Marshall v. State
324 Ga. App. 348
Ga. Ct. App.2013Background
- Marshall was convicted of aggravated assault and possession of a firearm during the commission of a felony.
- Victim, his ex-girlfriend, testified Marshall approached her, pulled her from a car, and fired at least three times; she escaped and called police.
- Marshall claimed the gun did not belong to him and that the victim retrieved it during a dispute; he denied a romantic relationship.
- The appellate brief largely failed to comply with Rule 25, but the court reviewed claims on the merits.
- The trial court allowed sentencing discussion of Marshall’s arrest history; Marshall argues this violated rights, but the court applied the presumption it was lawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance of counsel | Marshall argues counsel failed to investigate, request a continuance, and object at sentencing. | State contends no deficient performance or prejudice; some claims are waived/unsupported. | No reversible error; no prejudice shown; some claims waived or based on speculative testimony. |
| Plain error in jury instructions on simple assault | Marshall contends the jury should have been charged on simple assault elements. | State argues the instruction on aggravated assault adequately covered the issues. | No plain error; charged properly with deadly weapon element and reasonable-fear standard. |
| Sufficiency of the evidence | Marshall claims conflicting evidence shows no assault or weapon issue. | State asserts sufficient evidence, including witness testimony, supports conviction. | Evidence sufficient to authorize conviction for aggravated assault and firearm during felony. |
| Admission of prior arrests at sentencing | Prosecutor allegedly recited arrest history in a prejudicial manner. | Arrests mentioned were limited and do not show improper consideration of prior arrests. | Meritless; court presumes lawful consideration and finds no error. |
Key Cases Cited
- Sevostiyanova v. State, 313 Ga. App. 729 (Ga. App. 2012) (review of claims despite noncompliant briefs)
- Dulcio v. State, 292 Ga. 645 (Ga. 2013) (Strickland standard and deference to factual findings)
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court 1984) (ineffective assistance standard)
- Goodman v. State, 293 Ga. 80 (Ga. 2013) (trial counsel's reasonable strategic decisions presumed)
- Holloman v. State, 293 Ga. 151 (Ga. 2013) (plain error review of jury instructions)
- Wright v. State, 265 Ga. App. 188 (Ga. App. 2004) (consideration of prior arrests in sentencing)
- Jackson v. State, 316 Ga. App. 588 (Ga. App. 2012) (reliance on witness credibility and sufficiency of evidence)
- McDaniel v. State, 279 Ga. 801 (Ga. 2005) (uncalled witness testimony and probability of outcome)
- Whorton v. State, 318 Ga. App. 885 (Ga. App. 2012) (waiver and trial court discretion regarding objections)