Herrington v. State, 645 S.E.2d 29 (Ga. Ct. App. 2007). · Go Syfert
Herrington v. State, 645 S.E.2d 29 (Ga. Ct. App. 2007). Cases Citing This Book View Copy Cite
“the failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant.”
28 citation events (28 in the last 25 years) across 1 distinct court.
Strongest positive: Clowers v. State (gactapp, 2013-10-16)
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 11 distinct citers.
discussed Cited as authority (quoted) Clowers v. State (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2013 · signal: see also · quote attribution · 1 verbatim quote · confidence low
the failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant
discussed Cited as authority (quoted) Jabari Clowers v. State (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2013 · signal: see also · quote attribution · 1 verbatim quote · confidence low
the failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant.
discussed Cited as authority (rule) Richard Davenport v. State (2×)
Ga. Ct. App. · 2012 · confidence medium
See Powell v. State, 276 Ga. 592, 595 (2) ( 581 SE2d 13 ) (2003) (defendant failed to show that counsel was ineffective for failing to introduce evidence of defendant’s abuse where there was no evidence to support defendant’s bare assertion); Herrington v. State, 285 Ga. App. 4, 4-5 (a) ( 645 SE2d 29 ) (2007) (since defendant neither called purported alibi witness to testify at motion for new trial hearing nor presented legally acceptable substitute for alibi’s testimony to substantiate claim that alibi evidence would have been favorable to his defense, it was impossible for defendant to…
discussed Cited as authority (rule) Davenport v. State (2×)
Ga. Ct. App. · 2012 · confidence medium
See Powell v. State, 276 Ga. 592, 595 (2) ( 581 SE2d 13 ) (2003) (defendant failed to show that counsel was ineffective for failing to introduce evidence of defendant’s abuse where there was no evidence to support defendant’s bare assertion); Herrington v. State, 285 Ga. App. 4, 4-5 (a) ( 645 SE2d 29 ) (2007) (since defendant neither called purported alibi witness to testify at motion for new trial hearing nor presented legally acceptable substitute for alibi’s testimony to substantiate claim that alibi evidence would have been favorable to his defense, it was impossible for defendant to…
discussed Cited as authority (rule) Crawford v. State
Ga. Ct. App. · 2008 · confidence medium
State, 265 Ga. App. 421, 422 (1) ( 594 SE2d 664 ) (2004). 9 See Felder v. State, 286 Ga. App. 271, 279 (5) (d) ( 648 SE2d 753 ) (2007). 10 See McCoy v. State, 278 Ga. App. 492, 494 (4) (a) ( 629 SE2d 493 ) (2006). 11 See id. 12 See Herrington v. State, 285 Ga. App. 4, 6 (b) ( 645 SE2d 29 ) (2007). 13 See Venegas v. State, 285 Ga. App. 768, 770 (1) ( 647 SE2d 422 ) (2007). 14 See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). 15 See Adams v. State, 276 Ga. App. 319, 325 (6) (c) ( 623 SE2d 525 ) (2005). 16 See Meeks v. State, 281 Ga. App. 334, 335-336 ( 636 SE2d 77 ) (2006). …
discussed Cited "see" UPTON v. the STATE. (2×)
Ga. Ct. App. · 2019 · signal: see · confidence high
See Herrington v. State , 285 Ga. App. 4 , 6 (b), 645 S.E.2d 29 (2007) ("The failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant." (footnote omitted)).
discussed Cited "see" Sevostiyanova v. State (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See Herrington v. State, 285 Ga. App. 4, 6 (c) ( 645 SE2d 29 ) (2007).
discussed Cited "see" Mims v. State (2×)
Ga. Ct. App. · 2009 · signal: accord · confidence high
Accord Miller v. State, 285 Ga. 285 -286 ( 676 SE2d 173 ) (2009). 4 See Herrington v. State, 285 Ga. App. 4 ( 645 SE2d 29 ) (2007). 5 (Citation and punctuation omitted.) Lupoe v. State, 284 Ga. 576, 578 (3) ( 669 SE2d 133 ) (2008). 6 See OCGA § 16-3-40: “The defense of alibi involves the impossibility of the accused’s presence at the scene of the offense at the time of its commission.
discussed Cited "see" Medlin v. State (2×)
Ga. Ct. App. · 2007 · signal: see · confidence high
See Herrington v. State, 285 Ga. App. 4, 6 (b) ( 645 SE2d 29 ) (2007) (trial counsel’s failure to present evidence cannot be deemed prejudicial “in the absence of a showing that such evidence would have been relevant and favorable to the defendant”) (punctuation and footnote omitted).
discussed Cited "see, e.g." Stillwell v. State (2×)
Ga. Ct. App. · 2008 · signal: see also · confidence medium
See also Anthony v. State, 282 Ga. App. 457, 459 (2) ( 638 SE2d 877 ) (2006) (officer’s testimony that victim exhibited no signs of deception during interview did not constitute bolstering). 10 See Shaffer v. State, 291 Ga. App. 783, 785 (1) ( 662 SE2d 864 ) (2008) (failure to make meritless objection does not constitute ineffective assistance). 11 See Aleman v. State, 227 Ga. App. 607, 612-613 (3) (d) ( 489 SE2d 867 ) (1997); see also Evans, supra at 107 (3) (trial strategy and tactics do not constitute ineffective assistance of counsel). 12 See Williams v. State, 273 Ga. App. 321, 323 ( 61…
discussed Cited "see, e.g." Habersham v. State (2×)
Ga. Ct. App. · 2008 · signal: see also · confidence medium
Johnson, P. J., and Mikell, J., concur. 1 Reese v. State, 270 Ga. App. 522, 523 ( 607 SE2d 165 ) (2004). 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 See OCGA§§ 16-13-30 (b) (possession of controlled substances), 16-13-30 (j) (possession of marijuana with intent to distribute), 16-13-32.3 (use of a communication facility in the commission of a drug felony). 4 Despite the trial court’s finding and Habersham’s apparent concession that he failed to renew his objection at trial, we read the record as preserving Habersham’s objection to the admission of this simi…
Herrington
v.
the State
A06A2032.
Court of Appeals of Georgia.
Mar 20, 2007.
645 S.E.2d 29
Robert S. Lanier, Jr., for appellant., Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.
Mikell, Blackburn, Adams.
Cited by 12 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: #44,756 of 633,719
Citer courts: Court of Appeals of Georgia (2)
Mikell, Judge.

