Roberts v. State, 439 S.E.2d 911 (Ga. 1994). · Go Syfert
Roberts v. State, 439 S.E.2d 911 (Ga. 1994). Cases Citing This Book View Copy Cite
“in light of the officer's testimony that appellant's miranda rights were read to him, appellant did not make the requisite strong showing.”
132 citation events (90 in the last 25 years) across 3 distinct courts.
Strongest positive: Davis v. State (gactapp, 2004-05-05)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 47 distinct citers.
discussed Cited as authority (quoted) Davis v. State (2×) also: Cited "see"
Ga. Ct. App. · 2004 · signal: see · quote attribution · 1 verbatim quote · confidence high
in light of the officer's testimony that appellant's miranda rights were read to him, appellant did not make the requisite strong showing.
cited Cited as authority (rule) Robert Fowler v. State
Ga. Ct. App. · 2025 · confidence medium
Fowler has “not [made] the requisite strong showing.” Roberts v. State, 263 Ga. 807, 810 (2) (e) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) Dent v. State
Ga. · 2018 · confidence medium
He has not alleged, other than in conclusory terms, that he was prejudiced by his attorney’s failure to attempt to suppress the evidence obtained under the search warrants.12 When the ineffective assistance of counsel claim is based on failure to file a motion, the defendant must “make a ‘strong showing’ that the evidence would have been suppressed had a motion to suppress been filed.” Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994), quoting Ruffin v. State, 201 Ga. App. 792, 793 (2) (a) ( 412 SE2d 850 ) (1991).
discussed Cited as authority (rule) The State v. Shelton (2×)
Ga. Ct. App. · 2014 · confidence medium
Roberts v. State, 263 Ga. 807, 809-810 (2) (e) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) David Price v. State
Ga. Ct. App. · 2014 · confidence medium
Ellington, P. J., and Branch, J., concur. 12 See Strickland, supra; Harris, supra at 528 (6) (concluding that trial court did not err in rejecting claim that trial counsel performed deficiently by failing to call certain witnesses, where decision was founded on legitimate evidentiary concerns); Roberts v. State, 263 Ga. 807, 808 (2) (b) ( 439 SE2d 911 ) (1994) (concluding that trial court did not err in rejecting claim that trial counsel rendered ineffective assistance by failing to call certain witnesses, where the decision not to call them was a strategic or tactical decision and appellant d…
discussed Cited as authority (rule) Price v. State
Ga. Ct. App. · 2014 · confidence medium
See Strickland, supra; Harris, supra at 528 (6) (concluding that trial court did not err in rejecting claim that trial counsel performed deficiently by failing to call certain witnesses, where decision was founded on legitimate evidentiary concerns); Roberts v. State, 263 Ga. 807, 808 (2) (b) ( 439 SE2d 911 ) (1994) (concluding that trial court did not err in rejecting claim that trial counsel rendered ineffective assistance by failing to call certain witnesses, where the decision not to call them was a strategic or tactical decision and appellant did not establish how the failure to call eith…
discussed Cited as authority (rule) Bradley v. State
Ga. Ct. App. · 2013 · confidence medium
When claiming ineffectiveness for failure to file a motion to suppress, an appellant “must establish a strong showing that the evidence would have been suppressed had a motion to suppress been filed.” (Citation and punctuation omitted.) Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) John Bradley v. State
Ga. Ct. App. · 2013 · confidence medium
When claiming ineffectiveness for failure to file a motion to suppress, an appellant “must establish a strong showing that the evidence would have been suppressed had a motion to suppress been filed.” (Citation and punctuation omitted.) Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) Brown v. State
Ga. Ct. App. · 2009 · confidence medium
Ellington and Mikell, JJ., concur. 1 Winfrey v. State, 286 Ga. App. 450, 450-451 (1) ( 649 SE2d 561 ) (2007). 2 Id. 3 Jones v. State, 233 Ga. App. 291, 292 (2) ( 503 SE2d 902 ) (1998). 4 Lowery v. State, 282 Ga. 68, 76 (4) (b) (ii) ( 646 SE2d 67 ) (2007). 5 See Fuller v. State, 277 Ga. 505, 506-507 (2) ( 591 SE2d 782 ) (2004) (defendant waived right to be present by failure to object). 6 Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 7 Roberts v. State, 263 Ga. 807, 808 (2) ( 439 SE2d 911 ) (1994). 8 Harris v. State, 268 Ga. 412, 412-413 ( 490 SE2d 96 ) (1997). 9 Se…
discussed Cited as authority (rule) Ector v. State
Ga. Ct. App. · 2009 · confidence medium
Failure to file a motion to suppress does not constitute per se ineffective assistance of counsel, and thus an appellant claiming ineffectiveness on this basis must make a “ ‘strong showing’ that the evidence would have been suppressed had a motion to suppress been filed.” (Citation omitted.) Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) Brown v. State
