☢ test - Í

Welch v. State, 298 Ga. 320, 781 S.E.2d 768 (January 19, 2016). Malice murder conviction affirmed. No ineffective assistance in failing to object to admission of defendant’s custodial statement. “As for appellant’s statement to police, trial counsel averred she made a strategic decision to refrain from moving to have it excluded because it enabled her to present appellant’s version of the shooting without calling him as a witness and risking his impeachment by several prior felony convictions. See former OCGA § 24–9–84.1(a)(2) (the credibility of a defendant who testifies may be attacked by evidence he was convicted of a crime punishable by death or imprisonment for more than one year and such evidence shall be admitted if the trial court determines that the probative value of the evidence substantially outweighs its prejudice). [Cit.] The mere fact that present counsel might have pursued another strategy does not render trial counsel’s strategy unreasonable. Nix v. State, 280 Ga. 141, 143, 625 S.E.2d 746 (2006).” Woods v. State, 291 Ga. 804, 733 S.E.2d 730 (October 29, 2012). Murder conviction reversed on other grounds; trial court properly declined to suppress defendant’s statement to police on grounds that his counsel was ineffective for allowing him to make the statement. Trial could find that counsel wasn’t ineffective. “[Attorney] Tomlinson was faced with a client who had decided to turn himself in and had already revealed to a law enforcement officer that he had killed [victim] Sauls, claiming self defense, and that he had attempted to conceal the body. Viewing Tomlinson's conduct in the context of his perspective at the time of the interrogations, we cannot conclude that he rendered ineffective assistance in permitting Woods to cooperate in the interrogations and searches. See Bowley v. State, 261 Ga. 278, 281(4) (404 S.E.2d 97) (1991). The fact that present counsel might have pursued a different strategic course does not render Tomlinson's strategy unreasonable. Freeman v. State, 284 Ga. 830, 835(4) (672 S.E.2d 644) (2009). Nor has ineffective assistance of counsel been shown in counsel's failure to investigate further Woods's mental state before proceeding with the interrogations. Assuming that the facts known to Tomlinson gave a basis for doing so and that his performance was deficient, ‘it is not enough to show merely that counsel unreasonably failed to inquire into [Woods's] mental state—he must show a [reasonable probability] that such an evaluation would have affected the outcome at trial.’ Devega v. State, 286 Ga. 448, 450(4)(a) (689 S.E.2d 293) (2010) (Citations and punctuation omitted.) No evidence was presented that Woods was incapable of freely and voluntarily deciding to cooperate with law enforcement officers and waiving his right to remain silent, and there is no showing that further investigation on Tomlinson's part would have resulted in a different decision as to whether to cooperate with the investigation.” “We note that it does not appear that the United States Supreme Court has recognized a right to the effective assistance of counsel under the Fifth Amendment to the Constitution of the United States. See Sweeney v. Carter, 361 F.3d 327, 333(IV) (7 th Cir., 2004). We also assume, without deciding, that it was appropriate for Woods to raise this ineffective assistance claim in a pre- trial motion , before there was an outcome of the trial against which to assess any prejudice. But see Sosniak v. State, 287 Ga. 279, 287(1)(B)(n.3) (695 S.E.2d 604) (2010).” Moon v. State, 288 Ga. 508, 705 S.E.2d 649 (February 7, 2011). Convictions for murder and related offenses affirmed; no ineffective assistance based on admission of DVD of custodial statement. Officer comments on DVD repeatedly referring to defendant as a “thug” do not “rise to the requisite level of prejudice” to establish ineffective assistance. Arrellano-Campos v. State, 307 Ga.App. 561, 705 S.E.2d 323 (January 19, 2011). Rape convictions affirmed; trial court erred by finding that stipulating to a custodial statement, given in violation of Miranda , was sound trial strategy; but no error because evidence here showed that defendant re-initiated conversation with police after invoking right to counsel. Based on Frazier v. State , 298 Ga.App. 487, 680 S.E.2d 553 (June 23, 2009) (Defendant’s conviction for aggravated assault reversed; trial court erred in admitted defendant’s custodial statement made after defendant “repeatedly stated that he did not want to talk to anyone and asked to speak to his lawyer.”). Accord, Davis v. State , 329 Ga.App. 17, 763 S.E.2d 371 (September 5, 2014) (counsel wasn’t ineffective in stipulating to admission of defendant’s statement, as “Davis initiated the communication with the investigator and gave his statement after knowingly waiving his right to counsel.”). Hill v. State, 282 Ga.App. 743, 639 S.E.2d 637 (December 7, 2006). No ineffective assistance in allowing, or even encouraging, defendant to give statement to police where made as a strategic decision. “[E]ven assuming that Hill’s right to effective counsel had been triggered at the time he made the statement and that the attorney encouraged Hill to make the statement, the attorney’s decision to allow Hill to talk to the police was a strategic one in the ‘exclusive province of the lawyer after consultation with his client.’ (Citation omitted.) Campos v. State, 263 Ga.App. 119, 122 (587 S.E.2d 264) (2003). … [E]ven after a suspect has been taken into custody, ‘[e]ncouraging a suspect to tell the truth does not constitute hope of [a] benefit so as to render involuntary any statement made thereafter.’ (Citations omitted.) Henry v. State, 265 Ga. 732, 736(4)(c) (462 S.E.2d 737) (1995).” Johnson v. State, 281 Ga.App. 455, 636 S.E.2d 178 (September 6, 2006). Defendant’s conviction for possession of