Bertholf v. State, A97A0184

• Decision Date: 25 February 1997
• Docket Number: No. A97A0184,A97A0184
• Citation: 224 Ga.App. 831,482 S.E.2d 469
• Parties: , 97 FCDR 1043 BERTHOLF v. The STATE.
• Court: Georgia Court of Appeals

Page 469

482 S.E.2d 469

224 Ga.App. 831, 97 FCDR 1043

BERTHOLF v. The STATE.

No. A97A0184.

Court of Appeals of Georgia.

Feb. 25, 1997.

Certiorari Denied May 9, 1997.

Kenneth W. Krontz, Lithia Spring, J.L. Jordan, for appellant.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.

BLACKBURN, Judge.

Charles Keith Bertholf, Sr. was convicted of selling methamphetamine. OCGA § 16-13-30(b). The chief evidence against Bertholf was the testimony of Michael Baxter, to whom Bertholf sold the drugs, and Bertholf's own confession to police. On appeal, Bertholf claims that the State improperly withheld evidence from him and that his trial attorney was ineffective.

1. In a vague argument, Bertholf claims the State denied him due process of law by failing to timely provide his trial attorney with a copy of the audiotape made of his confession to police. The record shows Bertholf's attorney was informed of the substance of this confession through the district attorney's "open file" policy, but the prosecutor did not know the confession had been taped until the middle of trial, as the State was preparing to rest its case. The tape was never introduced into evidence or proffered into the record, either at the trial or at the hearing on Bertholf's motion for new trial.

Bertholf's attorney was not required to file a discovery request because he was allowed access to all materials in the State's files. See Wright v. State, 219 Ga.App. 119, 120(1), 464 S.E.2d 216 (1995) (physical precedent only). Even if Bertholf could show a violation of the statutory discovery rule, OCGA § 17-16-4(a), he can show no harm because the audiotape was not introduced into evidence. See OCGA § 17-16-6 (strongest remedy for violation of discovery request is exclusion of suppressed evidence). To the extent Bertholf claims the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by withholding exculpatory evidence, he had the burden of showing that earlier disclosure of the tape would have benefited his case and that the delayed disclosure deprived him of a fair trial. Jordan v. State, 217 Ga.App. 420 421(1), 457 S.E.2d 692 (1995). Nothing in the record shows the tape would have been beneficial to Bertholf, and the evidence indicates that both Bertholf and his counsel were cognizant of the tape's general contents. Furthermore, although Bertholf claims earlier disclosure of the tape would have allowed for better trial preparation, or would have caused him to call additional witnesses or testify on his own behalf, "[m]ere speculation by [Bertholf] that he 'might' have pursued a different course of action had he received the evidence earlier, is not sufficient." Gresham v. State, 265 Ga. 730, 731(1), 462 S.E.2d 370 (1995).

2. Bertholf enumerates several claims of ineffective assistance of counsel by his trial attorney. To support these claims, he must show both that his trial counsel's performance was deficient and that the deficient performance prejudiced his case. Peterson v. State, 212 Ga.App. 147, 151(4), 441 S.E.2d 481 (1994). A trial court's findings on these issues will be affirmed unless clearly erroneous. Id.

(a) Bertholf's trial attorney had originally represented both Bertholf and Baxter, who testified against Bertholf. The attorney had explained the possible conflict to Bertholf earlier, and when the State offered Baxter probation the attorney withdrew from representing Baxter. Bertholf claims that because his attorney had represented Baxter, the attorney was incapable of effectively cross-examining Baxter because of an actual conflict of interest. The record shows the attorney did cross-examine Baxter, explained to the jury that he had formerly represented Baxter, and obtained an admission that Baxter had been promised probation in return for his testimony.

"To establish ineffective assistance of counsel based upon conflict of interest, defendants must prove that their counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance." (Punctuation omitted.) Capers v. State, 220 Ga.App. 869, 873(2), 470 S.E.2d 887 (1996). "Active representation of conflicting interests connotes more than merely cross-examining a former client." (Punctuation omitted.) Id. at 874(2), 470 S.E.2d 887. See also Weeks v. State, 190 Ga.App. 373, 374(1) (378 S.E.2d 895) (1989) (no actual conflict where attorney had...