Porter v. State, 736 S.E.2d 409 (Ga. 2013). · Go Syfert
Porter v. State, 736 S.E.2d 409 (Ga. 2013). Cases Citing This Book View Copy Cite
“cjounsel's failure to make a meritless objection cannot constitute evidence of ineffective assistance”
46 citation events (46 in the last 25 years) across 2 distinct courts.
Strongest positive: Henry Lee Sparrow v. State (gactapp, 2013-10-08)
Treatment trajectory · 2013 → 2026 · click a year to view as-of
2013 2019 2026
Top citers, strongest first. 22 distinct citers.
discussed Cited as authority (quoted) Henry Lee Sparrow v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2013 · quote attribution · 1 verbatim quote · confidence low
failure to make a meritless objection cannot constitute evidence of ineffective assistance
discussed Cited as authority (quoted) Sparrow v. State (2×) also: Cited "see"
Ga. Ct. App. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
failure to make a meritless objection cannot constitute evidence of ineffective assistance
discussed Cited as authority (quoted) Brown v. State (2×) also: Cited "see"
Ga. Ct. App. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
counsel's failure to make a meritless objection cannot constitute evidence of ineffective assistance
discussed Cited as authority (quoted) Brown v. State (2×) also: Cited "see"
Ga. Ct. App. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
cjounsel's failure to make a meritless objection cannot constitute evidence of ineffective assistance
discussed Cited as authority (rule) Matthew David Cwik v. State
Ga. Ct. App. · 2021 · confidence medium
As the Supreme Court of Georgia has stated, a detective’s “comment on the results of his investigation [is] not hearsay evidence[ ]” where the testimony “was limited to the findings of the detective’s investigation and did not include or make reference to out-of-court statements made to him[.]”17 Therefore, because Phillips’s limited statement concerned only the results of his investigation, specifically where the abuse occurred, and did not include statements made by others, this statement standing alone did not constitute hearsay.18 Thus, trial counsel’s failure to object was…
cited Cited as authority (rule) Timothy Sutton v. State
Ga. Ct. App. · 2017 · confidence medium
Phipps, P. J., and Peterson, J., concur. 29 Porter v. State, 292 Ga. 292, 294 (3) (a) ( 736 SE2d 409 ) (2013); accord Humphrey v. Lewis, 291 Ga. 202, 214 (V) (A) (ii) ( 728 SE2d 603 ) (2012). 19
discussed Cited as authority (rule) Naji v. State
Ga. · 2017 · confidence medium
David Naji claims that his trial counsel was ineffective in failing to raise a continuing objection to the testimony of the medical examiner and in failing to move for a mistrial after that testimony. 4 But as we have noted above, the testimony of the medical examiner was admissible under our former Evidence Code, and “[trial] counsel’s failure to make a meritless objection cannot constitute evidence of ineffective assistance. [Cits.]” Porter v. State, 292 Ga. 292, 294 (3) (a) ( 736 SE2d 409 ) (2013). 4.
discussed Cited as authority (rule) Naji v. State
Ga. · 2017 · confidence medium
David Naji claims that his trial counsel was ineffective in failing to raise a continuing objection to the testimony of the medical examiner and in failing to move for a mistrial after that testimony.4 But as we have noted above, the 4 Trial counsel for David Naji joined in the objection made by Michael Naji’s counsel and made additional argument on the issue of the confrontation clause. 9 testimony of the medical examiner was admissible under our former Evidence Code, and “[trial] counsel’s failure to make a meritless objection cannot constitute evidence of ineffective assistance. [Cits…
discussed Cited as authority (rule) Hornbuckle v. State
Ga. · 2017 · confidence medium
Id. at 898 (3) (b). “[Trial] counsel’s failure to make a meritless objection cannot constitute evidence of ineffective assistance. [Cits.]” Porter v. State, 292 Ga. 292, 294 (3) (a) ( 736 SE2d 409 ) (2013). (c) Lastly, Hornbuckle asserts that trial counsel was ineffective in failing to question her expert witness, a licensed clinical social worker, to elicit specific testimony that her actions were reasonable on the night of the incident.
discussed Cited as authority (rule) Hornbuckle v. State
Ga. · 2017 · confidence medium
Id. at 898 (3) (b). “[Trial] counsel’s failure to make a meritless objection cannot constitute evidence of ineffective assistance. [Cits.]” Porter v. State, 292 Ga. 292, 294 (3) (a) ( 736 SE2d 409 ) (2013). (c) Lastly, Hornbuckle asserts that trial counsel was ineffective in failing to question her expert witness, a licensed clinical social worker, to elicit specific testimony that her actions were reasonable on the night of the incident.
