Van Alstine v. State, 426 S.E.2d 360 (Ga. 1993). · Go Syfert
Van Alstine v. State, 426 S.E.2d 360 (Ga. 1993). Cases Citing This Book View Copy Cite
188 citation events (108 in the last 25 years) across 14 distinct courts.
Strongest positive: Anderson, Sr. v. White (gasd, 2024-02-05) · Strongest negative: People v. Colville (nyappdiv, 2010-10-05)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited "but see" People v. Colville (2×) also: Cited as authority (rule)
N.Y. App. Div. · 2010 · signal: but see · confidence high
Several courts, relying on the ABA Standards and its rationale, reached the same conclusion (see People v Brocksmith, 162 Ill 2d 224, 229, 642 NE2d 1230, 1232-1233 [1994] [the court compared the decision to submit an instruction on a lesser charge to the decision of what plea to enter and stated that both decisions should ultimately be made by the defendant because they directly related to the loss of liberty]; State v Boeglin, 105 NM 247 , 252, 731 P2d 943, 948-949 [1987] [holding that the defendant, not defense counsel, must ultimately decide whether to seek submission of lesser-included off…
cited Cited as authority (rule) Anderson, Sr. v. White
S.D. Ga. · 2024 · confidence medium
Van Alstine v. State, 426 S.E.2d 360, 361 (Ga. 1993); see also O.C.G.A. § 17-8-3.
cited Cited as authority (rule) STATE OF NEW JERSEY VS. ANDRE MELLS (11-12-2140, 11-12-2142, ESSEX COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2021 · confidence medium
In Van Alstine v. State, 426 S.E.2d 360, 363 (Ga. 1993), the court declined to find that the failure to consult regarding lesser-included crimes invariably constitutes ineffective assistance.
discussed Cited as authority (rule) Blackwell v. State
Ga. · 2018 · confidence medium
As authority for this principle, Hendrix cited Van Alstine v. State, 263 Ga. 1, 3-4 ( 426 SE2d 360 ) (1993), which relied on the portion of the commentary to ABA Standard for Criminal Justice 4-5.2 (2nd ed. 1980) that recognized the defense lawyer’s duty to consult fully with the accused about submission of lesser included offenses to the jury, but which rejected the same commentary’s statement that the defendant rather than the lawyer should decide whether to seek such submission.
discussed Cited as authority (rule) BLACKWELL v. THE STATE (Two Cases)
Ga. · 2018 · confidence medium
As authority for this principle, Hendrix cited Van Alstine v. State, 263 Ga. 1, 3-4 ( 426 SE2d 360 ) (1993), which relied on the portion of the commentary to ABA Standard for Criminal Justice 4-5.2 (2nd ed. 1980) that recognized the defense lawyer’s duty to consult fully with the accused about submission of lesser included 10 offenses to the jury, but which rejected the same commentary’s statement that the defendant rather than the lawyer should decide whether to seek such submission.
discussed Cited as authority (rule) Deleon-Alvarez v. State
Ga. Ct. App. · 2013 · confidence medium
Van Alstine v. State, 263 Ga. 1, 4-5 ( 426 SE2d 360 ) (1993) (citation omitted); see Hall v. Terrell, 285 Ga. 448, 455 (II) (E) ( 679 SE2d 17 ) (2009) (“There can be more than one reasonable strategy for a defense.”).
discussed Cited as authority (rule) Tito Hernandez v. State
Ga. Ct. App. · 2013 · confidence medium
Even the best criminal defense attorneys would not defend a particular client in the same way.”68 While other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel chose to try the case in the manner in which it was tried and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel.69 67 See Ingram v. State, 317 Ga. App. 60…
cited Cited as authority (rule) Sheila Gunter v. State
Ga. Ct. App. · 2012 · confidence medium
(Punctuation omitted; emphasis added.) Van Alstine v. State, 263 Ga. 1, 2-3 ( 426 SE2d 360 ) (1993).
discussed Cited as authority (rule) Gunter v. State
Ga. Ct. App. · 2012 · confidence medium
(Punctuation omitted; emphasis supplied.) Van Alstine v. State, 263 Ga. 1, 2-3 ( 426 SE2d 360 ) (1993) (quoting ABA Standards for the Administration of Criminal Justice (1974), The Defense Function § 5.2).
discussed Cited as authority (rule) Nguyen v. State
Ga. Ct. App. · 2009 · confidence medium
