Van Alstine v. State

• Court: Georgia Supreme Court
• Writing for the Court: HUNSTEIN
• Citation: Van Alstine v. State, 426 S.E.2d 360, 263 Ga. 1 (Ga. 1993)
• Decision Date: 25 February 1993
• Docket Number: No. S92A1092,S92A1092
• Parties: VAN ALSTINE v. The STATE.

Page 360

426 S.E.2d 360

263 Ga. 1

VAN ALSTINE v. The STATE.

No. S92A1092.

Supreme Court of Georgia.

Feb. 25, 1993.

Reconsideration Denied March 19, 1993.

J. Russell Mayer, Atlanta, for Van Alstine.

Lewis R. Slaton, Dist. Atty., Carole E. Wall, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Atlanta, for the State.

Robert D. McCullers, Staff Atty., Atlanta.

HUNSTEIN, Justice.

James Earl Van Alstine's conviction for felony murder was affirmed, Van Alstine v. State, 261 Ga. 819, 413 S.E.2d 735 (1992), but we remanded the case for a hearing on his claim of ineffective assistance of counsel. Id. at 820(2), 413 S.E.2d 735. The trial court conducted the hearing and denied his claim. Van Alstine appeals.

The evidence at trial established that an exchange of insults occurred after the car in which appellant was a passenger made minor contact with the victim's vehicle on a city street. Both vehicles then proceeded slowly through rush hour traffic and merged onto an interstate highway. The State introduced evidence that appellant's car hunted down the victim's vehicle and that appellant fired his handgun at the victim, who returned fire with his own weapon before succumbing to his wounds. Appellant's defense was that the victim initiated the gunfight by firing into appellant's car and wounding one of appellant's sons, and that appellant fired back in order to protect himself and his sons.

Appellant contends his trial counsel was ineffective because counsel failed to consult with appellant when making the tactical decision to pursue an "all or nothing" strategy and failed to request a charge on voluntary manslaughter as a lesser included offense of malice murder. At the hearing on appellant's claim of ineffective assistance, appellant's trial counsel testified that he, appellant, and counsel for appellant's sons "felt very strongly" that they had a case of self-defense based, inter alia on the fact that there were "nine or ten bullet holes" in the car occupied by appellant and only "one or two bullet holes" in the victim's vehicle. The transcript reflects that trial counsel never told appellant there were lesser included offenses of murder which might possibly be available options for the jury and that such offenses carried lesser sentences than a conviction for malice murder or felony murder; that trial counsel did not discuss with appellant the decision to pursue the murder-or-acquittal strategy at trial; and that trial counsel rejected requesting a charge on voluntary manslaughter after discussing the matter only with co-counsel. The trial transcript reveals that at the prosecution's request, the trial judge had counsel for each defendant clarify for the record that they did not request a charge on voluntary manslaughter. However, at the hearing appellant testified that he did not hear this discussion and no one asked him about lesser included offenses at trial.

The trial court found that trial counsel had not consulted with appellant on the tactical decision to go to the jury on a "murder or nothing" posture, but found the decision to be an appropriate one for counsel to make and, in the absence of authority prohibiting counsel from making such a tactical decision, concluded that trial counsel violated no duty of consultation and rendered effective assistance of counsel.

"The Sixth Amendment to the United States Constitution, as applicable to the states through the due process clause of the Fourteenth Amendment, guarantees criminal defendants effective assistance of counsel. [Cits.] However, the constitutional right to assistance of counsel insures 'not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.' [Cits.]" (Emphasis omitted.) Austin v. Carter, 248 Ga. 775, 779, 285 S.E.2d 542 (1982). In Reid v. State, 235 Ga. 378, 219 S.E.2d 740 (1975), this court found guidance in the ABA Standards for Criminal Justice, The Defense Function § 5.2 (1974), as to what extent a defendant has the right to control decisions of trial counsel relating to the conduct of the trial. " 'Control and direction of the case. (a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; [and] (iii) whether to testify in his [or her] own behalf. (b) The decisions on [what] witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.' " Reid, supra at 379, 219 S.E.2d 740.

As noted in the commentary to ABA Standard 4-5.2 (2nd ed. 1980), ¹ "[m]any of the rights of an accused ... are such that only trained experts can comprehend their full significance, and an explanation to any but the most sophisticated client would be futile." However, the commentary also recognizes that it is "important in a jury trial for the defense lawyer to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury." The commentary goes further to state that "[i]ndeed, because this decision is so important as well as so similar to the defendant's decision about the charges to which to plead, the defendant should be the one to decide whether to seek submission to the jury of lesser included offenses." Commentary, ABA Standard, supra, at p. 4-68.

We agree with the stress placed by the ABA Standard 4-5.2 commentary on the importance of full consultation between defense lawyers in a jury trial and accuseds about the lesser included offenses the trial court may be willing to submit to the jury, especially in prosecutions for malice murder and felony murder. However, we do not agree with the commentary that the decision whether to seek submission to the jury of lesser included offenses rises to the same level as the decision to plead guilty or not guilty to charged offenses so as to require the defendant alone to make that decision. A person accused of committing a crime is required by law upon arraignment to answer the indictment or accusation read to him. OCGA § 17-7-93(a). No such mandate is placed upon the decision...