Hammond v. State

452 S.E.2d 745, 264 Ga. 879, 95 Fulton County D. Rep. 338, 1995 Ga. LEXIS 23
CourtSupreme Court of Georgia
DecidedJanuary 23, 1995
DocketS94P1145
StatusPublished
Cited by51 cases

This text of 452 S.E.2d 745 (Hammond v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hammond v. State, 452 S.E.2d 745, 264 Ga. 879, 95 Fulton County D. Rep. 338, 1995 Ga. LEXIS 23 (Ga. 1995).

Opinions

Fletcher, Justice.

Emmanuel Hammond was convicted of the malice murder, armed robbery and kidnapping of Julie Love. He was sentenced to death for the conviction of murder. On appeal, we found no reversible error in the issues raised by Hammond, but because we “perceive [d] a possible issue as to ineffectiveness of counsel,” Hammond v. State, 260 Ga. 591, 599 (398 SE2d 168) (1990), we remanded the case to the trial court to afford Hammond the opportunity to litigate this issue. We held that, at the conclusion of those proceedings, the case would be returned to this court “for review of the proceedings on remand and for the statutory sentence review, unless the proceedings on remand obviate the need for further appellate review.” Id. at 600.

The trial court appointed new counsel to represent Hammond. Following a lengthy hearing on the issue of ineffectiveness, the trial court entered a 67-page order in which it concluded that Hammond’s trial counsel rendered reasonably effective assistance throughout all phases of trial. The trial court additionally concluded that the evidence of Hammond’s guilt was so overwhelming that any deficiencies in trial counsel’s performance did not affect the jury’s decision in either phase of trial. We affirm.

1. At the conclusion of the sentencing phase of trial, the prosecutor argued to the jury that Hammond should not be given a life sentence because “[t]here is no life without parole in Georgia. So one day he will be a free man.” Hammond’s trial counsel immediately objected to this improper argument. The trial court sustained the objection and instructed the jury that the prosecutor’s statement was incorrect and should be disregarded. On direct appeal to this court Hammond argued that his sentence should be reversed based on OCGA § 17-8-76, which provides, inter alia, that if the state argues to the jury that the defendant may not be required to serve his entire sentence because of the possibility of parole, the defendant is entitled [880]*880to a mistrial upon request to the trial court to declare one. We held that a mistrial is not required by this Code section absent a request, and that the trial court in this case did not err in limiting relief to that sought by Hammond’s trial counsel. Hammond, 260 Ga. at 599.

Hammond now argues that trial counsel was ineffective in failing to move for a mistrial. The Supreme Court has held that in giving meaning to the Sixth Amendment right to effective assistance of counsel, the courts

must take its purpose — to ensure a fair trial — as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Strickland v. Washington, 466 U. S. 668, 686 (104 SC 2052, 80 LE2d 674) (1984).

To prove a claim of ineffective assistance, a defendant must satisfy two burdens. He must first show that counsel’s performance was deficient; that is, he must demonstrate that counsel failed to function as “the ‘counsel’ guaranteed by the Sixth Amendment.” Second, the defendant is required to show that he was prejudiced by counsel’s deficient performance; that is, he must show that “counsel made errors so serious ... as to deprive the defendant of a fair trial.” Id. at 687. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691.

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.

(Citation omitted.) Id. at 693.

We need not decide whether in failing to move for a mistrial trial counsel’s performance was deficient, because we conclude that this error did not undermine the reliability of the result of the sentencing trial.1 While it is true, as Hammond vigorously argues, that a granted [881]*881motion for mistrial would have resulted in another jury deciding his sentence, it is speculative at best to assert that a different verdict would have been reached. The evidence against Hammond, offered both during the guilt/innocence phase and in aggravation during the sentencing phase, was overwhelming. Trial counsel did object to the prosecutor’s impermissible argument and the trial court instructed the jury that the prosecutor’s statement was incorrect, improper, and should be disregarded. Trial counsel’s failure to additionally move for a mistrial did not deprive Hammond of a fair sentencing trial; it merely deprived him of a sentencing determination by 12 different persons who may or may not have reached the same verdict based on the evidence presented. In fact, trial counsel testified to his theory that it was important that the same jury decide the issues of guilt/ innocence and sentencing because he was convinced there was evidence presented in the guilt/innocence phase that cast doubt on whether Hammond had actually committed the crimes in question and the sentencing jury should have the benefit of this “residual doubt.” We conclude that Hammond has not met his burden of showing that had a motion for mistrial been made “the decision reached would reasonably likely have been different.” Strickland, 466 U. S. at 696.

