☢ test - Í

Bryant v. State, 274 Ga. 798, 560 S.E.2d 23 (February 25, 2002). Malice murder and related convictions affirmed; trial court properly denied defendant’s motion for new trial. Defense counsel’s acceptance of payment from the county and fees from defendant’s family did not constitute a breach of duty of loyalty as circuit defender’s office and defendant’s family shared identical interest of putting forth an effective legal defense and the record demonstrated a spirited defense against prosecution’s strong case. Cross v. State, 271 Ga. 427, 520 S.E.2d 457 (September 13, 1999). “[T]he fact that subsequently [trial counsel] was effectively disbarred by acceptance of the voluntary surrender of his license to practice law … does not compel the conclusion that his representation of Cross satisfies the test for ineffective assistance of counsel under Strickland v. Washington . [Counsel’s] professional misconduct in unrelated matters and cases does not establish either inadequacy or prejudice to Cross in his criminal case. Thus, the attorney's effective disbarment does not relieve Cross of making the requisite showing under Strickland v. Washington that trial counsel's representation fell below an objective standard of reasonableness. White v. State, 267 Ga. 523, 524(7), 481 S.E.2d 804 (1997).” Accord, Simmons v. State , 291 Ga. 705, 733 S.E.2d 280 (October 15, 2012) (subsequent, unrelated voluntary surrender of law license, other “personal and financial stress” didn’t show ineffective assistance). 42. EVIDENCE/ARGUMENT, FAILURE TO OBJECT, See also subheadings BOLSTERING WITNESS CREDIBILITY, FAILURE TO OBJECT, and CHARACTER EVIDENCE, FAILURE TO OBJECT, above; and SIMILAR TRANSACTIONS/PRIOR DIFFICULTIES EVIDENCE, FAILURE TO OBJECT; WITNESSES, FAILURE TO IMPEACH; and WITNESSES/ SECURE WITNESSES/PRESENT EVIDENCE/SECURE EVIDENCE/FAILURE TO PRESENT, below New case! Davis v. State, S16A0103, ___ Ga. ___, ___ S.E.2d ___, 2016 WL 3145125 (June 6, 2016). Felony murder conviction affirmed; no ineffective assistance of counsel based on failure to object to multiple photos of victim’s injuries. Notes that, under 2013 Evidence Code, issue now is governed by OCGA § 24-4-403, discussing whether the issue is substantially more prejudicial than probative. 1. Contrary to defendant’s argument, post-incision autopsy photographs were material inasmuch as “the cause of the victim’s death and the circumstances surrounding her injuries were the principal dispute at trial.” 2. Photos of victim in the hospital “were relevant to show the nature and extent of the victim’s injuries, and they are not especially gory or gruesome. See Moss v. State , 298 Ga. 613, 617-618 (783 S.E.2d 652) (2016) (discussing the admissibility under OCGA § 24-4-403 of pre-incision autopsy photos of a murder victim, based on Eleventh Circuit case law).” 3. Counsel was deficient for failing to object to three photos which merely showed medical equipment at the hospital, and a doll lying in the victim’s crib, all of which were irrelevant. No prejudice shown from their admission, however, as the State made no effort to use them or refer to them in closing argument, and the evidence against defendant was strong. New case! Everhart v. State, A16A0652, ___ Ga.App. ___, ___ S.E.2d ___, 2016 WL 3064872 (May 25, 2016). Child cruelty conviction reversed on other grounds, but no ineffective assistance based on failure to object to DFCS witness’s testimony. Contrary to defendant’s argument, the testimony wasn’t improper comment on credibility and didn’t invade jury’s province. Witness testified that she didn’t find defendant’s explanation of delay in seeking treatment of child’s injuries “satisfactory.” “In context, this was not a statement of disbelief; indeed, the State made explicit before asking the question that the State was ‘not asking [her] to gauge [Everhart’s] truthfulness,’ and on cross- examination, the witness stated that she ‘didn’t draw any conclusions about [Everhart] misleading me.’ Rather, the DFCS witness simply testified that Everhart’s explanation, even if true, did not constitute a sufficient reason for failing to seek immediate medical care for the victim.” King v. State, A15A1878, ___ Ga.App. ___, 784 S.E.2d 875, 2016 WL 1237321 (March 30, 2016). Armed robbery and related convictions affirmed; no ineffective assistance in failing to “object or move to exclude evidence of the pre-trial voice identification by the [witness] customer. … The customer identified King’s voice after previously identifying him in a photo array that we have concluded was not impermissibly suggestive. Here, the customer asked to hear a voice to confirm his visual identification, the voice identification procedure was conducted separately from the photographic line- up, he did not view King while listening to the voice, the words spoken by King were not the same as those used in the robbery, and he was 100% certain of his voice identification after being 99% certain of his identification of King in the photograph line-up. Consequently, ‘the subsequent [voice] show-up may be characterized as merely confirmatory and therefore reliable, despite the suggestive procedure.’ Gibbs v. State, 403 S.C. 484, 744 S.E.2d 170 (2012). See also Israel [ v. United States, 521 F.2d 1370, 1374(I)(A) (7 th Cir., 1975)] (‘[w]here as here, the victim heard the voice of a suspect after she had identified him by sight, [a show-up identification] is probably less objectionable than if she had not yet identified him’). Under these circumstances, there was no substantial likelihood of misidentification, and the failure to