jury charge, Botelho’s counsel explained that after hearing the charges as given and consulting with his co-counsel, they both concluded that they had no objections to the charge as given.
discussed Cited as authority (rule) Easley v. State
Ga. Ct. App. · 2004 · confidence medium
Griffeth, As sistant District Attorney, for appellee. 1 (Citations and punctuation omitted.) Head v. Hill, 277 Ga. 255, 266 (VI) ( 587 SE2d 613 ) (2003). 2 (Citation and punctuation omitted.) Polk v. State, 225 Ga. App. 257, 258 (1) (a) ( 483 SE2d 687 ) (1997). 3 Johnson v. State, 275 Ga. 538, 540 (2) ( 570 SE2d 289 ) (2002). 4 Polk v. State, supra at 259 (1) (c). 5 (Citation and punctuation omitted.) Johnson v. State, 214 Ga. App. 77 -78 (1) ( 447 SE2d 74 ) (1994). 6 Dewberry v. State, 271 Ga. 624, 625 (2) ( 523 SE2d 26 ) (1999). 7 (Citations and punctuation omitted.) Johnson v. State, supra,…
discussed Cited as authority (rule) Benham v. State
Ga. Ct. App. · 2003 · confidence medium
Speed II, District Attorney, Mary Beth Gregoire, Assistant District Attorney, for appellee. 1 (Footnotes omitted.) Roberts v. State, 242 Ga. App. 621 ( 530 SE2d 535 ) (2000). 2 See OCGA § 16-5-21 (a) (2). 3 Roberts, supra. See also McLeod v. State, 245 Ga. App. 668, 669 (1) ( 538 SE2d 759 ) (2000). 4 Geiger v. State, 129 Ga. App. 488, 495 (2) (a) ( 199 SE2d 861 ) (1973). 5 Tarvestad v. State, 261 Ga. 605, 606 ( 409 SE2d 513 ) (1991), citing Hayes v. State, 261 Ga. 439, 443 (6) (a) ( 405 SE2d 660 ) (1991); Pippins v. State, 224 Ga. 462, 465 (4) ( 162 SE2d 338 ) (1968). 6 See Johnson v. State, …
discussed Cited as authority (rule) Abernathy v. State
Ga. Ct. App. · 2001 · confidence medium
See also Pittman v. State, 273 Ga. 849, 850, n. 2 ( 546 SE2d 277 ) (2001). 5 Francis v. State, 266 Ga. 69, 72 (3) ( 463 SE2d 859 ) (1995). 6 Hardy v. State, 240 Ga. App. 115, 119-120 (6) ( 522 SE2d 704 ) (1999). 7 Bryant v. State, 271 Ga. 99, 101 (4) ( 515 SE2d 836 ) (1999). 8 See generally Whiting v. State, 269 Ga. 750, 752 (2) (a) ( 506 SE2d 846 ) (1998) (finding that trial court “fairly instructed the jury on the State’s burden, as well as that facts and circumstances merely casting grave suspicion upon the defendant or merely raising speculation or conjecture of the defendant’s guilt…
discussed Cited as authority (rule) Holmes v. State
Ga. · 2001 · confidence medium
See Smith v. State, 231 Ga. App. 677, 684 (6) ( 499 SE2d 663 ) (1998); Polk v. State, 225 Ga. App. 257, 259 (1) (d) ( 483 SE2d 687 ) (1997). (b) Holmes further complains of defense counsel’s failure to request a charge on robbery as part of the charge on self-defense.
discussed Cited as authority (rule) Gosnell v. State (2×)
Ga. Ct. App. · 2001 · confidence medium
See Forehand v. State, 267 Ga. 254, 256 (7) ( 477 SE2d 560 ) (1996); Polk v. State, 225 Ga. App. 257, 259 (1) (d) ( 483 SE2d 687 ) (1997). 14 See Buice, supra. 15 See id. 16 See id. at 59 (6); Polk, supra at 260 (1) (d). 17 See Mency v. State, 228 Ga. App. 640, 642 (2) ( 492 SE2d 692 ) (1997). 18 (Citations and punctuation omitted.) Id. 19 See Herndon v. State, 235 Ga. App. 258, 259 ( 509 SE2d 142 ) (1998). 20 Id. 21 Mency, supra at 645 (2) (c). 22 See Buice, supra; Moss v. State, 216 Ga. App. 711, 714 (5) ( 455 SE2d 411 ) (1995).
discussed Cited as authority (rule) Robbins v. State
Ga. Ct. App. · 2000 · confidence medium
Mitcham, Jr., Assistant District Attorney, for appellee. 1 Wilhelm v. State, 237 Ga. App. 682 ( 516 SE2d 545 ) (1999); Cantrell v. State, 230 Ga. App. 693, 694-695 (1) ( 498 SE2d 90 ) (1998). 2 Wilhelm, supra. 3 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Wilhelm, supra. 4 Id. 5 The actual date Robbins left home is unclear, but he testified unequivocally that he lived at home until 1994. 6 Robbins, who testified at trial, was unable to recall the year that he married. 7 The trial court directed a verdict of acquittal on one count of molestation. 8 Havron v. State, 234 Ga. App. 413, 414 (1)…
discussed Cited as authority (rule) Moore v. State
Ga. Ct. App. · 2000 · confidence medium
