Dante Terrance Shields was tried by jury and convicted of several crimes in connection with a home invasion and attempted armed robbery in Hall County. 1 Shields then moved for a new trial, claiming that he was deprived at trial of the effective assistance of counsel because his lawyer, among other things, misunderstood the number of peremptory strikes to which he was entitled during jury selection and failed to object to certain evidence that reflected badly upon Shields’s character. 2 After the trial court denied his motion for a new trial, Shields brought this appeal. We see no error and affirm.
To prevail on his claim of ineffective assistance of counsel, Shields must prove both that the performance of his lawyer at trial was deficient and that he was prejudiced by this deficient performance.
Strickland v. Washington,
1. We begin with Shields’s claim that his lawyer was ineffective *831 because he misunderstood the number of peremptory challenges to which Shields was entitled during jury selection. Under OCGA § 15-12-165, a defendant charged with a felony for which the State does not seek the death penalty may exercise nine peremptory challenges in the selection of the jury, and the State is entitled to the same number. Shields’s lawyer, however, mistakenly believed that Shields was only entitled to six peremptory challenges. Although Shields’s lawyer asked the trial court whether each party would be entitled to exercise six peremptory challenges, the trial court either shared his mistaken belief that six was the usual number of challenges or misunderstood that the parties, although entitled to more challenges, had agreed to exercise no more than six each:
DEFENSE COUNSEL: Your Honor, we’re going to pick a jury at 12:00 with six strikes a side and then two alternates with how many strikes?
THE COURT: I’m going to let you pick a jury of 12 and then three alternates if I have — still have the right number of jurors to allow you to do that.
DEFENSE COUNSEL: With six strikes a side to pick the 12?
THE COURT: Correct.
In any event, Shields’s lawyer proceeded to strike a jury with the understanding that he had six peremptory challenges. Shields’s lawyer ultimately exercised only five of these challenges.
(a) We consider first whether the fact that Shields’s lawyer misunderstood the number of peremptory challenges to which Shields was entitled is sufficient to establish that his representation of Shields at trial was objectively unreasonable, and we conclude that it is not. As we consider this question, we bear in mind the admonition of the United States Supreme Court that
[j]udicial scrutiny of counsel’s performance must be highly deferential. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”
Strickland,
supra,
Which, and how many, prospective jurors to strike is a quintessential strategic decision. 4 Shields’s lawyer admitted that his comments to the trial court before jury selection commenced — in which he attempted to confirm his belief that Shields and the State each were entitled to exercise six peremptory challenges — was not part of a strategy to reduce the number of peremptory challenges allowed, but instead was a result of his misunderstanding of the law. But his decisions about which prospective jurors to accept, and which to strike, certainly were strategic. Shields does not contend that these strategic decisions were unreasonable apart from the misunderstanding about the number of peremptory challenges to which Shields was entitled. 5
Although it is clear that Shields’s lawyer misunderstood the number of peremptory challenges to which Shields was entitled, it does not follow that this misunderstanding necessarily affected his strategic decisions to strike only five prospective jurors. If the lawyer reasonably would have made the same strategic decisions — even if he knew that Shields was entitled to nine strikes — it cannot be said that the mistake of law affected the conduct or performance of the *833 lawyer. And it is conceivable that he might still have struck the jury in precisely the same way for strategic reasons, regardless of whether he thought he had six, nine, or twenty peremptory challenges. Because Shields bears the burden of proving deficient performance, and because our inquiry properly is focused on the reasonableness of what trial counsel did — not what he thought — we think that Shields, to establish deficient performance, must prove that his lawyer’s misunderstanding of the law actually affected his decisions about which, and how many, prospective jurors to strike. 6
The record does not prove that the lawyer’s mistaken thinking actually affected his conduct in selecting a jury. Shields’s trial lawyer was asked at the hearing on the motion for new trial whether he would have conducted voir dire and jury selection differently if he had known that he had nine strikes, and his responses to these questions do not establish that he certainly, or even probably, would have done so:
Q. Do you think you would have conducted your voir dire differently if you thought that you had nine strikes?
A. You know, that’s a tough question. It just is. I hate to be ambivalent. I just don’t know that I can answer that because I only used five of my — I only used five of my six strikes anyway. You know, stepping back in time, if I had known or been more properly aware of the fact of my nine strikes in all honesty it may — yes, it may have impacted the way I picked a jury.
