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Miller v. State, 676 S.E.2d 173, 285 Ga. 285, 2009 Fulton County D. Rep. 1495, 2009 Ga. LEXIS 143 (Ga. 2009).
Opinion
Thompson, Justice.
Following his conviction for simple battery, Greg Miller appealed to the Court of Appeals asserting, inter alia, that trial counsel rendered ineffective assistance because he failed to object to hearsay evidence that Miller was inebriated when he committed the crime. The Court of Appeals affirmed.
Miller v. State,
292 Ga. App. 636 (665 SE2d 692) (2008). In analyzing the ineffective assistance of counsel claim, the court held that even if trial counsel’s failure to object to the evidence constituted deficient performance, it was not prejudicial because Miller did not show “how the omission of a passing reference that he was drunk would have somehow resulted in the jury’s believing that he was innocent.” Id. at 640 (2). The court continued, “ [consequently, Miller cannot show that but for counsel’s error, the outcome of the case would have been different.” Id. We granted certiorari to the Court of Appeals and posed this question:
Whether the Court of Appeals erred by applying an incorrect legal standard to determine prejudice under the second prong of the test for constitutionally ineffective assistance of counsel set forth in
Strickland v. Washington,
466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).
In
Strickland,
the Court established a standard by which to measure a claim of ineffective assistance of counsel under the Sixth Amendment. “The benchmark forjudging 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,
supra 466 U. S. at 686. There are two components to the inquiry:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
*286
Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Id. 466 U. S. at 687. The
Strickland
Court set forth the appropriate test for determining prejudice: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. 466 U. S. at 694.
This Court first applied the
Strickland
standards in
Smith v. Francis,
253 Ga. 782 (1) (325 SE2d 362) (1985). To establish the prejudice prong of
Strickland, Smith
requires a defendant to show “a reasonable probability sufficient to undermine confidence in the outcome that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been different.” Id. at 784. See also
Brogdon v. State,
255 Ga. 64, 68 (3) (335 SE2d 383) (1985) (a defendant “must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors”).
Over the years, our appellate courts have on occasion deviated from this standard by eliminating the “reasonable probability” language and requiring a defendant to show that but for counsel’s error, the outcome of the case would have been different. The
Strickland
Court specifically noted that “a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.”
Strickland,
supra 466 U. S. at 693. “[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. 466 U. S. at 695. Cases which have ignored the reasonable probability requirement of
Strickland
have placed a more stringent burden on the defendant — an unconditional showing that the defendant would have been acquitted had counsel not performed deficiently.
The error in
Miller
is traced back to
Turner v. State,
245 Ga. App. 294, 295 (4) (536 SE2d 814) (2000), in which the Court of Appeals misstated the
Strickland
standard by omitting the “reasonable probability” language. Compounding the error, the
Turner
court determined that even if Turner’s counsel rendered ineffective assistance, he failed to show that it “prejudiced his cause or resulted in a different outcome at trial.” Id. at 298. Our research shows that the incorrect statement of the prejudice prong of
Strickland
as set forth in
Turner
and reiterated in
Miller
has been perpetuated by the
*287
Court of Appeals in numerous cases.
1
Our Court as well has been guilty of the omission. See
Fargason v. State,
266 Ga. 463 (4) (467 SE2d 551) (1996) (“To prove an ineffective assistance of counsel claim, the defendant must show that trial counsel performed defi-ciently and that the result of the trial would have been different but for the deficiency.”). And the incomplete statement of law in
Farga-son
has been followed by our Court of Appeals.
2
To the extent that these and any other cases eliminate or dilute the “reasonable probability” standard set forth in
Strickland,
they are disapproved and will not be followed.
3
Decided April 28, 2009.
Gerard B. Kleinrock,
for appellant.
Gwendolyn Keyes Fleming, District Attorney, Barbara B. Conroy, Assistant District Attorney,
for appellee.
Accordingly, we hereby vacate the opinion of the Court of Appeals and remand the case for consideration of whether Miller was prejudiced by counsel’s deficient performance applying the correct
Strickland
standard.
See, e.g.,
Jowers v. State,
272 Ga. App. 614 (3) (613 SE2d 14) (2005);
Lemming v. State,
272 Ga. App. 122 (2) (612 SE2d 495) (2005);
Wright v. State,
265 Ga. App. 855 (1) (595 SE2d 664) (2004);
Wiltshire v. State,
191 Ga. App. 426 (1) (382 SE2d 166) (1989);
McAlister v. State,
204 Ga. App. 259 (2) (419 SE2d 64) (1992);
Champion v. State,
238 Ga. App. 48 (1) (517 SE2d 595) (1999);
Glore v. State,
241 Ga. App.
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Thompson, Justice.
