Brundage v. State

Court of Appeals of Georgia

Brundage v. State

430 S.E.2d 173, 208 Ga. App. 58, 93 Fulton County D. Rep. 1552, 1993 Ga. App. LEXIS 416

CourtCourt of Appeals of Georgia

DecidedMarch 19, 1993

DocketA92A1952

StatusPublished

Cited by13 cases

This text of 430 S.E.2d 173 (Brundage v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brundage v. State, 430 S.E.2d 173, 208 Ga. App. 58, 93 Fulton County D. Rep. 1552, 1993 Ga. App. LEXIS 416 (Ga. Ct. App. 1993).

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Opinions

Birdsong, Presiding Judge.

Gregory Brundage appeals his conviction for the sale of cocaine. His sole enumeration of error is that he received the ineffective assistance of trial defense counsel. Held:

1. “Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty of the [crime] for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131) (1980).” Witherspoon v. State, 262 Ga. 2 (412 SE2d 829).

2. The record shows defense counsel appointed to represent Brundage during his trial also filed the motion for new trial on his behalf and appellate counsel was appointed after the motion for new trial was denied. While ordinarily under this posture of the case we would remand for an evidentiary hearing and ruling by the trial court (see Johnson v. State, 259 Ga. 428, 430 (383 SE2d 115)), under the facts of this appeal it would serve no useful purpose.

In cases such as this “[t]he burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below ‘an objective standard of reasonableness’ and (2) there is ‘a reasonable probability that, but for counsel’s [59]*59unprofessional errors, the result of the proceeding would have been different.’ Strickland v. Washington, 466 U. S. 668, 695-96 (104 SC 2052, 80 LE2d 674) (1984). [Cit.]” Bowley v. State, 261 Ga. 278, 280 (404 SE2d 97). A reviewing court, however, need not address both elements of this test if a sufficient showing of one element cannot be made and the elements need not be addressed in any particular order. Thompson v. State, 191 Ga. App. 906 (383 SE2d 339); Young v. State, 191 Ga. App. 651, 653 (382 SE2d 642). As it is apparent as a matter of law that Brundage cannot satisfy the second element of this test, we need not remand for a hearing on whether counsel was ineffective. See Smith v. State, 262 Ga. 480 (422 SE2d 173); French v. State, 261 Ga. 424 (405 SE2d 35).

Brundage’s sole allegation is that his trial defense counsel was ineffective because he failed to move for a mistrial when Brundage did not testify after the trial court instructed Brundage, who had taken the stand in the presence of the jury, of his rights not to testify or say anything that might incriminate him; that he did not have to prove anything, including his lack of guilt because the burden was on the state; that no one could make him testify and no harmful inference could be drawn from his not testifying; and that if he did testify both sides could question him. The trial court then asked the defendant if he wished to testify, and Brundage announced from the witness stand that he did not. The trial court immediately instructed the jury it could draw no inferences from this and that the burden is on the state “and that’s where it stays.” The record shows that although the defense rested without calling any witnesses, the jury found Brundage guilty only of one of the three counts against him, acquitted him of another count, and the jury could not reach a verdict on the other count.

More significantly, however, the record also shows that the trial court’s advice to Brundage was preceded by trial defense counsel’s request that the trial court lay those rights on the record. Since Brundage’s counsel, in the presence of the jury, requested this advice be given, he cannot seek a mistrial after the request was granted. Kellar v. State, 226 Ga. 432, 433 (175 SE2d 654). Indeed, induced error is not a proper basis for claiming prejudice. Sullens v. State, 239 Ga. 766, 767 (238 SE2d 864); Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420). In view of the circumstances of Brundage’s request, there was no basis for the granting of a mistrial.

Thus, pretermitting whether Brundage’s trial defense counsel’s performance was deficient within the meaning of Strickland by not moving for a mistrial, we find there exists no reasonable probability that the outcome of this case would have been different within the meaning of Strickland v. Washington, Thompson, and Young.

