*1 appellant. Clark, Carol for V Gregory, appellee.
Arnall, Gober, & A. for Golden James v. THE STATE. A09A1486. PYBURN Judge. Bernes, Larry appeals Pyburn his He conviction for incest.1 Thomas his conviction was insufficient to authorize claims that the evidence counsel. We ineffective assistance and that he received disagree affirm. and
“Following conviction, the evidence in the a criminal we view jury’s no verdict, the defendant is most and favorable to presumed Neugent longer 284, innocent.” (1) (668 D. P viewed, the evidence So showed Finley. Pyburn biological adoptive daughter of and Teresa and is the In Finley Pyburn began 1973, with a sexual November Finley shortly Finley pregnant D. P thereafter, with became pregnant, not she was at trial that at the time she became testified According any person. having other to the sexual relations with biologist trial, DNA tests showed 99.999 forensic who testified at percent probability Pyburn was D. P’s father.
Finley Pyburn him some 1974 and told she called time Pyburn getting pregnant his her he was married with child. told Finley any anymore. Pyburn him did have not to bother years later, until when November contact about fourteen During engaged telephone conversation, in a conversation. two 14-year-old daughter. Finley Pyburn told he had a beautiful relationship, Finley subsequently resumed their Shortly after were Florida, and married in June 1989. moved Finley “to have her married, daddy’s told wanted P subsequently adopted D. P D. P was “almost name” and last May Pyburn adopted P In left D. sixteen” when her. Pyburn. and later divorced with Pyburn began “messing” According P,D. her when she years They first when she was old. had sexual intercourse They subsequently “right adoption happened.” five after the molestation, cruelty aggravated two to children was indicted for child counts officer, trial, degree, Following found first obstruction of an and incest. charges. guilty guilty on the In its order on motion obstruction and other insufficiency Pyburn’s cruelty to due to the trial court vacated children convictions new charge aggravated granted due him a new on the child molestation of the evidence and court motion for a new trial ineffective assistance of trial counsel. The trial denied on his incest conviction.
373 together, youngest daughter whom, children E, their K. was Glynn County. biologist conceived The forensic testified percent probability Pyburn that DNA tests showed a 99.9989 that K. was E’s father. D. E testified that was not as the listed any on father K. E’s birth certificate because “didn’t want suspicions being daughter.” about raised ... us father and person person
1. “A commits the offense of incest when the engages person a sexual intercourse with to whom he knows or she by marriage he she is either related blood or as . . . follows: (a). § daughter. Pyburn argues Father and . . .” OCGA 16-6-22 prove biological the state failed to knew D. E was his daughter. disagree as inasmuch the evidence shows that jury charged, informed him this adoptive Furthermore, fact. as the was enjoy rights privileges biological child, children of a including protection App. from State, incest. Edmonson v. 219 Ga. (3) (464 839) (1995), grounds, 323, 324 SE2d overruled on other (495 59) (1997). State, Collins v. 229 Ga. 658 SE2d on Based evidence at was authorized to conclude that necessary legal steps adopt took the D. E and that he therefore relationship.2 adoptive knew of the The evidence was sufficient to any Pyburn guilty beyond enable trier rational of fact to find Virginia, reasonable of the doubt crime of incest. v. 443 U. Jackson S. (99 (1979). 61 LE2d 2. also contends that he received ineffective assistance of [Pyburn] claim, counsel. “In order on to succeed this must show performance professionally that his counsel’s was deficient and that unprofessional for conduct, but counsel’s is there a reasonable probability proceedings the outcome of the have would been differ- (3) (676 189) (2009). State, Varner ent.” 285 Ga. SE2d “A probability probability reasonable is a con- sufficient undermine (Punctuation omitted.) fidence in the outcome.” Miller v. 173) (2009). 285, 286
Ga. (a) Pyburn complains performance that his trial counsel’s was jury during deficient of statements made to trial counsel regarding proof, evidence, dire voir nature Pyburn’s testify. Specifically,Pyburn objects not to to the 2 Pyburn only prove adoption by copy contends the state could certified decree, testimony adoption but we found in Edmonson an that unrebutted for sufficient purposes establishing prosecution Edmonson, in a incest. See 219 Ga. App. at wrongly 324 We decline to find invitation that Edmonson was decided Furthermore, Pyburn R, object testimony adopted issue. this to the that he had See, any (4), objection e.g., so best evidence was waived. O’Toole v. n. jury:
following made to the and concessions statements question getting we feel about about how I to a parents, Gay couples, single di- families. non-traditional Gay couples changed. things raise mean, have vorce. you’re going . . DNA evidence to have . And then children. daddy. [D. P’s] says have five Mr. *3 together, they eight-year had an
children you my together. question do feel about is what something so mean, that’s I is that non-traditional families. gross, you . . . that can’t be fair. so demented argues Pyburn of the benefit the his counsel diminished further that by asking presumption remain silent and the to of innocence really people I jury, presume mean, be innocent? to “do we the testify, “you might Pyburn by suggesting if that did not don’t,” and an] [is gotten innocent if he on the stand ... should have think he through others, that these comments contends man.” his jury gave unnecessary license concessions and made counsel Pyburn’s presumption ignore to assume innocence and to guilt. Pyburn’s trial the motion for new trial counsel testified training undergone hearing involved in voir dire which that responses. receiving hope being in candid candid with the Pyburn’s opinion for him to interest that it was He identify charges jurors to the of incest were so sensitive those who unwilling give fair who would be that could prejudiced against presume innocence, be or who would testify. Pyburn if not to he chose responses attempt
Although
to obtain candid
trial counsel’s
strategy,
jurors
prospective
we
a reasonable
constituted
from the
questions
reason-
were
of trial counsel’s
conclude that certain
perfor-
strategy
constituted deficient
of this
able execution
inquiry.
