Beattie v. State, A99A1987.

• Citation: 523 S.E.2d 389,240 Ga. App. 327
• Decision Date: 08 October 1999
• Docket Number: No. A99A1987.,A99A1987.
• Parties: BEATTIE v. The STATE.
• Court: United States Court of Appeals (Georgia)

523 S.E.2d 389

240 Ga. App. 327

BEATTIE v. The STATE.

No. A99A1987.

Court of Appeals of Georgia.

October 8, 1999.

Turner & Willis, Christopher W. Willis, Gainesville, for appellant.

Lydia J. Sartain, District Attorney, Arturo Corso, Assistant District Attorney, for appellee.

McMURRAY, Presiding Judge.

Defendant was tried before a jury and convicted of aggravated assault and two counts of simple battery. These convictions are based on proof that defendant, on three occasions, physically assaulted the victim— his former female friend. After the admission of evidence at trial that at least one of these assaults was committed while defendant was in possession of a handgun, the trial court accepted defendant's guilty plea for possession of a firearm by a convicted felon. This appeal followed the denial of defendant's motion for new trial. Held:

1. Defendant contends the trial court abused its discretion in denying his motion for continuance.

Although defendant was represented by a court-appointed attorney, defendant was permitted to address the trial court, pro se, just before trial and move for a continuance based on his alleged need to subpoena witnesses. The trial court denied this motion, but offered defendant a break so that he could contact any witness he preferred to call.

The trial court did not err in denying defendant's motion for continuance because defendant did not have the right to assert this motion on his own, without the consent of his attorney. A criminal defendant does not have the right to represent himself and also be represented by an attorney. Maddox v. State, 218 Ga.App. 320(1), 321, 461 S.E.2d 286. Moreover, since defendant had been represented by an attorney for more than five months before trial, we find no error because, where witnesses have not been subpoenaed and other statutory requirements have not been met, it is not an abuse of discretion to refuse a postponement of trial to subpoena witnesses. Halthon-Howard v. State, 234 Ga.App. 229(1), 230, 506 S.E.2d 415.

2. Defendant contends the trial court erred in denying his motion for new trial, arguing that his trial attorney provided him with ineffective assistance. "`The bench mark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel's performance was deficient, i.e., that counsel's performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings.' (Citations and punctuation omitted.) Richardson v. State, 194 Ga. App. 358, 358-359, 390 S.E.2d 442 (1990)." Jacobson v. State, 201 Ga.App. 749, 752(5), 412 S.E.2d 859 (1991); Spivey v. State, 193 Ga.App. 127, 130(3), 386 S.E.2d 868 (1989). Moody v. State, 206 Ga.App. 387, 388(1), 425 S.E.2d 397.

(a) Defendant claims in the case sub judice that his trial attorney was ineffective because he did not subpoena a law enforcement officer to testify on his behalf at trial, because he did not file pre-trial discovery motions, and because he did not request any jury instructions. These assertions provide no basis for review because defendant has failed to argue on appeal or demonstrate by the record that any of the above omissions diminished his cause or changed the outcome of his trial. An ineffective assistance of counsel claim must not only be supported by a showing that trial counsel's performance was deficient, but must also be accompanied by a showing that the result of the trial would have been different but for the alleged deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; see Fargason v. State, 266 Ga. 463, 465(4), 467 S.E.2d 551; and Brown v. State, 257 Ga. 277, 279 (2)(d), 357 S.E.2d 590.

(b) Defendant claims that his trial attorney...