discussed Cited as authority (rule) Capps v. State
Ga. · 2016 · confidence medium
Porter v. State, 292 Ga. 292, 294 (3) (a) ( 736 SE2d 409 ) (2013). (b) Capps next contends that trial counsel was ineffective for not attempting to exclude what he terms “improper character evidence of [Capps’s] alleged racist beliefs.” 4 At issue is the testimony of a detective about remarks Capps made to him about an African-American detective investigating the case. 5 As we have noted, relevant and material evidence in a case is not rendered inadmissible merely because it incidentally places the defendant’s character in issue.
cited Cited as authority (rule) Joshua Taylor v. State
Ga. Ct. App. · 2016 · confidence medium
Porter v. State, 292 Ga. 292, 294 (3) (a) ( 736 SE2d 409 ) (2013).
cited Cited as authority (rule) Taylor v. State
Ga. Ct. App. · 2016 · confidence medium
Porter v. State, 292 Ga. 292, 294 (3) (a) ( 736 SE2d 409 ) (2013).
discussed Cited as authority (rule) Gregory Leon Jackson, Jr. v. State
Ga. Ct. App. · 2014 · confidence medium
To show prejudice, a defendant is required to offer more than mere speculation that, absent the counsel’s alleged errors, a different result probably would have occurred at trial.” (Citation and punctuation omitted.) Porter v. State, 292 Ga. 292, 295 (3) (c) ( 736 SE2d 409 ) (2013).
cited Cited as authority (rule) Jackson v. State
Ga. Ct. App. · 2014 · confidence medium
(Citation and punctuation omitted.) Porter v. State, 292 Ga. 292, 295 (3) (c) ( 736 SE2d 409 ) (2013).
discussed Cited as authority (rule) Stephaan Brown v. State
Ga. Ct. App. · 2013 · confidence medium
I remember thinking that it wasn’t a bad thing if they came in because there was a way they could be beneficial to us. ... 16 See Porter v. State, 292 Ga. 292, 294 (3) (a) (__ SE2d __) (2013) (“counsel’s failure to make a meritless objection cannot constitute evidence of ineffective assistance”). 10 [L]et me be clear.
discussed Cited as authority (rule) Joseph Brown v. State
Ga. Ct. App. · 2013 · confidence medium
Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal 24 (Footnote omitted.) Hunt v. State, 279 Ga. 3, 4 (2) ( 608 SE2d 616 ) (2005). 25 See Porter v. State, 292 Ga. 292, 294 (3) (a) (__ SE2d __) (2013) (“[C]ounsel’s failure to make a meritless objection cannot constitute evidence of ineffective assistance”). 12 conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.26 (a) As to the crimes involving Best, Penn, Holmes, and Inman, as w…
examined Cited "see" Harris v. State (4×)
Ga. · 2022 · signal: see · confidence high
See Porter v. State, 292 Ga. 292, 295 (3) (c) (736 SE2d 409) (2013) (claim of 11 ineffective assistance of counsel based on counsel’s alleged failure to prepare appellant and his alibi witnesses to testify fails where appellant “offered no evidence to show a reasonable probability that more preparation would have changed the outcome at trial”). (b) Trial counsel did not perform deficiently in withdrawing jury charge requests.
examined Cited "see" Jones v. State (4×)
Ga. · 2016 · signal: see · confidence high
See Porter v. State, 292 Ga. 292, 294 ( 736 SE2d 409 ) (2013) (observing that the failure to make a meritless objection cannot constitute evidence of ineffective assistance).
discussed Cited "see" Cooper v. State (2×)
Ga. · 2015 · signal: see · confidence high
See Porter v. State, 292 Ga. 292, 294 ( 736 SE2d 409 ) (2013).
discussed Cited "see" Cooper v. State (2×)
Ga. · 2015 · signal: see · confidence high
See Porter v. State, 292 Ga. 292, 294 ( 736 SE2d 409 ) (2013).
discussed Cited "see, e.g." Sutton v. the State (2×)
Ga. Ct. App. · 2016 · signal: see also · confidence medium
But, as discussed supra, even without such evidence, jurors are *732 permitted to make a determination of whether particular tools are commonly used to commit burglary based on their own knowledge and experience. 22 See Hughley v. State, 330 Ga. App. 786, 789 (2) ( 769 SE2d 537 ) (2015) (holding that the defendant failed to demonstrate plain error in the trial court’s failure to give a certain jury charge when he “failed to show a ‘clear or obvious’ error in the trial court’s charge”); Fleming v. State, 324 Ga. App. 481, 484 (1) ( 749 SE2d 54 ) (2013) (holding that the trial court …
PORTER
v.
State
S12A2045.
Supreme Court of Georgia.
Jan 7, 2013.
736 S.E.2d 409
Clark C. Adams, for appellant., Julia Fessenden Slater, District Attorney, Douglas L. Breault, Assistant District Attorney, Samuel S. Olens, Attorney General, Paula K. Smith, Senior Assistant Attorney General, David A. Zisook, Assistant Attorney General, for appellee.
Thompson.
Cited by 23 opinions  |  Published
3 passages pin-cited by 4 cases
Pinpoint authority: #21,012 of 633,719
Citer courts: Court of Appeals of Georgia (4)
THOMPSON, Presiding Justice.

