Robinson v. the State ( 2015 )

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
March 26, 2015
In the Court of Appeals of Georgia
A14A2206. ROBINSON v. THE STATE.
RAY, Judge.
A Fulton County jury convicted Jonathan Robinson of two counts of rape, two
counts of kidnaping and one count of armed robbery. He was acquitted of one count
of rape, one count of aggravated sodomy and one count of impersonating a police
officer.1 He appeals from the denial of his motion for new trial, contending that the
trial court erred in denying his motion for recusal, in permitting evidence of his prior
arrests and convictions into evidence for the purposes of impeachment, in failing to
excuse a prospective juror for cause, and in issuing improper jury charges. He also
contends that he received ineffective assistance from his trial counsel. For the
1
Robinson was acquitted of rape and aggravated sodomy arising from an
incident with a third victim.
following reasons, we vacate Robinson’s conviction and remand the case to the trial
court for further proceedings consistent with this opinion.
The evidence, construed in favor of the jury’s verdict, showed that on May 13,
2000, K. C. was standing at a telephone booth near a gas station when Robinson
approached her and offered her a ride. K. C. got into his vehicle, and he drove to a
secluded street. Robinson “propositioned [her] with money” , and she declined. He
then got a police clipboard out of the back of his car and used a radio ostensibly to
call for backup. Robinson then became aggressive, came around to K. C.’s side of the
car, and raped her. K. C. had just had a baby and was still recovering from the birth.
Robinson then drove K. C. home, where she told her mother that she had been
sexually assaulted and that she needed to call 911. K. C. testified that she had never
before met Robinson.
That same day, a sexual assault exam was conducted on K. C.. A rape kit was
collected as evidence after the exam. K. C. was crying and upset while at the hospital.
The Georgia Bureau of Investigation (“GBI”) developed a male DNA profile from the
rape kit and uploaded it into the CODIS database. On December 12, 2002, a CODIS
match indicated Robinson as being connected with K. C.’s case.
2
On May 30, 1999, Robinson approached R. A. and offered her a ride in his
truck. At first R. A. was going to get in the truck, but ultimately decided not to
because something did not feel right to her. However, Robinson swung open the truck
door and dragged R. A. into the truck by her hair. R. A. begged Robinson not to hurt
her and gave him all the money she had. Robinson parked the truck, informing her
that he had a weapon under the seat of his truck and that he would kill her if she did
not comply with his demands. He then raped her. Robinson then told R. A. to put her
money, cell phone and jewelry in her purse, and he took it and threw it in the back of
the truck. Robinson also took R. A.’s panties. He told her to get out of the truck or
that he would run over her, so she got out of the truck.
That same day, R. A. went to the hospital to have a sexual assault exam. R. A.
was described as crying uncontrollably while at the hospital. The GBI developed a
male DNA profile from the rape kit collected and uploaded it into the CODIS
database. In February 2002, a CODIS match came indicated Robinson as being
connected with R. A.’s case. R. A. testified that she had never met Robinson before.
Robinson testified in his own defense at trial, alleging that the victims
consented to having sex with him.
3
1. Robinson contends that the trial judge erred in denying his untimely motion
to recuse and in failing to recuse herself sua sponte. He also claims that his trial
counsel rendered ineffective assistance for failing to properly pursue this claim. We
disagree.
(a) At the time of Robinson’s indictment, the trial judge was a chief senior
assistant district attorney in the Fulton County District Attorney’s Office in the
Crimes Against Women and Children (“CWAC”) Unit. The trial judge stated that she
never touched any of the case files related to Robinson during her time with the
District Attorney’s Office.
“[W]hen a motion to recuse is filed, the trial judge shall immediately
determine: (1) the timeliness of the motion; (2) the legal sufficiency of the affidavit;
and (3) the legal sufficiency of the grounds, and has no power to do anything else in
the case.” (Citations omitted.) Baptiste v. State, 229 Ga. App. 691, 698 (2) (494 SE2d
530) (1997). See Uniform Superior Court Rule 25.1 (“All motions to recuse . . . shall
be timely filed in writing and all evidence thereon shall be presented by
accompanying affidavit(s) which shall fully assert the facts upon which the motion
is founded”).
4
Here, Robinson’s motion to recuse was both untimely and failed to attach the
required affidavit in support of the grounds he asserted in support of his motion.
Robinson’s trial counsel, who had been an assistant district attorney in the Fulton
County District Attorney’s Office at the same time as the trial judge , did not file a
motion to recuse until more than three months after filing a notice of appearance in
the case.