The act of sodomy is defined as performing or submitting to a sexual act involving the sex organs of one in the mouth or anus of another. 11 Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993). 12 Berry v. State, 267 Ga. 476, 479 (4) ( 480 SE2d 32 ) (1997). 13 Allen v. State, 283 Ga. 304, 307 (4) ( 658 SE2d 580 ) (2008). 14 Strickland, supra at 689 (III) (A) (citation omitted). 15 King v. State, 282 Ga. 505, 507 (2) (a) ( 651 SE2d 711 ) (2007). 16 Id. (citations and punctuation omitted). 17 Id. (citation and punctuation omitted); see Harris v. State, 274 Ga. 422, 428 (9) ( 554 SE2d 458 …
discussed Cited as authority (rule) Phillips v. State
Ga. · 2009 · confidence medium
The decisions on whether and how to conduct a cross-examination is a strategic and tactical decision (Van Alstine v. State, 263 Ga. 1, 3 ( 426 SE2d 360 ) (1993)), and trial counsel’s decision to forego this line of questioning was reasonable since the jury was aware that shell casings and live ammunition not capable of being used by a single gun were found. (i) Appellant asserts trial counsel was ineffective because he did not conduct a “meaningful” cross-examination of the State’s fingerprint expert. [H]ow to deal with the presentation of an expert witness by the opposing side, includ…
discussed Cited as authority (rule) Arko v. People (2×)
Colo. · 2008 · confidence medium
The decision to submit lesser offense instructions "is often based on legal complexities only the most sophisticated client could comprehend, not unlike the tactical decisions involved regarding the assertion of technical defenses." Van Alstine v. State, 263 Ga. 1 , 426 S.E.2d 360, 363 (1993). [2] This conclusion finds support in the Colorado Rules of Professional Conduct.
cited Cited as authority (rule) Shelton v. State
Ga. · 2007 · confidence medium
Myers v. State, 275 Ga. 709, 713-714 ( 572 SE2d 606 ) (2002); Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993).
cited Cited as authority (rule) Parnell v. State
Ga. Ct. App. · 2006 · confidence medium
Id.; Howard, supra. Van Alstine v. State, 263 Ga. 1, 2-3 ( 426 SE2d 360 ) (1993).
cited Cited as authority (rule) Silver v. State
Ga. Ct. App. · 2005 · confidence medium
(Citation omitted.) Van Alstine v. State, 263 Ga. 1, 4-5 ( 426 SE2d 360 ) (1993).
cited Cited as authority (rule) Aaron v. State
Ga. Ct. App. · 2005 · confidence medium
(Citation omitted.) Van Alstine v. State, 263 Ga. 1, 4-5 ( 426 SE2d 360 ) (1993).
discussed Cited as authority (rule) Lassic v. State
Ga. · 2004 · confidence medium
The appeal was docketed with this Court on May 17, 2004, and submitted for decision on the briefs. 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 See OCGA§ 17-8-57. 4 Fincher v. State, 276 Ga. 480 ( 578 SE2d 102 ) (2003). 5 McClain v. State, 267 Ga. 378, 384 (3) (b) ( 477 SE2d 814 ) (1996). 6 See Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SC 2052, 80 LE2d 674) (1984). 7 Myers v. State, 275 Ga. 709, 714 (4) ( 572 SE2d 606 ) (2002), citing Van Alstine v. State, 263 Ga. 1, 3 ( 426 SE2d 360 ) (1993). 8 See Simpson v. State, 277 Ga. 356 ( 589 SE2d 90 ) (2003).
discussed Cited as authority (rule) Perry v. State
Ga. Ct. App. · 2004 · confidence medium
J., and Johnson, P. J., concur. 1 (Punctuation and footnotes omitted.) Boswell v. State, 275 Ga. 689, 690 (1) ( 572 SE2d 565 ) (2002). 2 Echols v. State, 149 Ga. App. 620 (2) ( 255 SE2d 92 ) (1979). 3 Id. at 620-621 (2). 4 Young v. State, 254 Ga. App. 262, 263 (1) ( 256 SE2d 231 ) (2002). 5 Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993). 6 See, e.g., Thomas v. State, 254 Ga. App. 226, 230 (5) ( 561 SE2d 444 ) (2002). 7 Collins v. State, 259 Ga. App. 587 ( 578 SE2d 201 ) (2003). 8 Mullinax v. State, 211 Ga. App. 831, 833 (1) ( 440 SE2d 720 ) (1994). 9 Flesche v. State, 254 Ga. App. …
cited Cited as authority (rule) Phillips v. State
Ga. · 2003 · confidence medium
Van Alstine v. State, 263 Ga. 1, 3 ( 426 SE2d 360 ) (1993).
discussed Cited as authority (rule) London v. State
Ga. Ct. App. · 2003 · confidence medium
Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993) (ineffective assistance claim based upon the failure to consult the defendant about strategic decisions fails when there is no evidence to indicate that the defendant would have made different choices from those of counsel); Johnson v. State, 214 Ga. App. at 78-79 (1) (counsel’s waiver of the defendant’s right to a 12-person jury was binding on the defendant when he was present when the waiver occurred and acquiesced in the waiver). 4.
cited Cited as authority (rule) Head v. Thomason
Ga. · 2003 · confidence medium
Van Alstine v. State, 263 Ga. 1, 2 ( 426 SE2d 360 ) (1993).
