Leslie v. the State , 341 Ga. App. 731 ( 2017 )

SECOND DIVISION
DOYLE, C. J.,
MILLER, P. J., and REESE, J.
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
June 14, 2017
In the Court of Appeals of Georgia
A17A0068. LESLIE v. THE STATE.
REESE, Judge.
A Bartow County jury found Christopher Leslie guilty beyond a reasonable
doubt of three counts of cruelty to a child in the second degree, OCGA § 16-5-70 (c),
and two counts of false imprisonment, OCGA § 16-5-41 (a). He appeals pro se from
the denial of his motion for new trial, contending that the trial court erred in ruling
that certain affirmative defenses were not applicable; in failing to instruct the jury,
sua sponte, on those affirmative defenses; and in excluding certain evidence. He also
claims that the evidence was insufficient to support his convictions and that he
received ineffective assistance of counsel. For the reasons that follow, infra, we
affirm.
1. The Appellant contends that the State failed to present sufficient evidence
for the jury to convict him of the offenses as charged, particularly given his defense
that the acts at issue were necessary to discipline the child and were justified under
the circumstances.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict[,] and an appellant no longer enjoys the presumption of
innocence.”1
Because a jury found [the Appellant] guilty, this Court looks only to see
if there is a factual basis from which a rational trier of fact could
conclude beyond a reasonable doubt that a guilty verdict was warranted.
We do not judge the credibility of the witnesses. We do not revisit
conflicts in the evidence. And we will not simply substitute our opinion
for that of the jury. So long as there is some competent evidence to
support each element of the offenses as charged, the jury’s verdict will
be upheld.2
Viewed in this light, the evidence shows the following facts. In March 2010,
the Appellant lived in Bartow County with his wife, his two sons (who were seven
and ten years old), and his two step-children. On Friday, March 26, 2010, the
Appellant built a wooden box that was approximately two feet by four feet by two
feet, made from plywood and two-by-four beams. The box’s lid was attached with
1
Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004) (citation omitted).
2
Frasier v. State, 295 Ga. App. 596, 598-599 (2) (672 SE2d 668) (2009)
(citation and punctuation omitted).
2
hinges and had a hasp that could be locked from the outside. The box had no holes
for light or air to enter. According to the Appellant, he built the box for the specific
purpose of placing his younger son (hereinafter, “the victim”) inside it to calm him
down; to discipline him; and to teach him to behave, listen, and follow orders when
other forms of punishment did not work.
The next day, the Appellant put a sleeping bag and pillow inside the box, then
grabbed the victim’s arm and leg and forced him into the box. He then secured the
latch with a screwdriver and set the microwave timer for 30 minutes. While in the
box, the victim screamed, kicked, and yelled out that he was hot and could not
breathe. According to the victim, when he screamed, his father put a blanket over the
box. After about 30 minutes, the Appellant released the victim, who “never calmed
down,” but who behaved properly the rest of the day.
The next evening, the Appellant put the victim in the box for another 30-minute
period. The Appellant’s wife was present, however, and, when the victim screamed
that he was very hot and could not breathe, she opened the box and wiped his face
with a cool cloth. The Appellant then closed the lid, locked it with a screwdriver, and
kept the victim inside the box for the remainder of the 30 minutes.
3
When the victim returned to school on Monday, his teacher and the school
counselor observed bruises on his arms and legs, and the counselor contacted the
county office of the Department of Family and Children Services (“DFCS”). DFCS
officials contacted the police department, and officers went to the Appellant’s home
the next day to investigate. When they arrived, the Appellant met them at the door
and talked with them briefly before showing them the box, which he admitted
building, and consenting to a search of the house. The officers seized the box and
asked the Appellant to come to the station for an interview. The Appellant drove to
the station, spoke with an officer in a videotaped interview,3 and then went home.