Appellant Thaddeus Porter was convicted of malice murder and other crimes related to the shooting death of Willie Clay.[1] His motion for new trial was denied, and he appeals, asserting that the trial court erred by permitting the State to present evidence that a tipster was not a participant in the crimes and that trial counsel provided ineffective assistance of counsel. For the reasons that follow, we affirm.

1. Viewed in a light most favorable to the verdict, the evidence shows that on the day of the crimes, appellant, Donovan Champion,[*293] and appellant’s 12-year-old “god brother” planned to rob a restaurant in the same strip mall as the dry cleaners where the victim worked. Because the rear door to the restaurant was locked, they entered the cleaners, forced the victim into the back office, and took a bag containing money and rolled coins. When the victim tried to escape, appellant hit him several times with a gun and an aluminum bat, knocking him to his knees. Appellant then fatally shot the victim. Police initially were unable to identify any suspects, but several months after the shooting they received a tip from a concerned citizen. Based on information from the tipster, appellant and Champion were arrested and charged with the crimes.

We conclude the evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by permitting a detective to testify that based on his investigation, the tipster was not a witness to or participant in the crimes.[2] At trial, appellant objected on the basis that the detective’s testimony went to the ultimate issue. He now argues the testimony was improperly admitted to explain the detective’s conduct. See Jones v. State, 290 Ga. 576, 580 (722 SE2d 853) (2012) (out-of-court statements maybe admissible to explain an investigating officer’s conduct if that conduct is a matter concerning which the truth must be found). Because appellant raises this argument for the first time on appeal, it is not preserved for appellate review. See Rucker v. State, 291 Ga. 134 (2) (728 SE2d 205) (2012); Mitchell v. State, 290 Ga. 490 (4) (a) (722 SE2d 705) (2012).

Even absent the procedural waiver, however, appellant cannot show his newly asserted grounds for objection would have resulted in exclusion of the challenged testimony. While appellant correctly cites authority for the proposition that only on rare occasions will the need to explain the conduct of an investigating officer justify the admission of hearsay evidence, the detective’s comment on the results of his investigation was not hearsay evidence. The trial court allowed the[*294] State to ask the detective if his investigation revealed whether the tipster or his source were involved in or witnessed the crimes and the detective answered in the negative. The challenged testimony was limited to the findings of the detective’s investigation and did not include or make reference to out-of-court statements made to him by the tipster.

3. Appellant contends he received ineffective assistance of counsel on several grounds. In order to prove ineffective assistance of counsel, appellant must show both that counsel’s performance was deficient and that this deficient performance prejudiced his defense to a point where there was a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). We accept the trial court’s findings of fact unless they are clearly erroneous, but we apply the law to the facts de novo. Id. at 698; Head v. Carr, 273 Ga. 613 (4) (544 SE2d 409) (2001).

(a) Appellant contends he was denied effective assistance of counsel because his attorney did not object to the detective’s testimony regarding the tipster’s involvement in the crimes on the ground that it was inadmissible to explain the detective’s conduct. Appellant has failed to satisfy the first Strickland prong with regard to this enumeration of error inasmuch as counsel’s failure to make a merit-less objection cannot constitute evidence of ineffective assistance. See Division 2, supra; Hayes v. State, 262 Ga. 881 (3) (c) (426 SE2d 886) (1993).