discussed Cited as authority (rule) Lloyd v. State
Ga. Ct. App. · 2003 · confidence medium
The pharmacist’s testimony concerning the dentist’s instruction not to refill the prescriptions was admissible to explain the pharmacist’s conduct in not refilling the prescriptions. 6 In this regard, Way’s husband testified that the pharmacist told him that Lloyd was trying to pick up a prescription for his wife, and the pharmacist testified that Way’s husband then informed him that Lloyd was not authorized to do so. 7 London v. State, 274 Ga. 91, 94 (4) (b) ( 549 SE2d 394 ) (2001). 8 Van Alstine v. State, 263 Ga. 1, 2 ( 426 SE2d 360 ) (1993), citing Reid v. State, 235 Ga. 378 ( 219…
cited Cited as authority (rule) Myers v. State
Ga. · 2002 · confidence medium
Van Alstine v. State, 263 Ga. 1, 3 ( 426 SE2d 360 ) (1993).
discussed Cited as authority (rule) Soloman v. State
Ga. Ct. App. · 2001 · confidence medium
H., 239 Ga. App. 894, 895 ( 522 SE2d 491 ) (1999). 2 Id. 3 See Smith v. State, 240 Ga. App. 150, 151 (1) ( 522 SE2d 744 ) (1999) (expired tag); Wynn v. State, 236 Ga. App. 98, 100 (2) ( 511 SE2d 201 ) (1999) (open container). 4 See State v. Folk, 238 Ga. App. 206, 209 ( 521 SE2d 194 ) (1999). 5 Chapman v. State, 273 Ga. 348, 349-350 (2) ( 541 SE2d 634 ) (2001). 6 Brogdon v. State of Ga., 255 Ga. 64, 68 (3) ( 335 SE2d 383 ) (1985). 7 Chapman v. State, supra at 350 (2). 8 See generally Van Alstine v. State, 263 Ga. 1, 2 ( 426 SE2d 360 ) (1993) (whether to testify in his own behalf is a decision …
cited Cited as authority (rule) Hamilton v. State
Ga. · 2001 · confidence medium
Van Alstine v. State, 263 Ga. 1, 2 ( 426 SE2d 360 ) (1993).
cited Cited as authority (rule) Byrd v. State
Ga. · 2001 · confidence medium
Van Alstine v. State, 263 Ga. 1, 2 ( 426 SE2d 360 ) (1993).
discussed Cited as authority (rule) Mathre v. State
N.D. · 2000 · confidence medium
While Mathre’s trial attorney candidly admitted he did not discuss with Mathre whether the lesser included misdemeanor offenses of assault and simple assault should be submitted to the jury, he also testified he discussed with her the elements of aggravated assault and that he believed he also discussed the differences in the elements of the lesser offenses. [¶ 9] In Van Alstine v. State, 263 Ga. 1 , 426 S.E.2d 360, 361 (1993), the defendant was convicted of felony murder and appealed, claiming his trial counsel was ineffective because he failed to consult with the defendant before making t…
discussed Cited as authority (rule) Shelnutt v. State
Ga. Ct. App. · 2000 · confidence medium
McMurray, P. J., and Phipps, J., concur. 1 See Jackson v. State, 239 Ga. App. 77 (1) ( 519 SE2d 746 ) (1999). 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lewis v. State, 215 Ga. App. 161, 163 (3) ( 450 SE2d 448 ) (1994). 3 Jackson v. State, 271 Ga. 705, 706 (1) ( 523 SE2d 871 ) (1999). 4 Ellis v. State, 240 Ga. App. 498, 500 (1) (a) ( 523 SE2d 914 ) (1999); Jones v. State, 239 Ga. App. 832, 836-838 (2) ( 521 SE2d 614 ) (1999). 5 Van Alstine v. State, 263 Ga. 1, 3 ( 426 SE2d 360 ) (1993). 6 Id. 7 Id. at 4 . 8 Id. 9 Roberts v. State, 263 Ga. 807, 809 (2) (c) ( 439 SE2d…
cited Cited as authority (rule) Tucker v. State
Ga. Ct. App. · 1998 · confidence medium
Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993).
cited Cited as authority (rule) Hill v. State
Ga. Ct. App. · 1997 · confidence medium
Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993).
cited Cited as authority (rule) Hightower v. State
Ga. Ct. App. · 1997 · confidence medium
Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993).
discussed Cited as authority (rule) Mathis v. State
Ga. Ct. App. · 1997 · confidence medium
Furthermore, “ ‘[t]he decisions on (what) witnesses to call, whether and how to conduct cross-examinations . . . and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.’ [Cit.]” Van Alstine v. State, 263 Ga. 1, 3 ( 426 SE2d 360 ) (1993).
cited Cited as authority (rule) Mitchell v. State
Ga. Ct. App. · 1996 · confidence medium
Van Alstine v. State, 263 Ga. 1, 4-5 ( 426 SE2d 360 ) (1993).” Stewart v. State, 263 Ga. 843, 846 (6), 847 ( 440 SE2d 452 ). 6.
cited Cited as authority (rule) Reddin v. State
Ga. Ct. App. · 1996 · confidence medium
Van Alstine v. State, 263 Ga. 1, 3 ( 426 SE2d 360 ).
cited Cited as authority (rule) Harshaw v. State
Ga. Ct. App. · 1996 · confidence medium
Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993).
