☢ test - Í
impression in this state: Does a defendant have a right to effective assistance of an expert witness which is distinct from his right to effective assistance of counsel? We answer this question in the negative. We hasten to add, however, that the adequacy of an expert’s assistance can be examined within the context of an ineffective assistance of counsel claim.” Defendant’s psychiatric expert, unknown to defense counsel, was suffering from AIDS-related dementia when he took the stand at defendant’s murder trial. “His clothes were disheveled; he was unkempt and sloppy. His testimony was the worst defense counsel had ever seen: He confused names and appeared to be irrational; his voice fluctuated inappropriately; and his facial expressions were ‘cartoonish.’” His testimony varied significantly from what he told counsel, and seriously damaged the defense. “The due process clause ensures that a defendant will be given access to a competent psychiatrist when the defendant’s mental state is in issue. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). But this is not to say that a defendant is entitled to the effective assistance of a psychiatrist in addition to the effective assistance of counsel. On the contrary, a defendant has no right to the effective assistance of a psychiatrist, or any other expert. Waye v. Murray, 884 F.2d 765 (4 th Cir., 1989) (per curiam).” Remanded “to determine whether defense counsel were ineffective in presenting Dr. Harris’ testimony once it became apparent that he was incompetent, [or] in failing to seek a continuance to procure the assistance of another expert for the remainder of the guilt/innocence and the penalty phases of the trial.” 12. TENDER Fowler v. State, 294 Ga.App. 864, 670 S.E.2d 448 (November 4, 2008). “[A]lthough a formal tender of an expert witness is preferred for the sake of clarity, the lack of a formal tender is not fatal as long as the opposing party had the opportunity to cross-examine the expert about his or her credentials and testimony. Morrow v. State, 230 Ga.App. 137, 140 (3)(a) (495 S.E.2d 609) (1998).” Fielding v. State, 278 Ga. 309, 602 S.E.2d 597 (September 13, 2004). “If, after qualifying a witness as an expert but without a formal tender, counsel proceeds to ask for expert opinion evidence, the trial court has tacitly or impliedly accepted the witness as an expert.” Opio v. State , 283 Ga.App. 894, 642 S.E.2d 906 (March 7, 2007). Accord, Walton v. State , 291 Ga.App. 736, 662 S.E.2d 820 (May 30, 2008) (where foundation was laid for qualifications, but witness not formally tendered as expert, “the jury was able to infer his expertise on the subject” – here, typical behavior of shoplifters); Wilson v. State , 317 Ga.App. 171, 730 S.E.2d 500 (July 12, 2012); Butler v. State , 292 Ga. 400, 738 S.E.2d 74 (February 4, 2013). Alexander v. State, 264 Ga.App. 34, 589 S.E.2d 857 (November 7, 2003). “‘[A]lthough [officer was] not formally tendered by the State as [an] expert witness[ ], the prosecutor laid the foundation for [his] opinion[ ] by eliciting testimony about [his] experience in drug enforcement, training in drug interdiction, and knowledge of the customary methods employed in the use and sale of cocaine.’ ‘It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular profession to entitle him to be deemed prima facie and expert.’” Accord, Massingill v. State , 240 Ga.App. 690, 524 S.E.2d 746 (November 4, 1999); Gray v. State , 291 Ga.App. 573, 662 S.E.2d 339 (May 19, 2008). Hammett v. State, 246 Ga.App. 287, 539 S.E.2d 193 (September 11, 2000). Theft by taking conviction affirmed; valuation expert was properly allowed to testify as an expert despite lack of formal tender. “‘Tender may be formal in oral announcement before the trial judge or before the jury. Tender may be implied after the foundation for qualification has been laid and counsel has asked if the examination of the witness may proceed and is instructed by the trial court to proceed. If, after qualifying the witness as an expert but without formal tender, counsel proceeds to ask for expert opinion evidence, ... the trial court has tacitly or impliedly accepted the witness as an expert.’ (Citation and footnotes omitted.) In re: C.W.D., 232 Ga.App. 200, 207(3)(b), 501 S.E.2d 232 (1998).” Werner v. State, 246 Ga.App. 677, 538 S.E.2d 168 (August 10, 2000). DUI conviction affirmed; trial court properly charged jury on officer’s testimony as an expert though he was never formally tendered as such. “[A] trial judge has discretion to determine whether a witness possesses the learning and experience in a particular profession to be deemed an expert and to so instruct the jury even without a request. Wiley [ v. State, 238 Ga.App. 334, 519 S.E.2d 10 (1999)]; Hudson [ v. State, 175 Ga.App. 692, 334 S.E.2d 20 (1985)]. See Lindley v. State, 225 Ga.App. 338, 340-341, 484 S.E.2d 33 (1997) (trial court did not err in ruling that officer was expert witness notwithstanding lack of affirmative tender as expert witness).” 13. VICTIM’S CREDIBILITY See also subheading CREDIBILITY – BOLSTERING, above Gooden v. State, 316 Ga.App. 12, 728 S.E.2d 693 (May 18, 2012). Rape, incest and related convictions affirmed;
Made with FlippingBook Ebook Creator