Hosick v. State
| Decision Date | 02 October 1992 |
| Docket Number | No. S92A0853,S92A0853 |
| Citation | 262 Ga. 432,421 S.E.2d 65 |
| Parties | HOSICK v. The STATE. |
| Court | Georgia Supreme Court |
Mark J. Nathan, Savannah, for Charles D. Hosick, Jr.
Spencer Lawton, Jr., Dist. Atty., Savannah, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Robert D. McCullers, Staff Atty. Atlanta, for the State.
David T. Lock, Asst. Dist. Atty., Savannah.
Charles D. Hosick, Jr. was convicted of the malice murder of Jon Berry Bragg, and sentenced to life imprisonment. 1
Witnesses testified that on the evening of April 23, 1990, the defendant walked into a Bennigan's Restaurant in Savannah and, without saying a word, shot the victim in the head from a distance of 12 inches. The defendant immediately left the restaurant. The victim died as a result of massive brain damage.
Based on a description of the assailant given by Tommy Bates, an Army lieutenant, police developed a composite picture which ultimately led to the defendant's arrest. Prior to his arrest for Bragg's murder the defendant was arrested in a neighboring county for carrying a concealed weapon. This weapon was confiscated, and a firearms expert from the State Crime Lab determined that it had been used to kill the victim. Pursuant to a warrant police officers searched the defendant's residence and found a box of ammunition which matched the projectile fired into the victim's body.
A waitress at a Waffle House testified that she had observed the victim, a frequent patron of the restaurant, conversing with the defendant several days prior to the shooting. She testified that they were discussing death, and the use of life-support systems.
At the close of the state's case, defense counsel announced that the defendant would not testify in his own behalf. However, the following day defense counsel informed the court that the defendant insisted on testifying, despite defense counsel's recommendation that he not do so. The defendant took the stand in his own behalf and testified that he shot the victim under direction of angels and the Holy Spirit.
1. Following the defendant's testimony the trial court held a bench conference in which defense counsel expressed surprise at the nature of the defendant's testimony and requested that the trial court re-open the evidence to allow evidence of the defendant's insanity. The trial court denied the request, finding that it had not been timely made under Uniform Superior Court Rule 31.4. The trial court then made, sua sponte, a finding that trial counsel had not been ineffective on this or any other issue during trial of the case.
The defendant's trial counsel did not represent him on his motion for new trial or on appeal. Appellate counsel argued at the hearing on motion for new trial that trial counsel was ineffective in failing to timely raise the issue of the defendant's insanity and competence to stand trial. The defendant appeals the trial court's rulings that trial counsel was not ineffective.
Prior to trial the defendant was examined by a state psychologist from Georgia Regional Hospital and found to be both competent to stand trial and free from any psychiatric disorder. The examination of an independent psychologist requested by trial counsel, and appointed by the trial court, found that defendant met the criteria for a "paranoid disorder." The psychologist stated that individuals meeting this criteria usually do not commit violent acts, and usually are capable of differentiating between right and wrong. However, the psychologist went on to say that "it is within the realm of possibility that operating out of a delusional paranoid system of beliefs, [the defendant] may have struck out violently towards an individual believed to be causing him harm...."
In a bench conference just prior to trial, defense counsel announced to the judge that he believed the defendant to be "crazy as a bedbug," but that he "couldn't get anyone to testify to that."
Appellate counsel argues that because the independent psychologist opined that "it is within the realm of possibility" that defendant's delusional paranoia "may" have provoked the attack on the victim, trial counsel was ineffective in failing to raise the issue of mental illness prior to trial.
To set aside a conviction for ineffective assistance of trial counsel, the defendant must show that trial counsel's performance was deficient, and that this deficient performance prejudiced the defense. Smith v. Francis, 253 Ga. 782, 325 S.E.2d 362 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In this case the defendant has not carried his burden of proving either prong of the test, and therefore his claim fails. Under the circumstances of this case, and relying on the "strong presumption" in favor of trial counsel, 253 Ga. at 783, 325 S.E.2d 362, we affirm the trial court's finding that trial counsel was not ineffective in failing to raise the issue of mental illness prior to trial, and in failing to present evidence of it at trial. Additionally, we affirm the trial court's finding that the defendant has failed to prove that trial counsel's alleged deficient performance so prejudiced the defense that it altered the outcome of the verdict.
2. Under the standards set out in Hodges v. State, 257 Ga. 818, 820, 364 S.E.2d 275 (1988), the defendant was not entitled to a charge on insanity.
3. The defendant argues that the trial court erred in not...
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Stowe v. State, S00A1097.
...constitutional right to effective assistance of counsel. Sims v. State, 266 Ga. 417, 420(4), 467 S.E.2d 574 (1996); Hosick v. State, 262 Ga. 432, 434(1), 421 S.E.2d 65 (1992); Ricks v. State, 240 Ga. 853, 855(1), 242 S.E.2d 604 Judgment affirmed. All the Justices concur. 1. The crimes occur......
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...80 L.Ed.2d 674 (1984), we affirm the trial court's ruling that trial counsel was not ineffective as asserted. See Hosick v. State, 262 Ga. 432(1), 421 S.E.2d 65 (1992). (b) At the hearing on motion for new trial, trial counsel testified that they chose to introduce mitigation evidence solel......
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...as the issue of ultimate proof of guilt." Prater, supra, 148 Ga.App. at 838(5), 253 S.E.2d 223(A)(2)(a). See Hosick v. State, 262 Ga. 432(4), 421 S.E.2d 65 (1992) (preliminary hearing testimony); Littles v. Balkcom, 245 Ga. 285(3), 264 S.E.2d 219 (1980) (commitment hearing testimony); Robin......
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Moody v. State
...testimony was in this case, its admission at trial does not abridge the defendant's right of cross-examination. Hosick v. State, 262 Ga. 432, 435(4), 421 S.E.2d 65 (1992), citing Littles v. Balkcom, 245 Ga. 285(3), 264 S.E.2d 219 3. Moody fails in his contention that the State was guilty of......
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There's Always Two Sides To Every Story ' Obtaining Information From Concurrent Criminal Proceedings
...for cross-examination and that the issues involved in the preliminary hearing were similar to those presented at trial. Hosick v. State, 262 Ga. 432 (4), 421 S.E.2d 65 (1992). See Martin v. State, 284 Ga. 504 (2), 668 S.E.2d 685 (2008) (allowing witness's testimony at sentencing phase of fo......
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There's Always Two Sides To Every Story ' Obtaining Information From Concurrent Criminal Proceedings
...for cross-examination and that the issues involved in the preliminary hearing were similar to those presented at trial. Hosick v. State, 262 Ga. 432 (4), 421 S.E.2d 65 (1992). See Martin v. State, 284 Ga. 504 (2), 668 S.E.2d 685 (2008) (allowing witness's testimony at sentencing phase of fo......