discussed Cited as authority (rule) Binion v. State
Ga. Ct. App. · 1996 · confidence medium
Defendant’s first, second, and third enumerations challenge trial counsel’s “all or nothing” strategy, complaining that he failed to request a charge for some (unspecified) lesser included offense to the indicted offense of aggravated assault on a police officer, failed to reserve exceptions to the charge, and failed to discuss the range of statutory penalties with his client. *335 “The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions…
cited Cited as authority (rule) Maner v. State
Ga. Ct. App. · 1996 · confidence medium
Van Alstine v. State, 263 Ga. 1, 2 ( 426 SE2d 360 ).
cited Cited as authority (rule) Duitsman v. State
Ga. Ct. App. · 1995 · confidence medium
Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993).
cited Cited as authority (rule) White v. State
Ga. · 1995 · confidence medium
Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993).
discussed Cited as authority (rule) Hammond v. State (2×)
Ga. · 1995 · confidence medium
Van Alstine v. State, 263 Ga. 1, 5 ( 426 SE2d 360 ) (1993), quoting Solomon v. State, 247 Ga. 27, 29 ( 277 SE2d 1 ) (1981). (b) Hammond cites no authority showing that the similar transactions evidence offered against him was inadmissible.
cited Cited as authority (rule) Roberts v. State
Ga. · 1994 · confidence medium
Rather, . . . our inquiry must focus on “what is the consequence when that practice has not been followed.” [Cit.] Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993).
discussed Cited as authority (rule) Stewart v. State (2×)
Ga. · 1994 · confidence medium
Van Alstine v. State, 263 Ga. 1, 4-5 ( 426 SE2d 360 ) (1993).
cited Cited as authority (rule) Rachell v. State
Ga. Ct. App. · 1993 · confidence medium
“The burden was on appellant to establish he received ineffective assistance of trial counsel.” Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ).
discussed Cited "see" Szorcsik v. State (2×)
Ga. · 2018 · signal: see · confidence high
See Van Alstine v. State, 263 Ga. 1 ( 426 SE2d 360 ) (1993).
discussed Cited "see" Szorcsik v. State (2×)
Ga. · 2018 · signal: see · confidence high
See Van Alstine v. State , 263 Ga. 1 , 426 S.E.2d 360 (1993).
discussed Cited "see" Walker v. State (2×)
Ga. · 2017 · signal: see · confidence high
See Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993) (noting the importance of consultation between the 15 accused and his lawyer “in such vital matters as the decision whether to pursue an ‘all or nothing’ defense and whether to request the lesser included offenses the trial court may be willing to submit to the jury”).
discussed Cited "see" Walker v. State (2×)
Ga. · 2017 · signal: see · confidence high
See Van Alstine v. State, 263 Ga. 1,4 ( 426 SE2d 360 ) (1993) (noting the importance of consultation between the accused and his lawyer “in such vital matters as the decision whether to pursue an ‘all or nothing’ defense and whether to request the lesser included offenses the trial court may be willing to submit to the jury”).
discussed Cited "see" Robbins v. State (2×)
Ga. · 2016 · signal: see · confidence high
See Van Alstine v. State, 263 Ga. 1 ( 426 SE2d 360 ) (1993).
discussed Cited "see" Hendrix v. State (2×)
Ga. · 2015 · signal: see · confidence high
See Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993).
discussed Cited "see" People v. Newmiller (2×)
Colo. Ct. App. · 2014 · signal: see · confidence high
See Van Alstine v. State, 263 Ga. 1 , 426 S.E.2d 360, 363 (1998) (concluding that, although it is critically important for defense lawyers to consult with defendants in such matters as whether to request lesser included offenses, the failure to follow this practice in every case does not constitute ineffective assistance of counsel as a matter of law, and the inquiry rather must focus on the consequence when that practice has not been followed). 126 The Tenth Cireuit has explained that "the general presumption of objective reasonableness requires [a defendant] to 'overcome the presumption that…
Van Alstine
v.
the State
S92A1092.
Supreme Court of Georgia.
Feb 25, 1993.
426 S.E.2d 360
J. Russell Mayer, for appellant., Lewis R. Slaton, District Attorney, Carole E. Wall, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Robert D. McCullers, Staff Attorney, for appellee.
Hunstein, Clarke, Hunt, Benham, Fletcher, Sears-Collins.
Cited by 87 opinions  |  Published
Hunstein, Justice.

