Black v. State

• Decision Date: 21 September 1994
• Docket Number: No. S94A0778,S94A0778
• Citation: 264 Ga. 550,448 S.E.2d 357
• Parties: BLACK v. The STATE.
• Court: Georgia Supreme Court

Page 357

448 S.E.2d 357

264 Ga. 550

BLACK v. The STATE.

No. S94A0778.

Supreme Court of Georgia.

Sept. 21, 1994.

Reconsideration Denied Oct. 17, 1994.

J.M. Raffauf, Decatur, for Black.

Timothy G. Madison, Dist. Atty., Winder, Michael J. Bowers, Atty. Gen., Atlanta, Deborah S. Wilbanks, Jeffrey G. Morrow, Asst. Dist. Attys., Winder, for State.

FLETCHER, Justice.

Robert Leonard Black seeks a new trial based on his claims of ineffective assistance of trial counsel and a defective indictment. Black was convicted of murder, aggravated assault on a police officer, and other crimes and sentenced to death. On appeal, this court reversed his death sentence because the jury verdict failed to include an essential element, but deferred ruling on whether he waived the issue of ineffective assistance of counsel. See Black v. State, 261 Ga. 791, 797-98, 410 S.E.2d 740 (1991), cert. denied, 506 U.S. 839, 113 S.Ct. 118, 121 L.Ed.2d 74 (1992). The trial court on remand found that Black had not waived his right to claim ineffective assistance of trial counsel and held an evidentiary hearing. Black appeals from the denial of his extraordinary motion for a new trial and motion to quash the indictment. We affirm.

1. The Sixth Amendment right to counsel guarantees a criminal defendant the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). To establish a claim of ineffective assistance of counsel, a "defendant must show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69; see Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515 (1974) (adopting standard of "reasonably effective assistance" at the time service was rendered).

Black raises 25 allegations of his trial counsel's ineffectiveness in the pretrial, competency, guilt-innocence, sentencing, and post-conviction phases of his case. He argues that his trial counsel failed to develop the insanity defense relied on at trial, refused to present any self-defense claim, neglected to make proper requests for charge and reserve objections, and failed to present any defense in the sentencing phase. Black does not raise the issue of ineffectiveness at the sentencing phase to gain a new sentencing trial since he is already entitled to one based on his previous appeal. Instead, he contends that his trial counsel's ineffective performance at the sentencing phase supports the claim of ineffectiveness at the guilt-innocence phase under the totality of circumstances. See Jarrell v. Balkcom, 735 F.2d 1242, 1261 (11th Cir.1984) (considering whether counsel's ineffectiveness at the sentencing trial supports a claim of ineffectiveness in the guilt-innocence trial depends on the "totality of circumstances" from the time of appointment or retention through appeal), cert. denied, 471 U.S. 1103, 105 S.Ct. 2331, 85 L.Ed.2d 848 (1985).

The performance of Black's attorney at the pre-trial, competency, and guilt-innocence phases was not so defective as to render the trial unfair. Black retained as trial counsel an experienced criminal defense attorney who conferred frequently with Black about his defense, employed two investigators who interviewed witnesses for the trial, and filed numerous pretrial motions. Black's refusal to submit to an independent psychiatric examination hindered his counsel's ability to present an insanity defense. The attorney's decision to pursue the defense of insanity instead of self-defense was part of legitimate trial strategy and falls within the range of reasonable professional assistance. See Gross v. State, 262 Ga. 232, 233, 416 S.E.2d 284 (1992). As we have frequently stated:

"While other counsel, had they represented appellant, may have exercised...