Brewer v. State
328 Ga. App. 801
Ga. Ct. App.2014Background
- Brewer was originally indicted for two counts of criminal attempt to commit child molestation based on emails he sent from prison indicating sexual intent toward a minor.
- Brewer filed multiple pro se general demurrers arguing the emails were not a "substantial step" toward molestation and raising other defects; his court‑appointed counsel, Lyndsey Hix, also filed a general demurrer at Brewer’s insistence.
- While the demurrer was pending, the State re‑indicted Brewer under OCGA § 16‑12‑100.2(d)(1) (computer/electronic device child exploitation statute); the State later nolle prossed the original indictment.
- Brewer was convicted on the re‑indictment and moved for a new trial, claiming ineffective assistance because counsel’s demurrer alerted the State and induced re‑indictment on different charges.
- At the motion hearing Hix testified she filed the demurrer largely because Brewer repeatedly demanded it and she feared being accused of ineffectiveness if she refused; she also believed there was some legal basis for the demurrer.
- The trial court denied the motion (finding Brewer had insisted on the demurrer and that Brewer himself had alerted the State via pro se filings), and the appellate court affirmed.
Issues
| Issue | Brewer's Argument | State/Counsel's Argument | Held |
|---|---|---|---|
| Whether counsel’s filing of a general demurrer constituted ineffective assistance | Filing the demurrer was deficient and prejudicial because it alerted the State to weaknesses and prompted re‑indictment on different, harsher charges | Counsel acted reasonably (client‑directed tactical decision); Brewer himself made identical arguments pro se, so no prejudice | Denied — no ineffective assistance (defendant induced the error and cannot show prejudice) |
| Whether a defendant can blame counsel for a strategy the defendant insisted upon | Brewer argued counsel should not escape blame even if he demanded the demurrer | Courts refuse relief when defendant insisted on or induced the challenged conduct | Denied — defendant cannot prevail when he induced the asserted error |
| Whether filing the demurrer caused prejudice (Strickland prejudice prong) | Brewer claimed but‑for the demurrer State would have had to proceed on original indictment and outcome would differ | State showed Brewer’s pro se filings independently alerted prosecution; no reasonable likelihood of different outcome attributable to counsel’s act | Denied — no prejudice shown |
Key Cases Cited
- Robinson v. State, 277 Ga. 75 (establishes Georgia application of Strickland two‑prong test for ineffective assistance)
- Strickland v. Washington, 466 U.S. 668 (Supreme Court test for ineffective assistance of counsel)
- Woods v. State, 304 Ga. App. 403 (reasonable trial tactics typically do not constitute ineffective assistance)
- Moreland v. State, 263 Ga. App. 585 (strategic decisions are counsel’s province after consultation with client)
- Alvarado v. State, 271 Ga. App. 714 (defendant may not induce an error and later obtain reversal on that ground)