☢ test - Í

trial counsel spoke to Smith about calling Lyles to testify, and Smith agreed with his counsel's assessment that ‘it could be dangerous to put Mr. Lyles up.’” Accord, Harper v. State , 330 Ga.App. 561, 768 S.E.2d 755 (January 28, 2015) (not ineffective to decide not to call witness who “became angry and unresponsive after counsel subpoenaed him to testify. When the witness did not come to court, trial counsel made a strategic decision after the State rested not to force the witness to court based on his lack of cooperation.”). Mason v. State, 325 Ga.App. 609, 754 S.E.2d 397 (January 24, 2014). Burglary and related convictions affirmed; no ineffective assistance where counsel opted to use police officer’s incident report in lieu of calling the officer as a witness. “Mason's trial counsel testified that he decided to use the stipulated incident report in lieu of making further efforts to secure the officer's testimony because he believed that the report would be more favorable to the defense. Trial counsel explained that the stipulated incident report was a ‘short blurb paragraph’ that was ‘[v]ery positive for [his] client’ which he was able to ‘turn’ and ‘twist’ to his advantage in his closing argument to assert that the dog should have found Mason if he had broken into the furnished townhouse. In contrast, trial counsel, based on his 37 years of experience as an attorney, believed that ‘there would probably be some hems and haws about what happened’ if the officer himself had testified.” Counsel’s suspicion proved correct – the officer’s testimony at hearing on motion for new trial was not favorable to defendant. Mingledolph v. State, 324 Ga.App. 157, 749 S.E.2d 757 (October 8, 2013). Voluntary manslaughter and related convictions affirmed; no ineffective assistance from failure to present witnesses, where defendant failed to present the witnesses’ testimony at trial. “Our Supreme Court has held that where a defendant's ineffective assistance claim is based on trial counsel's failure to call one or more witnesses to testify on the defendant's behalf, the defendant must either call the witness to testify at the motion for new trial hearing or present some legally acceptable substitute for their testimony to prove the prejudice prong of the Strickland test. Dickens v. State, 280 Ga. 320, 322(2), 627 S.E.2d 587 (2006). See also Reaves v. State, 292 Ga. 545, 550(4), 739 S.E.2d 368 (2013); Grell [ v. State, 291 Ga. 615, 620(4), 732 S.E.2d 741(b) (2012)]. The investigative summaries relied upon by Mingledolph, however, do not constitute a legally acceptable substitute for sworn testimony. [fn: We emphasize that these are not statements made and signed by the witnesses themselves; rather, they are case notes prepared by the investigating officers, in which the officers summarized the content of their interviews with various witnesses. ] ” Darst v. State, 323 Ga.App. 614, 746 S.E.2d 865 (July 16, 2013). Physical precedent only. Convictions for aggravated child molestation reversed, based on ineffective assistance of counsel. Defendant showed that counsel was deficient in multiple ways, and that there is a reasonable probability that the outcome of the trial would have been different but for counsel’s deficient performance. 1. Counsel was deficient in failing “to obtain the children's school, therapy, and [DFCS] records.” At new trial hearing, defense presented the records and showed that they would have bolstered the defense argument and cast doubt on the State’s case. “During the hearing on the motion for new trial, trial counsel admitted that he had not obtained a subpoena for any of the records prior to trial, and he offered no strategic reason for failing to do so. Instead, he stated that it was his ‘understanding’ that the Department's records for the children had been lost.[fn] Although he later testified that he ‘was told [the records] were lost,’ he never identified any person he had contacted or other measures he had taken prior to trial to verify whether the records were, in fact, available. Moreover, trial counsel admitted that he did not know what information was in the Department's records, stating that ‘[m]aybe it would have been something helpful [to Darst], maybe not.’ Instead of trying to obtain the records, he decided that he would just ‘let it go’ and try to use the absence of the records to Darst's advantage at trial by arguing to the jurors that the records were just another piece of evidence the State had failed to present that would have helped them better understand the children's background. Further, although trial counsel testified that he made some efforts to contact the children's therapist before trial, he offered no explanation for why he did not attempt to subpoena the children's therapy or school records.” 2. Cumulative effect of counsel’s deficient performance created “a reasonable probability that the outcome of the trial would have been different.” Citing Perkins v. Hall, 288 Ga. 810, 812–818(II) (708 S.E.2d 335) (2011) (the collective effect of trial counsel's errors resulted in the reversal of the defendant's death sentence).” Counsel here also failed to present expert witnesses, shown at motion hearing to be valuable to the defense; counsel admitted that it never occurred to him to present such evidence, although he knew it existed. Counsel also failed to object to harmful hearsay. Strickland v. State, 323 Ga.App. 348, 746 S.E.2d 204 (July 9, 2013). Physical precedent only. DUI conviction affirmed; no ineffective assistance where counsel elected to proceed without his only witness, who failed to appear for trial after being arrested for unrelated charges. Witness would have testified that he, drove defendant to location where defendant was found, asleep and drunk, in the bed of his truck, with engine running and parking lights on. Officer found the truck