Baines v. State

Decision Date30 September 1991
Docket NumberNo. A91A0819,A91A0819
PartiesBAINES v. The STATE.
CourtGeorgia Court of Appeals

Alice C. Stewart, Atlanta, for appellant.

Thomas J. Charron, Dist. Atty., Debra H. Bernes, J. Richard Edwards, Nancy I. Jordan, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

In this case of armed robbery, OCGA § 16-8-41, the evidence showed that appellant entered a Majik Market at approximately 1:00 a.m., on August 10, 1989, and forced the cashier, at gunpoint, to give him money. The cashier gave him $100, consisting of ten rolls of quarters. After the appellant left, the cashier immediately called the police, to whom he described the robber. A customer driving to the Majik Market observed a white pickup truck exiting the parking lot in a hurried manner with its lights turned off, and this was also communicated to the police. A white pickup truck was stopped by the police within a couple of miles of the store. Appellant was driving the truck, and Billy Rose White was a passenger. A handgun and a roll of quarters were found in the truck. Appellant was taken back to the Majik Market in a patrol car, and the cashier positively identified him as the robber approximately 20 minutes after the robbery had occurred.

White gave a statement to the police implicating appellant. They appeared for a joint trial, but the trial court ruled that White's statement to the police was inadmissible, and a nolle prosequi was entered against White.

1. The trial court denied the motion for new trial, rejecting the ground of ineffective assistance of trial counsel.

In asserting an ineffective-assistance claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), defendant must make two showings: that counsel's performance was deficient; that the deficient performance prejudiced the defense. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985); Baggett v. State, 257 Ga. 735(1), 363 S.E.2d 257 (1988).

(a) Appellant's primary complaint concerns counsel's failure to use a statement by former co-defendant White that Baines left the handgun in the truck before going into the market and did not use it in perpetrating the robbery. If this were so, only the lesser-included offense of robbery by intimidation would have occurred. OCGA § 16-8-41(a). Armed robbery, unlike robbery by intimidation, draws a mandatory minimum sentence of five years' imprisonment, without eligibility for parole. OCGA § 16-8-41(b).

Baines urges a demonstration of ineffectiveness in counsel's failure to use White's statement for mitigation of punishment. The court imposed a sentence of seven years' imprisonment, noting that Baines was a first offender, had received an honorable discharge from the military, and had obtained a G. E. D. This same judge, knowing whether White's statement would have affected the choice of sentence, found that counsel was not ineffective. We cannot say that this finding was "clearly erroneous." Smith v. State, 256 Ga. 483, 351 S.E.2d 641 (1986).

(b) Baines also complains of counsel's failure to use White's statement in the guilt-innocence phase of trial, in order to challenge the credibility of the cashier's testimony that Baines was the robber and used a gun.

At the hearing on the motion for new trial, counsel testified that he was aware of this statement and, in consultation with appellant, chose not to use it. The strategy selected was to require the State to prove beyond a reasonable doubt that appellant was in fact the person who had committed the robbery, rather than to introduce this statement and thereby admit appellant's participation in the crime. Baines hoped to be found not guilty altogether, for lack of identification beyond a reasonable doubt. Use of this statement, moreover, would only have authorized, but not compelled or assured, a conviction of the lesser crime. Counsel testified that once the charges against the co-defendant were dismissed, there would be no statement by him implicating appellant because it had not been produced to the co-defendant; that the only solid piece of evidence against appellant was the roll of quarters; and that the descriptions of the vehicle, the weapon, and appellant were vague, questionable, and subject to challenge. Counsel also did not want to lose the right to closing argument by calling the accomplice as a witness.

As to the performance inquiry under Strickland, the question is "whether counsel's assistance was reasonable considering all the circumstances." In measuring this assistance, "[e]very effort must be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time; ... counsel is entitled to a 'strong presumption' (which the defendant must overcome) that counsel's conduct falls within the wide range of reasonable professional conduct and that all significant decisions were made in the exercise of reasonable professional judgment." Smith v. Francis, supra, 253 Ga. at 783, 325 S.E.2d 362, citing Strickland.

Appellant has not overcome this presumption.

(c) Other contended omissions on trial counsel's part are: he did not attend the preliminary hearing (he was not retained to represent appellant until after the preliminary hearing). He did not interview State's witnesses or obtain copies of their statements (he testified that he had been made privy to this information and was aware of what they had said). He did not file a Brady motion or other pretrial motions. He failed to call character witnesses. His statements in closing argument--that although the police testified as truthfully as they could, the State had not proved its case--were tactically unwise.

The latter two complaints again challenge the exercise of counsel's professional judgment in defending the case. His decisions were not unreasonable as a matter of law. The remaining complaints failed to evoke prejudice. "Concerning the prejudice component [of Strickland ], the Court held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's unprofessional errors, the result of the proceeding would have been different...." Smith v. Francis, supra, 253 Ga. at 783, 325 S.E.2d 362.

The view expressed in Gates v. Zant, 863 F.2d 1492, 1498(6) (11th Cir.1989), citing Strickland, is pertinent here: "[g]iven the finite resources of time and money that face a defense attorney, it simply is not realistic to expect counsel to investigate substantially all plausible lines of defense. A reasonably competent attorney...

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15 cases
  • Davenport v. the State.
    • United States
    • Georgia Supreme Court
    • June 20, 2011
    ...); Welch v. State, 207 Ga.App. 27(8), 427 S.E.2d 22 (1992) (physical precedent only, citing Mafnas and Chesser ); Baines v. State, 201 Ga.App. 354(5), 411 S.E.2d 95 (1991) (citing Mafnas ). But see Yeary v. State, 302 Ga.App. 535, 537, 690 S.E.2d 901 (2010) (“the judge in this state must ma......
  • Parker v. State
    • United States
    • Georgia Court of Appeals
    • February 21, 1996
    ...concluding that counsel was ineffective. We find no reason to conclude this decision was clearly erroneous. See Baines v. State, 201 Ga.App. 354, 355, 411 S.E.2d 95 (1991). Parker claims trial counsel was ineffective for failing to discover and object to the trial court's response to a note......
  • Parrott v. State
    • United States
    • Georgia Court of Appeals
    • March 2, 2015
    ...possession of a firearm during the commission of a crime) fell outside their respective statutory limits.33 See Baines v. State, 201 Ga.App. 354, 355, 411 S.E.2d 95 (1991) ; see also Zant, supra at 97–98(2), 440 S.E.2d 657 (determining that petitioner failed to show a reasonable probability......
  • Jackson v. State
    • United States
    • Georgia Court of Appeals
    • June 15, 1993
    ...investigation so long as the decision was reasonable under the circumstances.' " (Emphasis supplied in part.) Baines v. State, 201 Ga.App. 354, 356-357(1c), 411 S.E.2d 95 (1991). Contrary to appellant's assertions, there was no unprofessional failure to investigate the State's case. Compare......
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