Following his conviction for simple battery, Greg Miller appealed to the Court of Appeals asserting, inter alia, that trial counsel rendered ineffective assistance because he failed to object to hearsay evidence that Miller was inebriated when he committed the crime. The Court of Appeals affirmed.
Miller v. State,
292 Ga. App. 636 (665 SE2d 692) (2008). In analyzing the ineffective assistance of counsel claim, the court held that even if trial counsel’s failure to object to the evidence constituted deficient performance, it was not prejudicial because Miller did not show “how the omission of a passing reference that he was drunk would have somehow resulted in the jury’s believing that he was innocent.” Id. at 640 (2). The court continued, “ [consequently, Miller cannot show that but for counsel’s error, the outcome of the case would have been different.” Id. We granted certiorari to the Court of Appeals and posed this question:
Whether the Court of Appeals erred by applying an incorrect legal standard to determine prejudice under the second prong of the test for constitutionally ineffective assistance of counsel set forth in
Strickland v. Washington,
466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).
In
Strickland,
the Court established a standard by which to measure a claim of ineffective assistance of counsel under the Sixth Amendment. “The benchmark forjudging 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,
supra 466 U. S. at 686. There are two components to the inquiry:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
*286
Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Id. 466 U. S. at 687. The
Strickland
Court set forth the appropriate test for determining prejudice: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. 466 U. S. at 694.
This Court first applied the
Strickland
standards in
Smith v. Francis,
253 Ga. 782 (1) (325 SE2d 362) (1985). To establish the prejudice prong of
Strickland, Smith
requires a defendant to show “a reasonable probability sufficient to undermine confidence in the outcome that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been different.” Id. at 784. See also
Brogdon v. State,
255 Ga. 64, 68 (3) (335 SE2d 383) (1985) (a defendant “must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors”).
Over the years, our appellate courts have on occasion deviated from this standard by eliminating the “reasonable probability” language and requiring a defendant to show that but for counsel’s error, the outcome of the case would have been different. The
Strickland
Court specifically noted that “a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.”
Strickland,
supra 466 U. S. at 693. “[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. 466 U. S. at 695. Cases which have ignored the reasonable probability requirement of
Strickland
have placed a more stringent burden on the defendant — an unconditional showing that the defendant would have been acquitted had counsel not performed deficiently.
The error in
Miller
is traced back to
Turner v. State,
245 Ga. App. 294, 295 (4) (536 SE2d 814) (2000), in which the Court of Appeals misstated the
Strickland
standard by omitting the “reasonable probability” language. Compounding the error, the
Turner
court determined that even if Turner’s counsel rendered ineffective assistance, he failed to show that it “prejudiced his cause or resulted in a different outcome at trial.” Id. at 298. Our research shows that the incorrect statement of the prejudice prong of
Strickland
as set forth in
Turner
and reiterated in
Miller
has been perpetuated by the
*287
Court of Appeals in numerous cases.
1
Our Court as well has been guilty of the omission. See
Fargason v. State,
266 Ga. 463 (4) (467 SE2d 551) (1996) (“To prove an ineffective assistance of counsel claim, the defendant must show that trial counsel performed defi-ciently and that the result of the trial would have been different but for the deficiency.”). And the incomplete statement of law in
Farga-son
has been followed by our Court of Appeals.
2
To the extent that these and any other cases eliminate or dilute the “reasonable probability” standard set forth in
Strickland,
they are disapproved and will not be followed.
3
Decided April 28, 2009.
Gerard B. Kleinrock,
for appellant.
Gwendolyn Keyes Fleming, District Attorney, Barbara B. Conroy, Assistant District Attorney,
for appellee.
Accordingly, we hereby vacate the opinion of the Court of Appeals and remand the case for consideration of whether Miller was prejudiced by counsel’s deficient performance applying the correct
Strickland
standard.
We further note that numerous other Court of Appeals cases have misstated the prejudice prong of
Strickland,
but have analyzed the issue by determining that counsel was not deficient under the first prong, or have gone on to analyze the prejudice issue correctly. These cases' have not been included in our compendium.
under prior version of the Juvenile Code, statute regarding reasonable efforts for reunification pertaining to removal and placement orders did not pertain to termination proceedings
In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.”
In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.”
In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.”
In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.”
In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.”
In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.”
setting forth the appropriate test for determining prejudice: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”