Gross v. State
| Decision Date | 21 May 1992 |
| Docket Number | No. S92A0500,S92A0500 |
| Citation | 416 S.E.2d 284,262 Ga. 232 |
| Parties | GROSS v. The STATE. |
| Court | Georgia Supreme Court |
Victor C. Hawk, Hawk, Hawk & Lyons, Augusta, for Gross.
Michael C. Eubanks, Dist. Atty., Richard E. Thomas, Asst. Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta, for State.
Peggy R. Katz, Staff Atty., Atlanta.
Keith Gross was convicted of the murder of Thomas E. Douglass and sentenced to life imprisonment. 1 Gross asserts that he was denied effective assistance of counsel because his trial counsel failed to present lay and psychiatric testimony, failed to request a self-defense charge, and acquiesced to the state's theory of the case. We affirm.
Gross followed his former girlfriend, Annette Withers, and Douglass in an automobile to the home of Withers' mother to pick up some of his clothes. Gross testified that during this trip Douglass acted like he was loading a gun inside the car and that he hesitated as he was getting out of the car, as if he were reaching for a gun under the seat. Withers testified that Douglass got out of the car and was straightening his shirt when Gross shot him. Gross testified that he shot Douglass because he panicked and was scared from Douglass' threat earlier that day to shoot him. Douglass was unarmed. After his arrest, Gross waived his Miranda rights and made the following statement:
1. To establish ineffective assistance of counsel, Gross must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 784, 325 S.E.2d 362, cert. denied, 474 U.S. 925, 106 S.Ct. 260, 88 L.Ed.2d 266 (1985). The proper measure of attorney performance is reasonableness under prevailing professional standards. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064; Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515 (1974). Gross has not established that he was denied reasonably effective assistance of counsel. 2
Gross' attorney did not act deficiently in failing to present testimony from certain witnesses. The attorney explained that he chose not to present psychiatric testimony because he concluded that the doctor's testimony would be more harmful than helpful. His failure to call Gross' relatives to impeach the state's primary witness was similarly a tactical decision made during the trial.
Moreover, Gross fails to prove that these alleged deficiencies, along with the failure to present a justification defense, prejudiced his defense. When a defendant asserts a claim of ineffective assistance, the test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Wadley v. State, 258 Ga. 465, 467, 369 S.E.2d 734 (1988), cert. denied, 488 U.S. 1043, 109 S.Ct. 871, 102 L.Ed.2d 994 (1989). Gross fails to show that there is a reasonable probability that the jury would have found he acted in self-defense but for the inadequate performance of his attorney. There were three eyewitnesses to the crime; Gross...
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...that his counsel's performance was deficient and that the deficient performance prejudiced his defense. [Cits.]" Gross v. State, 262 Ga. 232, 233(1), 416 S.E.2d 284 (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the erro......
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