Smith v. State (2008)

Similarly, “[strategic decisions regarding which defense theories to pursue . . . are [also] within the exclusive province of the attorney after consultation with the client and do not amount to ineffective assistance.” (Citation omitted.) Smith v. State, 283 Ga. 237, 240 (2) (c) ( 657 SE2d 523 ) (2008).

Regarding counsel’s failure to call various additional witnesses to testify at trial, “[strategic decisions regarding . . . which witnesses to call are within the exclusive province of the attorney after consultation with the client and do not amount to ineffective assistance.” (Citation omitted.) Smith v. State, 283 Ga. 237, 240 (2) (c) ( 657 SE2d 523 ) (2008).

Roseboro, 308 Ga. at 437 (2) (b); Smith v. State, 283 Ga. 237, 239 (2) (b) ( 657 SE2d 523 ) (2008) (“The fact that appellate counsel would have pursued the defense in different ways or would have chosen to call different witnesses or cross-examine Collins in a different way does not render trial counsel ineffective.”).

Jackson v. Virginia, 443 U. S. 307 ( 99 SCt 2781 , 61 LE2d 560) (1979); Smith, 283 Ga. at 237-238 (1).

Smith, P. J., and Bernes, J., concur. 1 Smith v. State, 283 Ga. 237, 238 (2) ( 657 SE2d 523 ) (2008) (citation omitted); see Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 2 McDougal v. State, 284 Ga. 427, 428 (2) ( 667 SE2d 592 ) (2008). 3 Smith, supra. 4 Strickland, supra at 691 . 5 Jowers v. State, 260 Ga. 459, 462 (2) ( 396 SE2d 891 ) (1990) (citing Strickland, supra). 6 Id. 7 Id. 8 287 Ga. App. 389 ( 651 SE2d 504 ) (2007) (overruled on other …

Second, counsel made a strategic decision not to call Crystal Smith as a witness because she felt that the witness may have lacked credibility. 2 Smith v. State, 283 Ga. 237, 240 (2) (c) ( 657 SE2d 523 ) (2008) (“Strategic decisions regarding . . . which witnesses to call are within the exclusive province of the attorney after consultation with the client and do not amount to ineffective assistance.”) (citation omitted).

Smith v. State, 283 Ga. 237, 239 (2) (b) ( 657 SE2d 523 ) (2008).

“The fact that appellate counsel would have pursued the defense in different ways . . . does not render trial counsel ineffective.” Smith v. State, 283 Ga. 237, 239 (2) (b) (657 12 SE2d 523 ) (2008).

Moreover “[a] defendant is not constitutionally entitled to any certain level of effective assistance from experts that are reasonably selected by trial counsel.” Smith v. State, 283 Ga. 237, 239 (2) (a) ( 657 SE2d 523 ) (2008) (citation and punctuation omitted).

Smith v. State, 283 Ga. 237, 239 ( 657 SE2d 523 ) (2008).

Smith v. State, 283 Ga. 237, 239 ( 657 SE2d 523 ) (2008).

Smith v. State, 283 Ga. 237, 241 (5) ( 657 SE2d 523 ) (2008) (punctuation omitted); cf. Ballard, 275 Ga. at 821 (holding that trial court’s ruling that excluded relevant impeaching evidence was not immaterial as it allowed the credibility of a crucial witness to go unchal lenged); Barngrover, 289 Ga.App. at 412 (1) (allowing plaintiff a limited cross-examination into whether physician’s medical license was renewed after physician’s specific testimony that he had allowed it t…

Accordingly, the trial court did not abuse its discretion in prohibiting cross-examination of Dr. Gonzalez regarding the past suspension of his medical license.38 36 See id. (holding that evidence of doctor’s drug use and subsequent rehabilitation, which occurred after his treatment of plaintiff, were not relevant to his treatment of plaintiff and would have been unduly prejudicial). 37 Smith v. State, 283 Ga. 237, 241 (5) ( 657 SE2d 523 ) (2008) (punctuation omitted); cf. B…

Intimidation is [also] that act by the perpetrator which puts the person robbed in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking.”) (citation and punctuation omitted); Richards v. State, 276 Ga. App. 384, 385-386 ( 623 SE2d 222 ) (2005) (“Robbery by intimidation, unlike . . . robbery by force, . . . may be accomplished without a weapon or an overt act of physical force.”); Setzer v. State, 76 Ga. App. 509, 511 (1) ( 46 SE2d 603 …

Smith v. State, 283 Ga. 237, 238-239 (2) (a) ( 657 SE2d 523 ) (2008).

See also Nicely, 291 Ga. at 789-790 (1); Bowie v. State, 286 Ga. 880, 881 (1) ( 692 SE2d 371 ) (2010); Bostic v. State, 284 Ga. 864, 865 (1) ( 672 SE2d 630 ) (2009); Smith v. State, 283 Ga. 237, 238 (1) ( 657 SE2d 523 ) (2008); Tabb, 313 Ga. App. at 857 (2). 2.

