☢ test - Í

680 (1942). If a conflict of interest is shown to have an actual adverse effect on the representation afforded by counsel, it is presumed that the defendant was prejudiced, and actual prejudice to the defense need not be proven. ‘Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. [Cit.]’ Cuyler v. Sullivan, supra at 349-350(IV)(B), 100 S.Ct. 1708. In other words, the defendant ‘need not show that the result of the trial would have been different without the conflict of interest, only that the conflict had some adverse effect on counsel’s performance. [Cit.]’ McConico v. Alabama, 919 F.2d 1543, 1548 (11 th Cir., 1990).” Here, unbeknownst to defendant, his wife had paid counsel a $25,000 retainer, with the understanding that $15,000 would be refunded “if the charges were dismissed and a new suspect identified.” “[T]he fact that the agreement specified both a greater and a lesser fee, dependent upon the extent to which counsel’s services would be required to provide Fogarty with a complete defense, does not make it an improper contingency fee contract. ‘[A]n agreement for payment of one amount if the case is disposed of without trial and a larger amount if it proceeds to trial is not a contingent fee but merely an attempt to relate the fee to the time and service involved.’ [ABA] Standards for Criminal Justice, Standard 4-3.3, commentary at 4-37 (2d ed., 1980).” “What is controlling is that the agreement did not provide that counsel would be paid only in the event that the case against Fogarty was dismissed or he was acquitted.” “A different analysis is not compelled because counsel was paid the $25,000 in advance and agreed to refund $15,000 if the charges were dismissed.” Leon v. State, 237 Ga.App. 99, 513 S.E.2d 227 (February 24, 1999). Fact that trial counsel was a member of the grand jury that indicted defendant but did not participate in defendant’s indictment, “does not support a finding of ineffective assistance” based on conflict of interest. “‘ To establish ineffective assistance of counsel due to a conflict of interest on the part of trial counsel, a defendant who raised no objection at trial must prove that counsel “actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” ... Where the contention is only the possibility of conflict, this is insufficient to impugn a criminal conviction. ’ (Citations and punctuation omitted.) Sartin v. State, 223 Ga.App. 759-760, 479 S.E.2d 354 (1996).” 22. CONSTRUCTIVE DENIAL OF COUNSEL, See subheading PRESUMPTION OF INEFFECTIVENESS, below 23. CONSULTATION WITH DEFENDANT Davis v. State, 295 Ga. 168, 758 S.E.2d 296 (May 5, 2014). Malice murder and related convictions affirmed; no ineffective assistance in “only allowing Davis to have the discovery file for about a week. … The record shows that [attorney] Rasnick did leave the discovery file with Davis in December 2010 after Rasnick visited Davis in jail. The discovery file was in Davis's possession for some period of time between a week and twelve days. Rasnick did allow Davis's father to make copies, and the file was always taken to the jail when Rasnick or his investigator met with Davis. Davis has not shown prejudice, and, in any event, it is not generally ineffective assistance of counsel where an attorney refuses to leave the discovery file with a defendant at a jail. See Williams v. State, 281 Ga. 196, 196–97, 637 S.E.2d 25 (2006).” Porter v. State, 292 Ga. 292, 736 S.E.2d 409 (January 7, 2013). Malice murder and related convictions affirmed; no ineffective assistance where defendant testified on direct that he had never possessed a gun, which “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.” Defendant didn’t call counsel to testify at motion for new trial hearing, so his decision to ask that question is presumed strategic. “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 S.E.2d 101) (2002).” “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.” Alexander v. State, 319 Ga.App. 199, 734 S.E.2d 432 (November 16, 2012). Convictions for battery and related offenses affirmed; no ineffective assistance based on failure to adequately prepare defendant to testify, “so his testimony and demeanor on cross-examination damaged his credibility.” Counsel originally planned not to have defendant testify, but changed tactics based on state of the evidence when State rested. “Based on trial counsel's reasonable self-defense strategy, trial counsel reconsidered the risk of not letting Alexander testify and prepared him to testify in light of the developments at trial. The fact that Alexander's demeanor and responses to the State's cross-examination may have been less than optimal does not render his trial counsel's representation constitutionally deficient.”