☢ test - Í

testing of the state’s case” just because counsel conceded some offenses in opening statement. Counsel and defendant agreed to trial strategy conceding the commission of certain offenses, which were supported by compelling evidence including defendant’s confession, to focus defense on offense where evidence was more equivocal. “‘Counsel’s decision as to which theory of defense to pursue is a matter of strategy and tactics[.]’ (Footnote and punctuation omitted.) Kemp v. State, 257 Ga.App. 340, 341(2) (571 S.E.2d 412) (2002). ‘As a general rule, matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel. We agree with the trial court’s implicit determination that trial counsel’s choice of trial strategy was not unreasonable.’ (Citations omitted.) Moore v. State, 278 Ga. 397, 400-401(2)(c) (603 S.E.2d 228) (2004). See Kendrick v. State, 279 Ga.App. 263, 266-267(2)(a) (630 S.E.2d 863) (2006); Lawson v. State, 275 Ga.App. 334, 339-340(4)(a) (620 S.E.2d 600) (2005).” State v. Heath, 277 Ga. 337, 588 S.E.2d 738 (November 10, 2003). Reversing 258 Ga.App. 612, 574 S.E.2d 852 (2002); the Court of Appeals improperly “relieved Heath of the burden of establishing prejudice” as required by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (applies Strickland to guilty pleas). “In Strickland, the Supreme Court identified three instances in which the defendant would be relieved of his burden to establish prejudice stemming from counsel’s errors: (1) an actual or constructive denial of counsel, (2) government interference with defense counsel, and (3) counsel that labors under an actual conflict of interest that adversely affects his performance. Heath claims that his counsel’s performance was so devoid of effort that it amounted to a constructive denial of counsel.” Counsel’s alleged failures here (failure to investigate defendant’s defenses and factual claims, failure to advise of possible sentence, failure to research law applicable to case) “are precisely the type of shortcomings that courts routinely subject to a prejudice analysis .” Accord , “ Shaheed v. State, 276 Ga. 291, 292 (578 S.E.2d 119) (2003) (failure to inform defendant of maximum sentence); Spencer v. State, 275 Ga. 192, 193 (563 S.E.2d 839) (2002) (failure to investigate another possible suspect); Kirkland v. State, 274 Ga. 778, 779-780 (560 S.E.2d 6) (2002) (counsel unaware of law regarding disqualification of jurors); Ledbetter v. State, 262 Ga. 370, 371 (418 S.E.2d 57) (1992) (failure to consult with client).” Accord, Turpin v. Curtis , 278 Ga. 698, 606 S.E.2d 244 (November 22, 2004) (No presumption of prejudice where counsel fails to tell defendant of his right to testify or, here, his right to remain silent); Machuca v. State , 279 Ga.App. 231, 630 S.E.2d 828 (May 5, 2006) (no presumption of prejudice where trial counsel failed to object to prosecution’s repeated use of the word “rape,” but trial court instructed jury on distinction between rape and consensual sex); Wafford v. State , 283 Ga.App. 154, 640 S.E.2d 727 (January 3, 2007) (alleged failure to interview key defense witness prior to trial). Carswell v. State , 244 Ga.App. 516, 534 S.E.2d 568 (May 12, 2000). Convictions for kidnapping, child molestation, and related offenses reversed; defendant “was denied his right to effective assistance of counsel by the failure to appoint counsel to represent him until two years after his arrest and after he had requested appointment of Counsel at his initial appearance before a magistrate.” “Uniform Superior Court Rule 30.2 provides that: ‘[b]efore arraignment the court shall inquire whether the accused is represented by counsel and, if not, inquire into the defendant's desires and financial circumstances. If the defendant desires an attorney and is indigent, the court shall authorize the immediate appointment of counsel.’ Despite this requirement, Carswell was arraigned without counsel and, as far as reflected by the record here, without further inquiry concerning his previously expressed desire for counsel.” Rejects State’s argument that the duty to appoint counsel doesn’t arise until completion of an application: “The Guidelines of the Georgia Indigent Defense Council … refute this argument. Section 1.1 provides that ‘[c]ounsel shall be provided to all persons eligible [fn] ... whenever such a person is accused of a felony by indictment, warrant or warrantless arrest....’ (Emphasis supplied.) As of his arrest without a warrant on December 13, 1995, Carswell was entitled to counsel. Section 1.2 provides that ‘[c]ounsel shall be appointed for every eligible person in custody within 72 hours of arrest or detention.’ (Emphasis supplied.) Under the specific facts of this situation and considering the length of time after which Carswell had requested counsel that he was deprived of counsel, we conclude that this is one of those unique cases in which no specific harm need be shown in order to require redress,” citing United States v. Cronic, 466 U.S. 648, 658–659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). 82. PRE-TRIAL INVESTIGATION/PREPARATION, See also subheading EXPERT WITNESS, FAILURE TO HIRE/SEEK FUNDS, and other more specific subheadings above and below King v. State, A16A0685, ___ Ga.App. ___, ___ S.E.2d ___, 2016 WL 1726147 (May 2, 2016). Statutory rape and related convictions affirmed. No ineffective assistance in failure to obtain security camera recordings from hotel/scene of the crime. Defendant contends that the footage would have shown him arriving at the hotel alone, but that trial counsel waited for several months to request it, by which time the footage was recorded over. However, defendant fails to show that the footage ever existed, or existed at the time of counsel’s appointment (some three months after the incident). “We recognize that ‘counsel must prioritize his or her investigation and preparation for trial,’ Chapel v. State, 270 Ga. 151, 159 (510 S.E.2d 802) (1998); therefore, we cannot conclude that waiting several months before seeking video surveillance

Made with FlippingBook Ebook Creator