*1 A07A1519. BASS v. THE STATE. 303) Judgе. MlKELL, including robbery, counts,
A convicted Ronald Bass of 24 simple battery, property crimes, and numerous all ofwhich concerned participated procuring individuals who had in a court order for the dogs property. of 12 removal from his residential The trial court years Following sentenced him to a total of 40 to serve. the denial of appeals, raising trial, his amended motion new Bass several including prove error, enumerations of that the state failed to venue rejecting and that the trial in court erred his ineffective assistance of Finding reversal, counsel claim. no basis for we affirm. light verdict,
Viewed most favorable to the the evidence family Chicago, shows that Bass and his Illinois, moved from Georgia, began housing stray dogs Cuthbert, in 1993 and soon property. By spring dogs their residential numbered neighbors annoyed by they about and Bass’s had becomе what barking coming considered excessive and noxious odors from Bass’s property. April year, Miller, In of that Jane in who lived Atlanta with grandchild her husband and whose children and owned a house next complaining dog Bass, door to mailed aBass letter about the situation asking remedy reply him to it. Miller received no to that letter nor follow-upletter; therefore, to a she and her husband called Bass about During telephone conversation, the matter. their became hos- going tile, advised the Millers what was on in Cuthbert was none business, husband, oftheir and recommended to Miller’s “Youshould keep your stay better control of wife. If she wants a cause she should up in Atlanta and clean the Chattahoochee River.” May, Miller went to Bass’s home and hand-delivered to him again complaining dogs imploring letter, another about the him signed by to reduce thеir number to three or less. This letter was including following property others, Miller and owners in Bass’s neighborhood: (who part Miller William was Jane Miller’s son and property); Riley; Moshell; owner of the Anne Martha Dan Harris Sheryl Floyd During wife, Harris; Goff. their encounter that day, Bass said to Miller: you anybody
[D]id find out from in town that I was born Chicago? and raised in I’m a Yankee.... And the last time a up, pretty Yankee came down to and tore he did a job good Up you might remember, darn of it. Atlanta he called was William T. Sherman. considering left,
Miller threat. Bass’s words a petition private filed month, to abate a nuisance was Later municipal complaining court, incessant noise and intolerable dogs. petition signed The Jane and Bass’s 15 odor caused Riley, Miller, Moshell, Harrises, Goff, and others. At a William present, hearing thereon, there was at which Bass was Riley, petition by support Miller, Moshell, Jane and William municipal Harris, court thereafter ruled that Bass *2 and Goff. Dan upon property by housing dogs maintaining a nuisance was by September 30, 1997, them him to remove 12 of and ordered July contempt subject The order was issued on himself to sanctions. appeal superior to the court. and Bass filed a notice municipal began days order, of fires court a rash Within buildings property destroyed Miller’s all the on the owned barn-type July, August, burned; in their In their house relatives. September, garage storage burned. There- burned; and in their shed again growing after, November, trees on their twice in October and permission. property cut without their were down investigator State Fire Marshal’s An arson with buildings. investigated left of the burned In his Arson Unit what was Upon learning expert opinion, intentionally been set. the fires had property trees, about the cut he returned to the and determined that markings left on them were consistent with the use of a bow saw. purchased
The evidence at trial a bow showed Bass saw at some time after the house burned and later sent his mother-in-law buy into a local hardware store to another bow saw for him. complied In December Miller noted that Bass had not municipal taking that, court order. She testified as she was pictures grabbed dogs property, spotted her, that month theof on Bass’s upon apart, her,
her camera from beat it a tree until it broke (then years old), causing and “snatched” her ground. her to fall to the appeal superior month, That same Bass’s court was petition dismissed for failure to file a for writ of certiorari. His application discretionary appeal from that dismissal was denied following municipal month, this court. The March finding contempt, ordering police issued an order to Bass in the chief of impound dogs, imposing upon all but three of Bass’s Bass a contempt impound dogs removed, fine and costs. The were thereafter property. ordered, from Bass’s
Starting perpetrated month, that same a wave of crimes were upon petition signed the vehicles ofindividuals who had the nuisance against instance, then testified Bass. each the vehicle dam- aged parked respective home, at the owner’s in Bass’s which was neighborhood. The four tires on Moshell’s car
March were flattened and during
“666” was scratched on side of her car night.