Q. Now, in addition to your perhaps conducting voir dire differently, do you think that you would have struck the jury differently?
A. It’s very difficult. I know you asked me to do it to, quote, unquote, Monday morning quarterback it. It’s hard to right here, sitting here today. Had I selected the jury a little bit *834 differently with my nine strikes that I should have used, I can’t really state with certainty. But would it have changed things, yes, it possibly could have.
[[Image here]]
Q. So I guess again Monday morning quarterbacking, is it possible that you were maybe allowing jurors on earlier in the panel so as not to reach the jurors later in the panel?
A. I’m really trying to be fair here. It’s just very difficult for me to sit here under oath and really come down hard [on] one side or the other on that. I’m being as honest as I can. There is a likelihood had I been operating under the proper assumption of nine strikes that the composition may have been different because I may have exercised my strikes differently. I think that’s a fair statement.
At most, these responses indicate that there was some possibility that the lawyer’s misunderstanding of the number of peremptory challenges allowed
might
have affected the way in which he performed his duties at trial.
7
To overcome the presumption of professional reasonableness, Shields must offer something more than mere speculation. See
Williams v. State,
(b) We also conclude that Shields’s claim of ineffective assistance with respect to the misunderstanding about peremptory strikes fails in any event because, even if the misunderstanding amounted to
*835
deficient performance, Shields has not shown prejudice.
9
We begin by addressing Shields’s contention that, when a lawyer makes a mistake of law regarding the number of peremptory challenges to which he is entitled, we should presume prejudice rather than require affirmative evidence of it. As the United States Supreme Court has explained, “[ajttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial,” and for this reason, such errors generally “cannot be classified according to likelihood of causing prejudice.”
Strickland,
supra,
Shields nevertheless says that the decision of the Supreme Court of Georgia in
Fortson v. State,
Two years before it decided
Fortson,
the Supreme Court addressed another claim of ineffective assistance involving jury selection in
Head v. Carr,
We think that the crucial distinction between Fortson and Carr is that, in the former, the defense lawyer exhausted all of his peremptory challenges before the twelfth juror was selected and, in the latter, he did not. Because Shields’s lawyer did not use all of the six peremptory challenges to which he believed Shields was entitled, this case is more like Carr than Fortson. 11 Applying the principles set *837 forth in Carr, we think that Shields must show actual prejudice.
Shields has failed to carry his burden of showing that he actually was prejudiced by his lawyer’s misunderstanding about the number of peremptory challenges to which he was entitled. As we said in Division 1 (a), supra, the record does not establish that Shields would have exercised a peremptory challenge as to any of the 12 jurors selected if his lawyer had known that he had more challenges. Shields does not contend that any unqualified juror sat in his case. And there is no indication that the prospective jurors who were not reached before the twelfth juror was selected — but who would have been reached if the parties had exercised more peremptory challenges — were more favorably inclined toward Shields’s case than the jurors who actually were selected. In these circumstances, Shields has failed to show that he was prejudiced by his trial lawyer’s misunderstanding about the number of peremptory challenges to which he was entitled. See
Carr,
supra,
2. Shields also contends that his trial lawyer was ineffective because he failed to object to certain testimony that reflected badly upon Shields’s character. Before trial, several victims of the crimes with which Shields was charged told police that Shields was the perpetrator of these crimes. But at trial, these victims recanted their earlier statements and said Shields was not, in fact, the perpetrator. When confronted at trial with their prior inconsistent statements, these victims offered explanations for their prior identifications of Shields. Two of these explanations involved the testimony to which, Shields says, his lawyer should have objected.
One victim explained that she had erroneously identified Shields because, “as I heard, there was two people going around breaking in people’s houses.” Another victim said that she had identified Shields as the perpetrator only after she described the perpetrator to her boyfriend, who told her that “only two people look like that. That’s Buddha and [Shields]. And those are the only two that’s doing crazy stuff right about now.” This victim also said that, before identifying Shields, she “actually had to call Hall County and see if he had been released, and he had been released that Thursday.” When asked why she now was recanting her prior identification of Shields, she explained that “I thought it was kind of wrong for us to call Hall County Detention Center to see if that person had been released from jail and just start calling his name. ...” Shields now says that his trial lawyer should have objected to this testimony. Because his lawyer did not object, Shields contends that he was deprived of the *838 effective assistance of counsel.
