Hubbard v. State , 224 Ga. App. 614 ( 1997 )

481 S.E.2d 601 (1997) 224 Ga. App. 614

HUBBARD
v.
The STATE.

No. A96A2443.

Court of Appeals of Georgia.

February 12, 1997.

James R. Crawford, Cedartown, for appellant.

James R. Osborne, District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.

SMITH, Judge.

Donald Robert Hubbard appeals from his convictions for child molestation, OCGA § 16-6-4(a), and aggravated child molestation, OCGA § 16-6-4(c). Evidence showed Hubbard fondled and orally sodomized the eleven-year-old victim. The only issue before this court is Hubbard's claim that his trial counsel was ineffective because she failed to move for a Jackson-Denno hearing on the admissibility of Hubbard's confession to police.^[1] The trial court denied Hubbard's motion for new trial based on that claim, and we affirm.

To prove an ineffective assistance of counsel claim, a defendant must show his trial attorney's performance was deficient and also "must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's unprofessional errors. [Cits.]" Brogdon v. State, 255 Ga. 64, 68(3), 335 S.E.2d 383 (1985). In this case, the trial court found Hubbard did not prove that his attorney's failure to request the Jackson-Denno hearing prejudiced the defense. We review that ruling to determine whether it was clearly erroneous. Powell v. State, 210 Ga.App. 409, 414(6)(c), 437 S.E.2d 598 (1993).

Although the trial court held no Jackson-Denno hearing, it did require the State to lay a foundation before admitting Hubbard's confession. The officer who arrested Hubbard at his home stated Hubbard appeared to have been asleep. He took Hubbard to the police station and, over an hour later, administered Miranda warnings to him. Hubbard confirmed he understood his rights and signed a form listing those rights and indicating his waiver of them. The officer, who had experience in DUI cases, testified Hubbard smelled of alcohol but followed directions without difficulty and exhibited no signs of intoxication. Although Hubbard's testimony appears to contradict the officer, the trial judge was authorized to accept the officer's testimony and resolve this credibility issue against Hubbard. Marks v. State, 210 Ga. App. 281, 283(2), 435 S.E.2d 703 (1993). The trial court fully charged the jury on the State's burden to show the statement was made knowingly and voluntarily.

The trial court's ruling was not erroneous. Evidence was presented showing Hubbard fully understood his constitutional rights and voluntarily waived them. See Simmons v. State, 266 Ga. 223, 226(3), 466 S.E.2d 205 (1996) (statement voluntarily made even though defendant had been drinking); Shelby v. State, 265 Ga. 118, 119(2), 453 S.E.2d 21 (1995) (statement voluntarily made despite defendant's blood alcohol content of.24 percent). "Counsel on appeal has not demonstrated that the statement made by [Hubbard] was inadmissible and we note that the trial court charged the jury fully on the issue of determining whether [Hubbard] gave the statement freely and voluntarily.... The alleged deficiencies would not have changed the outcome." Sebastian v. State, 195 Ga.App. 346, 347(2), 393 S.E.2d 492 (1990). See also Brogdon, supra.

Judgment affirmed.

ANDREWS, C.J., and POPE, P.J., concur.

NOTES

[1] Previous appeals of this case were dismissed. Hubbard v. State, 208 Ga.App. 719, 431 S.E.2d 479 (1993); Hubbard v. State, 212 Ga.App. XXVIII (1994). Hubbard filed a successful habeas corpus petition, was granted an out-of-time appeal, and was allowed to pursue the issue of ineffective assistance in a motion for new trial.