Hood v. StateHood v. State
This is the second appearance of this case before this court. In the first appearance,
Hood v. State,
Following the grant of certiorari, however, our Supreme Court reversed our disposition in Division 1, and remanded the case to us to address Hood’s claims that his defense counsel was ineffective.
Hood v. State,
Hood was convicted of armed robbery, kidnapping, two counts of felony obstruction of a peace officer and two counts of misdemeanor obstruction of a peace officer. He contends that the trial court erred by finding that his defense counsel was not ineffective.
As set forth in
Hood I,
and viewed in support of the verdict, the evidence shows that Hood was charged with robbery at a service station. At the station, with his face covered with a ski mask, Hood encountered a clerk outside the building, pointed a handgun at the clerk, and ordered her to go inside the building or he would kill her. He demanded and received the cash from the money box and cash registers. When he departed the store, a witness saw him remove his ski mask and drive away in a van. A passenger in Hood’s van testified that Hood had the gun, which was identified by the clerk as the weapon used in the robbery, that Hood hurriedly left the service station, and that he drove away at a high rate of speed. The police pursued the van, and when Hood was later apprehended at a police roadblock, he had the handgun, a ski mask, and $445 in cash. During his apprehension, Hood fought with the officers.
Hood I,
supra,
Hood alleges that his counsel was ineffective because he: (a) advised Hood not to testify; (b) stated in closing argument that Hood did not have to testify and incriminate himself; (c) failed to obtain a certified copy of a conviction with which to impeach the
1. Under the law of this State,
[t]o prevail on a claim of ineffective assistance, a defendant must show that counsel rendered deficient performance and that actual prejudice resulted. Counsel are strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and counsel’s performance is evaluated without reference to hindsight. A petitioner has suffered actual prejudice only where there is a reasonable probability (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. Ineffective assistance claims are mixed questions of law and fact. We accept the [trial] court’s findings of fact unless clearly erroneous and independently apply the law to those facts.
(Citation and punctuation omitted.)
Head v. Hill,
2. Hood contends his defense counsel was ineffective because he advised Hood not to testify. Trial counsel testified that he spoke “at length” with Hood about testifying, and that it was “a foregone conclusion” he would not take the stand because of his previous convictions. The trial court found that the testimony at the new trial hearing showed that the defense counsel discussed with Hood the possibility of Hood testifying at trial and expressed his concern about Hood’s previous federal conviction for bank robbery, his argumentative nature, and his quick temper. The court found that counsel explained the “pros and cons” of testifying and Hood decided not to testify. Therefore, the trial court found that counsel’s performance was not deficient. We agree.
3. Hood alleges that his defense counsel was ineffective because he stated in closing argument that Hood did not have to testify and incriminate himself. According to the trial court, the actual statement was made in the context of explaining that the jury could not
fault the defendant for not testifying. While the statement, “and of course, we can go back to the Fifth Amendment, incriminate himself,” might be construed as an expression of Hood’s guilt out of context, this was not the effect of the total argument. The trial court found that trial counsel repeatedly raised doubt with the jury and argued that the evidence required Hood’s acquittal. Thus, the court found that the defense counsel did not concede Hood’s guilt and that his performance was not deficient on this ground. We agree with the trial court. Hood’s constitutional right to the assistance of counsel is “ ‘not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering
reasonably effective assistance.’
”
Alderman v.
State,
4. Hood also contends his counsel was ineffective because he failed to obtain a certified copy of a conviction with which to impeach the only witness who gave direct testimony against Hood. Hood argues that the failure to impeach the passenger in the van with his felony conviction constituted deficient performance that prejudiced his case. The trial court found that any error resulting from not impeaching this witness
5. Hood further contends his defense counsel was ineffective because he withdrew requests to charge concerning lesser included offenses without consulting with Hood. Although Hood denies that he wanted the requests to be withdrawn, his defense counsel testified at the hearing on Hood’s motion for a new trial that he withdrew the request for charges after discussing the matter with Hood, and it was Hood’s “intent and, perhaps even his insistence,” that the charges be withdrawn. The trial court considered the credibility of Hood and his defense counsel and found as a fact that counsel had consulted with Hood about withdrawing the charges. As this is a decision based on the trial court’s determination of the credibility of Hood and his defense counsel, we must accept the findings unless they are clearly erroneous, which they are not.
Head v. Hill,
supra,
6. Hood alleges that his defense counsel was ineffective because he failed to object when the trial court refused to answer the following question posed by the jury: “I need a clarification regarding intent as it relates to the kidnapping charge. If I believe that by the letter of the law the crime was committed but there was no intent to kidnap, would that be a reason for a not guilty verdict?” Instead of answering the question directly, the trial court recharged the jury that intent is an essential element of any crime and must be proved by the State beyond a reasonable doubt.
Hood relies upon
Dill v. State,
7. Hood also alleges that his defense counsel was ineffective because he failed to object to references to Hood’s alleged future dangerousness. The comment Hood complains of was that of a police officer who testified that armed robbers were violent and he established that he placed the roadblock where he did because he was concerned about the possibility of a gun fight when they stopped the vehicle fleeing the site of the armed robbery. The trial court found that this was not testimony about Hood’s future dangerousness, and accordingly, the defense counsel was not deficient for failing to object. We agree. This comment merely addressed why the location for the roadblock was selected, and was not directed toward Hood, who had not even been identified at
8. Hood contends that his defense counsel was ineffective because he failed to object to Hood’s absence when the statutory oath and venire oath were given to the jury. The trial court found that Hood’s defense counsel was not ineffective for failing to object
because the administration of these oaths was not a stage of the trial or a critical stage of the proceedings requiring Hood’s presence, and therefore counsel’s performance was not deficient. We agree.
Gilreath v. State,
Consequently, as the trial court’s findings on the effectiveness of counsel are not clearly erroneous, they are affirmed.
Smith v. State,
Judgment affirmed.