Cf. Howard, supra, 288 Ga. at 743 (2) (holding that the trial court’s failure to separately define simple assault, which is an essential element of aggravated assault, would not have affected the outcome of the case since the defendant’s defense was mistaken identity and did not challenge the evidence showing that a simple assault had occurred); Smith v. State, 283 Ga. 237, 240 (3) ( 657 SE2d 523 ) (2008) (holding that the trial court did not err in failing to instruct the j…

See also Crawford v. State, 288 Ga. 425, 428 (3) (a) ( 704 SE2d 772 ) (2011) (failure of trial court to give instruction on accident was waived under OCGA § 17-8-58 and was not plain error). 13 See Duprel v. State, 301 Ga. App. 469, 473 (2) (a) ( 687 SE2d 863 ) (2009) (“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error”) (punctuation and footnote omitted). 14 (Citation omitted.)…

(Cit.)” [Cit.] Smith v. State, 283 Ga. 237, 238 (2) ( 657 SE2d 523 ) (2008). (a) Ms. Sanders first argues that her trial counsel failed to obtain and provide any independent medical expert testimony at trial to refute the findings in the State’s medical testimony as to the cause and manner of the victim’s death.

Although Clark sought to impeach the officer with her prior lane violation testimony, “ ‘a witness may not be impeached based upon a discrepancy relating to a wholly immaterial matter.’ ” Smith v. State, 283 Ga. 237, 241 (5) ( 657 SE2d 523 ) (2008).

Eason v. State, 283 Ga. 116, 118-119 (4) ( 657 SE2d 203 ) (2008); Smith v. State, 283 Ga. 237, 238-239 (2) (a) ( 657 SE2d 523 ) (2008); Wallace v. State, 272 Ga. 501, 505 (3) (b) ( 530 SE2d 721 ) (2000).

Smith, P. J., and Bernes, J., concur. 1 See OCGA § 16-7-1 (a) (“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters ... the dwelling house of another....”). 2 Selfe v. State, 290 Ga. App. 857, 858 (1) ( 660 SE2d 727 ) (2008) (punctuation and emphasis omitted), quoting Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). 3 Segel v. State, 293 Ga. App. 506, 507 (1) (a…

Richard A. Mallard, District Attorney, W Scott Brannen, Assistant District Attorney, for appellee. 1 Smith v. State, 283 Ga. 237, 238 (2) ( 657 SE2d 523 ) (2008) (citations and punctuation omitted); see Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 2 See McDaniel v. State, 279 Ga. 801, 802 (2) (c) ( 621 SE2d 424 ) (2005). 3 See Melton v. State, 282 Ga. App. 685, 690 (2) (a) ( 639 SE2d 411 ) (2006) (whether the state had discharged its burden of p…

Given our holding in Division 1, however, we need not address this claim. 10 Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Welbon v. State, 278 Ga. 312, 313 (2) ( 602 SE2d 610 ) (2004). 11 Strickland, supra at 691 (III) (B); Allen v. State, 277 Ga. 502, 503 (3) ( 591 SE2d 784 ) (2004). 12 Fuller v. State, 277 Ga. 505, 507 (3) ( 591 SE2d 782 ) (2004). 13 Lupoe v. State, 284 Ga. 576, 578 (3) ( 669 SE2d 133 ) (2008).' 14 Peterson v. State, 282 Ga. 2…

Johnson, P. J., and Barnes, J., concur. 1 Smith v. State, 283 Ga. 237, 238 (2) ( 657 SE2d 523 ) (2008) (citations and punctuation omitted); see Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 2 Biggs v. State, 281 Ga. 627, 631 (4) (b) ( 642 SE2d 74 ) (2007). 3 But see Land v. State, 259 Ga. App. 860, 863 (1) ( 578 SE2d 551 ) (2003) (where magistrate did not have a substantial basis for determining that probable cause existed to search defendant’s h…

Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Smith v. State, 283 Ga. 237, 238 (1) ( 657 SE2d 523 ) (2008). 2.

It is well settled that “[strategic decisions regarding . . . which witnesses to call are within the exclusive province of the attorney after consultation with the client and do not amount to ineffective assistance.” (Citation omitted.) Smith v. State, 283 Ga. 237, 240 (2) (c) ( 657 SE2d 523 ) (2008).

Given that Quinn identified the child as a “little boy” and that Milan carried the child, it appears that he was a child of tender years. 4 See OCGA § 16-6-4 (a). 5 See Bryson v. State, 282 Ga. App. 36, 38-39 (1) (b) ( 638 SE2d 181 ) (2006). 6 See Wright v. State, 216 Ga. App. 486 (2) ( 455 SE2d 88 ) (1995). 7 At the hearing on Milan’s motion for new trial, trial counsel testified that she did not object to the hearsay because she thought it was favorable. 8 See Pierre v. St…

See Smith v. State, 283 Ga. 237 (657 SE2d 253) (2008).