In assessing the performance of Shields’s lawyer, we must remember that “[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.”
Strickland,
supra,
For these reasons, we affirm the judgment below.
Judgment affirmed.
Notes
More specifically, Shields was convicted of five counts of aggravated assault, three counts of attempted armed robbery, one count of burglary, and one count of battery. For these crimes, Shields was sentenced to a term of 18 years of imprisonment, followed by 32 years on probation.
When we refer in this opinion to Shields’s lawyer, we refer to the lawyer who represented Shields at trial. A different lawyer represented Shields at the hearing on the motion for new trial, and yet another represents Shields on appeal.
In Strickland, the United States Supreme Court said that
[a] convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.
Relying on
Reid v. State,
Shields does not claim, for example, that any of the five strikes actually exercised by his lawyer should have been used on other potential jurors.
The idea that the inquiry should be framed in this way is not novel. In another context in which the thinking of counsel is alleged to have been corrupted — not by ignorance of the law, but by a potential conflict of interest — the United States Supreme Court has adopted the same approach, requiring proof that the potential conflict actually affected the way in which the lawyer acted at trial.
See Mickens v. Taylor,
Other testimony at the hearing confirms this conclusion. In his brief, Shields suggests that, if he had known he had nine strikes, the lawyer might have struck Jurors 114 and 116 because they were “potentially hostile to the defense.” But there is no proof in the record that Shields would have used a peremptory challenge to strike either if his lawyer had known that he had more challenges. Although Shields’s trial lawyer testified at the hearing on his motion for new trial, the trial lawyer was never even asked about Juror 116, and there is nothing at all in the record about why this juror was accepted. And although the trial lawyer did say that Juror 114 had some of the characteristics of a juror “I probably wouldn’t want to pick,” and that in hindsight he probably should have struck Juror 114, he never testified that, if he had known Shields had more strikes, he would have struck Juror 114. Indeed, the trial lawyer testified that he would have saved strikes for four prospective jurors who, in fact, were never reached because the parties exercised fewer peremptory strikes. In addition, although the lawyer testified that he consulted with Shields about which prospective jurors to accept and which to strike — and that he generally defers to his clients about juror selection — Shields himself was not asked anything at all about jury selection, much less anything about Jurors 114 and 116, when he testified at the hearing. For this reason, there is nothing in the record from which we might conclude that Shields would have pressed his lawyer to pick jurors in a different manner if his lawyer had told him that he was entitled to exercise nine strikes.
It is important to note that our inquiry with respect to deficient performance is not the same as the prejudice inquiry. As to deficient performance, we ask whether the defendant has shown that the lawyer should have done something different. With respect to prejudice, we ask whether, if the lawyer had done something different, there is a “reasonable probability” it would have made any difference in the result at trial.
Because Shields has failed to demonstrate that his lawyer was ineffective, we are not required to consider the prejudice prong of
Strickland. Sellers v. State,
When the Supreme Court decided Fortson, it did not purport to overrule Carr. In fact, its opinion in Fortson does not even mention Carr. Because we think, for the reasons set forth in this opinion, that Fortson and Carr can be reconciled, we do not understand Fortson to overrule Carr, and we think Carr is still binding authority.
We recognize that Fortson might be distinguishable from this case on other grounds as well, including that the juror on which a peremptory challenge was “wasted” in Fortson was a juror that should have been excused for cause, a circumstance not presented here. So, we do not mean to suggest that, if only Shields’s lawyer had used all of the peremptory challenges to which he believed Shields was entitled, this case would be identical to Fortson. Because Shields’s lawyer did not exhaust those peremptory challenges, the distinction between Carr and Fortson is enough to decide this case, and we need not decide more. We leave for another day whether Fortson would govern a case in which the peremptory challenges are exhausted *837 but no peremptory challenge is directed toward a juror that should have been excused for cause.