Ga. · 2009 · confidence medium
Evidence presented at the hearing on the motion for new trial shows that Brown and his family were extensively “advised on this issue and that [he] decided not to request a voluntary manslaughter charge .... [Therefore,] trial counsel [was] not ineffective in failing to request such a charge. [Cit.]” Lowe v. State, 264 Ga. 757, 759 (3) ( 452 SE2d 90 ) (1994). “[T]he hearing transcript reflects that [Brown] was firmly of the belief he acted in self-defense . . . .” Roberts v. State, 263 Ga. 807, 809 (2) (c) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) Dechant v. State
Ga. Ct. App. · 2008 · confidence medium
“To prevail on an ineffectiveness claim, an appellant has the burden of showing both that trial counsel’s performance was deficient and that, but for this deficiency, a substantial likelihood exists that the outcome of the trial would have been different. [Cit.]” Lopez v. State, 252 Ga. App. 681, 686 (3) ( 557 SE2d 1 ) (2001). (a) Dechant first argues that counsel was ineffective because “[a] motion to suppress was never filed or heard.” Without more, this argument is without merit as Dechant has failed to “make a strong showing that the evidence would have been suppressed had a mo…
discussed Cited as authority (rule) Hall v. McPherson
Ga. · 2008 · confidence medium
See OCGA § 9-14-48 (d) (“The [habeas] court shall review the trial record and transcript of proceedings. ...”). 4 See Strickland, v. Washington, 466 U. S. 668, 698 (IV) (104 SC 2052, 80 LE2d 674) (1984); Head v. Taylor, 273 Ga. 69, 71 (3) ( 538 SE2d 416 ) (2000). 5 Schofield, v. Gulley, 279 Ga. 413, 413 (I) ( 614 SE2d 740 ) (2005); Head v. Thomason, 276 Ga. 434, 436 (1) ( 578 SE2d 426 ) (2003); Head v. Carr, 273 Ga. 613, 615-616 (4) ( 544 SE2d 409 ) (2001). 6 Wiggins v. Smith, 539 U. S. 510, 524 (II) (B) (1) (123 SC 2527, 156 LE2d 471) (2003) (measuring counsel’s performance against the…
discussed Cited as authority (rule) Harvey v. State
Ga. · 2008 · confidence medium
Roberts v. State, 263 Ga. 807, 808 (2) (b) ( 439 SE2d 911 ) (1994). (d) Counsel’s failure to insist that the court hold an evidentiary hearing with live witnesses to determine the admissibility of similar transaction evidence was not ineffective assistance.
cited Cited as authority (rule) Corn v. State
Ga. Ct. App. · 2008 · confidence medium
Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
cited Cited as authority (rule) Stanley v. State
Ga. · 2008 · confidence medium
Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) Walker v. State
Ga. Ct. App. · 2006 · confidence medium
Miller and Ellington, JJ., concur. 1 Williams v. State, 261 Ga. App. 793, 794 (1) ( 584 SE2d 64 ) (2003). 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 See OCGA§ 16-6-4 (a); Bowman v. State, 227 Ga. App. 598, 601-602 (2) ( 490 SE2d 163 ) (1997). 4 Vansant v. State, 264 Ga. 319, 320 (1) ( 443 SE2d 474 ) (1994). 5 Tate v. State, 264 Ga. 53, 54 (1) ( 440 SE2d 646 ) (1994). 6 Id. 7 See Davis v. State, 267 Ga. App. 245, 246 (2) ( 599 SE2d 237 ) (2004) (evidence that defendant’s Miranda rights were read to him supported trial court’s judgment that videotaped statement…
discussed Cited as authority (rule) Glidewell v. State
Ga. Ct. App. · 2006 · confidence medium
“Since appellant is alleging that ineffectiveness was exhibited by trial counsel’s failure to file a motion to suppress, appellant must make a ‘strong showing’ that the evidence would have been suppressed had a motion to suppress been filed.” (Citation omitted.) Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
cited Cited as authority (rule) Johnson v. State
Ga. Ct. App. · 2005 · confidence medium
Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
cited Cited as authority (rule) McDaniel v. THE STATE
Ga. · 2005 · confidence medium
Roberts v. State, 263 Ga. 807, 808 (2) (b) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) Hayes v. State
Ga. · 2005 · confidence medium
The case was docketed in this Court on April 29, 2005, and orally argued on July 11, 2005. 2 261 Ga. 865 ( 414 SE2d 463 ) (1992). 3 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 4 261 Ga. 865 . 5 (Emphasis in original.) Id. at 867 ; see also Harrison v. State, 268 Ga. 574, 576 ( 492 SE2d 218 ) (1997) (trial court committed reversible error by informing “the jury that they did not have to consider voluntary manslaughter if they found appellant guilty of malice murder or felony murder”). 6 Miner v. State, 268 Ga. 67, 68 ( 485 SE2d 456 ) (1997). 7 265 Ga. 203, 205 ( 455…
discussed Cited as authority (rule) Johnson v. State
Ga. Ct. App. · 2005 · confidence medium
