Green v. State

Carley, Chief Judge.

In Green v. State, 187 Ga. App. 373 (370 SE2d 348) (1988), appellant’s conviction for trafficking in cocaine was affirmed and the case was remanded to the trial court for a hearing with regard to allegations of the ineffectiveness of appellant’s trial counsel. The trial court conducted the hearing and ruled that a new trial on the ground of ineffective assistance of counsel was not warranted. Appellant appeals.

Appellant urges that the trial court erred in finding that his trial counsel had afforded him effective assistance. “ ‘We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ . . . [T]he effectiveness of counsel cannot be fairly measured by the results of a criminal trial or appeal, but upon the reasonable effectiveness of counsel at the time the services were rendered.” Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974).

Under Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), a portion of the trial court’s charge was erroneous. The failure to object to this erroneous charge is cited as an instance of the ineffectiveness of appellant’s trial counsel. At the time of appellant’s trial, however, Lockwood had not yet been decided. The Sixth Amendment affords appellant the right to representation by trial counsel who is reasonably effective, not representation by trial counsel who is prescient. The failure to object in several instances to allegedly improper argument by counsel for the State is also relied upon. It would appear, however, that the State’s argument was, in each instance, entirely proper. Moreover, even assuming that one or more of the cited instances would constitute improper argument, the failure of appellant’s trial counsel to object would not warrant the grant of a new trial. “[W]e do not . . . evaluate the effectiveness of counsel upon isolated trial errors. The Pitts v. Glass standard ([cit.]) requires us to look at the totality of the representation provided by counsel. [Cit.] In doing so, we have no difficulty in finding that [appellant] had the benefit of a competent, well-prepared and aggressive advocate for his defense and that [his] claim to the contrary is wholly without merit.” Dansby v. State, 165 Ga. App. 41, 43 (2) (c) (299 SE2d 579) (1983).

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Sognier and Benham, JJ., concur. Beasley, J., dissents.