Later that day, officers arrested the Appellant at his home on charges of cruelty to
children and false imprisonment.4
The evidence also showed that, prior to building the box, the Appellant
punished the victim by locking him in a storage container that was under the bed in
the sleeper compartment of his tractor-trailer. On other occasions, the Appellant put
3
The State played the recording of the interview for the jury at trial without
objection.
4
Officers also interviewed the Appellant’s wife (the victim’s step-mother), and,
after she made statements incriminating herself in the crimes against the victim, they
placed her under arrest. The Appellant and his wife were jointly tried, but she was
acquitted on all charges, and she is not a party to this appeal.
4
the victim in a sleeping bag and tied ropes around it to keep him inside. In addition,
when the victim screamed or yelled while being punished or restrained, the Appellant
put crushed red pepper in his mouth. In fact, the Appellant admitted to putting the
following substances in the victim’s mouth in an effort to quiet him: crushed red
pepper, cayenne pepper, ground cinnamon, vinegar, lemon pepper, ground cloves,
pepper sauce, and hot sauce.
The State presented the testimony of a child psychologist who was treating the
victim at the time of the March 2011 trial, after diagnosing him with Post-Traumatic
Stress Disorder (“PTSD”) in June 2010. The psychologist testified that she based her
diagnosis on the victim’s statements to her that he had been “placed in a box by his
father for periods of time on repeated occasions,” adding that the victim talked about
“the terror he felt, feeling like he couldn’t breathe, crying and pounding on the box
and being scared to death not knowing how long he was going to be in there.”
According to the psychologist, the victim described feeling “very scared, very angry,
[and] very sad” when he was in the box. The victim also reported having nightmares
about the box and told her that he did not like to be in any kind of “closed-in space.”
In fact, during play-therapy sessions, the victim would often put toys in a toy chest,
5
then create “rescue scenarios” where someone would come in and rescue the toys
from the box.
The psychologist also testified that binding a child in a sleeping bag was not
a discipline technique that was approved and accepted by reputable organizations.
Further, she testified that, in her opinion, placing a child in an enclosed box where he
or she felt that they could not breathe, as in this case, “crosse[d] the line of abuse” and
was not an appropriate discipline technique. According to the psychologist, she based
her diagnosis of PTSD on symptoms that the victim was experiencing, and those
symptoms were directly related to his having been locked in the box.
After considering the evidence and the applicable law, the jury found the
Appellant not guilty on three counts of child cruelty in the first degree, but it found
him guilty on two counts of child cruelty in the second degree and two counts of false
imprisonment based upon his locking the victim in the box, and one count of child
cruelty in the second degree based upon his binding the victim in the sleeping bag.5
5
See OCGA §§ 16-5-70 (c) (A “person commits the offense of cruelty to
children in the second degree when such person with criminal negligence causes a
child under the age of 18 cruel or excessive . . . mental pain.”); 16-5-41 (a) (A
“person commits the offense of false imprisonment when, in violation of the personal
liberty of another, he arrests, confines, or detains such person without legal
authority.”); see also OCGA § 16-5-70 (b) (A “person commits the offense of cruelty
to children in the first degree when such person maliciously causes a child under the
6
Implicit in this verdict is the jury’s rejection of the Appellant’s defense that his
actions were justified as reasonable parental discipline. It was up to the jury to
determine whether the circumstances justified the Appellant’s conduct, and this Court
will not interfere with that determination as long as it was supported by evidence at
trial.6
Having reviewed the trial transcript, we conclude that the evidence presented
was sufficient for the jury to find the Appellant guilty beyond a reasonable doubt of
the crimes charged.
2. The Appellant contends that the trial court abused its discretion when it
prohibited him from introducing evidence of prior acts of violence committed by the
victim against a former teacher and classmates.7 We disagree.
The record shows that the State filed a motion in limine asking the court to
exclude evidence of alleged prior bad acts by the victim toward third parties who
age of 18 cruel or excessive . . . mental pain.”).