April Riley’s during The four tires of night. car were flattened April eight Sheryl Dan tires on Harris’s car and
truck were flattened. April 6 The four tires on truck were Goffs flattened and “666”
was scratched onto the side of the truck. April Riley’s again. The four tires on car were flattened April again. The four tires on truck Goffs were flattened
According shop replaced to a tire owner who examined and then “damaged tires, some of the flattened each tire had been the same way, through you patch with holes the side where couldn’t them.” neighbor that,
Moshell’s next door testified at about 2:00 *3 morning vandalized, Moshell’s car was he saw a man walk alone driveway. neighbor down Moshell’s The testified that he did not see gait, face, size, man’s but observed that the man had the same general appearance occasionally walking dog aas man he had seen neighbor during that, on his street. time, The testified did he not dog, know name of the man who sometimes walked a but the county Gary sheriff, Wilson, later identified the man to him as “Ronald Bass.” April response
On Wilson went to in Goffs house to a complaint investigated about flattened tires. He the vehicle there and Riley’s also the one at house. Wilson summoned a caninе handler with Georgia Department Georgia of Corrections and the Bureau Investigation (GBI) for assistance. investigated Riley’s
The canine handler the scene around car human-tracking dog. dog with a He bloodhound testified that the had picked up steps a human scent at the car and tracked it to the back dog Likewise, the house next door. “through Wilson testified that the went hedge Riley’s row Mr. between Bass’s house and Ms. yard” agent toward Bass’s house. and an Wilson of GBI who response dog in arrived to Wilson’s summon and its followed handler to the house next door. It was Bass’s home. The sheriff and agent explained presence. to Bass their Bass named his wife and only occupants son as the other at that time. April Office, days the Sheriffs later, 28, officers from on
Five executed a Unit, and the GBI Arson Fire Marshal’s State yielded upon two bow The search Bass’s residence. warrant search saws. dogs keeping family their started that his Bass testified the first Miller was that a letter from 1994 and around residence complaint recalled, frus- “I was more them. He he received about anything some- understand how because I couldn’t else than trated you start body can come and know, somewhere that, doesn’t live you you basically wanting can’t can and to do and what to order what explained yard.” Miller your remark to that his He in own back do any property referencing threat of not a T. Sherman was William going fight warning damage, only As her.” that “I was but lifelong background in interest Civil remark, he described his appeared day history that, Miller with and stated on War presentation working about Sherman’s letter, on a he had been March to the Sea. municipal attorney matter his
Bass testified that prevailing, but he chose little chanсe of had advised him that he stood strongly fight that he had he believed the nuisance action because to a constitutional private property. right keep dogs He his on his neighbors’ angry, his that he not but “frustrated” testified hearing petition. testimony at the on the nuisance underlying the arson Bass denied involvement the fires charges; when the he and his wife testified that he had been at home damaging cutting the trees and fires started. He also denied down Further, vehicles. Bass testified that his December 1997 altercation only erupted Miller had after she his demands to leave refused property stop taking pictures his of him and his residence. He put her, testified that he did did not take her camera hands her, did from not smash the camera. by jury charges
Bass was indicted for 24 and twice tried Randolph County. guilty only him his first trial found committing simple battery upon hung Miller. That trial ended awith simplе battery remaining charges. Sentencing on the on the charge until trial. was withheld the conclusion of Bass’s second *4 appeal, underlying trial, at Bass’s second the trial guilty charges. returned verdicts on those other 23 After various mergers, Bass was convicted and sentenced on one count of first degree burning relatives; Miller’s two arson for the house owned barn-type storage degree burning their counts of second arson for damage garage; degree shed and three counts of second criminal robbery by property snatching cutting property; sudden for trees on their trespass taking Miller; from criminal for for a camera causing bodily smashing simple battery against tree; for the camera 694