Following a jury trial, Joe Henry Herrington was convicted of aggravated child molestation. [1] On appeal, he contends that the trial court erred in denying his amended motion for new trial, [2] which alleged ineffective assistance of trial counsel. We find no error and affirm.

Herrington contends that the trial court erred in not granting a new trial based on his claim of ineffective assistance of counsel. [3] In order for Herrington to succeed on this claim, he must satisfy the two-prong test set forth in Strickland v. Washington. [4]

Under this test, [Herrington] must prove that counsel’s performance was deficient and that this deficient performance prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. Moreover, there is a strong presumption that trial counsel’s performance fell within the broad range of reasonable professional conduct. We will uphold the trial court’s ruling in this regard unless it is clearly erroneous. [5]

“Failure to satisfy either prong of [the Strickland test] is fatal to an ineffective assistance claim, and we need not address the deficient performance prong if the showing on the prejudice prong is insufficient.” [6]

a. Herrington first contends that his trial counsel, John R. Strother III, failed to identify an alibi witness, Tom Marion Noble, in reciprocal discovery; failed to investigate the alibi defense; and failed to present it at trial. At the hearing on the motion for new trial, Noble was not called as a witness. Further, although Herrington’s new[*5] counsel asserted that Noble had sworn an affidavit on July 18, 2001, this affidavit was not tendered into evidence and appears nowhere in the record.

Therefore, because [Herrington] neither called [Noble] to testify at the motion for new trial hearing nor presented a legally acceptable substitute for [Noble’s] direct testimony so as to substantiate [Herrington’s] claim that [Noble’s] testimony would have been relevant and favorable to [his] defense, it was impossible for [Herrington] to show there is a reasonable probability the results of the proceedings would have been different. [7]

Even if Noble’s testimony had been presented directly or in a legally acceptable substitute at the hearing, however, Herrington did not show that his trial counsel rendered ineffective assistance. First, Strother testified at the motion hearing that, although Herrington told him that he was out of town during some of the time named in the indictment, Herrington never provided him with the name of a witness. Strother further testified that, although he could not remember specifically, he would have explored the possibility of presenting an alibi defense at trial if there had been a potential alibi defense available. Thus, Herrington has failed to show that his trial counsel did not adequately investigate the possibility of an alibi defense. [8]