6
See Frasier, 295 Ga. App. at 599 (2) (a); see also Haji v. State, 331 Ga. App.
116, 119 (3) (769 SE2d 811) (2015) (whether the defendant’s acts fell within the
realm of reasonable parental discipline and whether those acts caused the child to
experience excessive pain were questions to be decided by the factfinder).
7
See Carter v. State, 296 Ga. App. 598, 601, n. 7 (675 SE2d 320) (2009) (This
Court reviews a trial court’s ruling on the admission of evidence under an abuse of
discretion standard.).
7
were not his family members, specifically acts committed when he was five years old
against his former kindergarten teacher and his classmates. Following a hearing, the
court ruled that the evidence was inadmissible character evidence and irrelevant
because the teacher and classmates were not parties to the instant case, and because
the alleged bad acts were too remote in time, having occurred approximately two
years and eight months before the incidents at issue.8 The Appellant’s counsel
subsequently proffered the evidence that he would have presented at trial to
demonstrate the victim’s prior bad acts. Specifically, he stated that the victim’s
kindergarten teacher would testify that, in August and September 2007, the victim
repeatedly slapped, punched, shoved, or kicked the teacher and the victim’s
classmates. The court reaffirmed its earlier ruling and excluded the evidence.
The Appellant argues that the court erred in excluding evidence of the victim’s
prior bad acts toward third parties, complaining that this evidence would have
supported his claim that he was acting in self-defense when he committed the acts at
issue.
8
We note that the court did not prevent the Appellant from eliciting extensive
evidence about the victim’s aggressive acts toward family members with whom he
was living, and the Appellant was able to testify generally about the victim’s
behavioral problems at school.
8
Under Georgia’s former Evidence Code, a defendant claiming self-
defense justification could introduce evidence of specific violent acts by
the victim against third parties.[9] The defendant, however, carried the
burden of proving that the specific violent acts should be admitted and
had to, at a minimum, (1) follow the procedural requirements for
introducing the evidence, (2) establish the existence of prior violent acts
by competent evidence, and (3) make a prima facie showing of
justification. To make a prima facie case of justification, the defendant
was required to show that the victim was the aggressor, the victim
assaulted the defendant, and the defendant was honestly trying to defend
himself.10
In this case, there was no evidence to support a finding that the seven-year-old
victim presented an imminent violent threat to the Appellant and that the Appellant
was forced to defend himself by locking the victim in the box or tying him up in a
9
See Chandler v. State, 261 Ga. 402, 407 (405 SE2d 669) (1991), overruled
in part, Mohamud v. State, 297 Ga. 532, 535-536 (3) (773 SE2d 755) (2015) (holding
that the rule set forth in Chandler has been superseded by provisions of the new
Evidence Code). Although the Chandler evidentiary rule no longer remains viable
under Georgia’s new Evidence Code, it applies in this case because Leslie’s trial
occurred before January 1, 2013, the new Evidence Code’s effective date. See Ga. L.
2011, p. 99, §§ 1, 101; Wright v. State, 300 Ga. 185, 188 (3), n. 3 (794 SE2d 105)
(2016).
10
Wright, 300 Ga. at 188 (3) (citations, punctuation, and footnote omitted). See
OCGA § 16-3-21 (a) (“A person is justified in threatening or using force against
another when and to the extent that he or she reasonably believes that such threat or
force is necessary to defend himself or herself or a third person against such other’s
imminent use of unlawful force[.]”).
9
sleeping bag. Instead, the Appellant admitted that he used books and the Internet to
research different methods of discipline and that he planned and built the box with
the intention of using it to punish the victim; to calm him down; and to teach him to
behave, be nice, listen to his parents and teachers, and follow orders so he would
realize “we are the boss, he’s not the boss.” According to the Appellant, he needed
to find a way to discipline the victim, explaining that the child was “getting stronger
and it’s hard to hold him down.” The Appellant also testified that he wanted to use
it to keep the victim from going into “fits of rage” that he (the Appellant) did not
know how to deal with and that he was concerned that the other forms of punishment
he often used, such as spanking him with a wire flyswatter, would bruise or leave
marks on the victim. These admissions were corroborated by other witnesses, who
testified that the Appellant had said he put the victim in the box to control him or to
punish him for his bad behavior.