injury by shoving ground; to Miller her to the and six counts of second degree damage property damaging the vehicles of criminal Riley, Moshell, Harrises, and Goff. рrove 1. Bass contends that the state failed to venue for the — charged (a) damage
offenses in: Count 17 criminal in the second degree, by puncturing Sheryl Dan and tires of Harris’s car and pickup (b) trespass, by entering truck; and Count 18 criminal purpose committing Harris’s residential lot for the unlawful crimi- damage puncturing nal the tires of their vehicles.1 Nancy Burgin, neighborhood, who lived in Bass’s described the layout testifying there, of the residences that the Harris’s residence “probably past Later, five or six houses the Bass house.” she was you asked, “Now, case, the residences that have referred to in this are Randolph County, all of those residences located in Cuthbert and Georgia?” replied, Burgin’s testimony ‘Yes, She sir.” authorized the beyond charged to find a reasonable doubt that the offenses Randolph County.2 Counts 17 and 18 occurred granted 2. Bass contends that the triаl court should have him a pursuant Washington3 new trial based on his claim to Strickland v. ineffective assistance counsel. establishing
The burden of
the ineffective assistance of
heavy
requires
appellant
trial counsel is a
one that
performance
establish both that counsel’s
fell below an
objective
reasonableness,
that,
standard of
but for coun-
performance,
probability
sel’s deficient
there is a reasonable
that the outcome of the trial
have
would
been different.4
respect
deficiency prong,
“strong
With
Bass must overcome a
presumption
performance
that the
of trial counsel falls within the
range
professional
wide
ofreasonable
assistance.”5 Absent
contrary,
presumed strategic
“counsel’s actions are
and are
virtually
performance
unassailable as ineffective.”6 Bоth the
1
merged
sentencing purposes.
Count 18 was
into Count 17 for
2
State,
900,
(2) (537
80) (2000) (like every
See
v.
Jones
Ga.
SE2d
other material
indictment,
allegation
proved beyond
doubt).
venue must be
a reasonable
2052,
674) (1984).
prejudice components inquiry ques- of the ineffectiveness are mixed reviewing trial tions of law regarding fact.7 In a court’s determination counsel, claim of ineffective assistance this court findings they clearly upholds factual are court’s unless legal erroneous; de we review a trial court’s conclusions novo.8 (a) Citing Louisiana,9 State,10 cases such as Turner v. v. Radford Bishop argues performed v. and deficiently State11 Bass that his trial counsel
by failing obj Wilson, ect when the trial court allowed witness, sheriff who testified as a state to act bailiff. Wilson began acting day four-day trial; as bailiff at the start of third ofthe day. the state had rested its the close case-in-chief at of the second key prosecution Turner, witnesses, two who were also deputy jury throughout three-day sheriffs, acted as bailiffs Supreme] explained [United trial. The States Court that it guarantees by jury would have undermined the basic oftrial key prosecution for two witnesses have associated with jury any deputies event, but their role as sheriffs prejudicial. made the association even more And notwithstanding assumption true an that the facts of the many case were discussed conversations between jury.12 the two witness-bailiffs and the Subsequently, Supreme Court of instructed in Rad- ford rigid, per automatically
Turner did not set down a
se rule
requiring
any
any gov-
reversal
conviction whenever
jury.
ernment witness comes into
contact with the
specifically
jury
Turner
indicated that association with the
a witness whose
was confined to some uncon-
merely
aspect
pros-
troverted or
formal
of the case for the
hardly present
problem.
ecution would
a constitutional
And
it
encounter,
indicated that a
chance,
mere brief
with the
generally
process principles.
would not
due
contravene
7 Lajara
State,
(3) (435
600) (1993).
SE2d
Suggs
(4) (526
(2000).
347)
SE2d
(85
424) (1965).