See Uniform Superior Court Rule 25.1 (“Filing and presentation to the judge shall be
not later than five (5) days after the affiant first learned of the alleged grounds for
disqualification. . .”). Further, the motion alleged only the conclusory statement that
the trial judge had a “conflict of interest . . . with [another judge] and the Fulton
County District Attorney’s Office Crimes Against Women and Children Unit.” The
motion was not accompanied by a supporting affidavit “clearly stat[ing] the facts and
reasons for the belief that bias or prejudice exists, being definite and specific as to
time, place, persons and circumstances of extra-judicial conduct or statements . . .”
as required by Uniform Superior Court Rules 25.1 and 25.2. Accordingly, the trial
court did not abuse its discretion in denying his motion to recuse. See Daker v. State,
243 Ga. App. 848, 855 (21) (533 SE2d 393) (2000) (A trial judge is authorize to deny
5
a motion for recusal on its face when the motion is untimely and not supported by a
sufficient affidavit).
Further, Robinson’s motion itself failed to specifically allege facts that, if
assumed true, would demonstrate that the trial judge, while still a prosecutor, ever had
any personal or supervisory involvement in the present criminal matter. Rather, it
simply asserted that the trial judge might have a “conflict of interest” because of her
prior employment with the District Attorney’s office. See Gude v. State, 289 Ga. 46,
49 (2) (a) (709 SE2d 206) (2011) (finding that a trial judge presiding over a criminal
matter who previously worked in the district attorney’s office while the office was
involved in some aspect of the same criminal matter need not recuse herself unless
the trial judge, while still a prosecutor, was personally involved in some aspect of the
criminal matter or served in a supervisory role over another lawyer while that lawyer
was personally involved in the case). Compare Birt v. State, 256 Ga. 483, 484-485 (3)
, (4) (350 SE2d 241) (1986) (defendant, who had made timely and verified motion to
recuse setting forth sufficient factual allegations, was entitled to evidentiary hearing
on motion, where verified motion set forth some factual allegations, which, if proved,
could support finding of partiality sufficient to require recusal). We find no abuse of
discretion in the trial court’s denial of his motion to recuse.
6
(b) We further find that Robinson’s ineffective assistance claim arising from
his trial counsel’s failure to file the affidavit is without merit. In order to prove that
he received ineffective assistance of counsel, Robinson must show both “that his trial
counsel’s performance was deficient and that the deficiency was so prejudicial that
a reasonable likelihood exists that the outcome of the trial would have been different
but for counsel’s error.” (Footnote omitted.) Paul v. State, 296 Ga. App. 6, 10 (3)
(673 SE2d 551) (2009). Robinson has not shown how a timely filed affidavit would
have effected the ruling on his motion to recuse, we find that he has not supported his
burden of proving that he was prejudiced by his trial counsel’s error. See Gude, supra.
2. Robinson argues that the trial court erred in permitting the State to impeach
him with evidence of prior arrests. We find no error.
Robinson filed a motion in limine seeking the exclusion of any evidence
regarding his arrests that did not result in convictions. This motion was granted.
However, Robinson’s strategy at trial was to establish that the prosecution against
him had been pushed by a particular investigator in the Atlanta Police Department in
retaliation for Robinson’s successful internal complaint against her. His arrest for the
charges against R. A. and K. C. occurred the day after he received notice that the
investigator was sanctioned for her improper processing of his vehicle and mobile
7
phone after his earlier arrest for his alleged acts against the third victim in this case.
Robinson also indicated that he had made as many as seven or eight complaints
against the Atlanta Police Department in the past. The trial court found that the
testimony elicited by the defense counsel that Robinson had made many complaints
against the police in the past “opened the door” to the State’s admission of his prior
arrests for stealing cars from the Atlanta Police Department, reasoning that his
testimony gave “the impression that all of those complaints were related [to the
instant case] when that’s not necessarily the case.” Accordingly, the the trial court
allowed the State to ask if Robinson had been arrested and charged with stealing cars
from the Atlanta Police Department, to which Robinson said, “Yes.”
“The trial court has broad discretion in determining the scope and extent of
cross-examination; absent a clear abuse of discretion, the action of the trial court will
not be disturbed.” (Citations and punctuation omitted.) Williams v. State, 303 Ga.
App. 222, 229 (4) (692 SE2d 820) (2010). “Evidence that is relevant and material to
an issue in the case is not made inadmissible because it incidentally places the
defendant’s character in issue.” (Citation and punctuation omitted.) Mayberry v.
