Oldham v. State , 179 Ga. App. 730 ( 1986 )

Deen, Presiding Judge.

Robert Daniel “Danny” Oldham was convicted of four counts of forgery in the first degree and appeals contending that the trial court erred in denying his motion for a new trial because he was denied effective assistance of counsel at trial. Held:

Appellant was a drywall contractor who did business as C & D Contractors. His company was employed by Suburban Development Investments, Inc., to do drywall construction on a condominium project, and Oldham entered into an agreement whereby Southern Development would issue a joint check to C & D Contractors and Commercial Supply Company, appellant’s building materials supplier. This arrangement was necessitated by appellant’s credit status with Commercial Supply in order to insure payment for materials supplied for the project. Appellant received four checks jointly payable to C & D Contractors and Commercial Supply and signed a subcontractor’s affidavit that all materials had been paid for when he received each check. He cashed all four checks by forging the name of David Cowart, the president of Commercial Supply, and did not give that company their share of the proceeds. The evidence showed that Old-ham did not have authority to sign Cowart’s name on behalf of Commercial Supply. During cross-examination, appellant admitted forging Cowart’s name on all four checks, but denied that he intended to defraud the company.

On appeal, he argues that he was denied effective assistance of counsel as guaranteed by Art. I, Sec. I, Par. XIV of the Ga. Constitution and the Sixth Amendment of the U. S. Constitution. He claims that counsel failed to make certain timely objections, tendered certain evidence such as the check agreement into evidence, elicited certain testimony from witnesses on cross-examination, and called him to the stand as his only defense witness.

Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), sets forth two independent tests which appellant must meet to show ineffective assistance of counsel: (1) deficient perform^ anee of counsel, and (2) resulting prejudice to the accused. The reviewing court can find lack of resulting prejudice without deciding whether counsel’s performance is deficient. Webb v. State, 178 Ga. App. 725 (344 SE2d 660) (1986).

As stated in Webb v. State, supra, the fact that another attorney might have conducted Oldham’s defense differently is not a basis for reversal. See Pitts v. Glass, 231 Ga. 638, 640 (203 SE2d 515) (1974). In the instant case, because the weight of the evidence against Old-ham was so strong, we cannot say that there was a reasonable possibility that he would have been acquitted had his case been tried differently. An examination of the transcript shows that counsel was thoroughly familiar with the facts in the case, that he extensively cross-examined the witnesses, and pointed out certain inconsistencies in the evidence. His obvious trial strategy was to convince the jury that the case involved only a civil matter. In order to do this he had to forego making certain objections, admit certain evidence on his client’s behalf, and permit his client to testify so the jury would not think he had anything to hide. The fact that this strategy did not result in acquittal does not indicate that counsel was deficient or that prejudicial harm to the accused resulted.

Judgment affirmed.

Benham and Beasley, JJ., concur. Beasley, J., also concurs specially.