Ware v. State
307 Ga. App. 782
Ga. Ct. App.2011Background
- Ware was convicted by a jury of bank teller robbery after a surveillance-recorded incident at a Bank of America on May 5, 2007.
- A facially bald robber demanded money with a note; the teller handed cash to the robber and the crime was recorded by bank cameras.
- Police obtained bank footage and issued a BOLO bulletin; a detective later used Ware’s 2004 and 2006 photos showing head indentation to link Ware to the crime.
- A photographic lineup including Ware’s 2006 photo led tellers to identify Ware; Ware was arrested nine days after the robbery.
- At trial, Ware did not testify and did not call witnesses; the robbed teller identified Ware in court and the jury viewed surveillance video and stills of the robber’s face.
- Ware unsuccessfully sought pretrial replacement of counsel and raised a post-trial ineffective-assistance claim, which the trial court denied and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effectiveness of counsel standard | Ware contends trial counsel was ineffective | State argues no reversible error | No reversible error; Strickland standard met or not shown |
| Voire dire claimed deficiencies | Ware alleges counsel failed to ask certain questions | State asserts no prejudice without specific responses | No prejudice shown |
| Failure to seek mistrial over detective testimony | Grimes-type prejudice should have been objected to | Evidence of identification already strong with multiple identifications | No reasonable probability of different outcome |
| Pretrial request for new counsel and hearing | Court should replace counsel or hold a hearing | Discretion to appoint counsel within standard limits; no abuse | No reversible error; post-trial hearing cured any error |
| Effect of post-trial proceedings on denial of pretrial hearing | Hearing deficiency violated rights | Post-trial evidence satisfied due process | Post-trial hearing cured error; no new trial warranted |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court, 1984) (establishes two-prong test for ineffective assistance of counsel)
- Grimes v. State, 291 Ga.App. 585, 662 S.E.2d 346 (Ga.App. 2008) (reversal where defense failed to object to identification testimony in photos/video)
- Davis v. State, 261 Ga. 221, 403 S.E.2d 800 (Ga. 1991) (criteria for evaluating counsel effectiveness under Georgia law)
- Chapel v. State, 264 Ga. 267, 443 S.E.2d 271 (Ga. 1994) (considerations for selecting appointed counsel)
- Heard v. State, 173 Ga.App. 543, 327 S.E.2d 767 (Ga.App. 1985) (post-trial cure for failure to hold pretrial hearing on counsel effectiveness)
- Espinosa v. State, 285 Ga.App. 69, 645 S.E.2d 529 (Ga.App. 2007) (standard for reviewing trial court findings of fact in IAC claims)
- Franks v. State, 278 Ga. 246, 599 S.E.2d 134 (Ga. 2004) (identification-related evidentiary issues and witness testimony)
- Rickman v. State, 277 Ga. 277, 587 S.E.2d 596 (Ga. 2003) (precedent on identification and trial strategy)