McMurray, P. J., and Phipps, J., concur. 1 Gomillion v. State, 236 Ga. App. 14, 16 (3) ( 512 SE2d 640 ) (1999). 2 Williams v. State, 261 Ga. 640, 642-643 (2) ( 409 SE2d 649 ) (1991). 3 See Harris v. State, 216 Ga. App. 672, 673 (1) ( 455 SE2d 387 ) (1995); Little v. State, 202 Ga. App. 7, 8 (1) ( 413 SE2d 496 ) (1991). 4 Howard v. State, 215 Ga. App. 342, 344 (2) ( 450 SE2d 824 ) (1994). 5 See Bowdry v. State, 211 Ga. App. 626, 627 ( 440 SE2d 59 ) (1994). 6 Compare Hines v. State, 267 Ga. 92 (2) ( 475 SE2d 610 ) (1996) (defendant precluded from a review of prosecutor’s improper closing argum…
discussed Cited as authority (rule) Nelson v. State
Ga. Ct. App. · 2000 · confidence medium
Polk v. State, 225 Ga. App. 257, 259 (1) (c) ( 483 SE2d 687 ) (1997); accord Phillips, supra. At the motion for new trial hearing, Nelson’s trial counsel testified that Nelson’s wife failed to tell the FBI interviewer about any alibi and seemed hesitant to testify.
discussed Cited as authority (rule) Kelly v. State
Ga. Ct. App. · 1999 · confidence medium
See Jordan v. State, 230 Ga. App. 344, 345 (b) ( 496 SE2d 486 ) (1998); Polk v. State, 225 Ga. App. 257, 259 (1) (c) ( 483 SE2d 687 ) (1997); Cline v. State, 224 Ga. App. 235, 238 (4) ( 480 SE2d 269 ) (1997).
cited Cited as authority (rule) Curry v. State
Ga. Ct. App. · 1999 · confidence medium
See Letson v. State, 236 Ga. App. 340, 342 (2) ( 512 SE2d 55 ) (1999); Polk v. State, 225 Ga. App. 257, 259 (1) (c) ( 483 SE2d 687 ) (1997).
cited Cited as authority (rule) Phillips v. State
Ga. Ct. App. · 1998 · confidence medium
Trial strategy and tactics do not equate with ineffective assistance of counsel.’ [Cit.]” Polk v. State, 225 Ga. App. 257, 259 (1) (c) ( 483 SE2d 687 ) (1997).
discussed Cited as authority (rule) Smith v. State (2×) also: Cited "see"
Ga. Ct. App. · 1998 · confidence medium
“Trial strategy and tactics do not equate with ineffective assistance of counsel.” (Citations and punctuation omitted.) Polk v. State, 225 Ga. App. 257, 259 (1) (c) ( 483 SE2d 687 ) (1997).
discussed Cited as authority (rule) Dasher v. State
Ga. Ct. App. · 1997 · confidence medium
“A trial court’s finding that a defendant has been afforded effective assistance of counsel at trial will be upheld unless it is clearly erroneous. [Cit.]” Polk v. State, 225 Ga. App. 257, 260 (1) (d) ( 483 SE2d 687 ) (1997).
discussed Cited "see" Fields v. State (2×)
Ga. Ct. App. · 2011 · signal: accord · confidence high
Accord Dyer v. State, 278 Ga. 656, 660 (7) ( 604 SE2d 756 ) (2004) (by failing to ask his attorney to explain his failure to object to state witnesses’s testimony, defendant failed to demonstrate deficient performance). 8 (Citation and punctuation omitted.) Polk v. State, 225 Ga. App. 257, 257-258 (1) (a) ( 483 SE2d 687 ) (1997). 9 (Citation and punctuation omitted.) Arellano v. State, 289 Ga. App. 148, 153 (5) ( 656 SE2d 264 ) (2008). 10 See Greenwood v. State, 309 Ga. App. 893, 895 (1) (a) ( 714 SE2d 602 ) (2011). 11 (Citation omitted.) Robinson v. State, 168 Ga. App. 569, 572 (3) ( 309 SE…
discussed Cited "see, e.g." Davis v. State (2×)
Ga. Ct. App. · 2003 · signal: see also · confidence medium
Blackburn, P. J., and Ellington, J., concur. 1 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2 See Uniform Superior Court Rule 10.2. 3 Miller v. State, 243 Ga. App. 764, 766 (7) ( 533 SE2d 787 ) (2000). 4 See Mason v. State, 197 Ga. App. 534 (1) ( 398 SE2d 822 ) (1990). 5 Jones v. State, 226 Ga. App. 420, 422 (1) ( 487 SE2d 56 ) (1997). 6 Totten v. State, 276 Ga. 199, 200 (2) ( 577 SE2d 272 ) (2003). 7 259 Ga. 562 ( 385 SE2d 81 ) (1989). 8 Id. at 566 (2). 9 See Jones v. State, 207 Ga. App. 46, 50 (4) ( 427 SE2d 40 ) (1993), and cit. 10 See Peterson v. State, 274 Ga. 165, 168 (2) ( 549 SE2d 3…
Retrieving the full opinion text from the archive…
Polk
v.
the State
A97A0375.
Court of Appeals of Georgia.
Mar 6, 1997.
483 S.E.2d 687
Ruth P. Marks, for appellant., Thomas J. Charron, District Attorney, Frank R. Cox, Debra H. Bernes, Nancy I. Jordan, Shannon L. Goessling, Assistant District Attorneys, for appellee.
Blackburn, Johnson, Pope.
Cited by 22 opinions  |  Published
Johnson, Judge.