See, e.g., Smith v. State, 283 Ga. 237 (2) ( 657 SE2d 523 ) (2008).

See Smith v. State, 283 Ga. 237 (2) (b), (c) ( 657 SE2d 523 ) (2008) (strategic decisions regarding defense theories should involve consultation with client but are ultimately to be made by trial counsel).

See, e.g., Smith v. State, 283 Ga. 237, 239 (2) (b) ( 657 SE2d 523 ) (2008). (e) Failing to object to testimony about the differences between Newman’s statements in his 911 call and in Newman’s statements to police.

Here, Roseboro has not shown that his trial counsel’s strategic decision not to call Detective Shuler “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688 ; see Smith v. State, 283 Ga. 237, 239 ( 657 SE2d 523 ) (2008) (explaining that although “other counsel . . . may have exercised different judgment, the fact that trial counsel chose to try the case in the manner in which it was tried, and made certain difficult decisions regarding the defense …

See Smith v. State, 283 Ga. 237, 239-240 (2) (b), (c) ( 657 SE2d 523 ) (2008) (stating that counsel’s reasonable decisions regarding defense strategy do not constitute deficient performance).

See, e.g., Smith v. State, 283 Ga. 237 (2) (b) ( 657 SE2d 523 ) (2008). (b) Contrary to Turner’s contentions, Turner’s trial counsel testified at the motion-for-new-trial hearing that he discussed with Turner his right to testify and advised Turner that it was Turner’s decision to make regarding whether or not he would testify Trial counsel also advised Turner that his statement to police in which he stated that he did not remember what happened on the night of the shooting,…

See, e.g., Smith v. State, 283 Ga. 237 (2) (b) ( 657 SE2d 523 ) (2008). (b) Contrary to Turner’s contentions, Turner’s trial counsel testified at the motion-for-new-trial hearing that he discussed with Turner his right to testify and advised Turner that it was Turner’s decision to make regarding whether or 5 not he would testify.

See Smith v. State, 283 Ga. 237, 239 (2) ( 657 SE2d 523 ) (2008).” Nelson v. State, 285 Ga. 838, 840 (2) ( 684 SE2d 613 ) (2009).

See Smith v. State, 283 Ga. 237, 239 (2) ( 657 SE2d 523 ) (2008).

See Smith v. State, 283 Ga. 237 (2) (a) ( 657 SE2d 523 ) (2008) (trial counsel not ineffective for failing to pursue additional medical investigation after consulting with an expert). (d) Moore’s final claim of ineffective assistance of counsel alleges that trial counsel performed deficiently by failing to object to the expert testimony of Windham, the fingerprint examiner, and to impeach him with testimony he gave outside the presence of the jury.

See Smith v. State, 283 Ga. 237, 240 (2) (d) ( 657 SE2d 523 ) (2008) (finding that trial counsel was not ineffective for deciding to attack the State expert’s credibility).

See Smith v. State, 283 Ga. 237, 241 ( 657 SE2d 523 ) (2008) (“ ‘[P]ost-incision autopsy photographs are admissible if necessary to show some material fact that becomes apparent only due to the autopsy.’ ” (citation omitted)).

See also Smith v. State, 283 Ga. 237, 238 (2) (a) ( 657 SE2d 523 ) (2008). (b) As discussed above in Division 5, the jury charges on aggravated assault were not erroneous.

See Smith v. State, 283 Ga. 237 (2) (a) ( 657 SE2d 523 ) (2008).

See, e.g., Smith v. State, 283 Ga. 237 (2)(b), 657 S.E.2d 523 (2008). (g) Counsel made a strategic decision not to make a closing argument.

See, e.g., Smith v. State, 283 Ga. 237 (2) (b) ( 657 SE2d 523 ) (2008). (g) Counsel made a strategic decision not to make a closing argument.

See, e.g., Smith v. State, 283 Ga. 237 (2) (a) ( 657 SE2d 523 ) (2008). 2.

See Smith v. State, 283 Ga. 237 (2) (b) ( 657 SE2d 523 ) (2008); see also Polk v. State, 275 Ga. App. 467, 470 (3) ( 620 SE2d 857 ) (2005) (“The mere waiver of an opening statement can be characterized as a trial tactic which cannot be equated to ineffective assistance of counsel.”) (punctuation and footnote omitted); King v. State, 241 Ga. App 894, 895 (3) (a) ( 528 SE2d 535 ) (2000) (counsel’s decision to waive opening statement was considered a matter of reasonable trial …

See Smith v. State, 283 Ga. 237, 239 (2) (b) ( 657 SE2d 523 ) (2008).

See Smith v. State, 283 Ga. 237, 239 (2) ( 657 SE2d 523 ) (2008).

See Smith v. State, 283 Ga. 237 (2008) (“Smith I”).