Herndon v. State
309 Ga. App. 403
Ga. Ct. App.2011Background
- DeKalb County jury found Herndon guilty of felony theft by shoplifting under OCGA § 16-8-14(a)(1).
- He moved for new trial alleging ineffective assistance of trial counsel.
- Trial counsel challenged the LPO's credibility during cross-examination and argued LPO lied in various statements.
- During closing, the prosecutor stated the LPO was telling the truth, which Herndon argued vouched for credibility.
- The trial court denied relief; the Georgia Court of Appeals affirmed, applying Strickland v. Washington standard.
- Court held that prosecutor's closing rebuttal was permissible inference from evidence, and that failure to object did not prove ineffective assistance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutor's closing statements | Herndon: prosecutor vouched for LPO's truthfulness. | Herndon: such vouching violated effective assistance. | Not ineffective; statements were permissible in context. |
| Failure to object to comments on not testifying | Trial counsel should have objected to comments about Herndon's silence. | Counsel's reasons for not object were not explored; representation deemed effective. | No merit; absence of explanation at motion hearing prevents finding deficient performance. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance)
- Adams v. State, 283 Ga. 298, 658 S.E.2d 627 (Ga. 2008) (closing argument permissible in context)
- Brown v. State, 293 Ga.App. 633, 667 S.E.2d 899 (Ga. App. 2008) (prosecutor's closing arguments; reasonable inferences allowed)
- Manley v. State, 284 Ga. 840, 672 S.E.2d 654 (Ga. 2009) (state may respond to defense accusatory arguments)
- Odom v. State, 304 Ga.App. 615, 697 S.E.2d 289 (Ga. App. 2010) (comments about failure to testify not improper per se)
- Morgan v. State, 275 Ga. 222, 564 S.E.2d 192 (Ga. 2002) (requirement to show deficient performance; strategic choices)
- Grier v. State, 273 Ga. 363, 541 S.E.2d 369 (Ga. 2001) (reasonable tactical decisions not ineffective assistance)
- Robinson v. State, 277 Ga. 75, 586 S.E.2d 313 (Ga. 2003) (appellate deference to trial court findings)