Glover v. State
| Decision Date | 22 January 1996 |
| Docket Number | No. S95A1791,S95A1791 |
| Citation | 266 Ga. 183,465 S.E.2d 659 |
| Parties | GLOVER v. The STATE. |
| Court | Georgia Supreme Court |
Michelle L. Schieber, Bush, Crowley, Leverett & Leggett, Macon, for Wayne Glover.
Charles H. Weston, Dist. Atty., Laura D. Hogue, Asst. Dist. Atty., Macon, Michael J. Bowers, Atty. Gen., Department of Law, Atlanta, Wesley S. Horney, Asst. Dist. Atty., Atlanta, Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.
The appellant, Wayne Glover, was convicted of the malice murder of Ronnie Merriweather and sentenced to life in prison. 1 He raises three issues on appeal. We conclude that two of them are without merit. The third issue, however, necessitates that we overrule several cases concerning when the right to raise a claim of ineffective assistance of trial counsel is procedurally barred, and that we remand Glover's case to the trial court for a hearing on his claim of ineffective assistance of trial counsel.
1. Glover contends that the evidence is insufficient to support the verdict. We disagree, however, as the evidence was sufficient for a rational trier of fact to find that Glover and Merriweather argued at a Labor Day cookout on September 5, 1994, because Merriweather ridiculed Glover's construction of two stereo speakers, and that Glover became angry and shot Merriweather even though Merriweather was unarmed and made no threatening gestures toward Glover. We conclude that the evidence satisfies the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Glover next contends that his trial counsel rendered ineffective assistance in several respects. We need not, however, address the merits of this issue, as the ineffectiveness claim has yet to be addressed by a trial court, and is either procedurally barred or subject to remand for a hearing. The relevant facts are as follows: Glover was convicted on February 15, 1995, and the verdict was filed on February 23. Glover was appointed new counsel for appeal on March 6, 1995, 2 and on March 14, appellate counsel elected to file a notice of appeal rather than a motion for new trial. The issue is whether Glover's failure to raise the ineffectiveness claim by motion for new trial before appeal, when there was an adequate opportunity to do so, is a procedural bar to raising that claim at a later time. Both this Court and the Court of Appeals have held that there is no waiver under these circumstances, but that instead the claim must be remanded to the trial court for a hearing, with the defendant having the right to appeal again if he does not prevail on remand. 3
We conclude, however, that these cases have been incorrectly decided and must be overruled. Sixayaketh v. State, 261 Ga. 690, 410 S.E.2d 112 (1991); Dozier v. State, 217 Ga.App. 835, 836(3), 459 S.E.2d 463 (1995); and King v. State, 208 Ga.App. 77, 78-79(2), 430 S.E.2d 640 (1993) are inconsistent with the "axiomatic [rule] that a claim of ineffectiveness of trial counsel must be asserted at 'the earliest practicable moment.' " 4 In cases presenting similar but not identical factual contexts as this case, we have made clear that the rule that an ineffectiveness claim must be raised "at the earliest practicable moment" requires that that claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time. 5 We conclude that this line of cases represents a more reasoned approach to this issue than that expressed in Sixayaketh, Dozier, and King, 6 and thus overrule Sixayaketh, Dozier, and King. Accordingly, we hold that a defendant's failure to raise a claim of ineffectiveness before appeal under the circumstances of this case is a procedural bar to raising the claim at a later date. We also conclude, however, that, given the holdings of Sixayaketh, Dozier, and King, it would be unfair to hold that Glover is procedurally barred from raising his claim. We therefore remand his ineffectiveness claim to the trial court for a hearing.
3. We find no merit to Glover's remaining contention that the trial court erred by limiting Glover's cross-examination of a witness concerning a felony charge pending against the witness.
Judgment affirmed in part and case remanded in part.
All the Justices concur.
1 The crime occurred on September 5, 1994, and Glover was indicted on October 11, 1994. A jury found him guilty on February 15, 1995, and the verdict was filed on ...
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