Roberts v. State

• Decision Date: 21 February 1994
• Docket Number: No. S93A1857,S93A1857
• Citation: Roberts v. State, 263 Ga. 807, 439 S.E.2d 911 (Ga. 1994)
• Parties: ROBERTS v. The STATE.
• Court: Georgia Supreme Court

Page 911

439 S.E.2d 911

263 Ga. 807

ROBERTS v.The STATE.

No. S93A1857.

Supreme Court of Georgia.

Feb. 21, 1994.

Lamar W. Sizemore, Jr., Albany, for Roberts.

Britt R. Priddy, Dist. Atty., Albany, Paige M. Reese, Staff Atty., Michael J. Bowers, Atty. Gen., Atlanta, for the State.

BENHAM, Justice.

Appellant was convicted of murder, and sentenced to life imprisonment.¹He appeals the judgment of conviction, contending he was denied his constitutional right to effective assistance of counsel.

1.Appellant claimed he shot the victim in self-defense.The State presented the testimony of an eyewitness who, though unable to identify appellant as the perpetrator, stated that the shooter entered a cafe where the victim was sitting at the bar, and asked the victim to step outside.The victim refused, saying "If you are going to kill me, you are going to kill me here."The assailant then started firing a gun.The victim grabbed a bottle and headed toward the shooter, at which point a number of the shots struck him.The victim bled to death after being struck by four gunshots, one of which struck him in the back.No weapon was found on the victim.The State also introduced evidence of appellant's statement to police, in which he stated he shot the victim in self-defense.Appellant told police that the victim had one hand in the victim's back pocket, and appellant feared the victim had a gun.The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of malice murder.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Appellant claims trial counsel was ineffective because: a) he failed to obtain a transcript of appellant's first trial to prepare for and use in the second trial; b) he failed to subpoena two eyewitnesses; c) he failed to request or consent to the State's request for a jury instruction on voluntary manslaughter, and did not discuss with appellant the possibility of such an instruction; d) he failed to cross-examine the State's only eyewitness effectively; and e) he failed to file a motion to suppress a statement given by appellant to police the day after the killing.

In order to establish that trial counsel's performance was so defective as to require a new trial, appellant must show that counsel's performance was deficient and that the deficient performance so prejudiced appellant that there is a reasonable likelihood that, absent counsel's errors, the outcome of the trial would have been different.Hayes v. State, 263 Ga. 15, 426 S.E.2d 557(1993).Appellant must overcome the strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct.Brogdon v. State, 255 Ga. 64(3), 335 S.E.2d 383(1985) a) At the hearing on the amended motion for new trial, trial counsel, testifying on behalf of appellant, admitted that having the transcript from the previous trial would have been useful at the second trial for impeachment purposes.Since the transcript of the first trial was not produced at the hearing, appellant failed to establish that witnesses gave allegedly contradictory testimony, and we presume counsel's actions were not prejudicial to appellant.Sleeth v. State, 201 Ga.App. 324, 326, 411 S.E.2d 79(1991).

b) Trial counsel admitted that appellant had given him the names of two persons who were with him when the victim was shot.Knowing that one of the witnesses was unreliable due to drug abuse, counsel decided not to call her as a witness.The decision not to call the witness was a strategic or tactical decision (Hawes v. State, 240 Ga. 327(1), 240 S.E.2d 833(1977)), and appellant did not establish how the failure to call the witness would have affected the outcome of the case.Pless v. State, 260 Ga. 96(4), 390 S.E.2d 40(1990).See alsoPonder v. State, 201 Ga.App. 388(1), 411 S.E.2d 119(1991)(in light of defendant's failure to proffer the testimony of the uncalled witness, defendant cannot prove that there is a reasonable likelihood that the trial's result would have been different).While trial counsel did not interview the other eyewitness, the witness testified at the hearing that the victim came at appellant with a pocketknife despite the witness having grabbed the victim, and appellant shot the victim multiple times.The witness could not explain why a knife was not found at the scene.In light of the discrepancies between the witness' recount of the homicide and appellant's statement to police, appellant's trial testimony, and the trial testimony of the State's eyewitness, appellant did not establish that inclusion of the witness' testimony at trial would have resulted in a different outcome.

c) At trial, the State orally requested a charge on voluntary manslaughter.In a bench conference, trial counsel declined to request such a charge, and opposed the State's request.From the day of his arrest through the hearing on the motion for new trial, appellant was consistent in his assertion that he acted in self-defense when he shot the victim.

[W]hile ... it is critically important for defense lawyers in a jury trial to consult fully with accuseds in such vital matters as the decision whether to pursue an "all or nothing" defense and whether to request [or acquiesce in the State's request to charge] the lesser included offenses the trial court may be willing to submit to the jury, and that the effect of a failure to so consult must be rigorously scrutinized when ineffective assistance of counsel is asserted, we do not find that failure to follow this crucial practice in every case constitutes ineffective assistance of counsel as a matter...