Smith v. State, 312 Ga. App. 174

Smith was convicted of two counts of rape, two counts of robbery by force, and kidnapping in Georgia.
DNA from both victims matched Smith; odds of match were one in ten billion.
Two victims testified; one identified Smith as the rapist; the other was unable to identify but a maintenance man did.
Defense claimed a due process violation due to a conflict with appointed counsel; trial court did not replace counsel.
Smith challenged competency proceedings, jury selection actions, and asserted a recidivist life-without-parole sentence under OCGA 17-10-7.
Appeals Court affirmed, addressing each claimed error and finding no reversible error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Conflict with counsel denial of replacement	Smith argues Sixth/Fifth Amendment violation due to unworkable relationship with counsel.	State contends no denial of counsel; no prejudice shown.	No denial of due process; no showing of deficient performance or prejudice.
Directed verdict in competency trial	Competency evidence demanded directed verdict in Smith's favor.	Competency evidence conflicted; trial court did not err in denial.	No error; conflict in evidence prevented directed verdict.
Juror excusal in competency hearing	Excusing juror with concerns about bias violated due process.	Trial court properly exercised discretion; juror not fixed in opinion overall.	No abuse of discretion; first juror excused, second properly considered.
Recidivist life-without-parole sentence	Sentence misapplied OCGA 17-10-7 and failed to specify subsection on final disposition.	Record shows recidivist sentence appropriately imposed under subsections (a) and (c).	No reversible error; record shows applicable subsection and proper imposition.
Sufficiency of asportation for kidnapping	Movement of victim was incidental to rape or insufficient for asportation.	Movement increased danger and was not incidental; Garza factors met.	Sufficient asportation under Garza v. State and related jurisprudence.

Ross v. Kemp, 260 Ga. 312, 393 S.E.2d 244 (1990) (limits on when to presume prejudice in ineffective assistance claims)
Owens v. State, 269 Ga. 887, 506 S.E.2d 860 (1998) (presumption of prejudice extremely limited)
State v. Heath, 277 Ga. 337, 588 S.E.2d 738 (2003) (three instances of presumed prejudice for ineffective assistance)
Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843 (2002) (complete failure to subject the prosecution's case to adversarial testing)
Turpin v. Curtis, 278 Ga. 698, 606 S.E.2d 244 (2004) (defense counsel effectiveness shown by overall representation)
Gilbert v. State, 265 Ga. App. 76, 593 S.E.2d 25 (2003) (recidivist sentencing and interpretation of final disposition)
Harper v. State, 270 Ga. App. 376, 606 S.E.2d 599 (2004) (clarity in identifying applicable subsections of recidivist statute)
Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008) (Garza four-factor analysis for asportation in kidnapping)
Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973) (recidivist sentencing limitations not to increase written sentences)
Sims v. State, 279 Ga. 389, 614 S.E.2d 73 (2005) (competency determination procedure as civil-like proceeding)
Horne v. State, 298 Ga. App. 601, 680 S.E.2d 616 (2009) (Garza standard applied to asportation and kidnapping)