☢ test - Í
file a meritless motion cannot amount to ineffective assistance of counsel.” Moss v. State, 298 Ga. 613, 783 S.E.2d 652 (March 7, 2016). Malice murder and related convictions affirmed; no ineffective assistance based on failure to object to autopsy photographs. “A lawyer is not required to make an objection that he reasonably believes will fail, and to demonstrate constitutionally deficient performance, Appellant must show that no competent attorney would think that the objection in question would have failed. See Premo v. Moore, 562 U.S. 115, 124, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011). A competent attorney in the position of Appellant’s trial lawyers would have had every reason to believe that an objection to this autopsy evidence based on OCGA § 24–4–403 would fail, even if Appellant did not affirmatively dispute the State’s proof that the victim was shot to death.” Smith v. State, 335 Ga.App. 742, 782 S.E.2d 824 (February 22, 2016). Convictions for possession of marijuana and cocaine with intent to distribute, and related offenses, affirmed. No ineffective assistance in failing to object to deputy’s opinion testimony on intent to distribute. “Smith’s trial attorney testified at the motion for new trial hearing that his primary defense strategy was to show that the contraband, which was found on the ground near several apartment complexes, did not belong to Smith. Trial counsel testified that Deputy Smith’s testimony was not relevant to this defense, and, moreover, based on the numerous cases he had tried with the prosecuting attorney, he was ‘confident’ that if he had objected, the State’s attorney simply would have elicited testimony to ‘shore up’ the foundation for Deputy Smith’s testimony. The record also shows that trial counsel did cross-examine Deputy Smith, and that instead of attacking his credentials, attempted to show that his opinion about Smith’s intent in possessing the drugs was ill-founded.” Dority v. State, 335 Ga.App. 83, 780 S.E.2d 129 (November 20, 2015). Aggravated child molestation and related convictions affirmed. Under 2013 Evidence Code, no ineffective assistance in failing to request preliminary hearing on alleged victims’ outcry statements and their indicia of reliability. Trial counsel didn’t realize that, at trial in January 2013, OCGA § 24-8-820 required finding of “sufficient indicia of reliability” in child hearsay. (Effective July 1, 2013, that requirement was removed.) “Nevertheless, a hearing to determine the indicia of reliability of such statements was not a strict condition precedent to the admissibility of the statements. … ‘[A]s long as sufficient evidence of indicia of reliability appears in the record either before or after the introduction of the child’s out-of- court statements, the fair trial rights of the defendant are adequately protected,’” quoting Gregg v. State, 201 Ga.App. 238, 240(a) (411 S.E.2d 65) (1991). “Even so, ‘it may be advisable in some situations to hold such a hearing outside the presence of the jury,’ Reynolds [ v. State, 257 Ga. 725, 726(2) (363 S.E.2d 249) (1988)], and this Court has held that under certain circumstances, a pretrial hearing outside the presence of the jury can be necessary to prevent harm to the defendant from the admission of unreliable child hearsay statements. Ferreri v. State, 267 Ga.App. 811, 814–815 (600 S.E.2d 793) (2004); see also Roberson v. State, 241 Ga.App. 226, 227(1) (526 S.E.2d 428) (1999) (‘Cases decided by the appellate courts of this state make clear, however, that when evidentiary rules conflict with the provisions of the child hearsay statute, a separate hearing may be necessary to avoid the presentation of inadmissible matter to the jury.’).” Here, “because ‘the trial court ultimately found the statements reliable [based on all the evidence] and admitted them and obviously would have done the same following a separate hearing,’ we find no error. Reynolds, 257 Ga. at 726(2).” Silvey v. State, 335 Ga.App. 383, 780 S.E.2d 708 (November 20, 2015). Burglary convictions affirmed. No ineffective assistance in failing to object to evidence that co-conspirator “admitted that he committed the fourteen burglaries with which he was charged, and only committed two of them alone, but he never testified that Silvey was involved in the other twelve burglaries.” “At the Motion hearing, Trial Counsel testified that he did not object because the inference he drew from this evidence was that [co-conspirator] Webb had been committing burglaries all over the State. He did not think that the testimony hurt Silvey, noting that Webb never testified that Silvey was the only person with whom he ever committed burglaries and that he believed no such inference arose at trial.” This wasn’t unreasonable trial strategy. Hurt v. State, 298 Ga. 51, 779 S.E.2d 313 (November 2, 2015). Felony murder and related convictions affirmed; no ineffective assistance where counsel failed to object to witness’s out-of-court statements which were consistent with the defense theory that the witness was the actual killer. “[T]he recordings … provide not-insubstantial support for the theory that all the details concerning the murder came exclusively from Freeland and that Freeland was the actual murderer; trial counsel certainly focused on these ideas during his opening statement and closing argument.” Marshall v. State, 297 Ga. 445, 774 S.E.2d 675 (June 29, 2015). Felony murder and related convictions affirmed. 1. No prejudice shown from counsel’s failure to object to hearsay testimony by police officer. “When counsel's alleged deficient performance is the failure to object to hearsay evidence, ‘such an error may not warrant a new trial ...
Made with FlippingBook Ebook Creator