From Casetext: Smarter Legal Research

Anderson v. State

Court of Appeals of Georgia
Nov 3, 1992
426 S.E.2d 6 (Ga. Ct. App. 1992)




Robbery. DeKalb Superior Court. Before Judge Castellani.

Zion, Tarleton Siskin, Jonathan J. Wade, for appellant.

Robert E. Wilson, District Attorney, Gregory A. Adams, J. George Guise, Assistant District Attorneys, for appellee.

Appellant was tried before a jury and found guilty of robbery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury's guilty verdict and his enumerations of error relate only to the issue of the effectiveness of his trial counsel.

1. The victim's daughter, who was an eyewitness to the crime, testified to the following: As she sat in the courtroom before the preliminary hearing, she had observed appellant who, at the time, had "more men with him." She recognized appellant as the robber. Thereafter, an officer asked her if appellant was the robber and she confirmed that he was.

Appellant urges that his trial counsel was ineffective in failing to object to the introduction of this "impermissibly suggestive" identification testimony. However, the failure to object was not an instance of ineffective representation, since the testimony "was clearly not the product of any impermissibly suggestive procedure. [Cits.]" Wilson v. State, 181 Ga. App. 435 (1) ( 352 S.E.2d 618) (1987). See also Jones v. State, 171 Ga. App. 184 (1) ( 319 S.E.2d 18) (1984); Brown v. State, 171 Ga. App. 70, 71 (3) ( 318 S.E.2d 498) (1984); Prater v. State, 148 Ga. App. 831, 841 (7) ( 253 S.E.2d 223) (1979). Compare Bradley v. State, 148 Ga. App. 722, 723 (2) ( 252 S.E.2d 648) (1979). "The chance viewing of the appellant prior to trial as he sat with others was no more suggestive than seeing him in the hall as he and other defendants are being brought in for trial, or seeing him seated at the defense table as each witness comes in to testify." McClesky v. State, 245 Ga. 108, 110 (2) ( 263 S.E.2d 146) (1980).

The officer did not direct the attention of the victim's daughter from the other men to appellant. She had already identified appellant before the officer questioned her. In her response to the officer, she merely acknowledged her prior identification of appellant. If she had taken the initiative and informed the officer of her identification of appellant, there certainly would be no reason for exclusion of her testimony. Daniels v. State, 252 Ga. 30 (1) ( 310 S.E.2d 904) (1984); Prater v. State, supra. Likewise, there is no reason why her testimony should be excluded merely because the officer elicited an affirmation of her prior identification of appellant.

Moreover, even if the identification testimony of the victim's daughter had been inadmissible, the failure of appellant's trial counsel to have secured its exclusion would not warrant a reversal of his conviction. The victim herself testified and identified appellant as the robber. "With this evidence, we cannot conclude that there was any reasonable probability that the result in [appellant's] trial would have been any different if the [identification testimony of the victim's daughter] had been excluded." Whitner v. State, 202 Ga. App. 608, 609 ( 415 S.E.2d 52) (1992).

2. In several instances, trial counsel failed to object to hearsay. In no instance, however, was the hearsay prejudicial and it was shown that trial counsel had intentionally waived objection in order not "to interrupt the flow [of the trial] so the jury thinks that you are trying to hide something."

Whether it may be more prejudicial to object than to allow the introduction of evidence which goes merely to irrelevant issues is certainly a tactical and strategic decision. Appellant's trial counsel made that decision and, that she did so, affords him no ground for a new trial. "If we continue to second guess trial counsel on strategy and tactics when counsel have faithfully and diligently performed their function, we would have a proliferation of appeals on the flimsiest of grounds. `It is important for appellate judges to remember that "[a] defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials." (Cits.)' [Cit.]" Stripling v. State, 155 Ga. App. 636, 637 (2) ( 271 S.E.2d 888) (1980). In a "perfect" trial, trial counsel would object even to non-prejudicial, irrelevant evidence. However, the failure of trial counsel to object to such evidence in the instant case did not deprive appellant of a "fair" trial.

3. Without objection, the victim testified to certain post-robbery events, including her receipt of "hang-up" telephone calls which she had tried to have traced and her initiation of a police investigation into a possible break-in of her residence wherein nothing had been found to be missing. Appellant urges that the inference of this testimony was to the effect that he was responsible for the telephone calls and the possible break-in and that his trial counsel was ineffective for failing to object. According to appellant's trial counsel, however, she had not objected in order to urge that this testimony reflected that the victim was in a highly emotional state after the robbery and that this highly emotional state contributed to the victim's misidentification of appellant as the perpetrator of the robbery. Thus, trial counsel did not consider the testimony to be prejudicial to appellant, but beneficial to appellant's misidentification defense. According to trial counsel, the victim was so emotional that she was prepared to identify any suspect, even the innocent appellant, as the robber. This was, of course, a legitimate trial tactic and strategy and affords no basis for the reversal of appellant's conviction. See generally Cribbs v. State, 204 Ga. App. 109 (1) ( 418 S.E.2d 405) (1992).

4. Appellant had no right to have voir dire and closing arguments fully recorded. Roper v. State, 251 Ga. 95, 98 (5) ( 303 S.E.2d 103) (1983); Aiken v. State, 226 Ga. 840, 841 (1) ( 178 S.E.2d 202) (1970). Accordingly, the fact that trial counsel did not request that voir dire and arguments be fully recorded did not deprive appellant of any right and would not serve to demonstrate that she was ineffective.

Judgment affirmed. Pope and Johnson, JJ., concur.


Summaries of

Anderson v. State

Court of Appeals of Georgia
Nov 3, 1992
426 S.E.2d 6 (Ga. Ct. App. 1992)
Case details for

Anderson v. State

Case Details


Court:Court of Appeals of Georgia

Date published: Nov 3, 1992


426 S.E.2d 6 (Ga. Ct. App. 1992)
426 S.E.2d 6

Citing Cases

Eller v. State

Furthermore, we note that O.C.G.A. § 5-6-41 provided Eller the means to reconstruct the proceedings for…

White v. State

Accordingly, we expressly reject the Court of Appeals' analysis finding the officer's testimony not to be…