Weems v. State , 196 Ga. App. 429 ( 1990 )

Pope, Judge.

Defendant Anthony Lamar Weems was indicted for murder, felony murder and possession of a firearm by a convicted felon (OCGA § 16-11-131) and was convicted of voluntary manslaughter. He appeals, challenging the sufficiency of the evidence, effectiveness of counsel and the introduction of certain photographs of the victim and crime scene which he alleges were duplicative. Held:

1. Defendant asserts the general grounds. We have examined the evidence pursuant to the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) and find that the evidence was not only sufficient, it was overwhelming. Consequently, this enumeration of error is without merit.

2. Defendant also contends that the trial court erred in admitting, over objection at trial, certain photographs of the victim and the crime scene which he contends were duplicative and prejudicial. Pretermitting the question of whether the photographs here were in fact repetitious and cumulative, “we find that it was not error to admit the photos in this case because they are not particularly gruesome and are relevant as illustrating the cause of death and the crime scene.” Strickland v. State, 250 Ga. 624, 626 (300 SE2d 156) (1983). “[P]hotographs which are material and relevant to any issue are admissible even though they may be duplicative and inflame the jury. Goss v. State, 255 Ga. 678 (1) (341 SE2d 448) (1986) and cits.” Burgan v. State, 258 Ga. 512, 514 (3) (371 SE2d 854) (1988).

3. Although not raised in the trial court, defendant also asserts that his trial counsel was ineffective. The record shows appellate counsel did not represent defendant at trial or on the motion for new trial and that trial counsel was granted permission to withdraw from this case on March 15, 1990, two days before the notice of appeal was filed. “As the Supreme Court has recently held, ‘(i)n Smith [v. State, 255 Ga. 654 (341 SE2d 5) (1986)], we established the practice of remanding to the trial court the claim of ineffective assistance, when such claim was raised only on appeal. The advantage of this procedure is that the claim can be promptly resolved by the judge who presided over the trial as opposed to having it resolved by a habeas court somewhere down the road.’ Lloyd v. State, 258 Ga. 645 (fn. 1) (373 SE2d 10) (1988). See also Lloyd v. State, 257 Ga. 108 (355 SE2d 423) (1987).” Hutton v. State, 192 Ga. App. 239, 241 (5) (384 SE2d 446) (1989). It is not true, however, that every case which asserts for the first time on appeal an issue as to the effectiveness of counsel must be remanded to the trial court. Rather, our Supreme Court, through a series of cases, has fashioned a procedure whereby the appellate court, in deciding whether it should remand the case, should look to whether the issue of ineffectiveness was raised “at the earliest practicable moment.” Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987). “In Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986), trial counsel filed the motion for new trial, and a new attorney represented defendant on appeal. Appellate counsel filed an amended motion for new trial but did not raise the issue of ineffectiveness of trial counsel until the direct appeal. We remanded the case to the trial court for a hearing on the effectiveness of trial counsel. In Thompson v. State, [supra], appellate counsel filed an amended motion for new trial but did not raise the issue of ineffectiveness until the direct appeal. The case was remanded under the Smith rationale, but this court held that henceforth the claim of ineffectiveness would be deemed waived if appellate counsel filed an amended motion for new trial without raising the issue of ineffectiveness.

“In Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988), we held that henceforth the claim of ineffectiveness would be deemed waived if appellate counsel filed an amended motion for new trial and raised the issue of ineffectiveness but failed to request an evidentiary hearing. In the present case, appellate counsel did not represent [defendant] at trial or at the motion for new trial. Therefore, the requirement of Thompson that the issue of ineffectiveness must be raised at the time of the amended motion for new trial by a new attorney who files a motion for new trial does not preclude the issue here. However, we must consider the requirement of Dawson that an evidentiary hearing must be requested at the time the issue is raised. In Dawson we decided that the new attorney who files an amended motion for new trial raising the issue of ineffectiveness of trial counsel must also request an evidentiary hearing in the trial court at that time. Here, [defendant’s] new attorney did not file an amended motion for new trial. Rather, he filed an appeal from the denial of the motion for new trial filed by trial counsel. In this appeal [defendant] raises the issue of ineffectiveness of trial counsel for the first time. He has not yet filed any request for an evidentiary hearing. . . .

“We hold that the requirement of Dawson v. State, supra, that an evidentiary hearing must be requested at the time of an amended motion for new trial does not apply to a case where the appellate counsel did not participate in the motion for new trial, and the issue of ineffectiveness of counsel is raised for the first time on appeal. Although [defendant] should have by now filed a request for an evidentiary hearing, he is not barred from proceeding with this claim on this account. Since the claim was only raised on appeal, there was no opportunity for a hearing before the trial court; it is not unreasonable that the case be remanded for a hearing [and appropriate findings concerning the issue of ineffective assistance of counsel] at this point.” Johnson v. State, 259 Ga. 428, 430 (383 SE2d 115) (1989). Accord Meders v. State, 260 Ga. 49 (10) (389 SE2d 320) (1990); Hutton v. State, supra at (5). But see Bell v. State, 259 Ga. 272 (379 SE2d 519) (1989); Simpson v. State, 250 Ga. 365 (2) (297 SE2d 288) (1982); White v. State, 192 Ga. App. 703 (386 SE2d 56) (1989); Huff v. State, 191 Ga. App. 476 (2) (382 SE2d 183) (1989).

Judgment affirmed and case remanded with direction.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier and Cooper, JJ., concur. Deen, P. J., and Beasley, J., concur in part and dissent in part.