Jones v. State

608 S.E.2d 229 (2005) 278 Ga. 880

JONES
v.
The STATE.

No. S04A2098.

Supreme Court of Georgia.

January 24, 2005.

Jonathan Perry Waters, Macon, for Appellant.

Eugene Felton, Jr., Asst. Dist. Atty., Howard Zachary Simms, Dist. Atty., Hon. Thurbert E. Baker, Atty. Gen., for Appellee.

HUNSTEIN, Justice.

This Court affirmed appellant Daryl A. Jones's life sentence for felony murder but remanded the case to the trial court to address appellant's claim that he received ineffective assistance of council. Jones v. State, 276 Ga. 663, 581 S.E.2d 546 (2003). After a hearing the trial court ruled that appellant was not deprived of the effective assistance of trial counsel. Appellant challenges that ruling on three grounds. Finding no error in the trial court's ruling, we affirm.

In order to establish that counsel was ineffective, appellant must show both that counsel's performance was deficient and that the performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In light of this Court's holding in Jones, supra, 276 Ga. at 664(1), 581 S.E.2d 546 that the evidence adduced at trial satisfied the requirements of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), counsel's "failure to move for a directed verdict presents an insufficient ground as a matter of law for claiming ineffective assistance of counsel. [Cit.]" Vasser v. State, 273 Ga. 747, 750(3)(b), 545 S.E.2d 906 (2001). Next, the trial transcript supports the court's finding that counsel objected to hearsay testimony by a police officer; the court agreed that it was hearsay; and the prosecutor then turned to a different line of questioning. Thus, appellant cannot show how he was prejudiced by counsel's behavior regarding this witness. See Allen v. State, 277 Ga. 502(3)(a), 591 S.E.2d 784 (2004). Finally, counsel testified that because eyewitnesses saw appellant come up behind the victim and shoot him at virtually point blank range, counsel chose not to emphasize the medical examiner's testimony by cross examining the witness about the entry and exit bullet wounds to the victim's head. Counsel's response was a reasonable tactical decision a competent attorney would have made under the circumstances. See Henry v. State, 269 Ga. 851(5)(b), 507 S.E.2d 419 (1998). Accordingly, appellant failed to carry his burden of proving both that counsel's performance was deficient and that the deficiency prejudiced his defense. Strickland, supra.

Judgment affirmed.

All the Justices concur.