Moreover, Noble’s testimony, as outlined by appellate counsel at the hearing, was that Herrington was visiting Noble in Macon from October 30 to November 1, 1998. In light of the fact that the indictment charges that the offenses occurred from October 1998 to October 2000, and in light of the fact that the victim testified to multiple acts of anal penetration by Herrington, we conclude that Herrington failed to show that the outcome of the trial would have been different had trial counsel presented this alibi defense. [9]

[*6] Decided March 20, 2007 Reconsideration denied April 12, 2007 Robert S. Lanier, Jr., for appellant. Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.

b. Herrington asserts that his trial counsel provided ineffective assistance in failing to view the videotape of the medical examination of the victim by Dr. Debbie West on March 6, 2001, failing to investigate her findings, failing to interview her, and failing to call her as a witness at trial. However, Dr. West did not testify at the hearing on the motion for new trial. Therefore, we do not know what her testimony might have been, nor whether it might have been favorable to Herrington. “The failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant.” [10]

c. Herrington further contends that his trial counsel was ineffective in failing to interview all the witnesses from the Department of Family and Children Services (“DFCS”) and to review all videotapes available through discovery. At the motion hearing, however, no witnesses from DFCS testified nor was any proffer made of the evidence Herrington expected to be revealed from the videotapes. Herrington thus “offered no more than speculation regarding the content of such alleged potential favorable evidence, which is insufficient to sustain a claim of ineffective assistance of counsel.” [11]

Judgment affirmed.

Blackburn, P. J., and Adams, J., concur.
2

The trial court’s reference in its order denying the motion for new trial that the evidence was sufficient to find Herrington guilty “of murder, aggravated assault and possession of a firearm during the commission of a crime” appears to be a clerical error. See Pringle v. State, 281 Ga. App. 230, 233 (1), n. 4 (635 SE2d 843) (2006).

3

The two errors enumerated in Herrington’s brief actually raise only one issue, adequacy of trial counsel.

4

466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

5

(Punctuation andfootnotes omitted.) Lawson v. State, 280 Ga. App. 870, 872 (2) (635 SE2d 259) (2006).

6

(Footnote omitted.) Pringle, supra at 234 (2).

7

(Citation and punctuation omitted.) Dickens v. State, 280 Ga. 320, 323 (2) (627 SE2d 587) (2006) (“Hearsay evidence cannot be used either under the first Strickland prong to rebut the reasonableness of trial counsel’s tactical decision or under the second Strickland prong to establish that the defense was prejudiced by counsel’s deficient performance, [although] trial courts on motion for new trial are authorized to consider as substantive evidence the information presented by competent affiants in properly-executed affidavits when the affidavit is made on personal knowledge and sets forth facts that would be admissible in evidence”) (footnote omitted) (id. at 322 (2), n. 2).

8

See, e.g., Cowan v. State, 243 Ga. App. 388, 396-397 (10) (b) (531 SE2d 785) (2000) (trial counsel gave reasonable professional assistance where he determined that one alibi witness would hurt the defense, and the other did not remember defendant).

9

See Jones v. State, 266 Ga. App. 679, 683-684 (2) (598 SE2d 65) (2004) (defendant accused[*6] of two related bank robberies did not show prejudice by attorney’s failure to present alibi evidence which went to only one of the robberies).

10

(Footnote omitted.) Duvall v. State, 273 Ga. App. 143, 145 (3) (b) (614 SE2d 234) (2005) (defendant accused of child molestation did not proffer testimony and thus did not show prejudice in attorney’s failure to call witnesses to show prior disputes between victim’s family and defendant). Compare Goldstein v. State, 283 Ga. App. 1, 4-5 (3) (a) (640 SE2d 599) (2006) (counsel’s assistance found ineffective where witnesses at new trial hearing testified that victim’s mother made multiple false accusations of child molestation, and this evidence had been readily available to trial counsel at time of trial).

11

(Punctuation and footnote omitted.) Pringle, supra at 234 (2) (b) (defendant failed to show prejudice from inadequate investigation by trial attorney, where defendant made no proffer of what a thorough investigation would have revealed).