Accordingly, Brundage’s enumeration is without merit.

[60]*60 Judgment affirmed.

Andrews, J., concurs. Beasley, P. J., concurs specially.

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Birdsong, Presiding Judge.

Gregory Brundage appeals his conviction for the sale of cocaine. His sole enumeration of error is that he received the ineffective assistance of trial defense counsel. Held:

1. “Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty of the [crime] for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131) (1980).” Witherspoon v. State, 262 Ga. 2 (412 SE2d 829).

2. The record shows defense counsel appointed to represent Brundage during his trial also filed the motion for new trial on his behalf and appellate counsel was appointed after the motion for new trial was denied. While ordinarily under this posture of the case we would remand for an evidentiary hearing and ruling by the trial court (see Johnson v. State, 259 Ga. 428, 430 (383 SE2d 115)), under the facts of this appeal it would serve no useful purpose.

In cases such as this “[t]he burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below ‘an objective standard of reasonableness’ and (2) there is ‘a reasonable probability that, but for counsel’s [59]*59unprofessional errors, the result of the proceeding would have been different.’ Strickland v. Washington, 466 U. S. 668, 695-96 (104 SC 2052, 80 LE2d 674) (1984). [Cit.]” Bowley v. State, 261 Ga. 278, 280 (404 SE2d 97). A reviewing court, however, need not address both elements of this test if a sufficient showing of one element cannot be made and the elements need not be addressed in any particular order. Thompson v. State, 191 Ga. App. 906 (383 SE2d 339); Young v. State, 191 Ga. App. 651, 653 (382 SE2d 642). As it is apparent as a matter of law that Brundage cannot satisfy the second element of this test, we need not remand for a hearing on whether counsel was ineffective. See Smith v. State, 262 Ga. 480 (422 SE2d 173); French v. State, 261 Ga. 424 (405 SE2d 35).

Brundage’s sole allegation is that his trial defense counsel was ineffective because he failed to move for a mistrial when Brundage did not testify after the trial court instructed Brundage, who had taken the stand in the presence of the jury, of his rights not to testify or say anything that might incriminate him; that he did not have to prove anything, including his lack of guilt because the burden was on the state; that no one could make him testify and no harmful inference could be drawn from his not testifying; and that if he did testify both sides could question him. The trial court then asked the defendant if he wished to testify, and Brundage announced from the witness stand that he did not. The trial court immediately instructed the jury it could draw no inferences from this and that the burden is on the state “and that’s where it stays.” The record shows that although the defense rested without calling any witnesses, the jury found Brundage guilty only of one of the three counts against him, acquitted him of another count, and the jury could not reach a verdict on the other count.

More significantly, however, the record also shows that the trial court’s advice to Brundage was preceded by trial defense counsel’s request that the trial court lay those rights on the record. Since Brundage’s counsel, in the presence of the jury, requested this advice be given, he cannot seek a mistrial after the request was granted. Kellar v. State, 226 Ga. 432, 433 (175 SE2d 654). Indeed, induced error is not a proper basis for claiming prejudice. Sullens v. State, 239 Ga. 766, 767 (238 SE2d 864); Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420). In view of the circumstances of Brundage’s request, there was no basis for the granting of a mistrial.

Thus, pretermitting whether Brundage’s trial defense counsel’s performance was deficient within the meaning of Strickland by not moving for a mistrial, we find there exists no reasonable probability that the outcome of this case would have been different within the meaning of Strickland v. Washington, Thompson, and Young.

Accordingly, Brundage’s enumeration is without merit.

[60]*60 Judgment affirmed.

Andrews, J., concurs. Beasley, P. J., concurs specially.

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430 S.E.2d 173, 208 Ga. App. 58, 93 Fulton County D. Rep. 1552, 1993 Ga. App. LEXIS 416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brundage-v-state-gactapp-1993.

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