☢ test - Í
reasonableness of counsel’s performance, not counsel’s subjective state of mind.’ [ Harrington v. Richter , 562 U.S. 86, 110 (131 S.Ct. 770, 790, 178 L.Ed.2d 624) (2011)] (citations omitted). Thus, a tactical decision will not form the basis for an ineffective assistance of counsel claim unless it was ‘so patently unreasonable that no competent attorney would have chosen it.’ McKenzie v. State , 284 Ga. 342, 347 (667 S.E.2d 43) (2008). Accordingly, we must presume that [attorney] Axam’s decisions not to raise the objections now posited by Brown were a matter of strategy and trial tactics, and the question under Strickland’s first prong is whether Brown showed that no competent attorney would have decided not to make those objections.” No such showing here – questions now proposed by defendant would have undermined the defense presented at trial. Accord, Flemister v. State , 317 Ga.App. 749, 732 S.E.2d 810 (October 2, 2012) (decision not to object to officer’s testimony presumed strategic); Wickerson v. State , 321 Ga.App. 844, 743 S.E.2d 509 (May 22, 2013) (“A competent attorney could have made the strategic decision to forego objecting to the first victim's brief, generalized testimony about being scared to testify so as not to draw unnecessary attention to it.”). Fosselman v. State, 306 Ga.App. 84, 701 S.E.2d 559 (September 16, 2010). Defendant’s child molestation and sexual battery convictions affirmed; no ieffective assistance, where counsel advised defendant to reject State’s plea offer of probation only and take the case to trial. “At the motion for new trial hearing, trial counsel testified that the victim's mother represented to both him and the State that she did not want the case to be prosecuted and that she did not believe the abuse occurred. The State's probation offer would have included Fosselman's registration as a sex offender, which trial counsel found undesirable, and trial counsel doubted the strength of the State's case and his client's guilt. For these reasons, Fosselman's attorney counseled him not to accept the State's plea offer: ‘we felt we weren't guilty because they kept telling us that we weren't really guilty; right? So that's how we played it.’” Counsel’s strategic decision was not “so patently unreasonable that no competent attorney would have chosen [it].” Jacobs v. State, 299 Ga.App. 368, 683 S.E.2d 64 (July 24, 2009). “‘In the absence of testimony to the contrary, counsel's actions are presumed strategic.’ (Citation and punctuation omitted.) McRae v. State, 289 Ga.App. 418 (657 S.E.2d 323) (2008).” Burnette v. State, 291 Ga.App. 504, 662 S.E.2d 272 (May 13, 2008) (physical precedent only). “‘Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.’ Gordon v. State, 252 Ga.App. 133, 555 S.E.2d 793 (2001)” Nichols v. State, 288 Ga.App. 118, 653 S.E.2d 300 (September 17, 2007). Absent evidence to the contrary, counsel’s decision not to ask for a limiting instruction on prior bad acts evidence is presumed “due to a matter of trial strategy or tactics and not due to his ineffectiveness.” King v. State, 287 Ga.App. 375, 651 S.E.2d 496 (August 30, 2007). No ineffective assistance from counsel’s “tactical decision not to challenge the fact that a substance was found or that the substance was in fact marijuana. His strategy was to instead argue that the marijuana did not belong to King. As we have previously held, ‘[t]rial strategy and tactics do not equate with ineffective assistance of counsel,’” citing Harris v. State , 279 Ga.App. 232, 486 S.E.2d 61 (1979), “[s]ee also Kilpatrick v. State, 252 Ga.App. 900, 901-902(1) (557 S.E.2d 460) (2001).” Hutchens v. State, 281 Ga.App. 610, 636 S.E.2d 773 (September 20, 2006). No ineffective assistance of counsel where 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).” Copeland v. State, 281 Ga.App. 11, 635 S.E.2d 283 (August 7, 2006). “Trial counsel testified that he chose not to seek a retest of the cocaine, believing that the original test had been properly conducted and that an additional test might identify the presence of more cocaine. Trial counsel’s decision not to retest the contraband thus was strategic, foreclosing Copeland’s claim of ineffectiveness on this account. See Taylor v. State, 270 Ga.App. 637, 637-638(1) (607 S.E.2d 163) (2004).” Taylor disapproved on other grounds, Miller v. State , 285 Ga. 285, 676 S.E.2d 173 (April 28, 2009).
Made with FlippingBook Ebook Creator