Walden v. State, 69253

• Decision Date: 13 February 1985
• Docket Number: No. 69253,69253
• Citation: 326 S.E.2d 838,173 Ga.App. 478
• Parties: WALDEN v. The STATE.
• Court: Georgia Court of Appeals

Page 838

326 S.E.2d 838

173 Ga.App. 478

WALDEN v. The STATE.

No. 69253.

Court of Appeals of Georgia.

Feb. 13, 1985.

David L. Cannon, for appellant.

Rafe Banks III, Dist. Atty., for appellee.

POPE, Judge.

Appellant appeals from a jury verdict convicting him of three counts of forgery in the first degree.

1. In his first enumeration of error, appellant raises the general grounds. OCGA § 16-9-1(a) provides: "A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing." " 'The gravamen of the offense was that [appellant] without authority and with intent to defraud possessed a "writing" purportedly endorsed by others and uttered or delivered it.' Henderson v. State, 146 Ga.App. 114, 115(1) (245 SE2d 437) (1978)." Johnson v. State, 158 Ga.App. 183, 184, 279 S.E.2d 483 (1981). See LaPann v. State, 167 Ga.App. 288(6), 306 S.E.2d 373 (1983). The State presented evidence to show that in December 1983 three separate personalized checks were written on the account of Darron Gates at the Etowah Bank. Each was endorsed in Gates' name and each was presented to a business in Cherokee County in exchange for goods and cash. Each check was returned by the bank because Gates' account with the Etowah Bank had been closed almost two years before. Gates testified that he did not write, endorse or utter any of the checks. Further, Gates did not provide the checks to appellant nor give him permission to use them. Gates testified that he had been acquainted with appellant for a long time and that they had been neighbors. After his account was closed, according to Gates, he had a box of the old checks. When he moved from his father's house, he thought that he threw the box of checks away. Each person who had accepted and cashed the forged checks identified appellant as the perpetrator.

We find the evidence sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of all three counts of forgery in the first degree. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Woody v. State, 166 Ga.App. 666(2), 305 S.E.2d 365 (1983); see also Banks v. State, 162 Ga.App. 205, 290 S.E.2d 549 (1982).

2. Appellate counsel for appellant next contends that his trial counsel rendered ineffective assistance in failing to object to the reference by a State's witness to "mug shots" in discussing a photographic display, as well as making a verbal motion to suppress certain identification testimony after the rule of sequestration had been invoked but prior to actual removal from the courtroom. We note first that even with timely objection, neither would be grounds for reversal. See, respectively, Hunter v. State, 170 Ga.App. 356(2), 317 S.E.2d 332 (1984), and Brewer v. State, 162 Ga.App. 228(1), 291 S.E.2d 87 (1982). See generally Mathis v. State, 249 Ga. 454(2), 291 S.E.2d 489 (1982); Stevens v. State, 247 Ga. 698(6), 278 S.E.2d 398 (1981); McGarl v. State, 165 Ga.App. 323(2), 301 S.E.2d 58 (1983). Further, it is apparent from the transcript that trial counsel was prepared for trial and proceeded to conduct a viable defense on appellant's behalf. A witness was presented in support of his defense of alibi and the State's witnesses were vigorously cross-examined on the possibility of their misidentification of appellant.

"In determining whether appellant was afforded effective assistance of counsel, this court must consider (1) whether the [appellant] had a defense which was not presented; (2) whether counsel investigated the facts and consulted with his client about the case; (3) whether the omissions alleged to have been committed by the attorney were the result of inadequate trial preparation or simply the result of unwise trial tactics." Brand v. State, 169 Ga.App. 118, 312 S.E.2d 157 (1983). See Spence v. State, 163 Ga.App. 198(1), 292 S.E.2d 908 (1982). "The constitutional right to the assistance of counsel means counsel who renders reasonably effective assistance, not errorless counsel and not counsel judged ineffective by hindsight." Fegan v. State, 154 Ga.App. 791, 792, 270 S.E.2d 211 (1980). Accord Hudson v. State, 250 Ga. 479(8), 299 S.E.2d 531 (1983); Pitts v....