Garrett v. State
| Decision Date | 14 September 1990 |
| Docket Number | No. A90A0730,A90A0730 |
| Citation | 196 Ga.App. 872,397 S.E.2d 205 |
| Parties | GARRETT v. The STATE. |
| Court | Georgia Court of Appeals |
T. Andrew Dowdy, Cornelia, for appellant.
Michael H. Crawford, Dist. Atty., E. Jay McCollum, Asst. Dist. Atty., for appellee.
Appellant was tried before a jury on a five-count indictment but was found guilty of only those counts charging him with aggravated assault, discharge of a firearm near a public highway, and criminal damage to property. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's verdicts of guilt.
1. After securing new counsel, appellant filed a timely motion for new trial wherein the purported ineffectiveness of his trial counsel was raised as one of the grounds. The trial court's failure to grant the motion for new trial on this ground is enumerated as error.
We note at the outset that the case was not complex from either a factual or a legal standpoint. Shots which were fired from a vehicle destroyed a streetlamp. When a police officer pursued the vehicle in his patrol car, shots were fired at him. After a high speed chase, the vehicle was abandoned and its three occupants, one of whom was appellant, fled into the woods. They were arrested a few hours later. According to the State's evidence, appellant was either the actual gunman or he was a party to the crimes. Although appellant did not testify in his own behalf, his defense was that he had not actually fired the shots and that he could not otherwise be considered a party to the crimes because he was in a drunken stupor in the backseat of the vehicle when the shots had been fired. Appellant's trial counsel developed this defense through cross-examination of the State's witnesses and by the presentation of two witnesses on appellant's behalf.
In support of the purported ineffectiveness of representation, the only assertions raised are that appellant's trial counsel should have tried the case differently. It is urged that he should have filed pretrial motions, produced additional defense witnesses and conducted a more thorough and sifting cross-examination of the State's witnesses. Hosch v. State, 185 Ga.App. 71, 72(2), 363 S.E.2d 258 (1987). "The defendant must overcome the strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct." Brogdon v. State, 255 Ga. 64, 68(3), 335 S.E.2d 383 (1985). Appellant did not subpoena his trial counsel to appear at the hearing on his motion for new trial. Thus, appellant made no affirmative showing that the purported deficiencies in his trial counsel's representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.
Moreover, considering the nature of the State's evidence and appellant's only available defense, there was no showing of a reasonable probability that, but for trial counsel's alleged deficiencies, the result of the proceeding would have been different. See Williams v. State, 258 Ga. 281, 286(7), 368 S.E.2d 742 (1988). Appellant either was or was not the actual gunman and, even if he was not, he was nevertheless a party to the crimes unless, as the result of his intoxicated condition, he was merely an unconscious bystander while the crimes were being committed. Since appellant's undisputed flight from the scene and his successful avoidance of capture for several hours strongly evidenced both his guilt and his sobriety, his trial counsel was certainly presented with an unenviable task. The record nevertheless reflects that appellant's defense was otherwise effectively presented through trial counsel's cross-examination of the State's witnesses concerning their personal knowledge of appellant's inculpatory involvement and through trial counsel's presentation of defense witnesses who testified as to their personal knowledge of appellant's exculpatory condition. It is rank speculation to suggest that it is reasonably probable that a more thorough and sifting cross-examination of the State's witnesses or a presentation of additional defense witnesses would have resulted in appellant's...
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Jack v. State
...been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]" Garrett v. State, 196 Ga.App. 872, 874(1), 397 S.E.2d 205 (1990). At the hearing on the motion for new trial, Jack's trial attorney testified that he was able to put before the jur......
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McClarity v. State
...supra, 200 Ga.App. at 401(3), 408 S.E.2d 178 (failure to file pretrial motions may be part of trial strategy); Garrett v. State, 196 Ga.App. 872, 873(1), 397 S.E.2d 205 (1990) (whether to file pretrial motions may be part of strategy and tactics). 25. See Harkness v. State, 225 Ga.App. 864,......
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Waugh v. State
...guilt ... as a party to [criminal damage to property in the first degree] beyond a reasonable doubt. [Cit.]" Garrett v. State, 196 Ga.App. 872, 874(4), 397 S.E.2d 205 (1990). As a 15-year-old, appellant was not incapable of forming the requisite criminal intent to violate OCGA § 16-7-22(a)(......
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Jackson v. State
...of counsel is not clearly erroneous, and the denial of his motion for new trial on this ground is affirmed. Garrett v. State, 196 Ga.App. 872, 874(1), 397 S.E.2d 205 (1990). Judgments JOHNSON and BLACKBURN, JJ., concur. ...