Davis v. State, 311 Ga. App. 699

Davis was convicted by a Gwinnett County jury of rape, aggravated sodomy, aggravated assault, family violence battery, and weapon possession during a felony.
He filed a second amended motion for new trial alleging ineffective assistance of trial counsel.
Ineffectiveness theories included failure to file a suppression motion to exclude evidence seized in a warrantless home search.
Consent to search the marital residence was given by Davis’s wife contemporaneously with her fleeing the home; Davis argued the consent lacked authority.
Counsel did not present a theory that the victim self-injured with a cologne bottle; nurse testimony supported but trial tactic favored by counsel.
Appellate counsel argued ineffectiveness of trial counsel on appeal; the trial court held hearings and issued rulings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was trial counsel ineffective for not moving to suppress evidence?	Davis contends suppression would have excluded key knife evidence.	State argues consent was valid and motion would have failed.	No reversible error; suppression motion meritless.
Was trial counsel ineffective for not pursuing cologne-bottle defense?	The theory shows wife self-inflicted injuries with a bottle.	Counsel reasonably deemed the theory not credible and chose not to pursue.	No ineffective assistance; tactic not patently unreasonable.
Was trial counsel ineffective for not requesting polling of the jury on unanimity?	Unanimity determination required polling given the bizarre circumstances.	Lack of authority on authorities; polling not required.	No error; no authority supports polling duty.
Was first appellate counsel ineffective for not raising trial-counsel ineffectiveness?	Ineffectiveness claims should have been raised on appeal.	Claims were properly pursued in later motions; no waiver.	Not waived; moot as issue.

Patel v. State, 279 Ga. 750 (2005) (standard for ineffective assistance and strong presumption of reasonableness)
Stanley v. State, 283 Ga. 36 (2008) (application of legal principles to factual showings on appeals)
Richardson v. State, 276 Ga. 548 (2003) (requirements to prove deficient performance and prejudice)
Valle v. State, 282 Ga. App. 223 (2006) (voluntary consent to search and scope of authority)
Peeler v. State, 286 Ga. App. 400 (2007) (prosecution bears burden to show legality of searches)
Mattox v. State, 305 Ga. App. 600 (2010) (trial decisions on witness and evidence are tactical, not per se ineffective)
Serrate v. State, 268 Ga. App. 276 (2004) (trial strategy and reasonableness standard for counsel decisions)
Marshall v. State, 285 Ga. 351 (2009) (ineffective assistance claims and waiver considerations)
Hodge v. State, 287 Ga. App. 750 (2007) (procedural handling of ineffective assistance claims)