167 Ga. App. 509 | Ga. Ct. App. | 1983
Defendant was indicted in two counts for burglary and rape with reference to the same female victim occurring on December 15,1981, and in an additional count for aggravated assault occurring on January 13,1982. The offense in Count 3 involved another female by grabbing and holding her at pistol point, a deadly weapon, in a attempt to commit rape, thereby placing her in reasonable apprehension of immediately receiving a violent injury. Defendant was convicted, being represented by retained counsel at trial. Thereafter, the public defender was appointed to represent him and filed a motion for new trial which was later amended to contend that the defendant was denied the effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution and the corresponding laws of Georgia in that trial counsel failed to file a motion to sever the counts, as well as the failure to call such witnesses as would establish an alibi. The motion for new trial, as amended, was thereafter denied, and defendant appeals. Held:
The sole enumeration of error contends that the defendant was denied the effective assistance of counsel rendered by the retained counsel, contending same was inadequate, incompetent and did not fall within the standards deemed necessary for the reasonably effective assistance of counsel as guaranteed by the state and federal constitutions. We note here that several witnesses were offered in support of the alibi defense. The defendant argues in the brief for the first time that trial counsel was well aware that the defendant was
The remaining contention is that the third count occurred approximately one month later, on January 13, 1982, involving a separate and distinct victim from that of the rape and burglary of another victim’s apartment on December 15,1981. Yet the evidence shows that each of these instances occurred in the early morning hours at the same apartment complex in which the perpetrator was the same armed gunman identified as the defendant. Assuming arguendo that trial counsel had successfully moved for a severance, nevertheless, the separate assault would have been admissible on the trial of the other two counts to show identity, bent of mind, plan, motive, scheme and course of conduct. See Buffington v. State, 153 Ga. App. 54, 55 (264 SE2d 543); Young v. State, 146 Ga. App. 391, 394 (2) (246 SE2d 711). For this reason it cannot be said that counsel’s decision not to move for severance was improper, for such a tactical decision, even if made, would not have proved to be fruitful. The right to effective counsel does not mean errorless counsel, nor does it mean counsel adjudged ineffective by hindsight, but counsel reasonably likely to render and the rendering of reasonably effective assistance. See Pitts v. Glass, 231 Ga. 638 (203 SE2d 515).
The decisions as to what witnesses to call and what motions to file are the exclusive province of the lawyer after consultation with
Judgment affirmed.