James Earl Van Alstine’s conviction for felony murder was affirmed, Van Alstine v. State, 261 Ga. 819 (413 SE2d 735) (1992), but we remanded the case for a hearing on his claim of ineffective assistance of counsel. Id. at 820 (2). The trial court conducted the hearing and denied his claim. Van Alstine appeals.

The evidence at trial established that an exchange of insults occurred after the car in which appellant was a passenger made minor contact with the victim’s vehicle on a city street. Both vehicles then proceeded slowly through rush hour traffic and merged onto an interstate highway. The State introduced evidence that appellant’s car hunted down the victim’s vehicle and that appellant fired his handgun at the victim, who returned fire with his own weapon before succumbing to his wounds. Appellant’s defense was that the victim initiated the gunfight by firing into appellant’s car and wounding one of appellant’s sons, and that appellant fired back in order to protect himself and his sons.

Appellant contends his trial counsel was ineffective because counsel failed to consult with appellant when making the tactical decision to pursue an “all or nothing” strategy and failed to request a charge on voluntary manslaughter as a lesser included offense of malice murder. At the hearing on appellant’s claim of ineffective assistance, appellant’s trial counsel testified that he, appellant, and counsel for appellant’s sons “felt very strongly” that they had a case of self-defense[*2] based, inter alia, on the fact that there were “nine or ten bullet holes” in the car occupied by appellant and only “one or two bullet holes” in the victim’s vehicle. The transcript reflects that trial counsel never told appellant there were lesser included offenses of murder which might possibly be available options for the jury and that such offenses carried lesser sentences than a conviction for malice murder or felony murder; that trial counsel did not discuss with appellant the decision to pursue the murder-or-acquittal strategy at trial; and that trial counsel rejected requesting a charge on voluntary manslaughter after discussing the matter only with co-counsel. The trial transcript reveals that at the prosecution’s request, the trial judge had counsel for each defendant clarify for the record that they did not request a charge on voluntary manslaughter. However, at the hearing appellant testified that he did not hear this discussion and no one asked him about lesser included offenses at trial.

