Smith v. State
306 Ga. App. 693
Ga. Ct. App.2010Background
- Smith was convicted by jury of felony theft by shoplifting in Georgia.
- Incident occurred June 14, 2008 at a Wal-Mart in Loganville involving an unidentified man and Sean Harris.
- The men allegedly removed a security device, loaded a computer into a cart, and left it at the front of the store; the man exited with a young girl and did not return.
- Smith later accompanied Harris to the front and attempted to return the computer; Collins, a Wal-Mart employee, required a receipt and a store sticker to process a return.
- Smith was apprehended by loss prevention as he attempted to leave the store with the computer.
- On appeal, Smith challenged (i) venue-related questions arising during trial, (ii) the decision not to allow reopening of evidence so he could testify, and (iii) alleged ineffective assistance of counsel related to trial strategy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OCGA 17-8-57 violation | Smith alleges the court expressed an opinion on venue. | State relies on Gardner/Anderson distinctions to permit limited questioning on venue. | No OCGA 17-8-57 violation; court's actions did not express opinion on proved venue. |
| Reopening evidence to allow defendant to testify | Smith contends denial violated his right to testify in his own defense. | State argues trial court has discretion to deny reopening after evidence closes. | No abuse of discretion; keeping evidence closed did not violate Smith's right to testify. |
| Ineffective assistance for failing to advise testimony | Smith asserts counsel should have urged him to testify after the State rested. | State asserts counsel's strategic choice not to have Smith testify was reasonable. | Counsel's performance not deficient; decision within wide range of reasonable professional conduct. |
Key Cases Cited
- State v. Gardner, 286 Ga. 633 (2010) (venue-15-8-57 violation depends on whether court expressed opinion)
- State v. Anderson, 287 Ga. 159 (2010) (trial court comments can constitute violation of 17-8-57)
- Patel v. State, 282 Ga. 412 (2007) (venue comments during trial may violate statute)
- Dickens v. State, 280 Ga. 320 (2006) (trial court may propound questions to develop truth)
- State v. Nejad, 286 Ga. 695 (2010) (on right to testify and waiver considerations)
- Rock v. Arkansas, 483 U.S. 44 (1987) (right to testify is fundamental but may be restricted in appropriate cases)
- Thomas v. State, 282 Ga. 894 (2008) (counsel's duties regarding advising on testimony and consequences of decision)
- Manning v. State, 259 Ga. App. 794 (2003) (trial court's refusal to reopen to allow testimony not error per se)
- United States v. Byrd, 403 F.3d 1278 (11th Cir. 2005) (limits on defendant's right to present evidence)
- United States v. Pino-Noriega, 189 F.3d 1089 (9th Cir. 1999) (prohibits two-trials based on different strategies)