However, “[sjince the transcript... was not produced at the hearing, [Johnson] failed to establish that witnesses gave allegedly contradictory testimony, and we presume counsel’s actions were not prejudicial to [Johnson].” (Citation omitted.) Roberts v. State, 263 Ga. 807, 808 (2) (a) ( 439 SE2d 911 ) (1994). (h) Johnson contends that trial counsel was deficient in failing to object to the State’s introduction into evidence of four pictures of the *27 door hinge because the evidence was cumulative.
discussed Cited as authority (rule) Buckley v. State
Ga. Ct. App. · 2004 · confidence medium
With regard to the pendant’s illegal seizure, Buckley must establish “a ‘strong showing’ that the evidence would have been suppressed had a motion to suppress been filed.” (Citation omitted.) Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) Leonard v. State
Ga. Ct. App. · 2004 · confidence medium
J., and Johnson, P. J., concur. 1 (Footnote omitted.) Faulkner v. State, 260 Ga. App. 794 ( 581 SE2d 365 ) (2003). 2 See Gray v. State, 260 Ga. App. 197,198 (1) ( 581 SE2d 279 ) (2003); Slater v. State, 209 Ga. App. 723, 724 (1) ( 434 SE2d 547 ) (1993). 3 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 4 Conaway v. State, 277 Ga. 422, 424 (2) ( 589 SE2d 108 ) (2003). 5 Lajara v. State, 263 Ga. 438, 440 (3) ( 435 SE2d 600 ) (1993). 6 Suggs v. State, 272 Ga. 85, 87-88 (4) ( 526 SE2d 347 ) (2000). 7 Mack v. State, 242 Ga. App. 256, 258 (2) (c) ( 529 SE2d 393 ) (2000). 8 Id. 9 See Roberts v. Stat…
discussed Cited as authority (rule) Bruce v. State
Ga. Ct. App. · 2004 · confidence medium
NOTES [1] 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). [2] See Conaway v. State, 277 Ga. 422, 424 (2), 589 S.E.2d 108 (2003). [3] Lajara v. State, 263 Ga. 438, 440 (3), 435 S.E.2d 600 (1993). [4] Suggs v. State, 272 Ga. 85, 87-88 (4), 526 S.E.2d 347 (2000). [5] See Roberts v. State, 263 Ga. 807, 808 (2)(b), 439 S.E.2d 911 (1994). [6] See Washington v. State, 276 Ga. 655, 659 (3)(c), 581 S.E.2d 518 (2003). [7] (Citation and punctuation omitted.) Berry v. State, 267 Ga. 476, 482 (4)(i), 480 S.E.2d 32 (1997). [8] Turpin v. Christenson, 269 Ga. 226, 239 (12)(b), 497 S.E.2d 216 (1998). [9…
cited Cited as authority (rule) Voils v. State
Ga. Ct. App. · 2004 · confidence medium
Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994). (b) Voils contends that trial counsel was ineffective for failing to present a statutory alibi defense prior to trial.
discussed Cited as authority (rule) Harris v. State
Ga. Ct. App. · 2004 · confidence medium
Johnson, P. J., and Mikell, J., concur. 1 Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 2 Turner v. State, 245 Ga. App. 294, 295 (4) ( 536 SE2d 814 ) (2000). 3 Davis v. State, 238 Ga. App. 84, 89 (7) ( 517 SE2d 808 ) (1999); Cummings v. State, 261 Ga. App. 281, 284 (6) ( 582 SE2d 231 ) (2003). 4 See Lockwood v. State, 259 Ga. App. 350, 352 (2) (a) ( 577 SE2d 50 ) (2003); Ogle v. State, 256 Ga. App. 26, 29 (4) (a) ( 567 SE2d 700 ) (2002). 5 (Citation omitted.) Patterson v. State, 259 Ga. App. 630, 633 (4) ( 577 SE2d 850 ) (2003). 6 Be on the lookout police broadcast…
cited Cited as authority (rule) Domingues v. State
Ga. · 2003 · confidence medium
Roberts v. State, 263 Ga. 807, 808 (2) (b) ( 439 SE2d 911 ) (1994).
cited Cited as authority (rule) McFarlin v. State
Ga. Ct. App. · 2003 · confidence medium
Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
cited Cited as authority (rule) Patterson v. State
Ga. Ct. App. · 2003 · confidence medium
Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
cited Cited as authority (rule) Quinn v. State
Ga. Ct. App. · 2002 · confidence medium
Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
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…
discussed Cited as authority (rule) Allen v. State
Ga. · 1999 · confidence medium
“In order to establish that trial counsel’s performance was so defective as *503 to require a new trial, [Allen] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [Allen] that there is a reasonable likelihood that, absent counsel’s errors, the outcome of the trial would have been different. [Cit.]” Roberts v. State, 263 Ga. 807, 807-808 (2) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) Edenfield v. State (2×) also: Cited "see"
Ga. Ct. App. · 1999 · confidence medium
E.g., Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994); Sewell v. State, 229 Ga. App. 685, 687-688 (a) ( 494 SE2d 512 ) (1997).
examined Cited as authority (rule) MacKey v. State (3×) also: Cited "see"
Ga. Ct. App. · 1998 · confidence medium