State, 301 Ga. App. 503, 506 (2) (687 SE2d 893) (2009).
8
Here, however, the State does not argue and the trial court did not hold that
Robinson placed his character into issue, but rather that the evidence is admissible to
fully explain that not all of Robinson’s “seven or eight” prior complaints against the
Atlanta Police Department stemmed from his arrest for the crimes in the instant case.
The trial court noted that Robinson’s prior complaints against the Police Department
were first raised by the defense. We agree that Robinson opened to the door to this
issue by the defense’s questioning of Robinson with regard to his history of filing
complaints against the department when his defense involved a theory that a
particular officer encouraged his indictment as a retaliatory mechanism. Robinson
cannot seek to exclude further details concerning the same area of inquiry that he
introduced.”[O]ne cannot complain of a result he procured or aided in causing, and
induced error is not an appropriate basis for claiming prejudice.” (Citations and
punctuation and omitted.) Mayberry, supra at 507 (2) (finding that trial court did not
abuse its discretion in finding that defendant opened the door to the admission of
evidence that he had previously killed a man, but not been convicted for the act, when
defense counsel asked a witness whether the witness had a conversation about
defendant shooting someone who broke into his house).
9
Because the evidence of Robinson’s prior arrests for stealing cars belonging
to the Atlanta Police Department was relevant and material to his prior complaints
filed with the Department and to his theory of defense, we cannot say that the trial
court abused its discretion in overruling the objection.
To the extent that Robinson contends that the State did not lay a proper
foundation for the evidence by providing a certified copy of his arrest records, he has
waived his right to raise that issue on appeal because it was not asserted in the trial
court. See Green v. State, 298 Ga. App. 17, 26 (7) , n. 6 (679 SE2d 348) (2009).
3. Robinson asserts that the trial court erroneously permitted the State to
impeach him with evidence of his prior convictions under former OCGA § 24-9-84.12
without conducting the proper balancing tests. We agree to the extent that it it
pertains to Robinson’s 1985 conviction for impersonating a police officer.
(a) Robinson challenges the admission of his 2001 conviction for theft by
receiving motor vehicle, arguing that the trial court failed to conduct the required
balancing test prior to admitting the evidence. Although the trial court ruled the
conviction inadmissible at the pre-trial motion in limine hearing, it allowed the State
2
Because this case was tried before 2013, the new Evidence Code does not
apply. See Ga. L. 2011, pp. 99, 214 §101. For impeachment by prior convictions
under the new Evidence Code, see OCGA § 24-6-609 (a) (1).
10
to introduce it at trial. After the evidence was introduced, the trial court found that
“based on a question asked by the defense concerning any previous complaints . . .
that might have been filed by the defendant against the Atlanta Polic Department, that
the door was opened” for an explanation, and thus, that the probative value of the
conviction substantially outweighed any prejudicial effects it might have upon the
defendant.
“Evidence of a defendant’s felony conviction that was less than ten years old
was admissible if the probative value of the evidence substantially outweighed its
prejudicial effect to the defendant.” (Footnote omitted; emphasis in original.) Waye
v. State, 326 Ga. App. 202, 205 (3) (756 SE2d 287) (2014). See OCGA § 24-9-84.1
(a) (2). In Clay v. State, 290 Ga. 822 (725 SE2d 260) (2012), the Georgia Supreme
Court identified five factors that a trial court should consider when conducting the
balancing analysis:
(1) the nature, i.e., impeachment value of the crime; (2) the time of the
conviction and the defendant’s subsequent history; (3) the similarity
between the past crime and the charged crime, so that admitting the prior
conviction does not create an unacceptable risk that the jury will
consider it as evidence that the defendant committed the crime for which
he is on trial; (4) the importance of the defendant’s testimony; and (5)
the centrality of the credibility issue.
11
(Citations omitted.) Id. at 835 (3) (B). Further, “[t]he trial court’s finding that the
probative value of the prior conviction outweighed its prejudicial effect must be made
on the record, but there is no requirement in the language of [former] OCGA § 24-9-
84.1 (a) (2) that the trial court must list the specific factors it considered in ruling on
the probity of convictions that are not more than ten years old.” (Footnote omitted.)
Johnson v. State, 328 Ga. App. 702, 707 (3) (760 SE2d 682) (2014). Here, contrary
to Robinson’s assertion, the trial court did, in fact, make a sufficient finding on the
record regarding the probative value of the 2001 charge, and we find no abuse of its
discretion. See Carter v. State, 303 Ga. App. 142, 146 (2) (692 SE2d 753) (2010)
(permitting the trial court to conduct post-trial analysis of the OCGA § 24-9-84.1 (a)
(2) balancing test).
