Welch v. State
307 Ga. App. 857
Ga. Ct. App.2011Background
- Welch was convicted of armed robbery, aggravated assault, and possession of a firearm during the commission of a felony and sentenced to 20 years in prison followed by 25 years on probation.
- On motion for new trial, Welch challenged the trial court’s handling of a hearing-impaired juror and alleged ineffective assistance of counsel.
- During voir dire, no juror disclosed a disability; during the trial, a juror with hearing aids was noted to have hearing difficulties and devices were briefly unavailable.
- The court provided seating adjustments and ensured microphone function; a juror’s hearing aid issue arose and was remedied without defense objection.
- Appellate review focused on waiver due to Welch’s acquiescence, and the burden of proving both deficient performance and prejudice for ineffective assistance.
- The trial court’s factual findings about the juror’s ability to hear were accepted unless clearly erroneous, and the movant failed to show prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of juror-hearing issue | Welch contends the court failed to inquire into juror’s hearing ability. | State argues Welch waived by not objecting during trial and by acquiescing in procedures. | Issue waived; no reversible error. |
| Ineffective assistance for not requesting hearing-inquiry and voir dire record | Welch alleges counsel was deficient for not seeking more juror-hearing inquiry or recording voir dire. | State asserts no prejudice; juror heard testimony without demonstrable failure. | No prejudice; ineffective-assistance claim failed. |
| Right to testify and counsel's handling of Welch’s testimony decision | Welch claims counsel prevented him from testifying. | Counsel and Welch made a conscious decision not to testify; Welch approved it. | No error; Welch knowingly waived right to testify. |
Key Cases Cited
- Jackson v. State, 284 Ga.App. 619 (2007) (waiver when no objection to juror questioning)
- Mintz v. State, 273 Ga.App. 211 (2005) (waiver for failure to object to juror disqualification)
- Welbon v. State, 278 Ga. 312 (2004) (ineffective assistance standard and prejudice inquiry)
- Adams v. State, 283 Ga. 298 (2008) (prejudice and standard for trial counsel's conduct)
- Nichols v. State, 285 Ga. 784 (2009) (review of trial-court rulings and sufficiency of claim)
- Mobley v. State, 264 Ga. 854 (1995) (standard for evaluating witness-rights and trial conduct)