A jury found Brooks Douglas Polk guilty of aggravated child molestation after hearing evidence that he performed oral sex on an 11-year-old girl. He appeals the judgment entered on the jury’s verdict and the denial of his motion for new trial.

Viewing the evidence in the light most favorable to upholding the jury’s verdict, the testimony at trial is as follows. The victim testified that a man she knew as Butch, but identified as Polk at trial, asked her if he could perform oral sex on her. When she refused, he persisted and offered her money. He then pulled her panties down and put his mouth on her vagina. The victim’s 18-year-old cousin, who was in the apartment when the incident occurred, testified that he saw Polk on his knees and the victim lying on the edge of a bed. Although the cousin testified that he did not actually see physical contact, Polk’s head was approximately three inches away from the victim’s genitalia.

1. Polk argues that he was denied effective assistance of counsel at trial. In support of his argument, Polk points to 32 specific instances of purported ineffectiveness. For purposes of this opinion, we have grouped these allegations into four categories: (1) Defense counsel's references to Polk’s prior convictions and lifestyle; (2) failure of counsel to object at various points during the trial; (3) inadequate preparation for trial; and (4) prejudicial procedural errors at trial. “To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies.” (Citations and punctuation omitted.) Sebastian v. State, 195 Ga. App. 346, 347 (2) (393 SE2d 492) (1990).

(a) In explaining his defense strategy, trial counsel testified at the motion for new trial hearing that in light of the nature of the case and the evidence, he believed Polk should testify in his own defense and deny the charges. He and Polk discussed the risk of his criminal history being introduced into evidence and made the tactical decision to preempt and defuse the possibility of such disclosure by arguing that while Polk may be a criminal and a thief, he does not victimize children. At trial, counsel asked Polk if he had ever sold drugs to children. Appellate counsel suggests this question is illustrative of ineffective assistance, but we find it consistent with counsel’s defense strategy. While Polk’s present counsel takes exception to this strategy, “[a] decision on whether or not to place a defendant’s character[*258] in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel.” Lowery v. State, 212 Ga. App. 870, 872 (443 SE2d 304) (1994). This Court has often reiterated the principle that “[ejffectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.” (Citations and punctuation omitted.) Sutton v. State, 210 Ga. App. 247, 248 (2) (435 SE2d 748) (1993).

In light of an order from the trial court authorizing a correction in the trial transcript, there is no merit to Polk’s argument that trial counsel was ineffective because he admitted he was guilty of this offense during his closing argument.