Moreover, during his interview with an investigator, which was within three
days of the first time he locked the victim in the box, the Appellant admitted that he
could not remember what the victim had done that caused him (the Appellant) to use
that punishment. As for why he locked the victim in the box the next day, the
Appellant told officers that the victim had failed to do his homework, and that, when
10
the Appellant tried to punish him by sending him to his room, the child would not
stay in the room and screamed and called him names. The Appellant then spanked the
child before locking him in the box for 30 minutes. Notably, the Appellant never told
the investigator that he put the victim in the box in an effort to defend himself, his
wife, or the child’s siblings from imminent harm because the child was hitting,
kicking, or otherwise hurting them at that moment.
Likewise, the Appellant never told the investigator that the victim climbed into
the box voluntarily. At trial, however, the Appellant claimed that, on both occasions,
he talked to the victim while the victim “still had a reasoning capability” and gave the
victim a choice of punishments: he could sit in the box for 30 minutes or stay in his
room for the rest of the day. According to the Appellant, the victim voluntarily chose
the former option. Thus, the Appellant’s own trial testimony demonstrated that the
victim was not threatening him with imminent harm at either time the Appellant
locked him in the box.
As for what caused him to tie up the victim in the sleeping bag, the Appellant
testified that he did not remember, stating only that it might have been because he had
tried to spank the victim for some earlier misbehavior and the victim had tried to run
11
or fight back to avoid being punished.11 According to the Appellant, he told the
victim to get inside the sleeping bag, but, when the victim refused, the Appellant put
the victim inside and tied him up. The Appellant told the victim that, if he got out, he
would get another spanking and that he was “going to do what I ask[ed him] to do.”
The Appellant also admitted that he put pepper in the child’s mouth after he had tied
the victim in the sleeping bag, because the child had been very angry and was cursing.
Although the Appellant testified at trial that the victim had hit, kicked, bitten,
and otherwise acted violently toward him and other family members, that testimony,
when read in context, described the victim’s behavior that purportedly caused the
Appellant to regularly spank, restrain, or otherwise punish him, or it showed the
victim’s negative reactions to being punished. None of the evidence supported a
finding that the victim was the initial aggressor who threatened the Appellant with an
imminent, violent attack so that the Appellant was justified in restraining the victim
in the box or the sleeping bag in an act of self-defense.
Instead, as the trial court found, the overwhelming evidence showed that the
Appellant committed deliberate, pre-meditated acts of restraining the seven-year-old
11
Notably, during his interview with the investigator, the Appellant did not tell
the investigator that he had ever tied up the victim in the sleeping bag.
12
victim with the sole intention of punishing him for earlier bad behavior, and it was
for the jury to decide whether those acts constituted reasonable parental discipline
under the circumstances. It follows that, because the Appellant failed to present a
prima facie case of self-defense to justify his actions, the trial court did not abuse its
discretion in excluding evidence of prior bad acts committed by the victim against
third parties.12
3. The Appellant contends that the trial court erred in failing to instruct the
jury, sua sponte,13 on the affirmative defense of justification under OCGA §§ 16-3-21
(a), 16-3-23, and 16-3-24 (a).
12
See Wright, 300 Ga. at 188 (3); see also Graham v. State, 274 Ga. 696, 698
(3) (558 SE2d 395) (2002) (The defendant’s testimony that he thought the victim had
a gun and that he fired at the victim to scare him did not establish that the victim was
the aggressor. As a result, the defendant failed to establish a prima facie case of
justification that would have permitted him to introduce specific acts of violence
committed by the victim against third parties.); Walden v. State, 267 Ga. 162, 163 (2)
(a) (476 SE2d 259) (1996) (Even if the victim showed some aggressive behavior, the
defendant still had to show that the victim assaulted him and that he was defending
himself when he shot the victim. Because he failed to make this showing, the trial
court did not err in excluding evidence of the victim’s prior acts of violence toward
third parties.).
