Foote v. State
Foote v. State
Opinion of the Court
Appellant was charged as a recidivist with two counts of aggravated assault and one count of possession of a firearm by a convicted felon. The jury found appellant guilty of one count of aggravated assault and possession of a firearm by a convicted felon. Appellant appeals from the judgments of conviction and sentences entered on the jury’s verdicts.
1. Appellant contends that his trial counsel rendered ineffective assistance by failing to move to sever the trial on the aggravated assault charges from the trial on the charge of possession of a firearm by a convicted felon. This issue was not raised by appellant in his motion for new trial, although that motion was not filed by his trial counsel but by his appellate counsel. There has been no ruling by the trial court on appellant’s claim of ineffective assistance of counsel. In Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987), the Supreme Court held that “[a]ny ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.” The instant case is factually different from Thompson. This case deals with a motion for new trial which was filed by appellant’s appellate counsel rather than a motion for new trial which was filed by trial counsel and later amended by appellate counsel. However, the rationale of Thompson is nevertheless controlling. In Thompson, the Supreme Court remanded the case to the trial
2. The appellant contends that the trial court erred in denying his motion for a mistrial made in response to an erroneous statement by the prosecuting attorney during cross-examination of a defense witness. The prosecuting attorney stated that “I’ve got a witness who had already said before that she lied to this jury.”
“In passing on a motion for mistrial because of an improper statement of a prosecutor, the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury. [Cits.]” Watkins v. State, 237 Ga. 678, 682-683 (229 SE2d 465) (1976). See also Hoerner v. State, 246 Ga. 374, 375 (271 SE2d 458) (1980).
Judgment affirmed and case remanded with direction.
Dissenting Opinion
dissenting in part.
1. “ ‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.’ Strickland v. Washington, 446 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).” Askin v. State, 178 Ga. App. 810, 811 (344 SE2d 699) (1986).
The appellant’s conviction clearly resulted not from any inadequacy on the part of his trial counsel but from the overwhelming evidence of his guilt. It was shown without dispute that the appellant produced a pistol and intentionally fired two shots at the victim, hitting him once, after the victim intervened in a domestic quarrel between the appellant and the victim’s daughter. Although the appellant maintained that he fired the shots because the victim was advancing on him with a knife, it was further established without dispute that the victim was hit in the back, which evidence was consistent with the victim’s testimony that he was attempting to walk away from the appellant when the shooting occurred. Moreover, no knife was ever located at the scene. While the appellant’s counsel may have been remiss in failing to move for a severance of the firearm possession charge from the aggravated assault charge, I do not believe there is any reasonable likelihood under these circumstances that the omission contributed to the verdict. Accord Askin v. State, supra. Consequently, I would simply affirm the conviction.
2. Assuming that a remand were appropriate, the correct disposi
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