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Gibbs v. State

Court of Appeals of Georgia.
Jun 26, 2012
729 S.E.2d 563 (Ga. Ct. App. 2012)

Opinion

Nos. A12A0790 A12A0791.

2012-06-26

GIBBS v. The STATE. Gibbs v. The State.

Scottie Gibbs, pro se. James Bradley Smith, Jefferson, for The State.



Scottie Gibbs, pro se. James Bradley Smith, Jefferson, for The State.
McFADDEN, Judge.

Carl Gibbs and his son, Scottie Gibbs, appeal from their convictions for aggravated assault. Construed in favor of the verdict, see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), evidence presented at trial shows that after a motor vehicle collision, both Carl and Scottie Gibbs fired gunshots at their neighbors, Dennis and Leigh Ann Cox. On appeal, the Gibbses argue that their trial attorneys were ineffective in failing to introduce testimony from an accident reconstruction expert to contradict the Coxes' testimony that the collision occurred on their property and not on the dirt road in front of their property. The argument is without merit.

To obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel's performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. To establish deficient performance, a defendant must show that counsel's performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. In considering adequacy of performance, trial counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
(Citations and punctuation omitted.) Brown v. State, 310 Ga.App. 285, 287–288(6), 712 S.E.2d 521 (2011).

In this case, the defense strategy was not to contest the circumstances of the collision, but was to show that Carl and Scottie Gibbs did not fire any shots at the victims. Moreover, the attorneys explained that they did not think an accident reconstruction expert would be helpful because, by the time they could have hired one, the conditions of the dirt road had changed significantly and the vehicles were not in the same condition they were in immediately after the collision. “Decisions based on counsel's reasonable trial strategy do not constitute deficient performance, and reviewing courts do not evaluate trial counsel's tactics and strategic decisions in hindsight.” (Citation and punctuation omitted.) Davis v. State, 293 Ga.App. 799, 802(3), 668 S.E.2d 290 (2008). Accordingly, the appellants have failed to show that their respective trial counsel's performance was deficient. See Ventura v. State, 284 Ga. 215, 218(4), 663 S.E.2d 149 (2008) (strategic decisions regarding which witnesses to call within exclusive province of the attorney).

Furthermore, even if we were to presume for the sake of argument that the performance of the trial attorneys was deficient, the appellants have not shown that they were prejudiced by the decision of their attorneys not to call an expert to testify that the location of the collision was in the roadway and not on the Coxes' property. At trial, the sheriff's lieutenant who investigated the incident testified that there was no doubt, based on debris found in the roadway and on statements given by the Coxes and Carl Gibbs, that the collision occurred in the middleof the road. Therefore, neither of the appellants can “show that he was prejudiced by his counsel's failure to call an expert to provide cumulative evidence about the alleged [location of the collision].” Duran v. State, 274 Ga.App. 876, 879(3), 619 S.E.2d 388 (2005). See also Johnson v. State, 257 Ga.App. 30, 31(1), 570 S.E.2d 344 (2002) (failure to present cumulative evidence through additional witness testimony does not amount to ineffective assistance of counsel).

Judgments affirmed.

BARNES, P.J., and ADAMS, J., concur.


Summaries of

Gibbs v. State

Court of Appeals of Georgia.
Jun 26, 2012
729 S.E.2d 563 (Ga. Ct. App. 2012)
Case details for

Gibbs v. State

Case Details

Full title:GIBBS v. The STATE. Gibbs v. The State.

Court:Court of Appeals of Georgia.

Date published: Jun 26, 2012

Citations

729 S.E.2d 563 (Ga. Ct. App. 2012)
316 Ga. App. 431
12 FCDR 2107

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