(b) In response to a question by defense counsel on direct examination, appellant testified he had never possessed a gun. His response allowed the State to present evidence of a previous incident during which appellant was apprehended with a loaded gun in his pocket after fleeing from police. Appellant contends counsel’s performance was deficient because the question about the gun required appellant to either admit he previously possessed a gun or lie about his prior possession.

Appellant chose not to call trial counsel to testify at the motion for new trial hearing, and therefore, there is no testimony from trial counsel about decisions he made at trial. In the absence of such testimony and evidence to the contrary, the decision to ask appellant about his possession of a gun is presumed to be a strategic one that does not amount to ineffective assistance. See Mitchell, supra, 290 Ga. at 492 (4) (a); Washington v. State, 285 Ga. 541 (3) (a) (i) (678 SE2d 900) (2009); Ballard v. State, 281 Ga. 232, 234 (637 SE2d 401) (2006). In addition, appellant testified he thought his prior possession, committed when he was a juvenile, could not be used against him at trial. Had he known it could, he stated, he “would have testified[*295] differently.” While we do not know what defense counsel knew about appellant’s prior criminal history, trial counsel is not required to anticipate that his client will mislead him or lie on the stand. See Adams v. State, 274 Ga. 854, 856 (561 SE2d 101) (2002). We find that trial counsel was not deficient as to this issue.

Decided January 7, 2013. Clark C. Adams, for appellant. Julia Fessenden Slater, District Attorney, Douglas L. Breault, Assistant District Attorney, Samuel S. Olens, Attorney General, Paula K. Smith, Senior Assistant Attorney General, David A. Zisook, Assistant Attorney General, for appellee.

(c) To the extent appellant argues trial counsel failed to adequately prepare him and his alibi witnesses to testify, he has offered no evidence to show a reasonable probability that more preparation would have changed the outcome at trial. To show prejudice, a defendant is “required to offer ‘more than mere speculation’ ” that, absent the counsel’s alleged errors, a different result probably would have occurred at trial. (Citation omitted.) Dickens v. State, 280 Ga. 320, 323 (627 SE2d 587) (2006). Similarly, appellant has made no showing that counsel’s failure to include his alibi witnesses on the witness list prejudiced him. The trial court allowed all but one of these witnesses to testify after being interviewed by the prosecutor. Although appellant’s mother was not allowed to testify at trial because her testimony was not newly discovered, the record shows she would have testified only to appellant’s whereabouts up to an hour before the crimes. Accordingly, appellant has shown no prejudice, and his claim of ineffective assistance based on counsel’s preparation and handling of witnesses fails.

Judgment affirmed.

All the Justices concur.
1

The crimes occurred on July 10, 2002. Appellant was indicted by a Muscogee County grand jury on April 29, 2003, on charges of malice murder, felony murder, armed robbery, and possession of a firearm during the commission of a crime. The jury returned a verdict on August 29, 2003, finding him guilty of all counts. Appellant was sentenced to life imprisonment for malice murder, a consecutive life sentence for armed robbery, plus a consecutive five-year sentence for possession of a firearm during the commission of a crime. The felony murder count was vacated by operation of law. See Malcolm v. State, 263 Ga. 369 (434 SE2d 479) (1993). Appellant filed an out-of-time motion for new trial on October 24, 2003, which was granted on October 30, 2003, and an amended motion for new trial on April 5, 2012. The motion for new trial was denied on June 5, 2012. Appellant filed a notice of appeal on June 15, 2012. The appeal was docketed to the September 2012 term of this Court and submitted for decision on the briefs.

2

The trial court ruled pretrial that the State would not he required to reveal the identity of the tipster or the person who told the tipster the names of the individuals involved. At trial, the detective testified that he had received a phone call from a concerned citizen. On cross-examination, defense counsel asked the citizen’s name, and the trial court sustained the State’s objection. Defense counsel persisted in his questioning, asking how the citizen got his or her information and whether the detective talked to anyone other than the citizen before talking to appellant and Champion. The detective stated he did not talk to anyone other than the citizen caller and that the caller got his or her information from a third party. On re-direct, the State asked the detective if, based on his investigation, he was able to determine whether the concerned citizen was a witness or participant in the crimes.