Pope, P. J., and Ruffin, J., concur. 1 Lamar v. State, 243 Ga. 401, 403 (3) ( 254 SE2d 353 ) (1979); see OCGA § 16-1-7 (a); Wofford v. State, 226 Ga. App. 487, 488 (1) ( 486 SE2d 697 ) (1997). 2 Hayes v. State, 262 Ga. 881, 882 (2) ( 426 SE2d 886 ) (1993); Stone v. State, 229 Ga. App. 367, 370 (2) ( 494 SE2d 48 ) (1997); Keanum v. State, 212 Ga. App. 662, 663 (1) ( 442 SE2d 790 ) (1994) (specific grounds for ineffective assistance not raised in pleadings or at hearing are waived). 3 Martin v. State, 228 Ga. App. 548, 549 ( 492 SE2d 307 ) (1997). 4 See id. at 550 ; McClain v. State, 226 Ga. Ap…
cited Cited as authority (rule) Sewell v. State
Ga. Ct. App. · 1997 · confidence medium
Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) Johnson v. State
Ga. · 1996 · confidence medium
Counsel’s legal error compels us to conclude that appellant has “overcome the strong presumption that counsel’s conduct [fell] within the broad range of reasonable professional conduct. [Cit.]” Roberts v. State, 263 Ga. 807, 808 (2) ( 439 SE2d 911 ) (1994).
discussed Cited as authority (rule) Pearson v. State
Ga. Ct. App. · 1995 · confidence medium
Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Jowers v. State, 260 Ga. 459 ( 396 SE2d 891 ) (1990).” Lajara v. State, 263 Ga. 438, 440 (3) ( 435 SE2d 600 ) (1993). “[Pearson] must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. [Cit.]” Roberts v. State, 263 Ga. 807, 808 (2) ( 439 SE2d 911 ) (1994).
discussed Cited "see" Moore v. State (2×)
Ga. · 2013 · signal: see · confidence high
See Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994). (c) The next claim of ineffectiveness concerns trial counsel’s alleged failure to pursue the motion for scientific examination of the latent fingerprint evidence, Exhibits 109-A to 109-D, which Moore contends are “xerox copies of a photograph” and not actual latent print lift cards.
discussed Cited "see" Smith v. State (2×)
Ga. Ct. App. · 2008 · signal: see · confidence high
J., and Johnson, B J., concur. 1 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2 Davis v. State, 270 Ga. App. 777 (1) ( 607 SE2d 924 ) (2004) (citation omitted). 3 OCGA § 16-6-2 (a) (1). 4 OCGA § 16-6-2 (a) (2). 5 See Thompson v. Stinson, 279 Ga. 196, 197 ( 611 SE2d 29 ) (2005). 6 Rankin v. State, 278 Ga. 704, 705 ( 606 SE2d 269 ) (2004); Chappell v. State, 183 Ga. App. 706, 707 ( 359 SE2d 686 ) (1987). 7 Watson v. State, 235 Ga. App. 381, 384 (1) ( 509 SE2d 87 ) (1998) (citation and punctuation omitted). 8 Rankin, supra. 9 OCGA § 24-5-4 (pertinently providing, the “best evidence which …
discussed Cited "see" Bruce v. State (2×)
Ga. Ct. App. · 2004 · signal: see · confidence high
See Roberts v. State, 263 Ga. 807, 808 (2) (b) ( 439 SE2d 911 ) (1994).
examined Cited "see" Goodwin v. Cruz-Padillo (8×)
Ga. · 1995 · signal: accord · confidence high
Accord Roberts v. State, 263 Ga. 807 (2)(b), 439 S.E.2d 911 (1994). [1] In the instant case, Cruz-Padillo's sole evidence consisted of testimony by trial counsel that counsel knew there were other witnesses who had seen the victim assault unnamed co-workers; no further information was elicited by petitioner from trial counsel.
discussed Cited "see" Printup v. State (2×)
Ga. Ct. App. · 1995 · signal: see · confidence high
See Roberts v. State, 263 Ga. 807, 808-809 (2) (c) ( 439 SE2d 911 ) (1994); Sydenstricker v. State, 209 Ga. App. 418, 420-422 (3) ( 433 SE2d 644 ) (1993). 3.
discussed Cited "see, e.g." Blackwell v. State (2×)
Ga. · 2018 · signal: see also · confidence medium
See also Roberts v. State, 263 Ga. 807, 808-809 (2) (c) ( 439 SE2d 911 ) (1994).
discussed Cited "see, e.g." BLACKWELL v. THE STATE (Two Cases) (2×)
Ga. · 2018 · signal: see also · confidence medium
See also 11 Roberts v. State, 263 Ga. 807, 808-809 (2) (c) ( 439 SE2d 911 ) (1994).
discussed Cited "see, e.g." Talley v. State (2×)
Ga. Ct. App. · 2004 · signal: see also · confidence medium
See also Wall v. State, 269 Ga. 506, 508-509 (2) ( 500 SE2d 904 ) (1998). 4 Roberts v. State, 263 Ga. 807, 809 (2) (e) ( 439 SE2d 911 ) (1994). 5 (Footnotes omitted.) Woods v. State, 250 Ga. App. 164, 166 (1) (a) ( 550 SE2d 730 ) (2001). 6 (Citations and punctuation omitted.) Walker v. State, 258 Ga. App. 333, 336 (3) ( 574 SE2d 400 ) (2002). 7 (Citation and punctuation omitted.) Goode v. Nobles, 271 Ga. 30, 31-32 ( 518 SE2d 122 ) (1999). 8 (Citations and punctuation omitted.) Tuttle v. State, 215 Ga. App. 396, 397 (2) ( 450 SE2d 863 ) (1994).
discussed Cited "see, e.g." Mathre v. State (2×)
N.D. · 2000 · signal: see also · confidence low
Van Alstine, 426 S.E.2d at 363 ; see also Roberts v. State, 263 Ga. 807 , 439 S.E.2d 911, 913 (1994).
Roberts
v.
the State
S93A1857.
Supreme Court of Georgia.
Feb 21, 1994.
439 S.E.2d 911
Lamar W. Sizemore, Jr., for appellant., Britt R. Priddy, District Attorney, Michael J. Bowers, Attorney General, Paige M. Reese, Staff Attorney, for appellee.
Benham.
Cited by 60 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 92%
Citer courts: Court of Appeals of Georgia (1)
Benham, Justice.

