Godfrey v. State, A05A0223.
| Decision Date | 08 July 2005 |
| Docket Number | No. A05A0223.,A05A0223. |
| Parties | GODFREY v. The STATE. |
| Court | Georgia Court of Appeals |
Hurl R. Taylor, Jr., Ellenwood, for appellant.
Daniel J. Porter, District Attorney, Mary E. Leonard, Assistant District Attorney, for appellee.
Otis Edward Godfrey appeals from the trial court's denial of his motion for new trial following his conviction on one count of burglary. We affirm.
Viewed in the light most favorable to support the verdict, the evidence shows that on January 23, 2003, Ryan Cash pulled into the driveway of the home she shared with her father, Charles Cash. As she drove up, Ryan saw a man running across the driveway, carrying a painting that hung over the fireplace in her father's room. Ryan recognized the man as Otis Godfrey. Cash knew Godfrey as the boyfriend of Christina Mull, who had previously rented an apartment in the Cashes' house. The man ran toward a white Oldsmobile that was parked on a path near the house. Ryan recognized this car as belonging to Mull because she had seen it at her house when Mull was staying there.
After Godfrey disappeared from her sight, Ryan called her parents and notified the police. She then discovered that the door to the garage was open and that it appeared that someone had kicked in the door leading from the garage to the house. When Gwinnett County police arrived, Ryan identified Godfrey as the man she had seen and later picked his picture out of a police lineup.
Mull testified that she had rented an apartment from Charles Cash for approximately two years. Mull also testified that she drove a white Oldsmobile, but she stated that she was in Hawaii at the time of the robbery and that her car was parked at an extended-stay hotel. She said that she had the only set of keys to the car with her in Hawaii, and that Godfrey could not have driven her car to the Cashes' house.
But Detective Chip Moore of the Gwinnett County Police Department testified in rebuttal that during a conversation with Mull just after the burglary, she stated that Godfrey used to have a set of keys to her Oldsmobile, but she had taken them back. Mull conceded, however, that Godfrey could have made a copy of the keys during the time he had them. Mull denied ever making such a statement to Officer Moore.
The defense also presented the testimony of a witness who said she had loaned her car, a silver Daewoo, to Godfrey during the period covering the burglary. Further, Godfrey testified at the trial and denied that he had driven Mull's car and further denied any involvement in the burglary.
1. Godfrey first asserts that he was denied effective assistance of counsel at trial, arguing that his trial attorney was ineffective (1) in failing to object to the state's requested charge on possession of recently stolen property; (2) in failing to request a jury charge of identification; (3) in failing to reserve his objections to the jury charge; and (4) in failing to request the funds to hire an expert on identification.
In determining whether a defendant received ineffective assistance of counsel, the appellate courts apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), under which the convicted defendant is required to show both that counsel's performance was deficient and that the deficiency prejudiced the defense.
(Citation and punctuation omitted.) Scieszka v. State, 259 Ga.App. 486, 488(2), 578 S.E.2d 149 (2003). And Georgia appellate courts will affirm a trial court's determination that a defendant received effective assistance of counsel unless it is clearly erroneous. Morton v. State, 265 Ga.App. 421, 422(1), 594 S.E.2d 664 (2004).
Additionally, Godfrey had the burden of overcoming the strong presumption that trial counsel provided effective representation, and where a trial attorney's strategy and trial tactics were reasonable at the time, we will not find ineffective assistance of counsel. Welbon v. State, 278 Ga. 312, 313(2), 602 S.E.2d 610 (2004).
(a) Godfrey asserts that his trial attorney was ineffective in failing to object to the state's requested charge that Godfrey's possession of recently stolen property was one circumstance to be considered by the jury, along with other evidence, in determining whether he was guilty of burglary. The decision whether to request or to object to a particular jury charge falls into the category of trial strategy:
Trial tactics, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel to have been ineffective so as to overturn a conviction. They provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.
(Citations and punctuation omitted.) Brantley v. State, 271 Ga.App. 733, 736(1), 611 S.E.2d 71 (2005).
Although Godfrey takes issue with his attorney's failure to object to this charge, he provides no argument as to why this omission rendered his attorney's performance deficient. Nor did he present any testimony from his trial attorney at the hearing on his motion for new trial. It is "extremely difficult" to overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance where trial counsel does not testify at the motion for new trial hearing. Wilson v. State, 277 Ga. 195, 200(2), 586 S.E.2d 669 (2003). Under these circumstances, we find that Godfrey has failed to carry his burden under Strickland v. Washington that his trial attorney's performance was deficient in failing to object to this charge.
Moreover, we find that Godfrey failed to show how any alleged deficiency prejudiced his defense. The prosecutor stated at trial that she was requesting the charge because Ryan Cash did not actually see Godfrey inside the house, but only saw him outside with the painting. And the trial judge concluded that he saw "no harm" in giving it. Thus, the charge as given was a correct statement of the law and authorized by the evidence,1 and we find no clear error in the trial court's determination that Godfrey did not receive ineffective assistance of counsel on this ground.
(b) Godfrey also asserts that his trial counsel was ineffective in failing to request a charge on identification at trial. He notes that his trial attorney failed to present notice of an alibi defense, leaving misidentification as his sole defense. Without his trial counsel's testimony on this issue, Godfrey once again faces extreme difficulty in overcoming the inherent presumption that his trial counsel's performance was adequate:
Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant's original representation was inadequate.
(Citation and punctuation omitted.) Aleman v. State, 227 Ga.App. 607, 612(3)(b), 489 S.E.2d 867 (1997).
But even assuming that his attorney was deficient in failing to request this instruction, Godfrey has failed to establish how this deficiency prejudiced his defense. Godfrey's trial counsel argued misidentification to the jury, and the trial judge thoroughly charged the jury on the presumption of innocence, reasonable doubt, burden of proof, credibility of witnesses, conflicting testimony, direct and circumstantial evidence, impeachment of witnesses, and prior inconsistent statements. Considering the trial court's charge as a whole and in light of the evidence, we find that Godfrey has failed to establish a reasonable probability that the trial would have had a different outcome if his counsel had 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 of counsel based on his attorney's failure to reserve objections to the charge. See Jones v. State, 263 Ga. 835, 838(2), 439 S.E.2d 645 (1994); New v. State, 270 Ga.App. 341, 345(2)(b), 606 S.E.2d 865 (2004); Millen v. State, 267 Ga.App. 879, 883(2)(a)(iv), 600 S.E.2d 604 (2004).
(d) Although Godfrey further contends that his trial attorney was ineffective in failing to request funds to secure an expert witness on the issue of identification, he failed to raise that argument in his motion for new trial. Thus, he waived the right to argue this issue on appeal. "Where the issue of trial counsel's effectiveness has been raised on motion for new trial, any claims not raised at that time are waived." (Citations omitted.) Wilson v. State, 277 Ga. at 200(2), 586 S.E.2d 669. See also Allen v. State, 263 Ga.App. 350, 353 (2), 587 S.E.2d 833 (2003).
2. Godfrey next argues that he received ineffective...
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