(b) Robinson next challenges the admission for impeachment purposes of his
1985 conviction for impersonating a police officer.
Robinson filed a motion in limine to exclude his 1985 conviction for
impersonating a police officer. The trial court ruled that the 1985 conviction would
be admissible for the purpose of impeachment if Robinson decided to testify. The
State was then allowed to question Robinson about the conviction. After testimony
was elicited from Robinson regarding these convictions, the trial court emphasized
12
that the probative value of these convictions outweighed any prejudicial effects
because it was a “crime of moral turpitude.”
We have held that former OCGA § 24–9-84.1 (b) “establishe[d] a presumption
against the admission of evidence of a conviction if more than ten years had elapsed
since the date of the conviction or the release of the defendant . . . from the
confinement imposed for that conviction, whichever was later.” Peak v. State, 330
Ga. App. 528 (768 SE2d 275) (2015). OCGA § 24-9-84.1 (b) provides:
Evidence of a conviction under subsection (a) of this Code section is not
admissible if a period of more than ten years has elapsed since the date
of the conviction or of the release of . . . the defendant from the
confinement imposed for that conviction, whichever is the later date,
unless the court determines, in the interest of justice, that the probative
value of the conviction supported by the specific facts and
circumstances substantially outweighs its prejudicial effect. . . .
Our Supreme Court has held that a consideration of the factors identified above
is mandatory when a trial court evaluates whether to admit a conviction for
impeachment purposes that is more than ten years old. Clay, supra at 838 (3) (B) (“A
trial court must make an on-the-record finding of the specific facts and circumstances
upon which it relies in determining that the probative value of a prior conviction that
13
is more than ten years old substantially outweighs its prejudicial effect before
admitting evidence for impeachment purposes under OCGA § 24-9-84.1 (b)”).
A thorough review of the record shows that the trial court failed to make
express findings in determining whether the 1985 conviction for impersonating a
police officer was admissible. The trial court failed to do so again in its order denying
Robinson’s motion for new trial. Accordingly, we must vacate Robinson’s
convictions and remand the case to the trial court to reconsider defendant’s motion
for a new trial after making on-the-record findings regarding the facts and
circumstances on which it relied in determining the probative value and prejudicial
effect of the defendant’s 1985 conviction for impersonating a police officer. See
Peak, supra (vacating conviction and remanding case to the trial court to reconsider
defendant’s motion for new trial after making on-the-record findings, based upon the
factors set forth in Clay and other factors it may deem relevant, of the facts and
circumstances on which it relied in determining the probative value and prejudicial
effect of the admission of defendant’s convictions older than 10 years old).
4. Robinson argues that the trial court abused its discretion in denying his
motion to excuse Prospective Juror Number 30 for cause. We disagree.
14
“The decision [whether] to strike a potential juror for cause lies within the
sound discretion of the trial court and will not be set aside absent some manifest
abuse of that discretion.” (Citation omitted.) Abdullah v. State, 284 Ga. 399, 400 (2)
(667 SE2d 584) (2008).
Unless the juror holds an opinion regarding the guilt or innocence of the
defendant that is so fixed and definite that the juror will be unable to set
the opinion aside and decide the case based on the evidence and court
instructions, a court need not excuse the juror for cause. A potential
juror’s doubts as to his or her own impartiality or reservations about his
or her ability to set aside personal experiences do not necessarily require
the court to strike the juror, as the judge is uniquely positioned to
observe the juror’s demeanor and thereby to evaluate his or her capacity
to render an impartial verdict.
(Citation omitted.) Beaudoin v. State, 311 Ga. App. 91, 92-93 (2) (714 SE2d 624)
(2011).
During general voir dire, Juror No. 30 raised her hand to answer, in the
affirmative, the Court’s question that she had already formed any “opinion in regard
to the guilt or innocence of the defendant[.]” She also raised her hand to answer
defense counsel’s questions, in the affirmative, that she held a belief that “if a person
15
is charged with three separate cases, he must be guilty of something[,]” and that she
“could not keep an open mind in a rape case[.]”