Appellant was convicted of murder, and sentenced to life imprisonment. [1] He appeals the judgment of conviction, contending he was denied his constitutional right to effective assistance of counsel.

1. Appellant claimed he shot the victim in self-defense. The State presented the testimony of an eyewitness who, though unable to identify appellant as the perpetrator, stated that the shooter entered a cafe where the victim was sitting at the bar, and asked the victim to step outside. The victim refused, saying “If you are going to kill me, you are going to kill me here.” The assailant then started firing a gun. The victim grabbed a bottle and headed toward the shooter, at which point a number of the shots struck him. The victim bled to death after being struck by four gunshots, one of which struck him in the back. No weapon was found on the victim. The State also introduced evidence of appellant’s statement to police, in which he stated he shot the victim in self-defense. Appellant told police that the victim had one hand in the victim’s back pocket, and appellant feared the victim had a gun. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of malice murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant claims trial counsel was ineffective because: a) he failed to obtain a transcript of appellant’s first trial to prepare for and use in the second trial; b) he failed to subpoena two eyewitnesses; c) he failed to request or consent to the State’s request for a jury instruction on voluntary manslaughter, and did not discuss with appellant the possibility of such an instruction; d) he failed to cross-examine the State’s only eyewitness effectively; and e) he failed to file a motion to suppress a statement given by appellant to police the day after the killing.

