A Riсhmond County jury found Michael Brewer guilty on two counts of committing an act of child exploitation through the use of a computer or electronic device, OCGA § 16-12-100.2 (d) (1). Brewer appeals from the denial of his motion for new trial. He contends that the trial court erred in rejecting his claim of ineffective assistance of trial counsel. Finding no error, we affirm.
Brewer contends that his court-appointed defense counsel provided ineffective assistance by filing a general demurrer to the State’s оriginal indictment. He argues that his counsel’s general demurrer “alert[ed] the prosecution to [the indictment’s] problems of proof before jeopardy attached, and induc[ed] it to retreat to charges better tailored to its proof, easier to establish, and carrying greater sentences.” According to Brewer, the fact that counsel filed the demurrer at his insistence is legally insignificant.
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s perfоrmance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.
(Citations and punctuation omitted.) Robinson v. State,
“As a general rule, reasonable trial tactics and strategies do not amount to ineffective assistance of counsel.” Woods v. State,
So viewed, the record reveals the following facts. On November 6, 2012, the State indicted Brewer on two counts of criminal attempt to commit child molestation, OCGA §§ 16-4-1 (criminal attempt) and 16-6-4 (a). Each count charged Brewer with performing an act which constituted a substantial step toward the commission of child molestation, specifically, sending messages via computer to an underage victim indicating that he wanted to have anal sodomy with her when he was released from prison in two months. Although the court had appointed a public defender, Lyndsey Hix, to represent him per his request, Brewer filed a pro se general demurrer on December 4. In the demurrer, he argued that the court must dismiss the charges because, in sending the e-mail messages at issue, he did not make a substantial step toward the commission of child molestation. Two days later, Brewer filed an amended demurrer in which he re-asserted that argument, noting that he was in prison at the time the messages were allegedly sent and therefore could not have any physical contact with the children; he also argued that the indictment was issued by an illegal grand jury and that he had an alibi and therefore must be acquitted on the сharged offenses.
On January 7, 2013, Hix filed a general demurrer to the indictment on the basis that the acts described in the indictment were not violations of Georgia law because sending such messages by computer did not constitute a substantial step toward the commission of child molestation. The next day, Brewer mailed a third letter to the trial court clerk’s office, reiterating those arguments.
On March 1, the trial court initiated a hearing on Hix’s demurrer, but the State immediately notified the court that it was going to re-indict Brewer within the next few days. Although the court heard some argument in support of the demurrer, it noted that the arguments were “academic” at that point since the State was going to obtain and file a new indictment. Then, on March 5, before the court issued a ruling on thе demurrer, the State filed the new indictment against Brewer, charging him with two counts of committing an act of child exploitation through the use of a computer or electronic device, OCGA § 16-12-100.2 (d) (1).
Brewer filed a motion for new trial, asserting that Hix provided ineffective assistance by filing the general demurrer to the original indictment and, to the extent she only did so at his insistеnce, for “abandon[ing]” her professional judgment and capitulating to his demands. During a hearing on the motion, Hix testified that, in attempting to “help” her while she was preparing for trial, Brewer
wrote [to me] constantly. He threatened me with habeas petitiоns and writing the judge and wrote letters to the clerk’s office... exposing privileged information between the two of us, and he believed himself to be a lawyer.... [I]t got to the point of borderline harassment of me. And that’s why I ultimately filed the demurrer [,] because ... if I didn’t do it, it wаs ineffective [assistance]____Mr. Brewer wrote daily,... asking for me to file [the] demurrer about the child molestation, that he could not possibly be guilty of it, that the judge had to grant it. At first, I didn’t think there was [a legal] basis for it. And I did some research and there was [a legal basis for the demurrer]. . . . [M]y goal is to be client-centered. I try the best I can to do as my client asks as long as it’s within the law and within the rules — and within the ethical rules that we’re confined to as lawyers. . . . [M]y position was [that] if I don’t file this [demurrer],... I’m going to be sworn in and sit and testify after the trial that I was ineffective for not filing the motion. If I filed [the demurrer], then there’s a chance [the State] will either re-indict [him] and do a better job this time, or re-indict [him] for something else entirely. And then I will be sworn in and be accused of being ineffective. I essentially had no choiсe. And I knew from my interactions from Mr. Brewer that... anything I did was going to be the wrong choice anyway. . . . [I]t didn’t matter — short of an acquittal, everything I did was going to be the wrong choice [from Brewer’s perspective].... [Brew*804 er’s] demands were so unrelenting to me that I... didn’t feel like I had any other choice in representation of him[.]
Hix also testified that, before she filed the demurrer, she thought there was “a small chance [Brewer] could [be] acquitted at trial[
Based upon this evidence, the trial court found no error in Hix’s successful pursuit of a demurrer, finding that she filed it
at the insistence of her client, even after she explained to [him] that it was an issue that would be better raised at trial or on appeal. That [Brewer] is now dissatisfied with the result of a strategy he insisted upon does not make counsel’s actions erroneous. Furthermore, the letters [Brewer] sent to the Clerk of Court put the State on notice of the same arguments raised in [Hix’s] demurrer. For these reasons, [Brewer] has not proven both prongs of the test [for ineffective assistance].
We find no error in the trial court’s ruling. This Court has repeatedly held that, in connection with an ineffective assistance claim, “a defendant cannot blame trial counsel for a decision he himself made over counsel’s objection.” (Citation and punctuation omitted.) Gunter v. State,
Pretermitting whether Hix should have agreed to file the demurrer under the circumstances presented, “[a] defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. Induced error is
Moreover, even if Brewer had been able to show that Hix provided deficient performance by filing the demurrеr, he is unable to show that, but for her doing so, there is a reasonable likelihood that the State would have proceeded to trial on the original, defective indictment. See Robinson v. State,
Judgment affirmed.
Notes
OCGA § 16-12-100.2 (d) (1) provides, in relevant part, as follows:
It shall be unlawful for any person intentionally or willfully to utilizе a computer wireless service or Internet service, including, but not limited to, a local bulletin board service, Internet chat room, e-mail, instant messaging service, or other electronic device, to seduce, solicit, lure, or entice, or аttempt to seduce,*803 solicit, lure, or entice a child [or] another person believed by such person to be a child... to commit any illegal act by, with, or against a child as described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy [or] Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation... or to engage in any conduct that by its nature is an unlawful sexual offense against a child.
Hix acknowledged that it was “extremely chаllenging” to prepare a defense in this case because Brewer had admitted to sending the e-mails at issue.
The motion hearing transcript also shows that Brewer’s appellate counsel admitted that Brewer had “lobbied heavily” to get the trial сourt to issue a formal order quashing the original indictment and that he “lobbied equally hard for a written nolle pros [order], which was finally entered.”
See also McCulley v. State, 275 Ga. 473, 475-476 (1) (