Thereafter, Georgia explained Court for the State who is also and witness “contact between an automatic reversal. grounds is not of the court officer duration of cоntact and type factors to be considered are the testimony.”14 significance *6 this to as bailiff in objected serving counsel the sheriff Had trial — trial trial for the the having during after testified the state case trial the precedents Bass a new under granted could have here, above; however, objection there no and this court was discussed object that to in these circum- per not se rule failure impose will The circumstances are is ineffective assistance of counsel. stances to the local, usually experienced such are best left always and matters and of the adver- the instincts judge presiding judgment trial and to trial sarial counsel.15 scene, from cannot From a cold record and distance we in or prejudiced the defendant fact was not discern whether The of the elected to as circumstances allowing sheriff serve bailiff.16 in, example, from for and significantly here differed those Turner17 or ate meals with the deputy in which the sheriff sheriffs Gonzales,18 case, contrast, in our the sheriff/bailiff By and conversed with them. jurors attorney, judge, room in the view of district sat outside counsel, defendant, retained trial Mr. Ronick. defendant’s although had known the sheriff all of foreperson jury, The of she had, trial, life, point did at her not remember whether he some bailiff not. become vary in taking charge
The function of a “bailiff’ of can county from trial to trial. Georgia county from considerably Bass, the at appellant, case Ronald sheriffs actual role In the of that in the authori- was different from discussed significantly trial sure, To the sheriff had testified the state precedents. tative be supervised by the jury, although trial. Thus his contacts with Id., Beto, (Citations punctuation omitted.) citing 405 U. 1054- Gonzales S. J., (Stewart, concurring). 787) (1972) LE2d 14 (Citation omitted.) Bishop, supra (10). 15 Here, prevented hearing for new counsel’s before the on motion trial death challenged thorough behind actions. examination reasons affirmatively appellate argument that at oral before this court Bass’s counsel stated prejudice. contending presumptive Bass is 17 Supra. 18 Supra. usually judge counsel, could observed the defendant and trial objection improper as if had been have rendered his service bailiff objec- expressly he had no made. But defendant’s trial counsel said say law, that, a matter of such consent automati- tion. We cannot cally equals to of counsel. ineffective assistance failing
(b) Bass contends that counsel was deficient dog that had tracked scent the state’s evidence a bloodhound a human scene to his He evidеnce from a crime back door. asserts was showing type tracking of inadmissible because there no such stage certainty had scientific under reached a verifiable the test set Harper forth in v. State.19 Supreme explained type Court of that the has Harper commonly subjected “expert opinion
evidence test is analysis opinion only data, based an that could be based on something course, more than mere Of if observation. the conclusion by anyone observation, at issue could be drawn based on there would expert be State,21 no need for Al-Amin v. testimony.”20 Georgia applied Court this rationale to determine whether the Harper respect standards have should been met with to contested tracking dogs appellant evidence that had located the who held, retreated into woods.22 The Court “Because this is evidence average layperson, necessary which is within the ken ofthe it was not Harper Similarly, that the be standards the contested evi met.”23 dog dence this case is the use of a track Thus, a human scent. *7 requirement Harper is there no show to that the standards met are for admissibility.24 upon misplaced type Bass’s reliance Carr is because the State25 distinguishable type
of
evidence
issue in Carr is
from the
of
evidence at
evidence
Carr,
issue both here and in Al-Amin. In
the contested
—
dog
testimony
dog’s
lying
awas
handler’s
that a
behavior
pointing
pawing
ground
down,
nose,
with his
the
that an
—showed
present
being investigated
accelerant was
at a site
for
The
arson.26
expert
Court of
determined that such evidence was
(1) (292
389) (1982).
249 Ga.
523-526
SE2d
State,
(482
314) (1997),
Carr v.
grounds,
267 Ga.
702-703
SE2d
overruled on other
State,
(5) (515
155) (1999).
Clark v.
