Fullwood v. State, 696 S.E.2d 367 (Ga. Ct. App. 2010). · Go Syfert
Fullwood v. State, 696 S.E.2d 367 (Ga. Ct. App. 2010). Cases Citing This Book View Copy Cite
15 citation events (15 in the last 25 years) across 2 distinct courts.
Strongest positive: Bristol Smith v. State (gactapp, 2022-02-11)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) Bristol Smith v. State
Ga. Ct. App. · 2022 · confidence medium
With respect to whether Smith’s car was a deadly weapon, he contends that the trial court should have included the following instruction: “automobiles, if and when used in an assault upon another person, are not deadly weapons per se but may or may not be deadly weapons, depending upon the manner in which they are used and the circumstances of the case.” At trial, the court instructed: 12 (Emphasis supplied.) 13 See Fullwood v. State, 304 Ga. App. 341, 342 (2) ( 696 SE2d 367 ) (2010). 8 The State must also prove as a material element of aggravated assault as alleged in this case that the…
discussed Cited as authority (rule) Gregory Dumas v. State
Ga. Ct. App. · 2016 · confidence medium
Compare Doyle v. State, 291 Ga. 729, 733 (3) ( 733 SE2d 290 ) (2012) (defense counsel’s question to defendant on direct examination as to why he never told his story before opened the door to the prosecution’s questions and argument on the issue); Fullwood v. State, 304 Ga. App. 341, 342-43 (3) ( 696 SE2d 367 ) (2010) (defendant’s direct testimony explaining why he did not talk to police opened the door for prosecution’s questions and comments on his silence); Gaston v. State, 257 Ga. App. 480, 484 (3) ( 571 SE2d 477 ) (2002) (defense opened the door to cross-examination about defendan…
discussed Cited as authority (rule) Dumas v. State
Ga. Ct. App. · 2016 · confidence medium
Compare Doyle v. State, 291 Ga. 729, 733 (3) ( 733 SE2d 290 ) (2012) (defense counsel’s question to defendant on direct examination as to why he never told his story before opened the door to the prosecution’s questions and argument on the issue); Fullwood v. State, 304 Ga. App. 341, 342-43 (3) ( 696 SE2d 367 ) (2010) (defendant’s direct testimony explaining why he did not talk to police opened the door for prosecution’s questions and comments on his silence); Gaston v. State, 257 Ga. App. 480, 484 (3) ( 571 SE2d 477 ) (2002) (defense opened the door to cross-examination about defendan…
cited Cited as authority (rule) Doyle v. State
Ga. · 2012 · confidence medium
Fullwood v. State, 304 Ga. App. 341, 343 ( 696 SE2d 367 ) (2010).
discussed Cited "see" Tran v. the State (2×)
Ga. Ct. App. · 2017 · signal: see · confidence high
“Because the failure to make a meritless objection cannot constitute ineffective assistance, we conclude that trial counsel was not ineffective for failing to object to the comment upon [Tranj’s silence.” (Citation omitted.) Id.; see Fullwood v. State, 304 Ga. App. 341, 343 (3) ( 696 SE2d 367 ) (2010). (d) Tran contends that his trial counsel was ineffective for failing to object to hearsay The State called a Clayton County police officer as a rebuttal witness, and he testified that, at the prosecutor’s request, he had checked Clayton County’s database and found no record of Tran bei…
Retrieving the full opinion text from the archive…
Fullwood
v.
the State
A10A1171.
Court of Appeals of Georgia.
Jun 7, 2010.
696 S.E.2d 367
2010 Ga. App. LEXIS 521
Jennifer A. Trieshmann, for appellant., Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellee.
Johnson, Miller, Phipps.
Cited by 7 opinions  |  Published
JOHNSON, Judge.

After a jury trial, Dale Fullwood was convicted of aggravated assault and battery. He appeals, challenging a jury instruction and the effectiveness of his trial counsel. The challenges are without merit, and we thus affirm Fullwood’s convictions.