also show
must
But that does not end our
mance.
probability
exists that the outcome
a reasonable
that
deficiency. in the
of that
different
absence
would have been
Varner,
certificate because he “suspicions” facts, P’s with these that he father. Faced raise establishing his has not met burden conclude that we performance probability his trial counsel’s is a reasonable there during any impact jury’s guilty voir dire had Quite verdict.
simply, given overwhelming Pyburn’s guilt, evidence of performance counsel’s deficient undermine confidence outcome of trial. See Hardeman 281 Ga. 220-223 (2) (a) (2006); Minton v.
The dissent has concluded that trial counsel’s comment that he did not believe the that a defendant is innocent until proven guilty Pyburn’s guilt amounted to a concession of complete process. constituted a breakdown the adversarial disagree. In the context examination, of the entire voir dire it was readily apparent jurors question- that trial counsel’s inartful ing probing jurors’ prejudices, was a means of and that trial applied counsel did indeed believe that the should be this case. began by emphasizing “[t]he voir dire *4 prove
burden never shifts to us. That means that we never have to emphasize point further, that we’re innocent.” To this counsel also specifically requested immediately charge that the trial court prospective jurors proof on both the state’s burden of and the obliged request. of innocence. The trial court counsel’s during subsequent questioning, Then, voir dire trial counsel great lengths jurors prospective went to such to ensure prejudged Pyburn’s guilt prompted juror prospective that it one respond: to
As far as I’m concerned, he’s innocent. I came to down here jury, proven serve on the and he’ll be innocent until go through otherwise. And that’s the answer. don’t need to going going my all of this of what’s to be on. I’ll make up ready get decision there in box. And I’m to program. with the by questioning reiterating
Trial counsel then his concluded that the prospective jurors apply should innocence, “still of proof beyond reasonable doubt” even in the event that testify did not take the to in his stand own defense. context,
When viewed in this clear it is cqunsel guilt. through questioning, simply Rather, concede attempting his he was identify potential jurors
to and eliminate who would be unwilling keep open egregious to an mind when confronted with the facing allegations support his client and the considerable evidence finally, acquitted thereof. fact that one charged finding crimes he with which was inconsistent with proper functioning his counsel’s conduct undermined the process. generally 109, 112 v. Port adversarial 200) (2) (671 (a) (2008); App. 725, State, 291 Ga. v. SE2d Smith (2008). (2), 2n.