(b) Defense counsel did not object during the state’s closing statement when, while arguing the burden of proof, the prosecutor stated: “so beyond a reasonable doubt, as you will be charged, is that the state does not have to prove guilt beyond a reasonable doubt, all doubt or to a mathematical certainty.” The court instructed the jury in its initial charge that the state must prove the defendant guilty beyond a reasonable doubt, that closing argument was not evidence, and that the law to be applied to the facts of the case would come to them from the court. The court also instructed the jury repeatedly on the correct burden of proof after the state’s closing argument and again reminded the jury that closing arguments are not evidence. The prosecutor’s remark, though unfortunate, was no more than a slip of the tongue. In Rodriguez v. State, 211 Ga. App. 256 (439 SE2d 510) (1993), the judge made a misstatement while recharging the jury. In reviewing the effect of that misstatement, we held that “[a] mere verbal inaccuracy in a charge, resulting from a palpable slip of the tongue, which clearly did not mislead or confuse the jury is not cause for a new trial.” (Citations and punctuation omitted.) Id. at 258 (3). Here, we find it unlikely that the jury was misled or confused by the prosecutor’s mistake, particularly since the jury was instructed to apply the law as correctly, and repeatedly, given by the court. Counsel’s failure to object to the remark was not prejudicial to Polk’s case. With benefit of hindsight, Polk asserts that counsel was ineffective for failing to object during the state’s opening statement to references to evidence which ultimately was not introduced at trial. Clearly there was no basis at the time for such an objection, and counsel was not ineffective in failing to raise it. Likewise, we have reviewed the remaining instances purporting to show that counsel was ineffective for failing to object to testimony and find them to be without merit.

(c) Polk asserts that trial counsel inadequately prepared for trial[*259] because he failed to interview his girl friend who could provide an alibi defense and to subpoena a witness who Polk believed would give testimony beneficial to his defense. Trial counsel testified at the hearing on the motion for new trial that he rejected Polk’s suggestion of presenting an alibi defense. Polk told counsel that his girl friend would testify that they had been smoking crack at the time of the incident. “The decision not to pursue the defense of [alibi] is one of trial strategy with which we will not generally interfere. Trial strategy and tactics do not equate with ineffective assistance of counsel.” (Citations and punctuation omitted.) Sutton, supra at 248 (2). Likewise, counsel’s decision not to subpoena a witness who Polk suggested would testify that the victim had engaged in sex earlier that day was tactical and based on counsel’s opinion that such evidence would likely not be admissible. Tactical decisions of counsel do not equate with ineffectiveness. Further, Polk has failed to show with specificity how these decisions, or any of the other instances cited purporting to show trial counsel’s alleged inadequate preparation for trial, prejudiced his defense. It is not sufficient only to allege that trial counsel’s performance was deficient, Polk must also show how that deficiency prejudiced his defense. See Sebastian, supra.

(d) Polk asserts that trial counsel was ineffective because he failed to request a continuance and did not ask for recordation of voir dire for preservation of a possible Batson challenge. Counsel testified at the hearing on the motion for new trial that he saw no reason for a continuance. This Court has held that “it obviously is not ineffective for counsel to fail to request a continuance for delay only.” Chandler v. State, 204 Ga. App. 512 (1) (419 SE2d 751) (1992). Counsel also testified that he did not believe, based on the racial constitution of the jury pool, that a viable challenge based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), could be made. Polk has failed to establish either that a Batson violation occurred, or that, but for the failure of counsel to request recordation of voir dire, a new trial would be required on this ground. See Peavy v. State, 262 Ga. 782 (2) (425 SE2d 654) (1993). Counsel’s decision not to request recordation of voir dire or to request a continuance did not constitute ineffective assistance.

Citing federal cases from the Ninth Circuit and a district court in Missouri, Polk argues that all of the alleged errors of trial counsel should be considered cumulatively and result in a finding that trial counsel was ineffective. We disagree. “This state does not follow a cumulative error rule of prejudice. Any error of record must stand or fall upon its own merits and is not aided or aggravated by the accumulative effect of other claims of error.” (Citations and punctuation omitted.) Baugher v. State, 212 Ga. App. 7, 11 (3) (440 SE2d 768) (1994).

[*260] Decided March 6,1997 Ruth P. Marks, for appellant. Thomas J. Charron, District Attorney, Frank R. Cox, Debra H. Bernes, Nancy I. Jordan, Shannon L. Goessling, Assistant District Attorneys, for appellee.

A trial court’s finding that a defendant has been afforded effective assistance of counsel at trial will be upheld unless it is clearly erroneous. Moody v. State, 206 Ga. App. 387, 390 (1) (e) (425 SE2d 397) (1992). After reviewing the record in this case, we conclude that no clear error has been shown warranting reversal of the trial court’s denial of Polk’s motion for new trial based on ineffective assistance of counsel.

2. Having concluded in Division 1 above that the trial court did not err in denying Polk’s motion for new trial based on ineffective assistance of counsel, we need not reach his argument that counsel’s representation resulted in a trial which was so essentially unfair as to deny him his right to due process as guaranteed by the U. S. and Georgia Constitutions.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.