Postell v. State, A94A0398

• Decision Date: 11 April 1994
• Docket Number: No. A94A0398,A94A0398
• Parties: POSTELL v. The STATE.
• Court: Georgia Court of Appeals

Page 530

443 S.E.2d 530

212 Ga.App. 868

POSTELL v. The STATE.

No. A94A0398.

Court of Appeals of Georgia.

April 11, 1994.

Richard A. Grossman, Dunwoody, for appellant.

Lewis R. Slaton, Dist. Atty., Carole E. Wall, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant and co-defendant Curtis Hunnicutt were jointly indicted for possession of cocaine with intent to distribute. Co-defendant Hunnicutt entered a plea of guilty to the crime charged and testified at a jury trial that defendant used his apartment on March 13, 1992, to sell drugs.

At trial, Sergeant Woodrow W. Tripp of the City of Atlanta Police Department testified that he received information from a confidential informant that illegal drugs were being sold from an apartment building in the City of Atlanta and that he and other law enforcement officers began a surveillance of the apartment building at about 2:50 in the morning on March 13, 1992. Sergeant Tripp testified that during the surveillance he observed a man enter a well-lighted flat in the apartment building; that he peeked into the flat through a window and observed defendant and co-defendant Hunnicutt exchange money with the man who entered the apartment for an object which Sergeant Tripp suspected to be narcotics. Sergeant Tripp testified that he observed the suspected drug buyer leave the flat immediately after the suspected drug transaction; that he then watched defendant and co-defendant Hunnicutt execute two similar drug transactions and that he and other law enforcement officers raided the apartment and seized several plastic containers "on [a] table in plain view ..." which were identified at trial as containing cocaine. Officers E.W. Irish, J.D. Stephens, G. Ramsey and Patrick James Girvan of the City of Atlanta Police Department testified that they participated in the raid which led to defendant's arrest and substantially corroborated Sergeant Tripp's testimony.

The jury found defendant guilty of possession of cocaine with intent to distribute. This appeal followed the denial of defendant's motion for new trial. Held:

In two enumerations, defendant contends his trial attorney was ineffective because she did not adequately prepare for trial and because she failed to associate an experienced criminal defense lawyer to compensate for her inexperience in defending major felony cases. Defendant argues that defense counsel's inexperience resulted in improper argument and inadmissible evidence at trial and a strategy which placed defendant's prior conviction for aggravated assault of a police officer into evidence. ¹

"In order to show ineffective assistance of counsel, [defendant] must show that counsel's actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Jowers v. State, 260 Ga. 459, 396 S.E.2d 891 (1990). '(B)oth the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.' Strickland, 466 U.S. at 698, 104 S.Ct. at 2070.

"Although the Supreme Court in Strickland discussed the performance component prior to the prejudice component, it acknowledged that a court addressing the ineffective assistance issue is not required to approach the inquiry in that order or even to address both components if the defendant has made an insufficient showing on one. 'In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.' Strickland, 466 U.S. at 697, ." (Footnote omitted.) Lajara v. State, 263 Ga. 438, 440(3), 435 S.E.2d 600.

In the case sub judice, we direct our inquiry to the prejudice component of the test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, supra, and adopted by the Supreme Court of Georgia in Smith v. Francis, 253 Ga. 782, 325 S.E.2d...