During individual voir dire, Juror No. 30 stated that she had raised her number
card in response to these questions because she “naturally form[ed] an opinion upon”
hearing the indictment. Despite this, however, she agreed that, if selected as a juror,
she would be able to follow the law, as instructed by the trial judge, and base her
decision solely upon evidence presented in the courtroom. She further agreed that she
could operate under the assumption that a defendant is innocent until proven guilty
beyond a reasonable doubt. Defense counsel then asked her to clarify her earlier
response that she had formed an opinion about the case and to explain what that
opinion was. Juror No. 30 responded that she formed an opinion, after hearing the
indictment, that Robinson had “dressed up as a police officer and attacked and raped
three women who were prostitutes, probably[.]” Juror No. 30 then again agreed that
her opinion was not so firmly held that she could not listen to the evidence presented
in the case.
Robinson moved to strike Juror No. 30 for cause, and the trial court denied the
motion. When denying the motion, the trial court explained that it interpreted Juror
No. 30’s statement as merely an attempt to clarify her earlier response in an effort to
16
answer the defense counsel’s question. It further noted that it was persuaded by the
juror’s statement that she believed she could listen to the evidence. This Court has
held that in order to strike a juror for bias, there must be evidence that the juror is so
inured in his or her position that such juror will be unable to set his or her bias aside.
See Moorer v. State, 286 Ga. App. 395, 398 (2) (649 SE2d 537) (2007). In light of
the juror’s consistent statements that she believed she could listen to the evidence and
base her decision upon that evidence and the law as provided by the trial court, we
find that the trial court did not abuse its discretion in denying Robinson’s motion to
strike.
Robinson’s citation to Maxwell v. State, 282 Ga. 22, 25-26 (2) (a) (644 SE2d
822) (2007) does not warrant a different result. In Maxwell, our Supreme Court found
that a trial court’s refusal to strike a prospective juror for cause was in error when the
prospective juror stated that he was influenced by media coverage and stated that he
had “pretty much formed an opinion already,” that it would be the defense’s job to
“prove that [defendant] was not involved,” and the prospective juror was not
questioned as to whether he could set aside his personal bias and fairly and
impartially decide the case based upon evidence presented at trial. Unlike the juror
in Maxwell, Juror No. 30 in the present case stated that she understood that the
17
defendant was innocent until proven guilty beyond a reasonable doubt, and she stated
that she could decide the case upon the evidence presented at trial.
We find no abuse of discretion.
5. Robinson next asserts that the trial court erred in charging the jury that a
witness can be impeached both by proof of general bad character and proof of a
conviction on a crime of moral turpitude. He further asserts that his trial counsel
rendered ineffective assistance for failing to object to the erroneous jury charge.
(a) The trial court charged the jury that “[t]o impeach a witness is to prove that
a witness is unworthy of belief. A witness may be impeached by disproving the facts
to which the witness testified; proof of general bad character; [and] proof that the
witness has been convicted of a crime of moral turpitude.” The trial court then
defined “moral turpitude.” At the conclusion of the jury instructions, the State
brought the trial court’s attention to the fact that the law, and the applicable jury
instruction on impeachment by prior conviction, had changed to replace the phrase
“moral turpitude” with the phrase “dishonesty or making a false statement.” The trial
court then called the jury back into the courtroom and supplemented its charge by
instructing them that a witness may be impeached by proof of the conviction of a
crime involving dishonesty or false statements. The trial court did not withdraw its
18
previous impeachment charge, but rather stated that the additional charge was to be
considered “[i]n addition to the [charge] I’ve already read to you.” . Defense counsel
did not object to either the charge or to the amended charge on impeachment.
On appellate review, this Court considers the charge as a whole to determine
if it clearly and correctly instructed the jury. Conn v. State, 300 Ga. App. 193, 197 (3)
(685 SE2d 745) (2009). However, because Robinson’s trial attorney made no
objection to the trial court’s charge on impeachment or its corrected charge, Robinson
has “failed to preserve this objection for appellate review, and [he] is entitled to
reversal only if the jury instruction constituted ‘plain error.’” (Citation omitted.)
Hines v. State, 320 Ga. App. 854, 864 (5) (b) (740 SE2d 786) (2013).
In conducting a plain error review, we
consider first whether the record establishes an error or defect – some
sort of deviation from a legal rule – that has not been intentionally
relinquished or abandoned, i.e., affirmatively waived, by the appellant.
If so, we then consider whether the error was clear or obvious, whether
it likely affected the outcome of the trial, and whether we should
exercise our discretion to remedy the error.
(Citation omitted.) Id. at 864-865 (5) (b). When considering the first step in the plain
error analysis, “we are mindful that it is a fundamental rule in Georgia that jury
19
instructions must be read and considered as a whole in determining whether the
charge contained error.” (Citation and punctuation omitted.) Id.