In order to establish that trial counsel’s performance was so defective as to require a new trial, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced appellant that there is a reasonable likelihood that, absent[*808] counsel’s errors, the outcome of the trial would have been different. Hayes v. State, 263 Ga. 15 (426 SE2d 557) (1993). Appellant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. Brogdon v. State, 255 Ga. 64 (3) (335 SE2d 383) (1985).

(a) At the hearing on the amended motion for new trial, trial counsel, testifying on behalf of appellant, admitted that having the transcript from the previous trial would have been useful at the second trial for impeachment purposes. Since the transcript of the first trial was not produced at the hearing, appellant failed to establish that witnesses gave allegedly contradictory testimony, and we presume counsel’s actions were not prejudicial to appellant. Sleeth v. State, 201 Ga. App. 324, 326 (411 SE2d 79) (1991).

(b) Trial counsel admitted that appellant had given him the names of two persons who were with him when the victim was shot. Knowing that one of the witnesses was unreliable due to drug abuse, counsel decided not to call her as a witness. The decision not to call the witness was a strategic or tactical decision (Hawes v. State, 240 Ga. 327 (1) (240 SE2d 833) (1977)), and appellant did not establish how the failure to call the witness would have affected the outcome of the case. Pless v. State, 260 Ga. 96 (4) (390 SE2d 40) (1990). See also Ponder v. State, 201 Ga. App. 388 (1) (411 SE2d 119) (1991) (in light of defendant’s failure to proffer the testimony of the uncalled witness, defendant cannot prove that there is a reasonable likelihood that the trial’s result would have been different). While trial counsel did not interview the other eyewitness, the witness testified at the hearing that the victim came at appellant with a pocketknife despite the witness having grabbed the victim, and appellant shot the victim multiple times. The witness could not explain why a knife was not found at the scene. In light of the discrepancies between the witness’ recount of the homicide and appellant’s statement to police, appellant’s trial testimony, and the trial testimony of the State’s eyewitness, appellant did not establish that inclusion of the witness’ testimony at trial would have resulted in a different outcome.