13
It is undisputed that the Appellant’s attorneys did not request these jury
instructions. See Division 4 (b), infra, regarding a related claim of ineffective
assistance of counsel.
13
(a) As an initial matter, we note that the trial court instructed the jury on the
affirmative defense of justification and on parental discipline,14 as requested by the
Appellant.
(b) In contrast, the court did not err in failing to charge the jury, sua sponte, on
self-defense under OCGA § 16-3-21 (a), because the Appellant failed to request the
14
The court instructed the jury as follows:
An affirmative defense is a defense that admits the doing of the act
charged but seeks to justify, excuse, or mitigate it. Once an affirmative
defense is raised, the burden is on the State to disprove it beyond a
reasonable doubt. The fact that a person’s conduct is justified is a
defense to prosecution for any crime based on that conduct. The defense
of justification can be claimed when the person’s conduct is the
reasonable discipline of a minor by his parent or a person in loco
parentis[.] . . . A parent is justified in using corporal or physical
punishment in order to discipline a minor child so long as the corporal
punishment is reasonable. A parent is not justified in using corporal
punishment to discipline a minor child if the corporal punishment
maliciously causes the child cruel or excessive physical pain, harm, or
injury. If you find from the evidence that the defendant did inflict
corporal punishment upon the child in this case and you further find that
it was reasonable and did not cause the child to suffer cruel or excessive
physical or mental pain, harm, or injury, then the defendant would be
justified, and it would be your duty to acquit the defendant. When the
issue of justification in the exercise of parental discipline is raised by the
evidence, the burden is on the State to disprove that the defendant was
justified.
14
charge, there was no evidence to support it,15 and it was not the Appellant’s sole
defense.16
(c) As for the affirmative defenses of defense of habitation under OCGA § 16-
3-23,17 and defense of property other than habitation under OCGA § 16-3-24 (a),18
there was no evidence presented to support these instructions. In fact, the Appellant’s
15
See Divisions 1 and 2, supra; see also Code v. State, 255 Ga. App. 432, 434
(4) (565 SE2d 477) (2002) (“[E]ven if justification is a defendant’s sole defense, it
is not error to refuse the charge if there is no evidence to support it.”) (footnote
omitted).
16
See Chapel v. State, 270 Ga. 151, 156 (7) (510 SE2d 802) (1998) (“The trial
court was not required to give an instruction on alibi absent a defense request because
alibi was not [the defendant’s] sole defense.”) (footnote omitted); cf. Watts v. State,
259 Ga. App. 531, 533 (3) (578 SE2d 231) (2003) (“If an affirmative defense is raised
by the evidence, including the defendants’ own statements, the trial court must
present the affirmative defense to the jury as part of the case in its charge, even absent
a request.”) (citation and punctuation omitted).
17
See OCGA § 16-3-23 (“A person is justified in threatening or using force
against another when and to the extent that he or she reasonably believes that such
threat or force is necessary to prevent or terminate such other’s unlawful entry into
or attack upon a habitation[.]”).
18
See OCGA § 16-3-24 (a) (“A person is justified in threatening or using force
against another when and to the extent that he reasonably believes that such threat or
force is necessary to prevent or terminate such other’s trespass on or other tortious or
criminal interference with real property other than a habitation or personal property:
(1) Lawfully in his possession; (2) Lawfully in the possession of a member of his
immediate family; or (3) Belonging to a person whose property he has a legal duty
to protect.”).
