☢ test - Í
these witnesses. As to Marsh and Jackson, counsel specifically cross-examined them as to whether they talked about the case together prior to testifying. Thus, the jury was able to evaluate the witnesses' testimony for itself. Accordingly, Trammell has failed to carry his burden of showing that he was prejudiced by his counsel's failure to invoke the rule of sequestration before these witnesses testified. Even if the rule of sequestration had been invoked and the witnesses had violated the rule, such a violation goes to the witnesses' credibility, not the admissibility of their testimony. See Pennington v. State, 313 Ga.App. 764, 770(2)(c), 723 S.E.2d 764 (2012).” Pennington v. State, 313 Ga.App. 764, 723 S.E.2d 13 (January 27, 2012). Burglary and related convictions affirmed; no ineffective assistance shown in failure to invoke rule of sequestration. Only person shown to have been in courtroom who later testified was not at that time identified as a witness or expected to testify, and thus wouldn’t have been sequestered even if rule had been invoked. And even if rule had been invoked and violated, “such a violation ‘generally does not affect the admissibility of the testimony, but may impact the offending witness' credibility.’ (Citations omitted.) Rakestrau v. State, 278 Ga. 872, 876(4) (608 S.E.2d 216) (2005). Here, the jury was informed of the father's earlier presence in the courtroom, defense counsel thoroughly cross-examined him, and the court properly instructed the jurors on their role in resolving conflicts in the evidence and in determining the credibility of witnesses, the weight of the evidence, and whether a witness was impeached. Thus, the jury was able to gauge the victim's father's credibility and make a determination as to the weight, if any, it should give to his testimony. Id.; Glass v. State, 289 Ga. at 548(6)(c); Suggs v. State, 272 Ga. 85, 87(3) (526 S.E.2d 347) (2000).” Hargett v. State, 285 Ga. 82, 674 S.E.2d 261 (January 26, 2009). No ineffective assistance from failure to object to investigator’s unauthorized presence in courtroom during trial. “[Defendants] did not show that the trial court would not have allowed [detective] Yarborough to remain to assist the prosecutor with the orderly presentation of the State's case, see generally Lewis v. State, 283 Ga. 191(4) (657 S.E.2d 854) (2008), and have established no prejudice to their defense from Yarborough's continued presence in the courtroom. To the contrary, the trial transcript reveals defense counsel on cross-examination used Yarborough's presence favorably to highlight inconsistencies he had heard in the testimony given by the earlier witnesses .” Bihlear v. State, 295 Ga.App. 486, 672 S.E.2d 459 (January 9, 2009). No ineffective assistance based on failure to sequester witness. “Bihlear contends his counsel was ineffective for failing to invoke the rule of witness sequestration. He cites to no legal authority, nor have we found any, that holds that merely failing to invoke the rule constitutes deficient performance. Further, he shows that only one witness, the lead detective, was actually present in the courtroom during the testimony of the other witnesses. Of all the witnesses, the lead detective was the witness most likely to be excepted from the rule of sequestration had it been invoked. See, e.g., Lewis v. State, 283 Ga. 191, 195(4) (657 S.E.2d 854) (2006); Warner v. State, 281 Ga. 763, 765 (642 S.E.2d 821) (2007). Further, Bihlear has not shown that any witness was influenced by the testimony of any other witness. Consequently, Bihlear has failed to show that he suffered any prejudice as a result of counsel's failure to invoke the rule.” J. LEAVE OF ABSENCE Mimms v. State, 254 Ga.App. 483, 562 S.E.2d 754 (March 13, 2002) aff'd, 276 Ga. 171, 575 S.E.2d 456 (January 13, 2003). Defense counsel incorporated into his conflict letters a paragraph seeking leave of absence for upcoming months. Each sought leave of absence totaling over 30 days (but not 30 consecutive days). Held, counsel did not have valid leave because “under USCR 16.2, a leave of absence requesting in excess of 30 days is not automatically granted, but rather is left to the court’s discretion.” Jones v. State, 250 Ga.App. 829, 553 S.E.2d 24 (July 16, 2001) aff'd, 276 Ga. 171, 575 S.E.2d 456 (January 13, 2003). Defendant’s accusations were brought during the January-through-March term of Dekalb County State Court and Defendant filed a speedy trial request. Through numerous continuances and leaves of absence, Defendant’s attorney only left the judge a seven-day window in which to try the case. In fact, during one of these days, Defendant appeared before the court for a hearing without his attorney, who had notified the court of a conflict, and Defendant then signed a notice rescheduling a hearing outside of the two-term requirement for a speedy trial. Held, Defendant’s signature on the notice constituted consent to resetting the case outside the two terms of court and waived the speedy trial demand. The Court of Appeals stated that courts must provide timely justice to defendants while preserving judge’s control over their dockets and reasoned that defense counsel must not be allowed to manipulate the system by forcing trial courts to try cases during a short window between leaves of absence and continuances. See also State v. Dodge , 251 Ga.App. 361, 553 S.E.2d 831 (August 9, 2001).
Made with FlippingBook Ebook Creator