COCHRAN v. THE STATE
S91A1505
Supreme Court of Georgia
March 20, 1992
RECONSIDERATION DENIED APRIL 1, 1992
(414 SE2d 211)
WELTNER, Presiding Justice.
FLETCHER, Justice, dissenting to Divisions 2 and 3 and to the remand.
This case was tried in November of 1990. The United States Supreme Court did not decide Edmonson v. Leesville Concrete Co., 500 U. S. ___ (111 SC 2077, 114 LE2d 660) (1991), until June 3, 1991 and this court did not decide Tharpe v. State, 262 Ga. 110 (416 SE2d 78) until March 17, 1992. The trial court should not have to go back in this case and re-evaluate an aspect of the case in light of either or both of those latеr decisions. Further, I would not alter the standards to be applied to challenges of jury strikes that are based upon Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) until the United States Supreme Court provides additional insight into Batson. Such insight may well be provided when that court decides State v. McCollum, 261 Ga. 473 (405 SE2d 688), cert. granted, (112 SC 370) (1991) which was argued before that court in February of 1992.
I am authorized to state that Justice Bell joins in this dissent.
Thomas, Kennedy, Sampson, Edwards & Patterson, Paul L. Howard, Jr., for appellant.
Lewis R. Slaton, District Attorney, Carl P. Greenberg, Assistant District Attorney, Michael J. Bowers, Attorney General, C. A. Benjamin Woolf, Staff Attorney, for appellee.
WELTNER, Presiding Justice.
Sanders Cochran was convicted of the shooting and killing of Darrell James with a handgun. He was sentenced to life imprisonment.1
2. The trial court heard evidence on Cochran‘s claim оf ineffective assistance of trial counsel, and denied his motion for new trial. Cochran raises this issue on appeal.
(a) As we stated in Jowers v. State, 260 Ga. 459 (396 SE2d 891) (1990):
Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), establishes the benchmarks for determining whether trial counsel‘s representation of a defendant in a criminal case was so deficient as to result in the denial of the defendant‘s right to assistance of counsel under the Sixth Amendment. . . . In determining whether the defendant has established that counsel‘s performance was constitutionally deficient, the court should keep in mind that “counsel‘s function . . . is to make the adversarial testing process work in the particular case.” Id. at 690. “[C]ounsel has a duty to make reasonable investigations.” Id. at 691. Moreover, the defеndant must “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.‘” [Cits.] [Id. at 461-462.]
The record establishes counsel‘s failure to prepare adequately for trial.2 Counsel admitted these failures to act during testimony at the motion for new trial and attributed them to a lack of time to work on this case. Whatever the reason for counsel‘s failure to prepare,3 we conclude that Cochran has made the first showing required under
(b) The second component of Strickland requires the defеndant to show prejudice. The total failure of trial preparation in this case requires a disposition like that in Ross v. Kemp, 260 Ga. 312 (393 SE2d 244) (1990), where we held that there was
evidence of ineffectiveness “so pervasive that a particularized inquiry into prejudice would be ‘unguided speculation.’ [Cit.]” House v. Balkcom [725 F2d 608, 620 (11th Cir. 1984).] [Id. at 315.]
Judgment reversed. All the Justices concur, except Benham, J., who dissents; Sears-Collins, J., not particiрating.
BENHAM, Justice, dissenting.
Although I agree with the majority that appellant has demonstrated that he received deficient representation at trial, I cannot agree that he has shown such prejudice from that deficiency as to warrant a new trial. For that reason, I must dissent to the reversal of his conviction on that ground.
My review of appellant‘s numerous allegations of ineffectiveness and of the record at trial leads me to separate the allegations of ineffectiveness into three groups. The first grоup includes matters as to which the record does not support appellant‘s contentions and matters about which there was a conflict in the evidence. Thе former includes, by way of illustration, the assertion that counsel failed to impeach the testimony of the medical examiner that there were no drugs in the victim‘s body. In fact, thе medical examiner testified only that he had not tested the victim‘s body for drugs. The latter is represented by the assertion that counsel did nothing to prepare appellant for testifying: although appellant testified that counsel told him only to be calm, counsel testified that they discussed appellant‘s testimony prior to his taking the stand. There being evidence to support a finding that the allegations in this group were not factually correct, we must accept as to these allegations the trial cоurt‘s finding, implicit in the denial of the motion for new trial on this ground, that there was no ineffectiveness. The second group involves decisions made at trial with regard to voir dire and the admission of evidence. Bearing in mind
that every effort must be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel‘s perspeсtive at the time [cit.] . . . [and] that counsel is entitled to a “strong presumption” (which the defendant must overcome) that counsel‘s conduct falls within the wide range of reasonаble professional conduct and that all signifi-
cant decisions were made in the exercise of reasonable professional judgment [cit.]. [Smith v. Francis, 253 Ga. 782 (1) (325 SE2d 362) (1985)],
I conclude that nonе of the conduct in that second group meets the first step in the analysis adopted in Smith, supra, i.e., “that counsel‘s performance was deficient.” Id.
The third group of allegations is more problematical. These allegations primarily concern counsel‘s failure to prepare adequately for trial. “Counsel has a duty to make reasonable investigations.” Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The record establishes clеarly that counsel failed to file any motions or to conduct any investigation, both of which failures limited counsel‘s effectiveness at trial in examining witnesses, and failed to file any written requests for jury charges. Counsel admitted these failures to act during testimony at the motion for new trial and attributed them to a lack of time to work on this case. I conclude, therefore, that appellant was not given the benefit of the duty to investigate mentioned in Strickland, and that trial counsel was ineffective in that regard.
I do not, however, agree with appellant and the majority that Jowers v. State, 260 Ga. 459 (396 SE2d 891) (1990), сontrols this appeal and requires reversal. In contrast to that case, appellant here has not borne the burden of showing
that there is a reasonable рrobability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. [Cits.] [Id. at 462.]
The appellant in Jowers showed that trial counsel permitted the prosecution to advance arguments and present evidence, without refutation, directly contradicting reports with which the defense had been supplied. The present case is more directly comparable to Brown v. State, 257 Ga. 277 (2) (357 SE2d 590) (1987). Here, as in Brown, there has been no showing that further investigation, pursuit оf discovery, or calling additional witnesses would have resulted in any benefit to appellant at trial. Consequently, I would hold that appellant
has failed to show that therе is a reasonable probability sufficient to undermine confidence in the outcome that, but for counsel‘s alleged unprofessional errors, the result of the proсeeding would have been different. [Smith v. Francis, supra at 784.]