(b) argues was deficient that his trial counsel also expert withdrawing provide assistance his funds for motion to Pyburn, evaluating however, has failed to show the DNA evidence. inadequacies any expert in the state’s have identified that an would up [does] speculation “[UJnfounded to not add DNA evidence.3 by showing professionally performance trial counsel.” deficient (3) Ga. Williams Further, sole link between DNA was not the evidence Accordingly, Pyburn alleged his has not shown that crime. and the expert pursue motion for funds for failure to trial counsel’s performance. See id. at 851-852 deficient assistance constituted (i) (c) improperly trial counsel further contends that his thereby causing Pyburn acquiesce in the defense, his dictated (ii) testify; pursue D. P had information that not to failed decision Kenny eye Mullins, a man who disease also shared a rare relationship Finley approximate purportedly time with at the had a (iii) through bring pregnant Finley E;D. failed to out Finley by placing that a him on the stand cross-examination significant separation time of D. P’s his from at the reason for Finley’s suspicions pregnancy with Mullins. was his Pyburn, According not know or would have testified that did he his Pretermitting biological daughter. whether P believe that D. was *5 alleged, light Pyburn’s in deficient as trial counsel was adoptive as well as D. P was uncontested evidence that daughter Pyburn subsequently biological inter- had sexual and that probability County, Glynn reasonable her in there is no course with differed had of the trial would have that the outcome pursued suggested Varner, 285 defenses.4 testified or had counsel Ga. at 301 (d) deficient because he also asserts that his counsel was adoption pursue defenses, such as belief that failed to was void and likelihood fraudulently induced, have increased the that would “[a]n jury However, nullification. of a verdict based on more favorable to the of the likelihood of a result assessment hearing, Pyburn Significantly, conceded that he had fathered at the motion for new trial E, children, including K. with D. E five 4 Furthermore, hearing for new trial that trial failed to show at the on motion genetic competent D. E Mullins evidence of a link between and counsel could have established having alleged eye a sexual condition. At denied ever noted, any eye previously knowing As that Mullins had condition. with Mullins and also denied speculation support of ineffective assistance of counsel.” Banta v. “[m]ere will claim (6) 21) (2007). (e) possibility whimsy, arbitrariness, defendant must exclude the caprice, ‘nullification,’ A and the like. has no defendant entitlement Washington, the luck of a lawless decisionmaker.” Strickland (III) (B) (104 U. S. 80 LE2d foregoing,
In view of the we find that the court did err rejecting Pyburn’s claim of ineffective of trial assistance charge of incest. Judgment J., J., Miller, Andrews, Johnson, J., P E C. affirmed. Phipps, Smith, J., Barnes, J., J., P. and dissents. concur. Judge, dissenting. PHIPPS,
Although agree majority I was that evidence support Pyburn’s respectfully conviction, sufficient to I dissent (a) requires Division presume Pyburn I we because believe the law prejudiced when told his counsel he did not believe the that a defendant innocent until proven guilty. Accordingly,he shown has that he received ineffective assistance of counsel and his conviction should be reversed. Because sufficient, the evidence can be retried.
During dire, voir counsel stated:
[T]he proof. State has the never burden have the proof person charged in and is when a comes quite by grand jurors indictment, Pyburn, with an often like this one people [“]you jurors say, for Mr. in and come we presume innocent.[”] my need to me I from But know own experience newspaper, example, when I read — reading newspaper, a crime I’m about they say suspect’s captured, [“]by say, God, I been that’s great. glad.[”] you I’m ask then we to come here and presume charged person a with crime to be innocent and wondering, really presume people I’m do we be innocent. wondering many might agree mean,
I . . I’m don’t. . how *6 way the I do?5 me or feel same Although majority the finds that this statement counsel performance, constituted deficient it nevertheless concludes that Pyburn cannot succeed on his ineffective assistance claim because he prejudiced deficiency But, this did show that him. as the United Supreme “[i]n Washington,6 Court States held Strickland v.
5 (Emphasis supplied.)
6
(104
674) (1984).
2052,
378 prejudice Thus, contexts, is presumed.”7
certain Sixth Amendment Georgia Supreme that, Lewis,8 v. of noted in Edwards the Court Supreme recognized [the] itself, as the two-part Court Strickland analyzing [for a
test claim of ineffective assistance counsel] inapposite of is under certain unusual circum- prejudice likely case-by- cases, In stances. some is so inquiry prejudice Thus, the case into not worth cost. presumed prejudice is where been an there has actual the of counsel constructive denial of assistance altogether.9 Supreme Supreme the and the Court Both United States Court Georgia recognized have that a denial of the assis- of constructive prejudice accompanying presumption counsel the tance of entirely subject denial fails the such a occur when “counsel meaningful prosecution’s As the case to adversarial testing.”10 explained: Supreme States United Court process protected by [T]he the Sixth Amend- adversarial requires acting in ment have counsel the accused right role of an The the effective assistance of advocate. right require counsel is of the accused to thus prosecution’s meaningful to survive the crucible case adversarial testing.11 give prejudice, rise to this
To breakdown process pervade judicial complete be adversarial proceeding, must only specific occurring points in at
rather than proceeding.12 require prosecution’s case to counsel meaningful testing, as the Sixth survive crucible adversarial cases, “In all criminal . . . Amendment demands. plea guilty, under a of innocence is tried fundamental doctrine Py-
of American criminal jurisprudence.”13
plea
guilty,
burn, who
of not
was entitled to have this
entered
7
(III) (B).