(c) At trial, the State orally requested a charge on voluntary manslaughter. In a bench conference, trial counsel declined to request such a charge, and opposed the State’s request. From the day of his arrest through the hearing on the motion for new trial, appellant was consistent in his assertion that he acted in self-defense when he shot the victim.

[W]hile ... 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 [or acquiesce in the State’s request to[*809] charge] 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, . . . 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). As was the case in Van Alstine, supra, the hearing transcript reflects that appellant was firmly of the belief he acted in self-defense, and there is no evidence that he would have entertained a suggestion that the jury be permitted to consider the possibility that he committed voluntary manslaughter. “[T]he 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.” Id. at 4.

(d) Consistent with his testimony in earlier proceedings, the State’s eyewitness testified that he did not know appellant, that he did not see him in his bar the day the victim was shot, and that he could not describe the person who shot the victim. Shortly thereafter, the witness used the term “defendant” to denote the person who came in the bar and shot the victim. Appellant contends trial counsel was ineffective when he failed to cross-examine the witness about his earlier inability to identify the assailant and other factual discrepancies between earlier statements and testimony and his trial testimony. Even if we were to assume that trial counsel’s cross-examination of the witness was deficient, in light of appellant’s admission that he shot the victim, appellant has not established that, but for the assumed deficiency, the outcome of the trial would have been different.

(e) Appellant contended trial counsel should have sought suppression of his statement to police because he was not apprised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), prior to making the statement. At trial, the officer to whom appellant gave the statement testified that he had made appellant aware of his Miranda rights. At the hearing, appellant admitted that there were no basic differences between the statement and his trial testimony. “[F]ailure to file a suppression motion does not constitute per se ineffective assistance of counsel. ...” Kimmelman v. Morrison, 477 U. S. 365, 384 (106 SC 2574, 91 LE2d 305) (1986). Since appellant is alleging that ineffectiveness was exhibited by trial counsel’s failure to file a motion to suppress, appellant must make a “strong showing” that the evidence would have been suppressed had a motion to suppress been filed. Ruffin v. State, 201 Ga. App. 792 (2)[*810] (a) (412 SE2d 850) (1991). In light of the officer’s testimony that appellant’s Miranda rights were read to him, appellant did not make the requisite strong showing.

Decided February 21, 1994. Lamar W. Sizemore, Jr., for appellant. Britt R. Priddy, District Attorney, Michael J. Bowers, Attorney General, Paige M. Reese, Staff Attorney, for appellee.

Judgment affirmed.

All the Justices concur.
1

The crime occurred on February 23, 1987. Appellant was indicted on June 8, 1987, for murder and possession of a firearm by a convicted felon. A mistrial as to the murder charge was declared on January 20, 1988, when the jury was unable to reach a verdict. The jury did find appellant guilty of the possession charge. Appellant was re-tried on the murder charge March 15-16, 1988, and sentenced to life imprisonment when the jury returned a guilty verdict. Trial counsel filed a motion for new trial on April 15, 1988, and appellate counsel, appointed December 16, 1992, filed an amendment to the motion for new trial on April 15, 1993. The motion was denied on July 22, 1993, following a hearing. The notice of appeal was filed August 18,1993, the case was docketed in this court eight days later, and oral argument was heard on November 10, 1993.