Elijah Brunson v. State

• Court: Court of Appeals of Georgia
• Decided: June 17, 2013
• Docket: A13A0449
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

June 17, 2013

In the Court of Appeals of Georgia A13A0449. BRUNSON v. THE STATE.

MCFADDEN, Judge.

After a jury trial, Elijah Brunson was convicted of sexual battery of his 15-

year-old granddaughter. Brunson appeals, claiming that the state was improperly

allowed to use a prior statement to attempt to impeach him and that his trial counsel

was ineffective in failing to object to the attempted impeachment. Because there was

no objection to the state’s use of the prior statement, that issue was not preserved for

appellate review; and the lack of such objection does not constitute ineffective

assistance of counsel because it was a matter of trial strategy. Accordingly, we affirm.

1. Impeachment.

Brunson testified at trial. On cross-examination, the prosecuting attorney

questioned him about purported differences between his testimony and a prior statement that he had given to police. On appeal, Brunson contends that the trial court

erred in allowing the state to attempt to impeach him with the prior statement because

its voluntariness had not yet been determined and it had not been admitted into

evidence. However, Brunson did not raise these, or any other, objections to the state’s

line of questioning in the trial court. “Failing to object to the state’s

cross-examination waives this issue on appeal.” Walker v. State, 268 Ga. App. 669,

672 (3) (602 SE2d 351) (2004) (citation omitted). See also Willis v. State, 241 Ga.

App. 813, 815 (2) (527 SE2d 895) (2000).

2. Ineffective assistance of counsel.

Brunson claims that his trial counsel was ineffective in failing to object to the

prosecutor’s use of the prior statement to attempt to impeach him. The claim is

without merit.

To prevail on this claim, [the a]ppellant must show that his counsel’s performance was professionally deficient and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been more favorable to him. The reviewing court need not address both components of the inquiry if the [appellant] makes an insufficient showing on one.

Durden v. State, ___ Ga. ___ (6) (Case No. S13A0026, decided June 3, 2013)

(citations and punctuation omitted).

2 Brunson has not shown that counsel’s performance was deficient. At the

motion for new trial hearing, trial counsel explained that she did not object to the

state’s line of questioning about Brunson’s prior statement because the statement

actually supported the defense theory that there was no criminal intent. Counsel

testified that it was a “purely strategic” decision that worked out to the advantage of

the defense because “parts of his statement were made a part of the record and I got

something great to talk about in closing regarding the [s]tate’s use or misuse of the

evidence.”

“The decision of whether to interpose certain objections is a matter of trial

strategy and tactics.” Abernathy v. State, 299 Ga. App. 897, 903 (3) (a) (685 SE2d

734) (2009) (citation and punctuation omitted). Here, even if we “[p]resum[e] for the

sake of argument that an objection to the [questioning about a prior statement] would

have had merit, trial counsel’s decision not to object was a reasonable trial tactic and

strategy which constituted neither deficient performance nor ineffective assistance.”

Brockington v. State, 316 Ga. App. 90, 95 (2) (b) (728 SE2d 753) (2012) (citation

omitted).

Judgment affirmed. Doyle, P. J., and Boggs, J., concur.