Clay v. State
| Decision Date | 26 May 1998 |
| Docket Number | No. A98A0264.,A98A0264. |
| Citation | 503 S.E.2d 560,232 Ga. App. 656 |
| Parties | CLAY v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Joseph S. Rhymer, Loganville, for appellant.
Alan A. Cook, District Attorney, for appellee.
Sandy Clay appeals his conviction for armed robbery. Clay contends he was denied the effective assistance of counsel because trial counsel failed to file a motion to suppress an eyewitness identification and to object to an in-court identification, failed to call witnesses necessary to his defense, and failed to request jury instructions on identification. Clay further asserts the trial court erred in not charging the jury on his sole defense of misidentification. We affirm.
On June 3, 1996, an unidentified man entered the Hot Spot convenience store in Monroe and announced he was going to rob the store. He then produced a knife. The robber reached over the counter, held the knife about one foot from the store manager's upper body, and demanded "all the greens." The manager later determined $226 had been stolen. She described the robber as a black male, short, and with a husky build. After obtaining the currency, the robber fled the store and 911 was called. Across the street from the Hot Spot, Mary Robinson was sitting in her front yard and witnessed a man enter and then exit the store moments later. Robinson then saw the manager come out of the store and exclaim that she had been robbed. Robinson described the assailant as "[h]e wasn't tall and he wasn't short" and "[s]ort of stocky, sort of heavy."
Sometime later, Sergeant Neal Hutchins of the Monroe Police Department apprehended an individual fitting the description of the man who robbed Hot Spot. Hutchins immediately transported the individual back to Hot Spot where he was identified by the store manager and Mary Robinson. The man identified was appellant Clay. Held: 1. In his first enumeration of error, Clay claims he was denied the effective assistance of counsel. We disagree. In order to prevail on a claim of ineffective assistance of counsel, appellant must show both that counsel's performance was deficient and, but for the deficiency, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984),Stephens v. State, 265 Ga. 120, 121(2), 453 S.E.2d 443. Furthermore, there is a strong presumption that trial counsel's performance Id. at 121, 453 S.E.2d 443. Moreover, a trial court's finding that a defendant has been provided effective assistance of counsel will not be reversed unless it is clearly erroneous. Harris v. State, 198 Ga.App. 503, 402 S.E.2d 62.
(a) Clay asserts that his trial counsel was ineffective because counsel did not file a motion to suppress an on the scene show-up identification and subsequent in-court identification. At the hearing on the motion for new trial, trial counsel testified that his strategy was to "shake the identity or testimony from the witnesses." He also testified that in his opinion, there was no basis to object to the in-court identification. Here, it is clear that trial counsel made a strategic choice not to attempt to suppress the identification evidence, but instead to attack the identification testimony on cross-examination. Since counsel's performance might be considered sound trial strategy, Clay's claim is without merit.
(b) Clay also asserts his trial counsel was ineffective because counsel did not call necessary witnesses. Clay maintains his banker, as well as his mother, would have testified how $225 might have been on his person at the time of his arrest. He also maintains that his brother would have testified that he dropped appellant off at the bus station earlier in the day, thus explaining appellant's purpose for being in Monroe. What witnesses to call is within the province of the trial attorney, after consultation with his client. Van Alstine v. State, 263 Ga. 1, 426 S.E.2d 360. Trial counsel testified that any testimony from these witnesses would be cumulative of appellant's testimony and that counsel and appellant thought it would be best to preserve the last word in closing argument. Accordingly, we find Clay was not denied the effective assistance of counsel based upon a failure to call necessary witnesses.
( c) Finally, Clay contends his trial counsel was ineffective in failing to request jury instructions on identification. Clay cites no law in support of his position. Furthermore, even assuming counsel's assistance was deficient in failing to request jury instructions on identification, Clay's contention does not satisfy the second prong of Strickland; that the outcome of the trial would have been different had the instruction been given. The trial court thoroughly...
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Godfrey v. State, A05A0223.
...requested an instruction on identification. See Springs v. Seese, 274 Ga. 659, 662(3), 558 S.E.2d 710 (2002); Clay v. State, 232 Ga.App. 656, 658(1)(c), 503 S.E.2d 560 (1998). (c) Because Godfrey failed to show any error in the jury instructions, he cannot establish ineffective assistance o......
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Austin v. State
...action by trial counsel might be considered sound trial strategy." (Citations and punctuation omitted.) Clay v. State, 232 Ga. App. 656, 657(1), 503 S.E.2d 560 (1998). "As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assist......
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Springs v. Seese
...of law underlying a defense of misidentification. See Micheli v. State, 222 Ga. 361, 149 S.E.2d 803 (1966); Clay v. State, 232 Ga.App. 656, 658(1)(c), 503 S.E.2d 560 (1998). In addition, the jury was charged that they could convict only if they should find beyond a reasonable doubt that "th......
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Hollis v. State
...a jury charge has been filed, the failure to give that charge is not error." (Citation and punctuation omitted.) Clay v. State, 232 Ga.App. 656, 658(2), 503 S.E.2d 560 (1998). While Hollis did reserve his objections to the jury charges given, he offers no argument or legal authority to supp......
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Local Government Law - R. Perry Sentell, Jr.
...an appropriate stop sign at the specified intersection constituted a street "defect" within the meaning of the above statute. Id., 503 S.E.2d at 560. 109. O.C.G.A. Sec. 32-4-93(a) (1996). 110. 232 Ga. App. at 660, 503 S.E.2d at 560. "The reference to 'defects' in the Code section refers to ......