Datz v. State

436 S.E.2d 506, 210 Ga. App. 517
CourtCourt of Appeals of Georgia
DecidedOctober 13, 1993
DocketA93A1576
StatusPublished
Cited by17 cases

This text of 436 S.E.2d 506 (Datz 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
Datz v. State, 436 S.E.2d 506, 210 Ga. App. 517 (Ga. Ct. App. 1993).

Opinions

Birdsong, Presiding Judge.

Richard Ronald Datz, Jr. a/k/a Richard Datz a/k/a Ronald Richard Datz appeals his conviction of possession of a firearm by a convicted felon and the sentence. Held:

1. Appellant asserts evidence insufficiency. A rifle and ammunition for the gun were found in the trunk of appellant’s wife’s car; ammunition for the weapon also was found in two locations in appellant’s house. The police evidence custodian testified appellant contacted him numerous times, by phone and in person, seeking return of “his AR-15 rifle.” Davis v. State, 146 Ga. App. 629 (247 SE2d 210) is distinguishable from the facts of this case. Compare Chambers v. State, 162 Ga. App. 722 (293 SE2d 20). The jury could reasonably find that the evidence excluded every reasonable hypothesis except that of defendant’s guilt. See Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). The transcript when viewed in the light most favorable to the verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The trial court did not err in denying appellant’s extraordinary motion for new trial based upon newly discovered evidence. The trial court’s finding of fact that the absence of any defense witnesses who would testify as to rifle ownership was due to appellant’s instructions not to secure the witnesses’ presence, is supported by evidence of record; moreover, we agree that such testimony would have been corroborative in nature. Also, appellant has failed to carry his burden of satisfying all six of the requirements of Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) as to any of the proffered evidence. Failure to satisfy any one of these requirements is sufficient to deny either a motion for new trial or an extraordinary motion for new trial. See Cofield v. State, 204 Ga. App. 776, 779 (2) (420 SE2d 597). Most of the allegedly newly discovered evidence either was corroborative in some degree of other evidence of record or would merely attack witness credibility. Further, appellant has failed to establish that any of the alleged newly discovered evidence was “so material that it probably would produce a different outcome.” (Emphasis supplied.) Id. OCGA § 5-5-41 (a) gives the trial judge discretion to allow the filing of an extraordinary motion for new trial. Martin v. Children’s Sesame, 188 Ga. App. 242 (1) (372 SE2d 648). The trial court did not abuse its discretion by denying the extraordinary motion for new trial. See Merka v. State, 201 Ga. App. 471, 473 (2) (411 SE2d 357).

3. The trial court did not err in denying appellant’s motion for new trial based on ineffective assistance of counsel. The trial court [518]*518concluded appointed counsel was diligent and effective. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. Ferrell v. State, 261 Ga. 115, 119-120 (401 SE2d 741).

(a) There exists no specified amount of time which a counsel must spend in preparation for trial; each situation must be judged upon its own circumstances and in light of its own degree of complexity. Hand v. State, 205 Ga. App. 467, 469 (2) (422 SE2d 316). There was no total failure of trial preparation in this case as in Cochran v. State, 262 Ga. 106 (414 SE2d 211). .

(b) The record fails to establish an actual conflict of interest on the part of appellant’s trial counsel. Compare Pullen v. State, 208 Ga. App. 581 (3) (431 SE2d 696). Prejudice is presumed, under the test of Strickland v. Washington, 466 U. S. 668, 692 (104 SC 2052, 80 LE2d 674), only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance. Pullen, supra. Actual conflict is not established by ingenious claims in appellate briefs inadequately supported by the record; mere possibility of conflict is insufficient to impugn a criminal conviction amply supported by competent evidence. Id. Appellant has failed to establish an actual conflict; his trial counsel stated on the record that he was not involved directly or indirectly in any lawsuit appellant had filed against Cobb County officials and had not issued any warrants as a Cobb County magistrate which involved appellant.

(c) Although the transcript of the motion for new trial hearing reflects appellant’s trial counsel advised appellant not to testify at the motion to suppress hearing, it appears such advice was given as a legitimate trial tactic. Moreover, trial counsel had previously testified that he and appellant “talked about everything — every decision, because [counsel] learned very quickly that . . . the client makes the ultimate call.” Thus, it can be concluded appellant voluntarily made the ultimate decision, after receiving advice of counsel, not to testify at the suppression motion hearing.

The record also reflects appellant first informed his counsel that the weapon was owned by a man from Puerto Rico; thereafter, appellant’s wife informed cofinsel the. man from Puerto Rico had died. Subsequently, appellant informed counsel that appellant’s brother Steven owned the gun and that Steven was in Florida and was wanted on Georgia warrants. Counsel further testified appellant told him that he did not want his brother “to get involved up here.” This testimony supports the determination of the trial court regarding the adequacy of trial counsel, and supports the trial court’s conclusion that the absence of any witnesses in regard to rifle ownership was due to instruc[519]*519tions of appellant.

(d) In view of the lack of showing of actual conflict of interest, the proper test to be employed is the two-prong test of Strickland, supra. Pretermitting whether counsel’s professional performance was deficient is whether the result of the proceeding would have been different but for counsel’s performance. Appellant has failed to establish by a reasonable probability that, but for trial counsel’s alleged unprofessional errors, the result of the proceeding would have been different. Appellant has failed to establish inadequacy of trial counsel within the meaning of Strickland, supra. Also, a trial court’s finding that appellant had been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous (Whitner v. State, 202 Ga. App. 608, 609 (415 SE2d 52)); the trial court’s findings were not clearly erroneous.

4. Assuming appellant had standing to challenge the warrantless search of his wife’s car, the trial court did not err in denying the motion to suppress the evidence seized.

(a) Appellant has abandoned the issue whether he could consent to the search of his wife’s car. Court of Appeals Rule 15 (c) (2). In any event, such argument is without merit. Pupo v. State, 187 Ga. App. 765, 767 (5) (371 SE2d 219); see Illinois v. Rodriguez, 497 U. S. 177

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Datz v. State
436 S.E.2d 506 (Court of Appeals of Georgia, 1993)

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Bluebook (online)
436 S.E.2d 506, 210 Ga. App. 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/datz-v-state-gactapp-1993.