In State v. Nicholson,
1. As we noted in the previous appearance of this case,
[t]he record shows that the charges against Nicholson and Jones arose out of Nicholson’s methamphetamine transactions with the male victim, allegations of theft against the male victim by Nicholson, and a subsequent physical altercation between Nicholson, Jones, and the male victim and his girlfriend, the second victim.
As the trial began, the State moved in limine to exclude evidence of the male victim’s arrest. After some discussion, the trial court denied the State’s motion, stating that it would rule when the evidence was offered. The following day, the issue was again raised when defense counsel noted that he wanted to mention the male victim’s possession of drugs during his opening statement. The trial court again noted that the events of the following day did not appear to be relevant unless a connection could be shown to the female victim’s injuries, but that he would revisit the issue depending on the evidence adduced at trial.
Later in the trial, after the examination of the second victim, trial counsel again sought a ruling on the admission of evidence of the later events, asserting that the male victim had “opened the door” by testifying that the robbery “ruined his relationship” with the female victim. The trial court again declined to allow the testimony. When the female victim testified, trial counsel yet again sought to admit the testimony, and the prosecutor responded, “Actually, fine. Just let it happen •— let it in. That’s fine. Go for it.” The State then presented the evidence regarding a protective order obtained by the female victim against the male victim, the drug paraphernalia, and the stolen car on redirect examination, and trial counsel cross-examined the female victim.
On remand, the trial court found that, even though the evidence was originally ruled irrelevant, it was later introduced. Jones and Nicholson must show harm as well as error. Clayton v. State,
Jones and Nicholson now argue that they should have been able to cross-examine the male victim on the pending charges against him because it could have shown a “motive and bias that may influence the witness’ testimony.” But, even though the male victim had
2. Jones and Nicholson raise a number of allegations of ineffective assistance of counsel.
The burden of establishing the ineffective assistance of trial counsel is a heavy one that requires an appellant to establish both that counsel’s performance fell below an objective standard of reasonableness, and that, but for counsel’s deficient performance, there is a reasonable probability that the outcome of the trial would have been different. Regarding this second prong, it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings, he must establish a reasonable probability that but for the error, his trial would have ended differently. A failure to make a sufficient showing on either of these prongs will be fatal to a claim of ineffective assistance. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.
(Citations, punctuation and footnotes omitted.) Polite v. State,
(a) Jones and Nicholson claim that trial counsel was ineffective in failing to object when the trial court excluded evidence regarding the male victim’s arrest on the day following the incident. As noted in Division 1, supra, this evidence was heard by the jury later in the trial. The claim of ineffective assistance in failing to object to any earlier exclusion is therefore without merit. “Failure to raise a meritless objection cannot constitute ineffective assistance of counsel.” (Citations and punctuation omitted.) Jones v. State,
(b) Jones and Nicholson now contend that trial counsel should have raised a Confrontation Clause objection to not being allowed to
(c) Jones and Nicholson also complain that trial counsel was ineffective in failing to object to testimony regarding the medical status of the victims. Trial counsel testified at some length to his reasons for not objecting to testimony regarding the male victim’s HIV status, including that it “did not justif[y] me getting involved in trying to make such an issue of it.” He observed that the male victim was an unsympathetic witness who was “very unstable looking,” and in light of that he did not believe his HIV status would affect the jury’s decision one way or the other. He testified similarly regarding the female victim’s alleged depression and social security disability status, asserting that he chose not to “get into this mental business” because he did not believe it would affect the jury’s verdict. “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Flemister v. State,
(d) Finally, Jones and Nicholson also allege that trial counsel was ineffective in failing to cross-examine a police officer regarding inconsistencies between what the witnesses testified and what he observed on the day of the incident. Trial counsel testified that he did not want to give the officer the chance to explain away the inconsistencies, or to add more unfavorable testimony on cross-examination, but preferred to address any inconsistencies in closing argument. This strategy is likewise not patently unreasonable. Flemister, supra. Counsel’s strategic decision to forego cross-examination of the officer and employ another tactical method or goal was reasonable and did not constitute deficient performance. Pitts v. State,
Judgment affirmed.