After a jury trial, appellant was found guilty of armed robbery. He filed a motion for new trial, raising the issue of the effectiveness of his trial counsel. After conducting a hearing, the trial court denied the motion for new trial and appellant appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict. His sole enumeration is that he was not afforded effective assistance of trial counsel.
1. “ ‘In order to prevail on an ineffectiveness claim, a convicted
Appellant first contends that the failure to call two additional defense witnesses is indicative of his trial counsel’s deficient performance. “ ‘The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ [Cit.] The determination as to which defense witnesses will be called is a matter of trial strategy and tactics. ‘[Although appellant did] subpoena his trial counsel to appear at the hearing on his motion for new trial[,] . . . appellant made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.’ [Cit.]”
Harris v. State,
Moreover, the failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of a showing that such evidence would have been relevant and favorable to the defendant.
McCarthy v. State,
Finally, even accepting the truth of appellant’s unsubstantiated assertions that each of the uncalled witnesses could have authenticated an item of evidence, such testimony would have been merely
The question of whether the admission of reliable-but-illegally seized evidence can ever satisfy the “prejudice” component of the requisite test for ineffectiveness claims appears to be unresolved. See
Kimmelman v. Morrison,
The record in the instant case clearly shows that if the items seized from appellant’s automobile had “been suppressed, the State under the evidence in this case would still have proven each and every essential allegation of the crime alleged. Furthermore, under the evidence of this case, the search of appellant’s [automobile] was a lawful . . . search and a motion to suppress would not lie. [Cit.]”
Solomon v. State,
3. Appellant’s motion for new trial on the ground of ineffective assistance of counsel was correctly denied by the trial court.
Judgment affirmed.
