☢ test - Í

Buttram v. State, 280 Ga. 595, 631 S.E.2d 642 (June 12, 2006). “In its written order on the motion for new trial issued after it had both tried the case and heard from Buttram’s counsel at the hearing on the motion for new trial, the trial court determined that trial counsel was not ineffective in failing to object to every instance of hearsay where counsel testified that he made a strategic decision not to object in order to avoid alienating a jury that would ultimately determine whether to impose a sentence of death on his client. Because his actions fell within sound trial strategy and because Buttram fails to show how the lack of hearsay objections prejudiced his case, we affirm the findings of the trial court. Kelly v. State, 267 Ga. 252(2) (477 S.E.2d 110) (1996).” Estes v. State, 279 Ga.App. 394, 631 S.E.2d 438 (May 15, 2006). No ineffective assistance for failing to object to the testimony of defendant’s own witness on direct: mother of the child molesting victim, called to testify about her own allegations of having been molested as a child by defendant. “At the hearing on the motion for new trial, counsel testified that he believed the mother so ‘unbelievable’ a witness that her ‘exaggerations’ and ‘tirades’ would help Estes’ case rather than hurt it, and that he called the witness for these reasons. This judgment is well supported by the record of the mother’s testimony, which includes outbursts, nonsensical answers, and unauthorized departures from the courtroom. There was no deficient performance in calling this witness to testify in the hope that the jury would find her testimony, including her accusations against Estes, incredible. [Cit.]” Accord, Mauldin v. State , 313 Ga.App. 228, 721 S.E.2d 182 (December 7, 2011) (no ineffective assistance in strategically allowing child molestation victim’s statements “because they showed that some of the victim’s allegations against Mauldin were ‘outlandish’ and that she was ‘off’ when making her allegations.”). Machuca v. State, 279 Ga.App. 231, 630 S.E.2d 828 (May 5, 2006). “ No ineffective assistance where trial counsel failed to object to repeated references to the incident in question as ‘rape.’” “To be sure, ‘[r]eference to an incident as rape states a conclusion usually to be determined by the jury,’” quoting Stewart v. State, 259 Ga.App. 117, 123- 124(3)(b), 576 S.E.2d 93 (2003), vacated and remanded on other grounds, 277 Ga. 138, 587 S.E.2d 602 (2003), affirmed after remand, 268 Ga.App. 243, 601 S.E.2d 755 (2004). “[A]lthough trial counsel could have raise repeated objections or filed a pretrial motion in limine, where, as here, ‘the trial court clearly framed the distinction between consensual sexual activity and the crime of rape, ’ [citing Stewart, supra and other] the trial court’s finding that Machuca was afforded effective assistance of counsel is not clearly erroneous.” “[T]his is not the type of circumstance to which a presumption of prejudice would apply,” citing Heath (November 10, 2003) – see Attorneys – Ineffective Assistance of Counsel – Presumption of Ineffectiveness. Accord, Osei-Owusu v. State , 319 Ga.App. 33, 735 S.E.2d 75 (November 29, 2012). Nguyen v. State, 279 Ga.App. 129, 630 S.E.2d 636 (April 27, 2006). “While use of the word ‘rape’ may be objectionable in some circumstances, [fn: See Arnold v. State, 166 Ga.App. 313, 317(7) (304 S.E.2d 118) (1983) (reference to an incident as ‘rape’ states a conclusion usually to be determined by the jury). ] and defense counsel may file a motion in limine to prohibit the use of the term ‘rape,’ see Glass v. State, 255 Ga.App. 390, 403(10)(e) (565 S.E.2d 500) (2002), we cannot conclude that trial counsel’s failure to file such a motion here constituted ineffective assistance of counsel. See Glass v. State, 255 Ga.App. at 403(10)(e).” Glidewell v. State, 279 Ga.App. 114, 630 S.E.2d 621 (April 27, 2006). Full court opinion. Overruled on other grounds, Reynolds v. State , 285 Ga. 70, 673 S.E.2d 854 (February 23, 2009). 1. Failure to request a limiting instruction on similar transaction evidence until the close of evidence was not per se ineffective assistance. 2. Prosecutor’s argument that “we know [defendant] did it” was “arguably” an improper expression of personal opinion, but defense counsel’s decision not to object to it was strategic, as it highlighted the defense argument that law enforcement failed to investigate other possible perpetrators. 3. Overruled on this point, Reynolds v. State , 285 Ga. 70, 673 S.E.2d 854 (February 23, 2009). “Glidewell claims he received ineffective assistance of counsel when his counsel failed to make a contemporaneous objection to the prosecutor’s comment in opening argument that Glidewell had failed to contact the police. In particular, Glidewell points to his counsels’ failure to object to the prosecutor’s statement that ‘[Glidewell], the estranged husband of the victim ..., never called the Sheriff’s Office, never called the police, wasn’t the least bit worried, because he killed her.’ The general rule is that ‘a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative.... [S]uch a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.’ Mallory v. State, 261 Ga. 625, 630(5) (409 S.E.2d 839) (1991). However, ‘ the rule prohibiting comments regarding prearrest silence is properly limited to a defendant’s silence in the face of questions by an agent of the State or his failure to come forward when he knew that he was the target of a criminal investigation .’ (Citations, footnote and emphasis omitted.) Morrison v. State, 251