15
own trial testimony about why he locked the victim in the box and tied him in the
sleeping bag never even suggested that he did so in order to prevent an “unlawful
entry” into his home by the victim (who also lived there19) or to defend his home or
property from an unlawful act by the victim.20 Further, the Appellant failed to request
these charges, and neither defense was his sole defense. Thus, the court did not err
in failing to instruct the jury on these defenses.21
4. The Appellant contends that the trial court erred in rejecting his claim that
he received ineffective assistance of counsel. The Appellant was represented by two
attorneys during trial, and he asserts the same ineffective assistance claims against
them jointly.
In order to prevail on a claim of ineffective assistance of counsel, a
criminal defendant must show that counsel’s performance was deficient
and that the deficient performance so prejudiced the client that there is
19
See generally Stobbart v. State, 272 Ga. 608, 612 (4) (533 SE2d 379) (2000)
(“[D]efense of habitation is not a defense available to a defendant when the victim is
a guest in the home.”) (citation omitted).
20
See generally Barron v. State, 219 Ga. App. 481, 482 (465 SE2d 529) (1995)
(The defendant was not justified in using force against his spouse, from whom he was
separated, to prevent her from taking personal property out of his car, because the
property still belonged to them both. Thus, the defense of justification under OCGA
§ 16-3-24 (a) did not apply.).
21
See Chapel, 270 Ga. at 156 (7); Code, 255 Ga. App. at 434 (4).
16
a reasonable likelihood that, but for counsel’s errors, the outcome of the
trial would have been different.[22] The criminal defendant must
overcome the strong presumption that trial counsel’s conduct falls
within the broad range of reasonable professional conduct. We accept
the trial court’s factual findings and credibility determinations unless
clearly erroneous, but we independently apply the legal principles to the
facts.23
“An appellate court evaluates counsel’s performance from counsel’s perspective at
the time of trial. As a general rule, matters of reasonable tactics and strategy, whether
wise or unwise, do not amount to ineffective assistance of counsel.”24 “Since an
appellant claiming ineffective assistance of counsel must show both deficient
performance and actual prejudice stemming from that deficiency, an insufficient
showing on either of these prongs relieves the reviewing court of the need to address
the other prong.”25
22
Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674)
(1984).
23
Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003) (citations and
punctuation omitted).
24
Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001) (citations and
punctuation omitted).
25
Williams v. State, 277 Ga. 853, 858 (6) (a) (596 SE2d 597) (2004) (citations
and punctuation omitted).
17
(a) The Appellant complains that his attorneys failed to provide timely notice
of his intention to introduce evidence of prior bad acts by the victim toward third
parties. As shown in Division 2, supra, the trial court considered the merits of the
notice and the attorneys’ proffer of evidence before ruling that the evidence was
inadmissible. And, as the Appellant concedes, the court did not exclude the evidence
because the notice filed by the attorneys was untimely. Thus, pretermitting whether
the attorneys failed to provide timely notice regarding the evidence, the Appellant has
failed to demonstrate any prejudice arising from the oversight. It follows that he
cannot prevail on this ineffective assistance claim.26
(b) The Appellant contends that his attorneys were ineffective for failing to
pursue a defense based upon self-defense, defense of habitation, and defense of
property other than habitation. However, as we have concluded in Divisions 2 and 3
(c), supra, there was no evidence to support these defenses, and the Appellant has not
identified any other evidence that would have supported these defenses. Further, one
of the Appellant’s attorneys specifically testified at the motion for new trial hearing
that he did not think a self-defense claim was appropriate in this case, primarily
because the victim was seven years old and weighed about eighty to ninety pounds,
26
See Williams, 277 Ga. at 858 (6) (a).
18
while the Appellant was about thirty years old and weighed 160 pounds. That was a
reasonable strategic decision by trial counsel and did not amount to ineffective
assistance.27 It follows that this claim lacks merit.