271 Ga.
SE2d
The judge its The asserts that it called the defense closed case. state impeach Clayton attorney Smith, defense witness who had represented attorney Bass in the nuisance action. That had testified petition. anger hearing at that Bass exhibited no nuisance municipal judge testify about The court did not Bass’s demeanor hearing. had at the nuisance She testified about a conversation she shortly contempt According attorney hearing. Bass’s before the attorney judge, only year to the Bass’s advised her that Bass had spent illness; did live because of that he not care whether he his year prison; at home that he did not he last or care if “killed everybody every town; involved” burned down house in and that recently learned that her husband owned a house in neighborhood.30 judge recalled, The “It concerned me that he made contempt hearing. such threat.” She recused herself from the agree municipal judge’s testimony We with Bass that the court beyond impeachment was admissible evidence and should have been dangerousness excluded. Evidence about a defendant’s future “sim- ply question whether, is irrelevant to the under the facts introduced beyond guilty evidence, into the defendant is a reasonable doubt of charged.”31 question the crime Also irrelevant to that were the municipal judge’s court reactions to statements attributed to Bass. Again, however, we are reluctant to decree an automatic rule that object important failure to to the inadmissible of an per repre- witness is sented se ineffective assistance of counsel. Bass was choosing. counsel, at trial i.e., retained counsel of his own hindsight, performance questionable In in several that counsel’s at trial seems
aspects. But, we cannot hold as matter of that law municipal judge’s testimony counsel’s failure to to the was ineffective assistance of counsel. complains gave
3. Bass that the trial court an erroneous concerning charged: instruction alibi. The court present The Defendant contends that he at the scene alleged offense at the time itsof commission. Alibi as pres- impossibility a defense involves the of the Defendant’s alleged ence at the scene ofthe offense or offenses the time attorney represented who knowing Bass in the nuisаnce case denied the time of hearing judge’s spouse neighborhood making any owned a house in Bass’s judge suggesting danger. statement even such house was in Wyatt (2) (b) (485 864-865 *9 700 presented respect with The evidence
of its commission. reasonably place be such as to exclude the and must time possibility presence the at the scene the Defendant of alleged Presence ofthe Defendant at or offenses. the offense alleged of the crime is an essential element the scene proof burden of indictment, in and the crime set forth this beyond upon prove a reasonable the State to such rests doubt. Chapel considered State,32 the Court of
In language v. determined, is in “The third sentence unfortunate proof suggesting the defendant and the burden of rests with Chapel Although charge it.”33 correct and better without would be no error that the third sentence created reversible Court determined instructing is in that the burden of “the final sentence clear because proof completely state,”34 the third sentence should be rests charge Accordingly, giving did of this not constitute omitted.35 reversible error. Lastly, denying court erred in
4. contends that Brady36 motion for new trial because the state committed amended paid revealing a reward would be him that violation not prosecution According Bass, if two witnesses he was convicted. money he con- from the state after witnesses received reward However, Bass further asserts that neither sentenced. victed and they possibility a reward until knew witness about after testified trial. preserved
Pretermitting
has
this claim of error
whether Bass
suppression by
Brady
review,
prosecution
that the
it is without merit.
holds
to a
defendant is viola
of evidence favorable
criminal
components
Brady
рrocess.37
of a true
tion of due
“There are three
accused,
must be
violation: The evidence at issue
favorable
impeaching;
exculpatory,
or because it is
either because it is
willfully
suppressed by
State,
must have been
either
evidence
inadvertently;
prejudice
must
ensued.”38 Bass has
have
prejudiced.
He contends that
undis
how he was
demonstrated
the outcome of
case
closed evidence “could have affected
32
(1998).
(510
802)
151
(7).
Id.
34 Id.
(3rd ed.),
Instructions,
Jury
Suggested
Vol. II: Criminal Cases
further
Pattern
(Alibi).
3.11.10
§
(1963).
215)
Brady Maryland,
LE2d
Bernes, in concur in the concurs part, only part. judgment Blackburn, in in concurs in and dissents judgment only part J., J., P. concur in the in and dissent Ruffin, part. Judge, part, concurring only concurring judgment PHIPPS, *10 part, dissenting part. deprived by Because Bass was of effective assistance of counsel object the failure of trial counsel to when the trial court allowed — investigated Wilson the sheriff who had the case and testified as a — key prosecution bailiff, witness for the to act as his convictions (except simple battery)39 regarding Therefore, shouldbe reversed. majority’s (a), part part. 2 Division I concur in and dissent in I fully majority’s (b), Regarding 1,2 concur with the Divisions and 3. all remaining judgment only. divisions, I concur in the prevail claim,
To
such
a defendant must establish that
performance
perfor-
counsel’s
was deficient and that the deficient
prejudicial
performance
mance was
to his defense.40 Both the
prejudice components
inquiry
ques-
of the ineffectiveness
mixed
are
reviewing
tions of law and fact.41 In
a trial court’s determination
regarding a claim of
counsel,
ineffective assistance of
this court
upholds
findings
they
clearly
the trial court’s factual
unless
are
legal
erroneous; we review a trial court’s
de
conclusions
novo.42
(a)
argues
that his trial counsel
Deficient Performance.
performed deficiently by
failing when the trial court allowed
—
investigated
Wilson
the sheriff who had
the case and who testified
prosecution
key
jury
aas
witness
to then act as bailiff of the
in the
of the
began acting
day
trial. Wilson
as bailiff at the start of the third
four-day trial; the state had
its
rested
case-in-chief at the close
theof
day.
second
Louisiana,43
Bass cites cases such as Turner v.
v.
