Presley v. State
307 Ga. App. 528
Ga. Ct. App.2011Background
- Presley was convicted of aggravated stalking after a 2006 jury trial and acquitted of terroristic threats.
- He obtained an out-of-time appeal and challenges trial counsel’s effectiveness and a jury instruction on burden-shifting.
- At new-trial hearing, counsel testified Presley claimed a witness would testify; counsel tried to subpoena but could not before trial.
- Counsel testified the witness supported Presley’s version and would have testified if subpoenaed; the trial court denied continuance both at trial and on renewal.
- Presley argues counsel’s failure to secure the witness and the improper continuance motion, plus a burden-shifting issue in the jury charge, require reversal.
- The Court of Appeals affirms the trial court, holding no ineffective assistance and no reversible error in the charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for failure to secure witness | Presley | Presley | Denied; no deficient performance or prejudice shown |
| Burden-shifting in jury instruction on notices of order | Presley | State | Denied; not harmful; waiver due to no objection |
Key Cases Cited
- Coleman v. State, 286 Ga. 291 (2009) (ineffective assistance standard; trial court findings reviewed for clearly erroneous errors)
- Adams v. State, 283 Ga. 298 (2008) (standard of review and reasonableness of counsel)
- Suggs v. State, 272 Ga. 85 (2000) (standard of review; historical rules for appellate review)
- Hooks v. State, 280 Ga. 164 (2006) (presumption of regularity; prudent to defer to trial court findings)
- Dickens v. State, 280 Ga. 320 (2006) (prejudice shown where alibi witnesses testify at new trial)
- Richardson v. State, 189 Ga.App. 113 (1988) (prejudice analysis in ineffective assistance determinations)
- Revere v. State, 277 Ga. App. 393 (2006) (notice presumed from written order; evidentiary sufficiency)
- Nichols v. State, 288 Ga.App. 118 (2007) (prejudice and waiver considerations in trial-error claims)
- Anderson v. State, 262 Ga. 331 (1992) (notice and burden-shifting principles referenced in charge)
- Gibbs v. State, 213 Ga.App. 117 (1994) (discretionary decisions on continuances)