☢ test - Í

King v. State, 242 Ga.App. 642, 530 S.E.2d 744 (March 8, 2000). Defense counsel was not ineffective for failing to request a continuance based on the absence of defendant’s attorney of choice who worked with defense counsel, since defendant did not show that his attorney of choice would be available at the next term to try the case. See OCGA § 17-8- 24. Accord, Jones v. State , 296 Ga.App. 288, 674 S.E.2d 130 (February 23, 2009) (same facts; “[u]nless the defendant can show that the second attorney acted ineffectively, no claim for ineffective assistance can arise out of the absence of the lead attorney at trial.”). Turpin v. Bennett, 272 Ga. 57, 525 S.E.2d 354 (January 14, 2000). Habeas court properly granted petition based on ineffective assistance of counsel; counsel should have sought continuance when defense expert at capital murder trial “abandoned his former diagnosis without explanation, appeared ‘deathly ill,’ made ‘cartoonish’ facial expressions, volunteered testimony that whoever committed the murder was a ‘vicious maniac,’ and stated that appropriate psychiatric treatment for Bennett would have been nothing more than Tylenol for his headache, Zantac for his stomach ailment, and follow-up care. The jury laughed out loud at his testimony. The expert's conduct and the radical change in his testimony were due solely to the expert's impaired mental condition. In the face of this pivotal witness's manifest impairment, defense counsel failed to move for a continuance in order to locate another expert witness or take some other remedial measure.” Carley and Hunstein dissent based on habeas court’s failure to consider prejudice. 25. CONTINUING WITNESS VIOLATION, FAILURE TO OBJECT Fosselman v. State, 306 Ga.App. 84, 701 S.E.2d 559 (September 16, 2010). Defendant’s child molestation and sexual battery convictions affirmed; no prejudice, and thus no ieffective assistance, where counsel failed to raise continuing witness objection to victim’s recorded statement going out with jury. “Our courts have held that ‘ it is not reversible error for a [recording] to go out with the jury if that [recording] is consistent with the theory of the defense ... Whether the [evidence] is consistent with the theory of the defense depends upon whether it is advantageous to the defendant, and whether and how defense counsel utilizes that evidence.’ (Punctuation omitted.) Clark v. State, 284 Ga. 354, 355 (667 S.E.2d 37) (2008).” Counsel used statement here to point out inconsistencies in victim’s descriptions of the incident. “‘Where, as here, defense counsel ... acquiesces in [the] admission [of continuing witness evidence], and further uses it to impeach a key witness for the State, especially when the impeachment constitutes a significant part of the defendant's strategy, that [evidence] is considered to be consistent with the defense theory.’ Id. at 356.” Accord, Roberts v. State , 322 Ga.App. 659, 745 S.E.2d 850 (July 3, 2013). 26. COUNSEL NOT PROPERLY ADMITTED Maurer v. State, 320 Ga.App. 585, 740 S.E.2d 318 (March 21, 2013). Child molestation conviction affirmed; no ineffective assistance in allowing out-of-state attorney to sit second chair with defense counsel without proper application. “Maurer now argues that because there was no showing of a verified application as required by the Uniform Superior Court Rules (see Uniform Superior Court Rule 4.4(D)(1)) and no discussion of the parameters of Ward's ability to assist, Ward's performance on his behalf was a nullity, and he was therefore denied the effective assistance of counsel. But Maurer was represented by trial counsel with the assistance of Ward, who only argued the motion for directed verdict on Maurer's behalf.” No deficient performance shown. 27. COURTROOM CLOSING/PUBLIC TRIAL DENIAL, FAILURE TO OBJECT Glover v. State, 292 Ga.App. 22, 663 S.E.2d 772 (June 18, 2008). No ineffective assistance where trial counsel agreed to close the courtroom to spectators during testimony of child abuse victim, “he recognized that the victim was very young and he believed it to be appropriate under the circumstances. His decision not to object clearly constituted an exercise of reasonable professional judgment. Cf. Campos v. State, 263 Ga.App. 119, 122 (587 S.E.2d 264) (2003); Williamson v. State, 207 Ga.App. 565, 567(2)(b) (428 S.E.2d 628) (1993).” In any event, no prejudice shown. Accord, Reid v. State , 286 Ga. 484, 690 S.E.2d 177 (February 8, 2010) (“where, as here, the issue of a courtroom closure is raised in the context of an ineffective assistance of counsel claim, prejudice will not be presumed.”); Benson v. State , 294 Ga. 618, 754 S.E.2d 23 (January 21, 2014) (same as Reid , citing Reid ). 28. COURTROOM DEMEANOR Sanders v. State, 281 Ga. 36, 635 S.E.2d 772 (October 2, 2006). No ineffective assistance merely because counsel was held in contempt for arriving late to court. “The jury was not present during the contempt proceeding. When the jurors returned, the trial court apologized for the delay in the trial, explained that it was not related to the issues in the case, and did not attribute any blame to Sanders or his lawyer. At the hearing on the motion for new trial, trial counsel