Brundage v. State
| Decision Date | 19 March 1993 |
| Docket Number | No. A92A1952,A92A1952 |
| Citation | 208 Ga.App. 58,430 S.E.2d 173 |
| Parties | BRUNDAGE v. The STATE. |
| Court | Georgia Court of Appeals |
Mullis, Marshall, Lindley & Powell, A.G. Knowles, Macon, for appellant.
Willis B. Sparks, III, Dist. Atty., Howard Z. Simms, Thomas J. Matthews, Asst. Dist. Attys., for appellee.
Gregory Brundage appeals his conviction for the sale of cocaine. His sole enumeration of error is that he received the ineffective assistance of trial defense counsel. Held:
1. Witherspoon v. State, 262 Ga. 2, 412 S.E.2d 829.
2. The record shows defense counsel appointed to represent Brundage during his trial also filed the motion for new trial on his behalf and appellate counsel was appointed after the motion for new trial was denied. While ordinarily under this posture of the case we would remand for an evidentiary hearing and ruling by the trial court (see Johnson v. State, 259 Ga. 428, 430, 383 S.E.2d 115), under the facts of this appeal it would serve no useful purpose.
In cases such as this Bowley v. State, 261 Ga. 278, 280, 404 S.E.2d 97. A reviewing court, however, need not address both elements of this test if a sufficient showing of one element cannot be made and the elements need not be addressed in any particular order. Thompson v. State, 191 Ga.App. 906, 383 S.E.2d 339; Young v. State, 191 Ga.App. 651, 653, 382 S.E.2d 642. As it is apparent as a matter of law that Brundage cannot satisfy the second element of this test, we need not remand for a hearing on whether counsel was ineffective. See Smith v. State, 262 Ga. 480, 422 S.E.2d 173; French v. State, 261 Ga. 424, 405 S.E.2d 35.
Brundage's sole allegation is that his trial defense counsel was ineffective because he failed to move for a mistrial when Brundage did not testify after the trial court instructed Brundage, who had taken the stand in the presence of the jury, of his rights not to testify or say anything that might incriminate him; that he did not have to prove anything, including his lack of guilt because the burden was on the state; that no one could make him testify and no harmful inference could be drawn from his not testifying; and that if he did testify both sides could question him. The trial court then asked the defendant if he wished to testify, and Brundage announced from the witness stand that he did not. The trial court immediately instructed the jury it could draw no inferences from this and that the burden is on the state "and that's where it stays." The record shows that although the defense rested without calling any witnesses, the jury found Brundage guilty only of one of the three counts against him, acquitted him of another count, and the jury could not reach a verdict on the other count.
More significantly, however, the record also shows that the trial court's advice to Brundage was preceded by trial defense counsel's request that the trial court lay those rights on the record. Since Brundage's counsel, in the presence of the jury, requested this advice be given, he cannot seek a mistrial after the request was granted. Kellar v. State, 226 Ga. 432, 433, 175 S.E.2d 654. Indeed, induced error is not a proper basis for claiming prejudice. Sullens v. State, 239 Ga. 766, 767, 238 S.E.2d 864; Martin v. State, 193 Ga.App. 581, 584, 388 S.E.2d 420. In view of the circumstances of Brundage's request, there was no basis for the granting of a mistrial.
Thus, pretermitting whether Brundage's trial defense counsel's performance was deficient within the meaning of Strickland by not moving for a mistrial, we find there exists no reasonable probability that the outcome of this case would have been different within the meaning of Strickland v. Washington, Thompson, and Young.
Accordingly, Brundage's enumeration is without merit.
Judgment affirmed.
I concur fully in Division 1. I concur in the result in Division 2 but not in all that is written. I do agree that the basis for the claim of effectiveness of counsel yields to a ruling on the existing record, as a matter of law, rejecting that basis.
Appellant asserts that trial counsel was ineffective because he failed to move for a mistrial after the court instructed the defendant, who had taken the witness stand, of his rights. See OCGA § 24-9-20. Failure to object or move for a mistrial would in effect, waive alleged error so that it could not be raised for the first time in a motion for new trial. Roberts v. State, 231 Ga. 395, 396, 202 S.E.2d 43 (1973). Thus it might constitute ineffective assistance of counsel to fail to raise it timely.
However, as described in the majority opinion, all of what the trial court advised defendant is preceded by the following colloquy:
The court: "Mr. Anderson (appellant's trial counsel), would you like the Court to advise Mr. Brundage of his rights?"
Mr. Anderson: ...
To continue reading
Request your trial
-
Forsman v. State
...to give a curative instruction was error, "induced error is not a proper basis for claiming prejudice. [Cits.]" Brundage v. State, 208 Ga.App. 58, 59, 430 S.E.2d 173 (1993). 8. Forsman also asserts that he received ineffective assistance of counsel at trial. Such issue was not ruled upon by......
-
Wright v. State, s. A93A1675
...the second element of this test, we need not remand for a hearing on whether counsel was ineffective. [Cits.]" Brundage v. State, 208 Ga.App. 58, 59(2), 430 S.E.2d 173 (1993). Ronald raises as ineffective assistance, first, the failure of his counsel to move for a directed verdict. Because ......
-
McBride v. State
...the instances of alleged ineffectiveness which he specifies may be reviewed on the existing record, as was done in Brundage v. State, 208 Ga.App. 58(2), 430 S.E.2d 173 (1993). Compare Norman v. State, 208 Ga.App. 830, 831(3), 432 S.E.2d 216 (1993). See Hutton v. State, 192 Ga.App. 239, 384 ......
-
Collins v. Department of Transp.
... ... 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990). The superior court denied Collins' motion, holding that Donnelly only held that state courts presumptively have jurisdiction over Title VII claims; whether a state court in fact has Title VII jurisdiction is dependent on state law; ... ...