Cost v. State
| Decision Date | 10 January 1994 |
| Docket Number | No. S93A1742,S93A1742 |
| Citation | 438 S.E.2d 79,263 Ga. 720 |
| Parties | COST v. The STATE. |
| Court | Georgia Supreme Court |
Charles E. Day, Monroe, for Aaron Cost.
Alan A. Cook, Dist. Atty., Alcovy Judicial Circuit, Covington, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Paige M. Reese, Staff Atty., Atlanta, for the State.
Aaron Cost was indicted for malice murder and felony murder for the shooting death of Donald Baldwin. After a jury trial, Cost was found guilty of both murder and felony murder. The convictions were merged and Cost was sentenced to life imprisonment. He appeals and we affirm. 1
1. Cost first argues that the evidence was insufficient to support his conviction as there was no credible evidence that he committed any act that caused or contributed to the death of Donald Baldwin. Cost claims that the testimony of the two witnesses who linked him to the shooting was not credible because the testimony was contradictory and because of the incentives both witnesses had to lie. Credibility is an issue to be determined by the jury and that determination will not be disturbed on appeal. Booker v. State, 257 Ga. 37, 38, 354 S.E.2d 425 (1987) and Taylor v. State, 262 Ga. 429, 430, 420 S.E.2d 750 (1992). The jury resolved the credibility of the witnesses against Cost and the jurors were authorized to make such a finding.
The evidence when viewed in the light most favorable to the prosecution is sufficient to show that Cost either shot Baldwin or was a willing participant in the shooting. After reviewing the record, we conclude that a rational trier of fact could have found Cost guilty of malice or felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Cost asserts that his trial counsel was ineffective because he was unprepared to impeach the testimony of a co-defendant through the use of a certified copy of that co-defendant's previous felony conviction(s). Trial counsel admitted to the court at trial that he had anticipated that the co-defendant would not testify and he therefore had not obtained a certified copy of the conviction(s). The court then precluded any questioning of the co-defendant about any alleged conviction(s). Cost claims that this trial counsel error was harmful as the co-defendant was one of only two witnesses who could link Cost to the killing.
A claim of ineffective assistance of counsel must be raised at the earliest opportunity. Cost's appellate counsel was appointed before the time for filing a motion for new trial had expired and before an appeal had been filed. Appellate counsel stated at oral argument that he informed Cost that any complaint concerning trial counsel's performance had to be raised in a motion for new trial and that Cost instructed him not to file a motion for new trial because it would delay his appeal and because he believed his trial counsel had done a good job. 2
After being informed by appellate counsel that any potential ineffectiveness claim would have to be raised in a motion for new trial, Cost chose to forgo filing such a motion. Cost apparently deemed the likelihood of trial counsel having been ineffective as small and therefore chose to avoid delaying his appeal by filing a motion for new...
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