Id. at 692
8
379 “[E]ven fundamental doctrine enforced his counsel. when no theory available, of defense is if the decision to stand trial has been prosecution heavy proof made, counsel must hold the to its burden of beyond reasonable doubt.”14 counsel conceded at the hear- ing charge on his new trial motion that his defense to the incest relying proof, showing doubt, rested on on the burden of reasonable seeking jury holding prosecution nullification. But instead of proving Pyburn’s guilt beyond doubt, to this burden of a reasonable expressed Pyburn, any defendant, disbelief in the presumed to be innocent. represented complete
This breakdown the adversarial a process, akin to that which some courts have held arises when permission, counsel, without a defendant’s admits the defendant’s guilt during permeated trial.15This breakdown the trial and affected proceeding, causing “lose[ ] the entire the trial to its character as a Notwithstanding confrontation between adversaries.”16 counsel’s proof other references to the burden of at the effects of this ability breakdown can be seen the state’s to obtain at the trial against Pyburn prosecutor three other convictions for which the supporting later admitted that there had been no trial evidence.
Because counsel’s voir dire announcement of disbelief concern- ing prevented any meaningful of innocence adver- testing charge against Pyburn, Pyburn sarial was construc- tively Accordingly, Pyburn required denied counsel. was not to prejudice support demonstrate actual his ineffective assistance claim.17 1,
Decided December 2009.
Grayson appellant. Lane, P. (I) Cronic, 656, supra 19; 1068, Winship, n. see In re 397 U. S. 368) (1970) (Due protects against except upon LE2d Process Clause an accused conviction proof beyond every necessary a reasonable doubt of fact the crime with constitute which the charged). accused is (2) (10th 1995) (counsel’s See, Williamson, e.g., United States v. 53 F3d Cir. guilt jury represented “paradigmatic example admission of client’s a of the sort of (citations process triggers prejudice”)
breakdown in the adversarial (9th 1991) (counsel’s omitted); Swanson, United States v. 943 F2d Cir. concession concerning perpetrated at trial that there was no reasonable doubt whether defendant crime government’s proof, thereby tainting integrity causing lessened of the trial and system prejudice presumed breakdown of the adversarial such that could be in ineffectiveness analysis). of counsel 16 Cronic, supra at 656-657. 17Edwards, supra. *8 Kelley, Attorney, Higgins,
Stephen Charles K. Assis- District Attorney, appellee. tant District v. HELM.
A09A1563. NOSIRI et al.
(687 Judge. Barnes, injured she 12, 2003, Helm was when On November Diana Systems Security, tripped Inc., at Alert where she worked over wires Benjamin Systems Helm Alert and Nosiri as a telemarketer. sued “Nosiri”) (hereinafter collectively alleging negligence in strung as it “were the floor in such a manner to make wires across premises.” Nosiri to . . traverse the floors of the business hazardous . maintaining, among summary judgment other motion for filed a things, judgment of law entitled to as a matter based he was equal superior undisputed showing knowl- that Helm had or facts edge alleged conditions, hazardous and that she assumed court denied risk to the hazardous conditions. The trial the the motion without incident explanation, subsequently granted a certifi- granted application for inter- cate of immediate review. We locutory Nosiri’s appeal, appeal and this followed. finding appeal, erred in
On Nosiri contends that the court knowledge superior hazard, and that Helm had not that he had injury by traversing repeatedly the hazard- assumed risk of also court erred ous condition. He maintains that concluding alleged safety regula- and state violations federal concluding claim, that Nosiri tions were relevant admitted incident hold that view of by saying responsible negligence he felt for the pay Upon review, we Helm’s medical bills. our would summary properly judgment denied Nosiri court disputed issues of material fact. summary grant judgment denial of a motion for review the viewing novo,
de the evidence and all reasonable conclusions and from it in the most favorable to the nonmovant. inferences drawn Cobb, 303-304 Norton independent viewed, So the evidence shows that Helm was an leg Systems working Alert as a telemarketer. Her left contractor amputated young age, so below the knee at a she wore was prosthesis. expressed issue,
Before the incident at Helm her concern lay floor in work to Nosiri about the various wires that across the her including sitting radio, on the area, one from Nosiri’s which was phone charger, lay floor, and one from Nosiri’s cell both which path plugged when the wall across Helm’s were into socket. being about cords in her Helm told Nosiri she was concerned