State v. Shuman
| Decision Date | 17 February 1982 |
| Docket Number | 62919,Nos. 62745,s. 62745 |
| Parties | The STATE v. SHUMAN. SHUMAN v. The STATE. |
| Court | Georgia Court of Appeals |
Spencer Lawton, Jr., Dist. Atty., Savannah, for appellant in 62745.
Jack Friday, Savannah, for appellee in 62745 and appellant in 62919.
Andrew J. Ryan, Dist. Atty., Savannah, for appellee in 62919.
In one indictment appellee/cross-appellant Shuman was charged with possession and sale of controlled substances on October 2, 1979, and recidivism. A second indictment charged Shuman with possession of marijuana and controlled substances on June 12, 1980. After the two indictments were consolidated and a trial was had, appellee was convicted of the October 2 charge and acquitted of the June 12 possession charges. Shuman was sentenced to serve five years, and the state's appeal followed the trial court's denial of the state's motion to amend the sentence. In the cross appeal, Shuman seeks reversal of the denial of his motion for a new trial, asserting that he was denied the effective assistance of counsel.
1. In his appeal, Shuman asserts that his trial counsel was ineffective and cites several purported examples of the alleged ineffectiveness. We must point out that counsel now attacked as ineffective succeeded in having the jury acquit the defendant of two of the three charges against him. In light of this, we will not consider those allegations of ineffectiveness which concern the charges of which appellant was acquitted.
In Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515, the Supreme Court adopted the following standard to determine the effectiveness of counsel: " 'We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.' " Id., p. 639, 203 S.E.2d 515. We have examined the transcript with each of cross-appellant Shuman's pertinent allegations of ineffectiveness in mind and conclude that his trial counsel was not ineffective.
2. Consolidation for trial of two indictments charging separate and distinct offenses is not per se ineffective assistance of counsel. The cases may be tried jointly with the consent of the defendant. Bradford v. State, 126 Ga.App. 688(1), 191 S.E.2d 545. It is possible that the defendant and his counsel consolidated the indictments, one of which charged the defendant with recidivism, to minimize the possible effects of Code Ann. § 27-2511 on the defendant. Under that statute, conviction of the charges alleged in multiple indictments which are tried together is treated as one conviction. We will not read into defendant Shuman's post-trial affidavit an implication that he did not knowingly consent to the consolidation.
3. Shuman asserts that damaging character and hearsay evidence was admitted into evidence at trial with no objection from his trial attorney. Four of appellant's seven examples are based upon testimony introduced with respect to the charges of which appellant was acquitted and therefore will not be considered by this court. The remaining instances of the alleged placement of the defendant's character into evidence concern a defense counsel query about the defendant's probation officer, a remark of the defendant's about his probation officer, and the defendant's acknowledgment on cross examination that he had previously possessed quaaludes.
Since previous possession of quaaludes is not necessarily criminal conduct, appellant's admission of such conduct will not place his character into evidence. Secondly, appellant cannot now complain that his answers to questions constituted ineffectiveness on his attorney's part. Finally, the propounding of an incomplete improper question to a witness is not grounds for reversal or a finding of ineffectiveness, and the trial court's cutting short of the question diminished whatever prejudicial effect the incomplete question may have had on the jury. See Bell v. State, 129 Ga.App. 783(4), 201 S.E.2d 340.
4. Defendant's complaints about his attorney's legal ability with respect to the motion to suppress hearing and a demurrer to the indictment will be given no consideration here since defendant cannot show any harm resulting from his lawyer's conduct inasmuch as the jury acquitted defendant of the charges with which the motion to suppress and the demurrer were concerned.
5. Finally, defendant attacks the adequacy of his attorney's closing argument to the jury with respect to the defense presented to the charges of possession and sale of controlled substances. Appellant's criticism is, in reality, a condemnation of trial counsel because he did not conduct appellant's defense in the same manner as appellant's present counsel...
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Godbey v. State, A99A0868.
...v. State, 129 Ga.App. 783, 785(4), 201 S.E.2d 340 (1973) (physical precedent only, but cited with approval in State v. Shuman, 161 Ga.App. 304, 306(3), 287 S.E.2d 757 (1982)). Here, the question was never answered, and the jury was instructed to disregard its content. The instruction was su......
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State v. Baldwin
...382, 383, 271 S.E.2d 30 (1980). "[T]his court has ruled that void sentences are appealable by the state. [Cit.]" State v. Shuman, 161 Ga.App. 304, 306, 287 S.E.2d 757 (1982). Accordingly, we hold that the state's notice of appeal from a "judgment sentencing defendant," which is asserted to ......
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Bowden v. State, A06A1077.
...Bowden can show no harm from the denial of his motion to suppress evidence, as that evidence was not used to convict him. Cf. State v. Shuman2 (where jury acquits defendant of charges that were to be proven by the evidence sought to be suppressed, there is no harm to the defendant by the co......
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State v. Jones, A03A2320.
...ELDRIDGE, J., concur. 1. OCGA § 5-7-1(a)(5); State v. Stuckey, 145 Ga. App. 434, 243 S.E.2d 627 (1978). Accord State v. Shuman, 161 Ga.App. 304, 306(6), 287 S.E.2d 757 (1982); State v. Baldwin, 167 Ga.App. 737, 738(1), 307 S.E.2d 679 (1983) (notice of appeal from allegedly void sentence inv......