2. Hammond is correct in arguing that an “actual conflict of interest adversely affecting a lawyer’s performance renders assistance ineffective.” Strickland, 466 U. S. at 686. However, Hámmond has failed to demonstrate either that there was an actual conflict of interest created by the “media rights” contract he allegedly entered into with trial counsel or that this conflict adversely affected trial counsel’s performance.

3. Hammond argues that trial counsel was ineffective in eliciting “bad act” and “bad character” testimony about Hammond from various witnesses at trial.

(a) Hammond complains primarily of a tape-recorded statement by Janice Weldon, who had been with Hammond at the time Julie Love was kidnapped, in which Weldon accused Hammond of committing another murder sometime after the murder of Love. At the time of admission, trial counsel stated that he was offering Weldon’s statement because it was uncorroborated by any other evidence and, therefore, cast doubt on her credibility. Trial counsel took the position that the tape-recorded statement was impeaching of Weldon’s testimony implicating Hammond in the Love murder, and the trial court instructed the jury to consider the tape-recorded statement for im[882]*882peachment purposes only,

It is not the duty of the courts to second-guess trial counsel’s choice of strategy. The fact that other experienced trial attorneys testified that this tactic hindered rather than aided Hammond’s defense has no bearing on the reasonableness of trial counsel’s tactics. Jefferson v. Zant, 263 Ga. 316, 318 (431 SE2d 110) (1993). That trial counsel

Free access — add to your briefcase to read the full text and ask questions with AI

Related

ROBARDS v. the STATE.
828 S.E.2d 9 (Court of Appeals of Georgia, 2019)
Gebre Whitelock v. State
Court of Appeals of Georgia, 2019
Garland v. State
714 S.E.2d 707 (Court of Appeals of Georgia, 2011)
Ledford v. State
709 S.E.2d 239 (Supreme Court of Georgia, 2011)
Thomas v. State
701 S.E.2d 895 (Court of Appeals of Georgia, 2010)
Whitus v. State
700 S.E.2d 377 (Supreme Court of Georgia, 2010)
Sharp v. State
692 S.E.2d 325 (Supreme Court of Georgia, 2010)
Hammond v. Hall
586 F.3d 1289 (Eleventh Circuit, 2009)
Hardnett v. State
678 S.E.2d 323 (Supreme Court of Georgia, 2009)
Ford v. Schofield
488 F. Supp. 2d 1258 (N.D. Georgia, 2007)
Anaya-Plasencia v. State
642 S.E.2d 401 (Court of Appeals of Georgia, 2007)
Ferrill v. State
628 S.E.2d 217 (Court of Appeals of Georgia, 2006)
Adams v. State
623 S.E.2d 525 (Court of Appeals of Georgia, 2005)
Ward v. State
618 S.E.2d 154 (Court of Appeals of Georgia, 2005)
Perkinson v. State
610 S.E.2d 533 (Supreme Court of Georgia, 2005)
Watson v. State
604 S.E.2d 804 (Supreme Court of Georgia, 2004)
Franks v. State
599 S.E.2d 134 (Supreme Court of Georgia, 2004)
Cole v. State
584 S.E.2d 37 (Court of Appeals of Georgia, 2003)
Strong v. State
569 S.E.2d 523 (Supreme Court of Georgia, 2002)
Glass v. State
565 S.E.2d 500 (Court of Appeals of Georgia, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
452 S.E.2d 745, 264 Ga. 879, 95 Fulton County D. Rep. 338, 1995 Ga. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammond-v-state-ga-1995.