Smith v. State , 262 Ga. 480 ( 1992 )

Benham, Justice.

Appellant’s convictions for malice murder, aggravated assault, and possession of a firearm by a convicted felon were affirmed by this court in Smith v. State, 260 Ga. 274 (393 SE2d 229) (1990). We remanded the case to the trial court to consider whether trial counsel rendered ineffective assistance of counsel by agreeing to withdraw a charge on justification, and we noted that the issue of ineffectiveness may have been procedurally defaulted by appellate counsel. Id., Division 8. This appeal follows the trial court’s determination that appellant waived his right to assert that his trial counsel was ineffective.

Appellant’s trial counsel were relieved of their duties shortly after trial. Appellant’s former appellate counsel filed a motion for new trial which was denied on July 20, 1989. Twenty-two days later, the trial court determined that trial counsel had withdrawn a requested charge on justification. That same day, appellant’s present counsel filed a motion for reconsideration of the denial of the motion for new trial, asserting for the first time that trial counsel were ineffective for withdrawing their requested charge on justification. Seven days later, present counsel filed a timely notice of appeal from the denial of the motion for new trial, which notice served as the basis for appellant’s initial appeal. Smith v. State, supra.¹

On remand from this court, the trial court ruled that appellant had waived his right to assert the ineffectiveness of his trial counsel because he failed to request an evidentiary hearing on the issue in the trial court. See Ray v. State, 259 Ga. 868 (12) (389 SE2d 326) (1990). After reviewing the record in this case, we conclude that the merits of appellant’s claim of ineffectiveness must be addressed.²

[T]he burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below “an objective standard of reasonableness” and (2) there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U. S. 668, 695-96 (104 SC 2052, 80 LE2d 674) (1984). [Cit.] [Bowley v. State, 261 Ga. 278, 280 (4) (404 SE2d 97) (1991).]

In Smith, supra, we concluded that there was no evidence to support a jury instruction on justification as a defense to the charge of malice murder, but that appellant’s testimony authorized a charge on justification as a defense to the aggravated assault charge. See 260 Ga. 274 (5) and (6). While the withdrawal of the requested charge on justification, the giving of which was supported by the evidence, was unauthorized, in view of the evidence³ that appellant fired at his wife’s car as she was driving away, and the jury’s conclusion that appellant was guilty of malice murder with regard to the first shot appellant fired into the car, we conclude that appellant has failed to show a reasonable probability that the result of the proceeding was any different due to the withdrawal of the request to charge on justification. See Allen v. State, 260 Ga. 147 (5a) (390 SE2d 848) (1990). Accordingly, appellant failed to carry his burden of showing ineffective assistance of counsel.

Judgment affirmed.

Clarke, C. J., Hunt and Fletcher, JJ., concur; Bell, P. J., and Sears-Collins, J., dissent.

1 The motion for reconsideration was never ruled upon by the trial court.

2 We recognize that footnote 5 in our initial Smith opinion probably played a significant role in the trial court’s determination that appellant had waived the issue of ineffective assistance. Upon further review of the record during appellant’s second appeal, we believe the fairer approach is to resolve the merits of appellant’s assertion of ineffective assistance of counsel.

3 See Smith v. State, supra, Divisions 1, 5 and 6.