Spence v. State

• Decision Date: 06 July 1982
• Docket Number: Nos. 63512,63517,s. 63512
• Citation: 292 S.E.2d 908,163 Ga.App. 198
• Parties: SPENCE et al. v. STATE. SPENCE et al. v. STATE.
• Court: Georgia Court of Appeals

Page 908

292 S.E.2d 908

163 Ga.App. 198

SPENCE et al. v. STATE.

SPENCE et al. v. STATE.

Nos. 63512, 63517.

Court of Appeals of Georgia.

July 6, 1982.

J. Roger Thompson, Ellijay, for appellants.

Joseph H. Briley, Dist. Atty., Alberto Martinez, Jr., Eatonton, for appellee.

POPE, Judge.

Ricky Spence and Sam Spence appeal from their conviction of aggravated assault (Case No. 63512), alleging ineffective assistance of counsel and asserting general grounds. We join here their appeal of the trial court's denial of their motion for supersedeas bond (Case No. 63517). We affirm both the judgment and the bond denial.

1. Appellants contend that the trial court erred in denying their motion for new trial, asserting that they were denied their constitutional right to effective assistance of counsel. For the reasons set forth below, we find appellants' contentions to be without merit.

The well-established standard in Georgia for measuring the effectiveness of counsel is traceable to Pitts v. Glass, where the supreme court, quoting from and adopting the standard enunciated by the United States Court of Appeals for the Fifth Circuit, stated that effective counsel is "not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." (Emphasis deleted) Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515 (1974), quoting from MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960). The standard applies equally to both appointed and retained counsel. Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). ¹

The parameters for appellate review of the effectiveness of counsel have been set by a long line of cases. Georgia appellate courts have traditionally been reluctant to second-guess decisions by counsel pertaining to trial strategy and tactics. See generally Jones v. State, 243 Ga. 820(12), 256 S.E.2d 907 (1979), cert. den., 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 (1979); Hawes v. State, 240 Ga. 327(1), 240 S.E.2d 833 (1977); Scott v. State, 157 Ga.App. 608(2), 278 S.E.2d 492 (1981); Stripling v. State, 155 Ga.App. 636(2), 271 S.E.2d 888 (1980); Harrell v. State, 139 Ga.App. 556(2), 228 S.E.2d 723 (1976). Decisions regarding what witnesses to call, juror selection, cross- examination and trial motions fall within the scope of strategic and tactical decisions. Hawes v. State supra 240 Ga. at 330, 240 S.E.2d 833; Reid v. State, 235 Ga. 378(1), 219 S.E.2d 740 (1975). Deficiencies which may tend to show ineffectiveness generally evince inadequate preparation and include failure to present an available material witness, failure to consult sufficiently with the accused and inadequate investigation into the facts and the law. Hawes v. State, supra, 240 Ga. at 329, 240 S.E.2d 833. See also Berryhill v. Ricketts, 242 Ga. 447(3), 249 S.E.2d 197 (1978), cert. den., 441 U.S. 967, 99 S.Ct. 2418, 60 L.Ed.2d 1073 (1979). The effectiveness of counsel cannot be fairly measured by the results of the trial, but upon the reasonable effectiveness of his services at the time they were rendered. Pitts v. Glass, supra 231 Ga. at 639, 203 S.E.2d 515.

The alleged inadequacies identified here by appellants all fall within the scope of strategic and tactical decisions. Appellants' first assertion of evidence of trial counsel's ineffectiveness is his failure to file any motions in the case. While defense motions are customary, they are certainly not mandatory. Furthermore, whereas the filing of motions is generally indicative of effective assistance (see, e.g., Harrell v. State, supra), the converse is not necessarily true. See Adams v. State, 236 Ga. 468, 471, 224 S.E.2d 32 (1976). But cf. The Unified Appeal, 246 Ga. A-1 et seq. (1980); 248 Ga. 906 et seq. (1982). This is not to say that this court would condone the failure to file a motion that a reasonable attorney, conducting adequate preparation for trial, would have deemed material to the defense. Appellants, however, have failed to show that the decision not to file any motions was unreasonable in this case and that they suffered harm as a result. Our independent review of the record further satisfies us that appellants' contention is without merit.

Appellants next contend that the failure of trial counsel to use photographs provided to him by appellants, depicting their wounds, demonstrates counsel's ineffectiveness. Whether or not the photographs were probative was clearly a tactical decision best left to the determination of the trial attorney. Jones v. State, supra 243 Ga. at 830, 256 S.E.2d 907. We cannot, and will not, substitute our judgment. Pitts v. Glass, supra.

Appellants take issue with trial counsel's failure to object to the testimony of a state's witness, commenting on appellants' exercise of their right to remain silent. From review of the transcript, it is apparent that the state was not attempting to use appellants' silence against them in violation of due process as expressed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The comment was volunteered by the witness, not solicited by the prosecutor, and the prosecutor immediately moved on to another matter. Compare Kitchens v. State, 150 Ga.App. 707, 708, 258 S.E.2d 544 (1979). Appellants' counsel had a valid tactical reason for not objecting, that is, to avoid highlighting the comment, which by itself would have had a minimal effect on the jury. See Kitchens v. State, supra; Smith v. State, 140 Ga.App. 385(3), 231 S.E.2d 83 (1976).

Appellants' fourth contention is that trial counsel should have objected to a police officer's testimony that a substance appeared to be blood. The contention is wholly without merit; the opinion was allowable. Carter v. State, 242 Ga. 695(2), 251 S.E.2d 285 (1978); Thomas v. State, 67 Ga. 460(4) (1881). Moreover, when the state attempted to develop the line of questioning, appellants' counsel did interpose an objection.

Appellants' fifth contention includes the allegation that counsel did not call a material witness. Appellant's contend that the witness saw the fight and would have given a a materially different account than that of a state's witness. They further contend that they told this to their trial counsel and that he neglected to even interview the witness. In support of these contentions appellants offer their own affidavits and the affidavit of the witness. As we suggested earlier, the affidavits of appellants are inherently suspect and entitled to little weight. Under the circumstances here, we also give little weight to the affidavit of the witness. Appellants offered the affidavit of the witness as an exhibit to their amended motion for new trial. They did not present the witness at the motion hearing. Thus, the witness' statement was never tested by cross-examination. The statement was not corroborated by any evidence. In short, we find the proffered support for the contention too tenuous to be persuasive. Appellants' remaining allegations in their final enumerated contention are unsubstantiated and we find them to be without merit.

After review of the transcript and the record as a whole, we conclude that appellants' counsel was adequately prepared for trial and that he did provide effective assistance. Counsel selected jurors, made an opening statement, made appropriate...