Prior to 2005, Georgia law held that a witness could be impeached by proof
that the witness had been convicted of a crime involving moral turpitude. Conn,
supra. However, OCGA § 24-9-84.1 superceded this impeachment rule in trials, such
as the present one, commencing on or after July 1, 2005. OCGA § 24-9-84.1 replaced
the phrase “moral turpitude” in the statute with the phrase “dishonesty or making a
false statement.” OCGA § 24-9-84.1 (a) (3).
In a nearly identical case, this Court held that a trial court’s erroneous jury
charge under the prior statute that a witness could be impeached “by proof that the
witness has been convicted of a crime of moral turpitude[,]” rather than the applicable
standard that a witness could be impeached by proof that the witness had been
convicted of a crime of “dishonesty or making a false statement,” was not reversible
error. Smallwood v. State, 296 Ga. App. 16, 19-20 (2) (673 SE2d 537) (2009),
overruled on other grounds by Stephens v. State, 289 Ga. 758, 759 (1) (a), n. 2 (716
SE2d 154) (2013). This Court held that there was no reversible error when “the court
made clear that a felony conviction can be offered to impeach a witness.” (Footnote
omitted.) Smallwood, supra. See Smith v. State, 291 Ga. App. 389, 391 (2) (662 SE2d
20
201) (2008) (“[W]here [a] charge . . . considered as a whole substantially presents
issues in such a way as is not likely to confuse the jury even though a portion of the
charge may not be as clear and precise as could be desired, a reviewing court will not
disturb a verdict amply authorized by the evidence.”) (footnote omitted).
Here, a review of the charges as a whole shows that, in addition to the reference
to impeachment by a crime of moral turpitude, the jury was given extensive
instructions which elaborated upon principles applicable to impeachment by other
methods, including by proof of contradictory statements or by a conviction of a crime
involving dishonesty or bad character. See Francis v. State, 266 Ga. 69, 72 (3) (463
SE2d 859) (1995) (finding no reversible error when the jury was instructed with an
unauthorized charge on impeachment by conviction of a crime of moral turpitude
when the charge at question “appears to be no more than a passing general
reference],” and was “one of a number of stated methods of impeachment”).
Further, we cannot say that the trial court’s erroneous charge altered
Robinson’s verdict. The fact that the jury acquitted Robinson of the rape and
aggravated sodomy charges involving the third victim and of impersonating a police
officer indicates that the jury did not disregard or discredit the entirety of Robinson’s
testimony. We find no plain error.
21
(b) We further find no basis for Robinson’s claim that his trial counsel rendered
ineffective assistance for failing to object to the jury instruction on impeachment by
a criminal conviction involving moral turpitude.
To prevail on an ineffective assistance of counsel claim, Robinson must prove
both prongs of the test set out in Strickland v. Washington, 466 U. S. 668, 695-696
(III) (B) (104 S. Ct. 2052, 80 LE2d 674) (1984). They are: (1) that his trial counsel’s
performance was deficient and (2) that counsel’s inadequate performance so
prejudiced his defense that a reasonable probability exists that the result of the trial
would have been different but for that deficiency. Failure to satisfy either prong of
this two-part test is fatal to an ineffective assistance claim. Thomas v. State, 291 Ga.
App. 795, 804 (6) (662 SE2d 849) (2008). A trial court’s finding that a defendant did
not receive ineffective assistance of counsel will not be disturbed absent an abuse of
discretion. Id.Here, we find that Robinson has not met his burden of proving that, but for the
erroneous jury charge, the result of his trial would have been different. “The
inapplicable portion of the impeachment charge was contained in a lengthy
instruction detailing other permissible methods of impeachment and appears to be no
more than a passing general reference.” (Citations and punctuation omitted.) Miller
22
v. State, 281 Ga. App. 354, 355 (1) (636 SE2d 60) (2006). See Hardy v. State, 240
Ga. App. 115, 120 (6) (522 SE2d 704) (1999) (harmful effect of erroneous portion
of impeachment charge was mitigated by the remainder of the charge). When viewing
the trial court’s instruction as a whole, even if Robinson’s trial counsel was deficient
in failing to object to the inapplicable instruction, Robinson has not shown a
reasonable probability that his trial counsel’s performance changed the outcome of
his trial. See Miller, supra.
Judgment vacated and case remanded with direction. Andrews, P. J., and
McFadden, J., concur.
23