1. Construed most strongly in support of the verdicts, the evidence shows that during an altercation, Fullwood stabbed James Lambus with a knife and bit Crystal Lambus on the back. The evidence was sufficient to authorize a rational trier of fact to find Fullwood guilty beyond a reasonable doubt of aggravated assault for the stabbing and battery for the biting. [1]

2. Fullwood claims that the trial court’s jury charge on the offense of aggravated assault was inadequate because it did not include the definition of simple assault contained in OCGA § 16-5-20 (a) (1), which provides that such an assault is committed when a person “[a]ttempts to commit a violent injury to the person of[*342] another.” However, contrary to Fullwood’s claim, the jury charge on aggravated assault did include such language about attempting to commit a violent injury. The trial court instructed the jury:

A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon. To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant attempted to cause a violent injury to the alleged victim. 2

The instant case is materially different from Coney v. State, 3 upon which Fullwood relies. Unlike the aggravated assault charge in this case, the inadequate charge in Coney did not instruct the jury that the defendant must have attempted to cause a violent injury to the victim. [4] Moreover, the decision in Coney was controlled by Chase v. State, 5 in which an aggravated assault instruction was found to be erroneous because, as the Supreme Court explained, “[t]he failure to inform the jury that appellant had to have attempted to commit a violent injury on the victim requires reversal of appellant’s conviction.” [6] Since the aggravated assault instruction in the present case clearly informed the jury that Fullwood must have attempted to cause a violent injury to the victim, there was no error.

3. Fullwood contends that his trial counsel was ineffective in failing to object when the state asked him about his pre-arrest silence and when the state commented on it during closing argument. To establish ineffective assistance of trial counsel under Strickland v. Washington, [7] Fullwood must show both that counsel’s performance was deficient and that the deficiency prejudiced the defense. [8] Fullwood cannot make these showings because he opened the door to the issue of his pre-arrest silence.

At trial, Fullwood testified that he had acted in self-defense, and on direct examination, his attorney specifically asked him if he had ever gone to the police and told them that he had been attacked. Fullwood answered that he had not gone to the police because he was scared. On cross-examination, the state’s attorney questioned him about his self-defense claim, and asked him to confirm that he had[*343] never approached the police to tell them what had happened. During his closing argument, the prosecutor stated that Fullwood had never bothered to tell the police about his claim of self-defense.

Decided June 7, 2010. Jennifer A. Trieshmann, for appellant.

Typically, questioning about and commenting upon a defendant’s silence or failure to come forward is more prejudicial than probative. [9] However,

[t]he State, like any other party, has the right to conduct a thorough and sifting cross-examination and to pursue the specifics of a topic [that a defendant has] introduced. Because [Fullwood] opened the door to this line of questioning during his direct testimony [about his failure to come forward to police], he cannot now complain that his trial counsel was ineffective for failing to object. Because such an objection would not have been sustained, [Fullwood] has failed to establish that trial counsel’s performance was deficient. The trial court [therefore] did not err in concluding that [Fullwood’s] trial counsel was not ineffective due to his failure to object to the cross-examination outlined above. [10]

Furthermore, because Fullwood “raised [the] issue regarding his failure to come forward ... [,] the prosecutor was legitimately authorized to address [it] in [his] closing argument. Moreover, we note that the prosecutor’s comments in closing argument did not exceed the scope of the invited response.” [11] Accordingly, trial counsel’s failure to raise a meritless objection to the state’s permissible closing argument cannot constitute ineffective assistance of counsel. [12]

Judgment affirmed.

Miller, C. J., and Phipps, P. J., concur. [*344] Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellee.
1

See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA §§ 16-5-21; 16-5-23.1.

2

(Emphasis supplied.)

7

466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

8

Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995).

9

Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839) (1991).

10

(Citations and punctuation omitted.) Mitchell v. State, 242 Ga. App. 177, 181 (4) (a) (529 SE2d 169) (2000) (no ineffectiveness where defendant opened the door to prosecutor’s cross-examination concerning his silence). See also Gaston v. State, 257 Ga. App. 480, 484 (3) (571 SE2d 477) (2002) (rejecting claim of improper comment on silence where defense opened the door).

11

Mikell v. State, 286 Ga. 434, 438 (5) (689 SE2d 286) (2010), overruled on other grounds, Manley v. State, 287 Ga. 338, 345 (3) (698 SE2d 301) (2010).

12

Smith v. State, 304 Ga. App. 155, 156 (3) (b) (695 SE2d 679) (2010).