Radford
Bishop
State,44 v. State.45
39
part (e)
See furthеr
of this dissent.
40
State,
Conaway
(2) (589
108) (2003).
v.
424
SE2d
State,
Lajara
(435
600) (1993).
Ga.
SE2d
Suggs
(4) (526
347) (2000).
SE2d
(85
424) (1965).
Turner any any gov- requiring conviction whenever the reversal jury. contact with witness comes into ernment jury specifically with the indicated that association Turner was confined to some uncon- a witness whose pros- merely asрect of the case for troverted or formal problem. hardly present And constitutional ecution would encounter, chance, with the a mere it indicated that brief process principles. generally contravene due would not mem- chance contacts between witnesses Certain together passing bers, in an in the hall or crowded while *11 elevator, are often inevitable.47 explained Bishop
Thereafter, the Court of jury for the State who is also that the and a witness “contact between grounds the not for an automatic reversal. an officer of court is type of contact and to are the and duration the factors be considered testimony.”48 significance the the of jury Wilson, the case, the the interaction between this court, was not acted as an officer of the
witness for the state who also being together passing elevator, in an hall, crowded limited to generally not brief, would some other chance encounter principles. process Rather, as bailiff due Wilson acted contravene through presentation of case end of the defense its from start omitted) Turner, supra). Radford, supra (punctuation (analyzing (1) 48at Beto, omitted) (citing (citations punctuation 405 U. S. Gonzales Id. J., 787) (Stewart, concurring)). (1972) 31 LE2d 1054-1055 48 Bishop, supra (10) (citation omitted). at jury trial, Under circum- until the reached its verdict. such of stances, authority continuing had substantial and contact with and Wilson during significant jurors portion a of trial.49 over the pled guilty not to the 23 under consideration As Bass counts jury, beyond proving the state had the burden of a reasonable every meeting burden, element of these offenses.50In doubt “ testimony upon by the sheriff that state relied ‘confined merely aspect uncontroverted or formal of the for the some case ”51 prosecution,’ guilt. but tended to show Bass’s participated supervised investiga- Wilson, who had both in and charged key crimes, tions of some of the was a witness for the prosecution. permitting play circumstances,
Under these the sheriff to key dual of a roles state witness and bailiff undermined the basic guarantees by jury.52 right jury guarantees of trial “[T]he trial criminally by panel impartial, a fair a accused of indifferent jurors.”53 safeguard right jury A influence, of that of is free outside implemented, part, “by presence bailiffs, which is of officers designated attendants, the court as unbiased administrative whose ,”54 duty custody jury. sworn is to take of the . . adversary system justice
Our
of criminal
demands that the
respective
prosecution
roles of
and defense
neutral
kept separate
role
the court be
and distinct in a criminal
key
against
trial. When a
witness
a defendant doubles as the
specifically charged
officer of the court
with the care and
protection
jurors, associating
with them on both a
Gonzales, supra (reversing
Turner, supra,
county
See
conviction under
where
sheriff
played
key prosecution
only
day
dual roles of
witness and bailiff at a trial that lasted
one
jury
sequestered
county sheriff).
was not
with the
Tompkins State,
(1)
See
891) (2005) (a plea
guilty
of not
requires
prove every
the state to
charged).
element of the crime
51 Radford, supra
Turner,
(quoting
supra
473).
at 49
at
Turner, supra
473-474; Radford, supra
Gonzales,
(4)-(6);
at
supra
at 49-50
see also
(Stewart, J., concurring) (cited
approval Radford, supra
1053-1054
(1), (6));
with
at 48-50
(Ala.
(I)
App.
(because
see Yelton v.