The trial court found that trial counsel had not consulted with appellant on the tactical decision to go to the jury on a “murder or nothing” posture, but found the decision to be an appropriate one for counsel to make and, in the absence of authority prohibiting counsel from making such a tactical decision, concluded that trial counsel violated no duty of consultation and rendered effective assistance of counsel.

The Sixth Amendment to the United States Constitution, as applicable to the states through the due process clause of the Fourteenth Amendment, guarantees criminal defendants effective assistance of counsel. [Cits.] However, the constitutional right to assistance of counsel insures “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” [Cits.]

(Emphasis omitted.) Austin v. Carter, 248 Ga. 775, 779 (285 SE2d 542) (1982). In Reid v. State, 235 Ga. 378 (219 SE2d 740) (1975), this court found guidance in the ABA Standards for Criminal Justice, The Defense Function, § 5.2 (1974), as to what extent a defendant has the right to control decisions of trial counsel relating to the conduct of the trial.

“Control and direction of the case, (a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; [and] (iii) whether to testify in[*3] his [or her] own behalf, (b) The decisions on [what] witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.”

Reid, supra at 379.

As noted in the commentary to ABA Standard 4-5.2 (2nd ed. 1980), [1] “[m]any of the rights of an accused . . . are such that only trained experts can comprehend their full significance, and an explanation to any but the most sophisticated client would be futile.” However, the commentary also recognizes that it is “important in a jury trial for the defense lawyer to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury.” The commentary goes further to state that “[i]ndeed, because this decision is so important as well as so similar to the defendant’s decision about the charges to which to plead, the defendant should be the one to decide whether to seek submission to the jury of lesser included offenses.” Commentary, ABA Standard, supra at p. 4-68.

