Goodwin v. Cruz-Padillo
Goodwin v. Cruz-Padillo
Opinion of the Court
Rudolfo Cruz-Padillo’s petition for writ of habeas corpus was granted on the basis that he had received ineffective assistance of trial counsel. Warden Goodwin appeals and we reverse.
The evidence at trial established that the victim, who was Cruz-Padillo’s work supervisor, had engaged in a fist fight with Cruz-Padillo’s roommate the evening before the incident (during which the victim had slapped Cruz-Padillo on the face), but the fight had ended peacefully and the combatants had shaken hands. The next day, Cruz-Padillo shot the unarmed victim four times outside the restaurant where the two men worked. He asserted at trial that he acted in self-defense to avoid receiving a beating.
During presentation of the defense, trial counsel moved to admit evidence of the victim’s acts of violence towards others on the basis of Chandler v. State, 261 Ga. 402 (3) (405 SE2d 669) (1991), which had been rendered July 3, 1991 and was published in the Advance Sheets three days after Cruz-Padillo’s trial began. The trial court denied the motion on the basis that the change in law represented by Chandler was not applicable to Cruz-Padillo’s trial. In addressing on direct appeal Cruz-Padillo’s enumeration challenging this ruling, this Court found no reversible error because there had been no proffer at trial concerning what testimony Cruz-Padillo expected his witness to give. Cruz-Padillo v. State, 262 Ga. 629 (4) (422 SE2d 849) (1992).
At the habeas hearing, trial counsel testified that he had been prepared to make the required proffer at the time of the trial court’s evidentiary ruling, but that the witness whom counsel had subpoenaed for that purpose had refused at the last minute to testify. Cruz-Padillo argued, and the habeas court found, that trial counsel was ineffective because counsel failed to subpoena additional witnesses for the purpose of making the necessary proffer at trial as to the victim’s acts of violence towards third parties. Trial counsel testified that while investigating the matter, he had learned that the victim had assaulted other co-workers and acknowledged as correct that “there were other people . . . that actually told [trial counsel] ‘Yes, I’ve seen [the victim] beat other workers in this restaurant,’ ” but that counsel did not subpoena these others to make the proffer. This testimony by trial counsel constituted Cruz-Padillo’s sole evidence in support of his ineffective assistance claim.
In determining whether a convicted defendant’s claim that trial counsel’s assistance was so defective as to require reversal of the conviction, this Court applies the two-prong test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), under which the defendant is required to show both that counsel’s
In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a petitioner is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.
[T]he failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of a showing that such evidence would have been relevant and favorable to the defendant. Because appellant failed ... to make any proffer of the uncalled witnesses’ testimony, it is impossible for appellant to show there is a reasonable probability the results of the proceedings would have been different. [I]t cannot possibly be said that the [additional witnesses] would have testified favorably to appellant.
(Citations and punctuation omitted.) Ponder v. State, 201 Ga. App. 388 (1) (411 SE2d 119) (1991). Accord Roberts v. State, 263 Ga. 807 (2) (b) (439 SE2d 911) (1994).
In the instant case, Cruz-Padillo’s sole evidence consisted of testimony by trial counsel that counsel knew there were other witnesses who had seen the victim assault unnamed co-workers; no further information was elicited by petitioner from trial counsel. Although Cruz-Padillo at the habeas hearing had the opportunity under OCGA § 9-14-48 to submit any affidavits of the actual testimony of these persons, see Gaither v. Cannida, 258 Ga. 557, 560-561 (2) (372 SE2d 429) (1988), he failed to do so. The other witnesses were not identified; no affidavits or other sworn testimony from these witnesses were adduced; and there is no evidence that these other witnesses, had they been subpoenaed, would have agreed to testify.
Because the evidence adduced by Cruz-Padillo at the habeas hearing provided nothing more than mere speculation as a basis for the habeas court’s ruling,
Judgment reversed.
See also Pless v. State, 260 Ga. 96 (4) (390 SE2d 40) (1990); Brown v. State, 257 Ga. 277 (2) (d) (357 SE2d 590) (1987).
