This is the second appearance of this case before this court. See
Whitner v. State,
Upon remand to consider Whitner’s allegation that he had been deprived of the effective assistance of counsel, the trial court held an evidentiary hearing on Whitner’s allegation, and subsequently found that the original “trial counsel’s performance was not deficient. Trial counsel was functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Accordingly, the trial court found that Whitner’s claim lacked merit and dismissed his claim of ineffective assistance of counsel. Whitner appeals from that decision. Held:
Whitner’s claim that' his counsel was ineffective is grounded upon his original trial defense counsel’s decision not to challenge the admissibility of DNA test evidence even though his trial was conducted before our Supreme Court’s decision in
Caldwell v. State,
There are two components to a claim for ineffective assistance of counsel. “First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that the defense was prejudiced by the deficient performance. Both components must be! shown before we can find that the conviction resulted from a break-1 down in the adversary process that renders the result unreliable.” (Ci-J tation and punctuation omitted.)
French v. State,
Further, Whitner has also not established that he was prejudiced by his original counsel’s conduct. To prove that he was prejudiced, he must show that there is a reasonable probability that the result of the proceedings would have been different if the DNA test evidence would have been excluded. In that regard, the trial court’s order dismissing this claim summarized the evidence against Whitner apart from the DNA test evidence: “Briefly, the evidence against the defendant was that head hairs from a cap found at the scene had the same microscopic characteristics as the defendant’s hair. Pubic hairs found on the carpet at the scene had the same microscopic characteristics as the defendant’s hair. Pubic hairs found in the combings in the rape kit had the same microscopic characteristics as the defendant’s hair. Pubic hair from the victim’s nightgown had the same microscopic characteristics as the defendant’s hair. Bloody fingerprints found on the trunk of a car at the scene matched the defendant’s fingerprints, according to two witnesses. One of the victims had been locked in that car trunk, and the assailant handled the car trunk on two occasions during the course of the attack. While the victims could not identify their assailant, the defendant matched the description they had given, including the presence of a facial scar.” With this evidence, we cannot conclude that there was any reasonable probability that the result in Whitner’s trial would have been any different if the DNA test evidence had been excluded.
“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citation and punctuation omitted.)
Harris v. State,
Judgment affirmed.