(c) The Appellant contends that his attorneys were ineffective because they
failed to call potential defense witnesses or interview other defense witnesses prior
to trial. “The decisions on which witnesses to call and all other strategies and tactical
decisions are the exclusive province of the lawyer after consultation with his client.”28
Such reasonable strategic decisions do not support a claim of ineffective assistance.29
(i) During the hearing on the motion for new trial, the only potential defense
witness called by the Appellant was his mother, who testified about the victim’s
aggressive behavior toward her and other third parties. However, when asked by the
prosecutor if she had ever tied up the victim in a sleeping bag or locked him in a box
as a result of that behavior, the Appellant’s mother responded that she had not,
explaining that she did not agree with those methods of discipline. When asked about
the Appellant’s mother’s testimony, one of the Appellant’s attorneys testified that the
27
See Grier, 273 Ga. at 365 (4).
28
Moreland v. State, 263 Ga. App. 585, 588 (4) (588 SE2d 785) (2003)
(citation and punctuation omitted).
29
See Grier, 273 Ga. at 365 (4).
19
testimony would not have been relevant to the issues on trial. The attorney was
correct, given the court’s exclusion of evidence of prior bad acts by the victim toward
third parties.30 Moreover, the Appellant has failed to show that his mother’s testimony
would have been more beneficial than problematic to his defense, considering her
clear expression of disapproval of the acts at issue.31
(ii) One of the Appellant’s attorneys also testified that he did not refuse to call
any witness whom the Appellant had requested. He testified that the Appellant had
identified several potential defense witnesses, and he had subpoenaed all of them. The
attorney did not interview the witnesses prior to trial, however, because the Appellant
had specifically told him that these witnesses would testify in his favor, and he relied
on the Appellant’s assurances. When planning defense strategy, counsel is entitled
to rely on the veracity of his client’s assertions,32 and counsel is not required to
anticipate that his client may have misled him.33 The Appellant has failed to
demonstrate that counsel’s reliance on him was unreasonable, and any prejudice that
30
See Division 2, supra.
31
See Williams, 277 Ga. at 858 (6) (a) (A defendant claiming ineffective
assistance must show both deficient performance by counsel and resulting prejudice.).
32
See Sparks v. State, 277 Ga. 72, 74-75 (3) (586 SE2d 645) (2003).
33
See Nicholson v. State, 265 Ga. 711, 715 (4) (462 SE2d 144) (1995).
20
resulted from such reliance was attributable to the Appellant, and not to the
ineffectiveness of his counsel.34
(iii) As to an expert witness that the court excluded based upon the attorneys’
failure to provide timely notice to the State, the Appellant’s attorneys testified that the
delay in identifying the witness was not due to their oversight, but, instead, was due
to the Appellant’s inability to pay for the expert’s services.35 Further, the Appellant
failed to proffer the expert’s report, so it cannot be considered on appeal.36 Finally,
one of the Appellant’s attorneys testified that the defense expert who testified at trial
“did the better job for us than any of the [other potential expert witnesses] and that’s
what I was depending on. . . . I didn’t really feel that we needed to call [the other
expert witness].” Consequently, the Appellant has not shown any prejudice that
34
See id.35
See generally Bowden v. Zant, 244 Ga. 260-261 (1), (2) (260 SE2d 465)
(1979) (holding that trial counsel could not be deemed ineffective for failing to call
an expert witness under the circumstances, explaining that the law does not require
counsel to pay “out of his own pocket” for an expert witness for an indigent
defendant).
36
See Court of Appeals Rule 24 (g) (“Do not attach documents or exhibits to
appellate briefs[.]”); Boatright v. State, 192 Ga. App. 112, 115 (5) (385 SE2d 298)
(1989) (“[F]actual assertions contained in the parties’ briefs unsupported by evidence
of record cannot be considered in the appellate process.”) (citation omitted).
21
resulted from the exclusion of this expert’s testimony. It follows that he cannot
prevail on this ineffective assistance claim.37
Judgment affirmed. Doyle, C. J., and Miller, P. J., concur.
37
See Williams, 277 Ga. at 858 (6) (a).
22