LeGallienne v. State

• Decision Date: 03 July 1986
• Docket Number: No. 72106,72106
• Citation: 180 Ga.App. 108,348 S.E.2d 471
• Parties: LeGALLIENNE v. The STATE.
• Court: Georgia Court of Appeals

Page 471

348 S.E.2d 471

180 Ga.App. 108

LeGALLIENNE v. The STATE.

No. 72106.

Court of Appeals of Georgia.

July 3, 1986.

Rehearing Denied July 31, 1986.

Certiorari Denied Sept. 23, 1986.

John W. Lawson, Avondale Estates, for appellant.

Johnnie L. Caldwell, Jr., Dist. Atty., J. David Fowler, Christopher C. Edwards, Paschal A. English, Jr., Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

LeGallienne was convicted of child molestation (OCGA § 16-6-4) and aggravated sodomy (OCGA § 16-6-2).

1. The first two enumerations of error claim denial of effective assistance of counsel during both the guilt/innocence phase of trial and the sentencing, and thereby a denial of the right to a fair trial under the state and federal constitutions.

Appellant was sentenced on June 24, 1985. On July 7, trial counsel applied for sentence review and moved for a new trial based solely on the ground of newly discovered evidence. Prior to any ruling on the motion, counsel from the firm presently representing defendant filed a notice of appearance and a notice of appeal from the judgment on September 13. He first, in writing, tried to raise an issue of effective assistance of counsel by an amended motion for new trial filed on February 18, 1986. The court entered the following order on May 8: "Motion for New Trial, as amended, having come before the Court on August 16, 1985, and the same having been heard and considered, IT IS HEREBY ORDERED that said Motion for New Trial be denied." [Emphasis supplied.] It may be that the claim was orally added and ruled on when the original motion for new trial was heard and denied orally on August 16, 1985. Appellant then filed another notice of appeal on June 3 from his convictions and sentences and the denial of his motion for new trial.

On June 18, defendant and the state filed a "Joint Motion for Appellate Consideration of Case" which stated that at the time of the filing of the first notice of appeal, present counsel was acting with the understanding that the motion for new trial had been denied, that a written order to that effect had unintentionally not been entered by the trial court, that appellant's initial filing was technically premature, and that after conference with the parties, the court entered the May 8 order denying the motion for new trial. The joint motion was not ruled on.

The substance of the court's May 8 order, that it flowed from the issues before the court on the August 16, 1985, hearing date gives some indication that the questions of lack of effective assistance of counsel were ruled on by the trial court, as it mentions the motion as amended. The brief of appellant below argued it, raising both constitutions. Since we cannot say with certainty from analysis of the present record that such issues were not considered by the trial court, we have reviewed the entire transcript in light of appellant's assertions of numerous instances of inadequate representation by counsel throughout the trial-in-chief and the alleged failure of trial counsel to offer mitigating circumstances during the sentencing phase.

With respect to the federal constitution, we must follow the "two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (104 SC 2052, 80 L.Ed.2d 674) (1984), in determining whether there has been actual ineffective assistance of counsel, thereby requiring the reversal of defendant's conviction. The defendant must show both that counsel's performance was deficient and that this deficiency prejudiced the defense. Strickland v. Washington, supra, 687 ; Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985)." Brogdon v. State, 255 Ga. 64, 67(3), 335 S.E.2d 383 (1985). ¹

To be found lacking, counsel's performance must first be shown to fall outside the range of " 'reasonably effective assistance,' " i.e., to make significant decisions in the case without the exercise of reasonable professional judgment. Reasonableness is determined from the totality of the circumstances viewed from counsel's perspective at the time of trial. Also there is the strong presumption that "counsel's conduct falls within the broad range of reasonable professional conduct."

Furthermore, as to the second prong of the test, the defendant must show actual prejudice from the inadequate performance, that is, "there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's unprofessional errors." Id. at 68, 335 S.E.2d 383.

Defendant has failed to satisfy the two-part test as to both the guilt/innocence phase and the sentencing phase of his trial.

With respect to the state constitutional claim under Art. I, Sec. I, Par. XIV, we find no separate test which would yield a different result. See Oldham v. State, 179 Ga.App. 730, 347 S.E.2d 698 (1986); Brown v. State, 179 Ga.App. 538, 346 S.E.2d 908 (1986).

2. Appellant maintains that the trial court erred by considering certain sua sponte evidence in aggravation during the pre-sentence hearing. No such objection was raised at the pre-sentence hearing and this issue is precluded from review. O'Kelley v. State, 175 Ga.App. 503, 509(5), 333 S.E.2d 838 (1985).

3. LeGallienne next contends that the trial court erred in denying his motion for new trial, which was filed on July 22, 1985 and set for hearing on August 16.

The notice of appeal was filed on September 13 and recited that the appeal was "from the judgment of conviction and sentence entered herein on June 24, 1985 and the denial of his Motion for New Trial on August 16, 1985." Yet the record indicates that order overruling the motion was not filed until September 16, so the appeal as to the motion was technically premature. But even under these circumstances we have jurisdiction. Gillen v. Bostick, 234 Ga. 308(1), 215 S.E.2d 676 (1975).

In the motion, brought solely under OCGA § 5-5-23, defendant alleged that the testimony of a state's witness that he had been sexually abused by defendant was critical in establishing the state's case, that the testimony became fatally suspect because the witness was subsequently declared mentally incompetent.

To begin with, there was no evidence in the record of any declaration of incompetency. Even if the witness was so found sometime after the trial, whether or not the condition prevailed during the time of trial does not appear. There was no challenge to the witness' mental state at the time of his testimony nor any indication that he was then incompetent. We cannot simply surmise that the witness lacked competency at trial.

Furthermore, " '[i]t is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.' [Cits.] All six requirements must be complied with to secure a new trial." Timberlake v. State, 246 Ga. 488, 491(1), 271 S.E.2d 792 (1980).

The burden was on LeGallienne to demonstrate to the court that...