1973)
guarantees
S2d
914-915
Crim.
basic
permitting
commingling
jurors
trial are undermined
certain
between
and a witness
position
authority,
allowing any
in a
reversible error occurred in
association of the
trial,
though
jurors
witness who had
testified
even
sheriffs interaction with
did not
*12
prohibitedbehavior
approach
Turner, supra),
grounds,
(1974);
the
rev'd on other
317 S2d331
Todd,
Turpin
386, 390 (
personal while and an official basis adversary justice system prosecution, ing is for the perverted.55 allowing plainly “condemn[ed] has Court of give key for the State to be officers enforcement who
law protection charged no There is the care and jurors.”56 deficiently performed by failing question to Bass’s trial counsel that acting to Wilson as bailiff.57 assessing prejudice component (b) Prejudice. of an inef- In tоtality of the evidence consider the must fectiveness claim,58 counsel’s deficient the effect of trial to determine performance.59 pervasive [by had effect on counsel] will have “Some errors altering evidence, the entire eviden- inferences to be drawn from the tiary picture, isolated, have had an trivial and some will effect.”60 support to Bass’s the evidence in this case was sufficient While largely overwhelming. it not The case was circum- was convictions,61 hinged credibility prosecution witnesses, on the stantial his described he and Wilson. Wilson what others one whom was conducting investigate including crimes, more officehad done examining fires, in connection with the than a dozen stakeouts damaged addition, the scenes of vehicles. In evidence showed that participated in the ofthe search warrant sheriffs оfficehad execution yielded type upon that could have that of saw Bass’s residence cut the trees. been used to down testimony concerning
Moreover, Wilson corroborated tracking dog by prosecution addition, witnesses. Wilson other neighbor immediately to the stand after Moshell’s testified recalled walking driveway down Moshell’s the man he had observed about night neighbor Moshell’s car was vandalized. The testified night, but that the sheriff did not name as of that he later identified Bass interview with the Wilson, know Bass recall, Wilson testified about him. On concerning According neighbor night. reported during neighbor already knew Bass and Moshell’s like he walked and looked that the man had observed interview 55Radford, supra (6) (citation omitted). at 49-50 56 omitted). Bishop, supra (citation punctuation 293 57 Yelton, Gonzales, supra; Turner, supra; supra; v. see also Jowers testing proсess (396 891) (counsel’s work function is make the adversarial 462 case). particular affirmatively argument appellate this court that stated at oral before Bass’s counsel contending presumptive prejudice. is Washington, LE2d U. S. SC Strickland 60 Id. at 695-696. 560) (1979). Virginia, U. S. 61 LE2d See Jackson *13 neighbor) identify person (the Bass, as but he would not the Bass for house would be burned down. fear his regarding credibility solely fall the of the witnesses
“Issues province jury.”62 during significant parts Yet, the the of the within of jury acting including trial, deliberations, the sheriff was as bailiff. — beyond of The official character of bailiff as an officer the court great jury, placed question weight with a as the court the carries has charge only in the This could foster the bailiffs care.63 role guardian jurors’ during confidence in one who was their official significant periods emphasis being the trial of and lead to undue placed uрon testimony part played and the he and his office underlying investigating the crimes.64
Furthermore, the record that shows Wilson had been the coun- ty’s recognized elected sheriff since 1985. It has been that person
[a]ny holding only recog- the office of sheriff is not symbol county’s law, nized as the of that but is the to law his speaks. constituents when he It is for this reason that the may jury’s verdict, such officer influence a impact presence and the of his [as is bailiff] increased considerably brought whenever he is into com- such close pany jurors.65 with the Supreme Turner,
Since the United States Court has reiterated proposition process, try cannot, the “consistent with due placed protective custody a case ha[s] after it been principal prosecution notwithstanding possibility witnesses, jurors might Thus, not be influenced the association.”66 I agree majоrity’s reasoning cannot with the to affirm this case because jurors of the lack of evidence that the sheriff ate meals with the acting because the that, bailiff, sheriff testified while as he restricted jurors judge’s light his association with the instructions. foregoing, points consequence all the I find these of little no because, as held, Court of the United States has “even if it could be assumed that the [sheriff] never did the case discuss directly jury, blinking reality with members it would be recognize prejudice not to the extreme inherent in the continual 755, (1) (632 636) (2006) (citation omitted); McKee v. see OCGA 24-9-80. § Gladden, 420) (1966); Turpin, Parker v. U. S. SC 17 LE2d accord supra at 390. Turner, supra 474; Yelton, supra at 914. 65 Yelton, supra; Turner, supra see at 474. Kiff, Peters 407 U. S. 33 LE2d key jurors [during] and [this] the trial between association prosecution.”67 [ ] for witness majority’s reasoning agree to affirm what can I
