☢ test - Í

Culmer v. State, 282 Ga. 330, 647 S.E.2d 30 (June 25, 2007). No ineffective assistance where trial counsel failed to request limiting instruction on prior difficulties before each prior difficulties witness, where trial court gave the instruction before testimony of five of the eight witnesses and in the final charge. Allen v. State, 286 Ga.App. 82, 648 S.E.2d 677 (June 22, 2007). No prejudice shown in requesting charge on identification including language on witness’s level of certainty disapproved in Brodes v. State , 279 Ga. 435 (614 S.E.2d 766) (2005), where identification was also based on DNA evidence (defendant’s semen on shirt). Johnson v. State, 284 Ga.App. 724, 644 S.E.2d 544 (March 30, 2007). No ineffective assistance where counsel requested a charge on prior inconsistent statements to help explain differences between defendant’s testimony and his prior statement to police. “As counsel explained at the hearing on Johnson’s motion for new trial, Johnson took the stand against counsel’s advice.” Tillman v. Massey, 281 Ga. 291, 637 S.E.2d 720 (November 20, 2006). Defendant received ineffective assistance when counsel failed to object to court’s erroneous charge on the presumption of innocence: “ That presumption in our law is for the protection of the innocent. It is not intended to be a cloak behind which guilty persons may hide. ” “Informing the jury that the presumption of innocence is to protect the innocent and not shield the guilty is to imply that one who appears to be guilty for reasons other the evidence presented at trial, i.e., because he has been arrested, indicted, incarcerated, and is on trial, is not entitled to the presumption throughout the trial and the jury’s deliberations. It permits the jury to determine guilt from factors other than the proof adduced at trial, and thereby offends ‘the accused’s constitutional right to be judged solely on the basis of proof adduced at trial.’ Taylor v. Kentucky, [436 U.S. 478, 486 (98 S.Ct. 1930, 56 L.Ed.2d 468) (1978)]. We conclude it is error to give a charge on the presumption of innocence, a fundamental doctrine of criminal jurisprudence, which charge infers that the presumption of innocence is not applicable to all criminal defendants.” This erroneous charge on “a basic component of a fair trial, … a fundamental liberty secured by the Fourteenth Amendment” [ quoting Estelle v. Williams, 425 U.S. 501, 503 (96 S.Ct. 1691, 48 L.Ed.2d 126) (1976)] creates “a probability sufficient to undermine confidence in the outcome of [defendant’s] trial.” Habeas court thus properly granted defendant’s petition and ordered new trial. Lott v. State, 281 Ga.App. 373, 636 S.E.2d 102 (August 30, 2006). In defendant’s voluntary manslaughter prosecution, no prejudice shown by failure to request jury charges on felonies victim may have committed (bolstering defendant’s self- defense argument). “As the charges given fairly informed the jury as to when a homicide is justified, we cannot conclude that there was a reasonable probability that the jury would have reached a different result if an instruction on specific forcible felonies had also been given. [Cit.]” Leonard v. State, 279 Ga.App. 192, 630 S.E.2d 804 (May 4, 2006). Counsel not ineffective for failing to request jury charge on lesser included offense, where defendant expressly desired to pursue “‘an all no nothing defense.’” Quoting Bell v. State , 226 Ga.App. 271, 274, 486 S.E.2d 422 (1997). Accord, Sparks (September 15, 2003), below; Ojemuyiwa v. State , 285 Ga.App. 617, 647 S.E.2d 598 (May 31, 2007) (not ineffective assistance for counsel to choose this strategy); Davis (October 10, 2007), above; Owens v. State , 288 Ga.App. 771, 655 S.E.2d 244 (November 15, 2007); Eller (October 16, 2008), above; Griggs v. State , 303 Ga.App. 442, 693 S.E.2d 615 (April 6, 2010); Sanchez v. State , 327 Ga.App. 500, 759 S.E.2d 576 (June 10, 2014) (not ineffective; defendant feared conviction, even on lesser charge, “would make his federal prosecution for illegal re-entry to the United States much more likely and thus endanger his relationship with all of his children.”); Horne v. State , 333 Ga.App. 353, 773 S.E.2d 467 (June 23, 2015). Robertson v. State, 278 Ga.App. 376, 629 S.E.2d 79 (March 23, 2006). No ineffective assistance where counsel was late filing requests for jury charges on lesser offenses that weren’t supported by the evidence anyway. “ Counsel is not required to perform a futile act. See Carter v. State, 266 Ga.App. 831, 832 (598 S.E.2d 122) (2004).” McConnell v. State, 263 Ga.App. 686, 589 S.E.2d 271 (October 21, 2003). Failure to reserve objections to the charge is not ineffective assistance where the defendant fails to show any error in the charge. Accord, Mahoney v. State , 296 Ga.App. 570, 675 S.E.2d 285 (March 11, 2009). Melson v. State, 263 Ga.App. 647, 588 S.E.2d 822 (October 16, 2003). Appears to hold that failure to request limiting instruction on prior difficulties evidence is ineffective assistance of counsel, satisfying first prong of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) test; but here, no harm shown because of overwhelming evidence of guilt. Compare Nichols (September 17, 2007), above.