We agree with the stress placed by the ABA Standard 4-5.2 commentary on the importance of full consultation between defense lawyers in a jury trial and accuseds about the lesser included offenses the trial court may be willing to submit to the jury, especially in prosecutions for malice murder and felony murder. However, we do not agree with the commentary that the decision whether to seek submission to the jury of lesser included offenses rises to the same level as the decision to plead guilty or not guilty to charged offenses so as to require the defendant alone to make that decision. A person accused of committing a crime is required by law upon arraignment to answer the indictment or accusation read to him. OCGA § 17-7-93 (a). No such mandate is placed upon the decision whether to seek the submission to the jury of lesser included offenses. Rather, that decision is often based on legal complexities only the most sophisticated client could comprehend, not unlike the tactical decisions involved regarding the assertion of technical defenses. E.g., Berryhill v. Ricketts, 242 Ga. 447, 450-451 (3) (249 SE2d 197) (1978) (held, counsel not ineffective for failing to present defense of insanity, where after sufficient factual investigation and legal research, counsel determined that defense, though proper to assert, was unrealistic and could prove disadvantageous to the defense).

[*4] Therefore, while we conclude that it is critically important for defense lawyers in a jury trial to consult fully with accuseds in such vital matters as the decision whether to pursue an “all or nothing” defense and whether to request the lesser included offenses the trial court may be willing to submit to the jury, and that the effect of a failure to so consult must be rigorously scrutinized when ineffective assistance of counsel is asserted, we do not find that failure to follow this crucial practice in every case constitutes ineffective assistance of counsel as a matter of law. Rather, as we noted in Reid, supra at 380, our inquiry must focus on “what is the consequence when that practice has not been followed.”

In the case sub judice, appellant’s trial counsel consulted several times with appellant and knew from those consultations that appellant “strongly” shared counsel’s position that the case was one of self-defense. The strength of appellant’s conviction was reflected in his testimony at the hearing on his motion, during which he continued to maintain he had acted solely in defense of self and family and acknowledged that it “has always been [his] opinion” that he was not guilty of murder or voluntary manslaughter. When asked whether trial counsel had discussed the matter with him, appellant testified that “we didn’t discuss that because I wasn’t guilty of murder or voluntary manslaughter. ... I wasn’t guilty of any of that. I’m guilty of protecting myself and my family.” (Emphasis supplied.)

The burden was on appellant to establish he received ineffective assistance of trial counsel. See Bowley v. State, 261 Ga. 278, 280 (4) (404 SE2d 97) (1991). As to appellant’s claim of ineffectiveness based on counsel’s failure to consult, the evidence adduced by appellant does not contain the slightest indication that he would have entertained a suggestion from counsel to submit to the jury the possibility that he had acted out of the “sudden, violent and irresistible passion” required for the offense of voluntary manslaughter. OCGA § 16-5-2 (a). Rather, the hearing transcript clearly reflects that both appellant and his trial counsel were in total agreement about presenting appellant’s case to the jury on the basis of defense of self and family. As to appellant’s claim of ineffectiveness based on counsel’s failure to request a charge on voluntary manslaughter, there is no evidence that that failure was due to inexperience or lack of preparation. Compare Ross v. Kemp, 260 Ga. 312 (393 SE2d 244) (1990); Leggett v. State, 241 Ga. 237, 238 (244 SE2d 847) (1978). Rather, the hearing transcript establishes that the charge was declined pursuant to an informed strategic choice by trial counsel which comported with appellant’s strong feelings about the justification defense.

While other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial[*5] counsel chose to try the case in the manner in which it was tried and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel. [Cit.]
Decided February 25, 1993 Reconsideration denied March 19, 1993. J. Russell Mayer, for appellant. Lewis R. Slaton, District Attorney, Carole E. Wall, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Robert D. McCullers, Staff Attorney, for appellee.

Solomon v. State, 247 Ga. 27, 29 (277 SE2d 1) (1981). Accordingly, the trial court did not err by denying appellant’s claim of ineffective assistance of counsel.

Judgment affirmed.

Clarke, C. J., Hunt, P. J., Benham, Fletcher and Sears-Collins, JJ., concur.
1

ABA Standard 4-5.2 (2nd ed. 1980) varies only stylistically from the version relied upon in Reid, supra.