Nor merely deferring (perceived) happеned sake in this case commonly employed by practices or local circumstances strategy majority judges. the trial counsel’s labels as And while trial, failure “strategy”
invoking not auto- does “tactics” words against matically a claim that immunize trial counsel strategic an unreasonable maneuver was tactical decision competent attorney under same no would have made one circumstances. manic “strategy” provide no talis-
“Tactics” and *14 against protection ofcounsel an ineffective assistance assuming that trial in this case know- Even counsel claim. objection], forego ingly it [an made the tactical decision to attorney competent a would not a reasonable decision [was] circumstances.68 have made under the same — object failing to sheriffs reviewed here to Counsel’s error isolated, witness and bailiff did not have a mere roles as state’s pervasive effect, a inferences to be drawn from trivial but effect negate upon by majority fail relied the evidence.69The factors prejudice circumstances of this case in this case. Because the (i.e., probability probability “a sufficient to under- show a reasonable mine outcome”70)that, but for counsel’s deficient in the confidence proceeding performance, different, been the result of the would have except simple convictions, all of I believe we should reverse Bass’s battery. Simple Battery
(c) trial, found In his Bass was Conviction. first jury simple battery against guilty trial, Miller. In the second parties stipulated charge; instead, was not asked consider trial; therefore, that verdict could to the verdict from have been affected first by acting sheriff as bailiff. only part Judge, concurring judgment in and dissent-
RUFFIN, in ing part. in key prejudicial presumptively a it is when
Because I believe that jury’s charged care, I with the am witness serves as a bailiff State’s 67 Turner, 473; Radford, supra supra see 48. (citation punctuation 824) (2004) Benham v. omitted; emphasis original). 69 Strickland, supra at 695-696. 70 Id. at 694. majority’s opinion.71 compelled to Division I dissent as respect remaining judgment only divisions. concur why uniformly per- is a condemn There reason court decisions mitting key officers are witnesses for the State law enforcement who charge jurors.72 bailiffs, because, to serve It to hold is fundamentally otherwise, is unfair to criminal and un- defendants system justice. dermines ofboth our Constitutions guarantee right by the United a criminal defendant the to trial States impartial jury.73 judges, an As former trial we that a bailiff can know develop unique rapport jury.74 person a with the The bаiliff is the who jurors’ presence comfort, ensures the ushers them in and out of jurors judge. room, as the serves position conduit between and the power, jurors may fondness, Given the bailiffs conceive respect, possibly jurors bailiff. even a fear ofthe do What not have impartiality impartiality may is an toward the bailiff. And lack of credibility translate into enhanced of the bailiff-witness. legitimate Moreover, I cannot conceive of tactical reason for Arguably, trial counsel’s failure to to such a situation. antagonizing judge.75 counsel was motivated a desire to avoid overarching Nevertheless, such motivation should never override his obligation impartial to ensure that his client obtains a fair trial by inappropriate exposure untainted trial witness. Presiding Judge joins
I am authorized to state that Blackburn opinion. Decided Novembеr *15 appellant. Steel,
Brian
for
Ferguson,
Attorney,
appellee.
Charles M.
District
for
any presumption,
As
Bishop State,
286, 293
(10) (486
it is rebuttable.
887) (1997) (although deputy’s
jurors
improper,
contact with
reversal was not
required given
jurors). Apparently,
lack of
appellate
contact with
Bass’s
counsel chose not to
argue
argument
oral
presumptively
the sheriffs dual role as both witness and bailiff was
prejudicial.
me,
appears
however,
majority presumes
It
prejudice.
that the
lack of
Given the
important
right
stake,
presumption
constitutional
I think the
should be otherwise.
Louisiana,
546,13
424) (1965);
supra;
See Tarner v.
Bishop,