☢ test - Í

Phillips v. State, 277 Ga. 161, 587 S.E.2d 45 (October 6, 2003). Defense counsel was not ineffective for asking FBI agent on stand if he had investigated defendant’s alibi defense, prompting agent’s hearsay response that defendant’s employer had denied his presence at work that day, even though counsel had never interviewed the agent. “According to counsel, he did not formally interview the agent before trial, because he did not want to reveal the questions he would ask on cross- examination. However, Phillips’ mother had provided him with a letter purportedly from [the employer] which supported the alibi. Because the employer was not present and Phillips’ mother expressed a desire not to testify, the attorney believed that there was no other way to advance the alibi defense other than to inquire about the agent’s conversation with Smith. He posed the question in the expectation that the information the agent learned in the interview with Smith would be consistent with the contents of the letter. The Constitution does not guarantee representation by a lawyer who is errorless or who is deemed ineffective after the fact, but one who renders reasonably effective assistance. McGill v. State, 263 Ga. 81, 82(2) (428 S.E.2d 341) (1993). ‘[T]he proper emphasis is on whether counsel’s actions, under the circumstances then existing, were reasonable. [Cit.]’ Belton v. State, 270 Ga. 671, 673(3) (512 S.E.2d 614) (1999). How to conduct cross-examination is a strategic and tactical decision within the exclusive province of the attorney after consultation with the client. Van Alstine v. State, 263 Ga. 1, 3 (426 S.E.2d 360) (1993). Here, pursuit of the cross- examination was premised on a letter supplied by the accused’s own mother. ‘Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.’ Strickland v. Washington, [466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984)] at 691(III)(A). The lawyer had no reason to believe that the agent’s response to the question would differ from the information contained in the letter attributed to Smith.” Accord , Lupoe v. State , 284 Ga. 576, 669 S.E.2d 133 (November 3, 2008); Phillips v. State , 285 Ga. 213, 675 S.E.2d 1 (February 9, 2009); Neal v. State , 308 Ga.App. 551, 707 S.E.2d 503 (February 22, 2011); Romer v. State , 293 Ga. 339, 745 S.E.2d 637 (July 1, 2013) (“the extent of cross-examination is a strategic and tactical decision”); Ansley v. State , 325 Ga.App. 226, 750 S.E.2d 484 (November 18, 2013). Frazier v State, 263 Ga.App. 12, 587 S.E.2d 173 (August 29, 2003). Counsel’s strategic decision to attack show-up identification by victim on cross-examination rather than via motion to suppress was not ineffective assistance of counsel. Likewise, retained (not appointed) counsel was not ineffective for failing to obtain transcript of preliminary hearing where defendant declined to incur the expense. Accord, Gibson v. State , 291 Ga.App. 183, 661 S.E.2d 850 (April 16, 2008). Bolick v. State, 244 Ga.App. 567, 536 S.E.2d 242 (June 22, 2000). Burglary and related convictions affirmed; no ineffective assistance based on limited cross-examination of State’s witness. “When questioned during the motion hearing, counsel testified that he could not mount a ‘traditional defense,’ because Bolick admitted that he committed most of the offenses in the indictment. Therefore, counsel feared that intense cross-examination of the victim would ‘antagoniz[e] the victim in the eyes of the jury because there was very little mitigation to present to the jury.’ As to the cross-examination of the other witnesses, counsel testified that he felt the most effective way of dealing with some of them was not to ‘highlight’ or ‘reiterate’ their testimony through cross-examination, but to ‘get them off [the stand] as quickly as possible.’” 31. CUMULATIVE EFFECT/CUMULATIVE ERROR Seminal case: Schofield v. Holsey (February 26, 2007), below. Ojemuyiwa v. State, 285 Ga.App. 617, 647 S.E.2d 598 (May 31, 2007). Defendant “claims that the cumulative effect of counsel’s errors renders his assistance ineffective. We have held, however, that ‘each error must stand or fall on its own merits, and is not aided or aggravated by the accumulative effect of other claims of error.’ (Citation and punctuation omitted.) Ellis v. State, 282 Ga.App. 17, 20(2) (637 S.E.2d 729) (2006).” Appears to conflict with Schofield (February 26, 2007), below. Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (April 24, 2007). Elaborating on holding in Schofield (February 26, 2007) , below : “[A]lthough other courts have recognized the ‘cumulative prejudice’ theory set forth in Schofield with respect to claims of ineffective assistance, the ‘cumulative error’ theory ‘appears to have been universally rejected.’ John M. Burkoff & Nancy M. Burkoff, Ineffective Assist. of Counsel § 5:19. ‘Impact alone, not traceable to error, cannot form the basis for reversal.... [W]e therefore ... should evaluate only the effect of matters determined to be error, not the cumulative effect of non-errors. [Cits.] Permitting the effect of ‘non-errors’ to be cumulated in order to reverse a conviction would vest nearly uncontrolled discretion in the appellate courts. United States v. Rivera, 900 F.2d 1462, 1471(I) (10 th Cir., 1990) (quoted in Burkoff, supra at § 5:21). In this state, it is always ‘“incumbent upon the defendant to show error with regard to each point he raises.”’ Brinson v. State, 243 Ga.App. 50, 52(3) (530 S.E.2d 798) (2000).” No error shown here, hence issue of prejudice not reached. Accord, Bulloch v. State , 293 Ga. 179, 744 S.E.2d