Harrell v. State, 52428
| Decision Date | 14 September 1976 |
| Docket Number | No. 52428,No. 3,52428,3 |
| Citation | 139 Ga.App. 556,228 S.E.2d 723 |
| Parties | Melton HARRELL v. The STATE |
| Court | Georgia Court of Appeals |
Fierer & Devine, Robert G. Fierer, Bruce H. Morris, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Donald J. Stein, Asst. Dist. Attys., Atlanta, for appellee.
This is an appeal from a judgment of conviction of defendant for four counts of forgery and from the judgment overruling his motion for a new trial. Held:
1. The general grounds are without merit. The transcript amply supports the verdict and judgment.
2. Defendant contends the trial court erred in overruling his motion for a new trial on the ground that he was denied the effective assistance of counsel. We do not agree. The Sixth Amendment to the United States Constitution specifies that '(i)n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.' 'We interpret the right to counsel as the right to effective counsel.' Brown v. Beto, 377 F.2d 950, 958 (5th Cir. 1967). Our Supreme Court has held that 'effective counsel' means 'not errorless counsel, and not counsel judged ineffective by hingsight, but counsel reasonably likely to render and rendering reasonably effective assistance.' Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515, 516; Pitts v. Warden, 402 F.Supp. 119 (N.D.Ga.1974). Accord, MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), cert. den. 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78. This does not mean that a defendant who is dissatisfied with the outcome of his trial can effectively subvert the mandate of the jury by asserting that his counsel must have been ineffective because he was convicted. On the contrary, the effectiveness of counsel cannot be measured legally by the result reached in a criminal trial. Although another lawyer may have conducted the defense in a different manner, asked different questions, called different witnesses, or taken another course of action, the fact that the defendant's attorney made decisions during the trial with which the defendant and his current counsel now disagree, does not require a finding that the original representation of defendant was so inadequate as to amount to a denial of effective assistance of counsel. Estes v. Perkins, 225 Ga. 268(1), 167 S.E.2d 588.
Defendant's assertion of examples of ineffectiveness of counsel deal with his failure to pursue hypothetical questions by establishing a basis for the questions, abandonment of certain lines of questioning of different witnesses, a failure to file a memorandum of law with the court, and to present certain real evidence to the court. On the other hand, defendant's counsel: (1) filed a motion to set aside the bond forfeiture which was granted, (2) filed a motion to delay trial which was granted, (3) made a demand for the indictment and list of witnesses, (4) made a motion for reporting of voir dire and argument of counsel, including bench motions and conferences, (4) presented a motion for discovery, which was denied despite a supporting brief, (5) filed a plea in abatement, (6) filed a motion in limine, with supporting brief, to sever the different counts and restrict each count to that trial alone, (7) filed a motion to sever the different counts, with supporting brief, (8) filed a motion to quash and a challenge to the array, and (9) filed ten requested charges on defendant's behalf. Further, his examination of the witnesses and argument to the court and jury assured this court of his familiarity with the testimony, evidence, and law relative to the issues of this case.
We have examined defendant's contentions and conclude that although other counsel may have pursued a different tactic this does not mean that defendant did not receive a vigorous and competent defense. Decisions of counsel, properly described as trial tactics, do not equate to ineffective assistance of counsel. Wiggins v. Hopper, 235 Ga. 85, 218 S.E.2d 826. We do not find the representation of defendant to be so inadequate as to amount to a denial of effective assistance from counsel. Bright v. State, 137 Ga.App. 404, 224 S.E.2d 71; Adams v. State, 236 Ga. 468, 471, 224 S.E.2d 32.
3. We treat one assertion of ineffectiveness of counsel separately as it causes us serious concern. Defendant's counsel failed to interview the witnesses in this case prior to trial. Defendant contends that his counsel was 'ill-prepared' to adequately present the defense position on the issues or effectively cross-examine the prosecution's witnesses. We agree that 'effective representation' involves more than courtroom conduct by the advocate. The exercise of the highest order of skill during the trial would fall short 'if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance.' Moore v. United States, 432 F.2d 730, 739 (3d Cir. 1970). 'Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed . . . This means that in most cases a defense attorney . . . should interview not only his own witnesses but also those that the government intends to call, when they are accessible.' United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1204 (1973).
In his affidavit, counsel admitted that he did not discuss the testimony of any witness, with that witness, prior to trial. He explained that 'there was a breakdown in communication' with the defendant. During the three-week period of time prior to the trial he met with the assistant district attorney in charge of the case and 'was able to negotiate a settlement which in (his) judgment was fair and equitable . . . It was (his) . . . belief that the case . . . would be resolved by this same negotiated settlement . . . (W)hen (he) learned on the day of trial that it would be necessary to proceed before (a jury on a not guilty plea, he) did not have an opportunity to contact, interview, or subpoena witnesses.'
We find no prejudicial error under the circumstances of this case. Defendant was represented by retained counsel and whenever 'defendant selects his own counsel, that counsel truly represents defendant and no mistake or error of his, made in good faith and with earnest and honest purpose to serve his client, can be made (the) basis of claim of reversible error.' Fitzgerald v. Estelle, 505 F.2d 1334, 1335 (5th Cir. 1974). This is not to say that whenever a lawyer's ineffectiveness renders a trial fundamentally unfair, whether the lawyer was retained or appointed a deprivation of due process will not result. Id. Commission by retained counsel of acts which may retrospectively appear to be errors of judgment, if made in good faith, do not constitute a denial of effective representation. United States v. Handy, 203 F.2d 407(12) (3d Cir. 1952). Accord, Tompsett v. Ohio,146 F.2d 95(2) (6th Cir. 1944), cert. den. 324 U.S. 869, 65 S.Ct. 916, 89 L.Ed. 1424; Morton v. Welch, 162 F.2d 840(3) (4th Cir. 1947), cert. den.332 U.S. 779, 68 S.Ct. 44, 92 L.Ed. 363; Moss v. Hunter, 167 F.2d 683(1) (10th Cir. 1948), cert. den. 334 U.S. 860, 68 S.Ct. 1519, 92 L.Ed. 1780. A...
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