In this regard, we agree with the holding in Alexander v. McCotter, 775 F2d 595, 602 (5th Cir. 1985) that
*616 [i]n order for the appellant to demonstrate the requisite Strickland prejudice, the appellant must show not only that this testimony would have been favorable, but also that the witness would have testified at trial. [Cits.]
See also United States ex rel. Cross v. DeRobertis, 811 F2d 1008, 1016 (7th Cir. 1987).
Under the factual circumstances present here, we find this is “simply not the kind of case where there has been such a constructive denial of counsel . . . that prejudice can be presumed.” Aldrich v. Wainwright, 777 F2d 630, 634 (11th Cir. 1985).
Dissenting Opinion
dissenting.
The majority has departed from the long-standing rule that this court will not disturb the findings of a habeas court if any evidence in the record supports the findings.
Trial counsel testified that he considered the case against Cruz-Padillo a close one.
The habeas court also found that trial counsel’s performance was deficient because he failed to investigate the facts in the case and failed to interview a majority of the state’s witnesses before trial. This finding was based in part on a credibility determination by the habeas court.
The majority glosses over these specific factual findings of the habeas court by holding that the habeas court was merely speculating on the prejudicial effect of trial counsel’s deficient performance. I strongly disagree. Trial counsel’s testimony regarding the substance of the uncalled witness’ testimony was specific enough to allow the habeas court to determine that the evidence would have been admissible and favorable.
The habeas court was not required to determine that trial counsel’s compound deficiencies would have resulted in an acquittal.
I am authorized to state that Chief Justice Hunt and Justice Sears join in this dissent.
See Williams v. Caldwell, 229 Ga. 453 (192 SE2d 378) (1972); Balkcom v. Vickers, 220 Ga. 345, 348 (138 SE2d 868) (1964).
466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); see also Smith v. Francis, 253 Ga. 782 (325 SE2d 362) (1985).
The jury’s verdict confirms this: the jury returned a verdict of voluntary manslaughter on the malice murder charge and also convicted Cruz-Padillo of felony murder based on the underlying felony of aggravated assault. Cruz-Padillo v. State, 262 Ga. 629, n. 1 (422 SE2d 849) (1992).
261 Ga. 402, 407 (405 SE2d 669) (1991).
Cruz-Padillo, 262 Ga. at 631.
See Code v. Montgomery, 799 F2d 1481, 1483-1484 (11th Cir. 1986) (failure to investigate or subpoena witnesses in support of sole defense of alibi was ineffective assistance of counsel); see also Zant v. Hamilton, 251 Ga. 553, 554 (307 SE2d 667) (1983) (affirming habeas court’s finding that counsel was ineffective in part because he failed to investigate victim’s known propensity for violence).
See Holland v. Williams, 126 Ga. 617, 618 (55 SE 1023) (1906) (within judge’s discretion to receive offer of proof from counsel or from witness).
201 Ga. App. 388, 389 (411 SE2d 119) (1991). The other cases cited by the majority are likewise inapplicable, because the evidence presented in those cases falls far short of the testimony before the habeas court. See Roberts v. State, 263 Ga. 807, 808 (439 SE2d 911) (1994) (no proffer as to one uncalled witness, and other uncalled witness’ testimony was not favorable to defense); Pless v. State, 260 Ga. 96, 99 (390 SE2d 40) (1990) (counsel’s decision not to pursue witnesses was a trial tactic); Brown v. State, 257 Ga. 277, 279 (357 SE2d 590) (1987) (no evidence of substance of uncalled witness’ testimony or how it might be relevant); Alexander v. McCotter, 775 F2d 595, 602 (5th Cir. 1985) (petitioner failed to provide either the subject matter of the expected testimony or the defense it might tend to establish).
Strickland, 466 U.S. at 694.
See Code, 799 F2d at 1484 (showing of prejudice does not require determination that alibi testimony would have changed trial result; prejudice is shown where counsel’s failure to investigate and present defense deprived defendant of “fundamentally fair trial”).
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