☢ test - Í
out that no mention of this was made in his report prepared as part of his investigation. … At the hearing on the motion for new trial, Lopez's trial counsel testified that his questions on cross-examination of the narcotics investigator were a matter of trial strategy. Among other things, trial counsel testified that his trial strategy had been to show that because the investigator continued to rely upon the informant in other cases, he had an incentive to exaggerate or lie about the informant's prior dealings with Lopez.” 2. No ineffective assistance where counsel opened the door to damaging information, based on defendant’s misrepresentation of his prior criminal history. Defendant testified that he met the State’s informant while in jail on a minor drug charge; the State was then able to present evidence that the prior charge was, in fact, “a large drug transaction.” “At the hearing on the motion for new trial, Lopez's trial counsel testified that he made a strategic decision to ask questions pertaining to Lopez's stint in jail on the prior marijuana charge based upon representations made to him by Lopez during their pre-trial meetings together. Specifically, Lopez had told counsel that the prior case involved nothing more than “a couple of joints” behind the seat of a car owned by his uncle and that the case had been dismissed. Given these representations, trial counsel made the tactical decision to have Lopez testify that he had once shared a jail cell with the informant and had witnessed him hurt other inmates on several occasions, and that any negative effects of explaining to the jury why Lopez had been in jail would be outweighed by the overall positive effects of the jail-related testimony on his entrapment defense. … ‘Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. …’ Strickland, 466 U.S. at 691(III)(A). See also Nicholson v. State, 265 Ga. 711, 714-715(4), 462 S.E.2d 144 (1995); Huff v. State, 224 Ga.App. 115, 115-116, 479 S.E.2d 476 (1996). Trial counsel was not required to anticipate that Lopez would mislead him about the prior marijuana charge, and because the questions posed by counsel on direct examination were based upon the misleading information supplied by Lopez, any resulting prejudice was attributable to Lopez, not to the ineffectiveness of his trial counsel. See Nicholson, 265 Ga. at 714-715(4), 462 S.E.2d 144; Huff, 224 Ga.App. at 115-116, 479 S.E.2d 476.” Accord, Bowie v. State , 286 Ga. 880, 692 S.E.2d 371 (March 29, 2010) (no ineffective assistance where counsel admitted damaging witness statement “to impeach [witness] through prior inconsistent statements,” and to deal with the damaging evidence he believed would be admitted anyway, “to throw the first punch.”); Porter v. State , 292 Ga. 292, 736 S.E.2d 409 (January 7, 2013) (“trial counsel is not required to anticipate that his client will mislead him or lie on the stand.”). McKenney v. State, 303 Ga.App. 370, 693 S.E.2d 541 (March 12, 2010). At defendant’s trial for rape, kidnapping, and related offenses, no ineffective assistance where counsel presented witness (defendant’s employer) based on defendant’s insistence, although counsel “did not think the employer would make a good witness at trial. Nevertheless, because McKenney was ‘very active and very insistent’ that the employer testify on his behalf, trial counsel acquiesced and called the employer as a witness. On cross examination, the State was able to elicit from the witness a concession that she was not exactly sure of the month in which McKenney came to work for her, thus bringing into question her testimony that she saw McKenney and the victim on the day before the attack.” Counsel made a “reasoned strategic decision” that “ignoring his client's adamant wish ‘was unnecessary. I just didn't think there was enough evidence to convict him.’” Mayberry v. State, 301 Ga.App. 503, 687 S.E.2d 893 (November 23, 2009). At defendant’s trial for kidnapping with injury, aggravated sodomy, and related offenses, no ineffective assistance where defense counsel brought out that defendant had previously shot someone. “At the hearing on the motion for new trial, Scheib testified that he was trying to demonstrate that Mayberry had gotten rid of his gun before the incident at issue because after an earlier home invasion and shooting, he did not want to own a gun anymore.” “Although [defense counsel] Scheib believed in retrospect that he should not have asked about the shooting, the question was part of a strategy to discredit [victim’s] statement that Mayberry owned a gun. Additionally, Mayberry was allowed to explain the circumstances surrounding the shooting. He testified that it arose out of a home invasion and he was never indicted in connection with the incident. Although he was arrested, all charges were dropped. Accordingly, because we cannot say that Scheib's strategy was ‘patently unreasonable,’ Mayberry cannot establish that his counsel was ineffective on this ground.” Adem v. State, 300 Ga.App. 708, 686 S.E.2d 339 (November 2, 2009). 1. At defendant’s trial for first degree child cruelty based on female genital mutilation (FGM), no ineffective assistance where counsel made strategic decision to call expert witness who claimed that she left her own husband for intending to commit FGM against their daughter. Defendant now contends that the testimony bolstered the State’s case, but counsel testified that he presented the evidence to show that someone other than defendant must have committed the act because the witness testified that it requires training not possessed by defendant, and that female circumcision is often pushed by female relatives. “Because the decision to call this expert witness in Adem's defense was not unreasonable, [fn] Adem has shown no deficient performance.” 2. No ineffective assistance in presenting psychologist who “had been suspended from his profession and … had authored a book with a ‘crass’ and ‘flippant’ title: ‘Screw Your Spouse, Win the Kids, and Make Money Doing It.’” Psychologist
Made with FlippingBook Ebook Creator