FIRST DIVISION
BARNES, P. J.,
GOBEIL and PIPKIN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 10, 2021
In the Court of Appeals of Georgia
A20A1727. DAVIS v. THE STATE.
PIPKIN, Judge.
Appellant Joshua Davis was convicted by a jury of two counts of vehicular
homicide, four counts of serious injury by vehicle, driving under the influence, and
reckless driving. He appeals following the denial of his motion for new trial, arguing
that the evidence was insufficient to convict him, that the trial court erred by
admitting evidence of his refusal to submit to blood or urine testing under Georgia’s
implied consent statute, that the trial court erred by failing to grant a mistrial when
the State made allegedly improper closing arguments, and that he was denied
effective assistance of counsel at trial. As set forth below, we now affirm.
Construed to support the jury’s verdict,1 the evidence shows that on May 7,
2016, Scott Blake was traveling westbound on McGinnis Ferry Road when he
observed an orange and black truck, which, as it was later determined, was being
driven by Davis, weave in and out of its lane approximately three to five times. Blake
testified that he did not want to be behind the truck because of the erratic driving, so
he passed the truck but continued to observe it in his rear view mirror.
Blake turned right onto Old Atlanta Road and observed Davis’ truck, which
was directly behind him, make the same turn. Blake saw Davis’ truck weave outside
of its lane of travel a “few” more times, until they reached a point where the road
curves “pretty severely” to the right, at which time Davis continued straight into the
oncoming lane of travel. Davis’ truck then collided “head on” with a “work” truck,
which was pulling a Bobcat trailer.”2 Several occupants of the work truck testified
that they saw Davis’ truck coming toward them in their lane and that their driver,
Aldolfo Mendoza, braked and attempted to take evasive action but that they could not
get out of the path of the oncoming vehicle because of a guard rail. Blake said he
1
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
The collision occurred in Forsyth County.
2
heard Mendoza apply his brakes and saw him steer toward the guardrail, but that it
did not appear that Davis applied his brakes or took any action to avoid the collision.
Blake stopped his vehicle and, after observing several people trying to assist
the occupants of the work truck, checked on Davis. According to Blake, he knocked
on the window to try and get Davis’ attention, but Davis did not respond, although
Blake could see that he was conscious. Blake attempted to enter the truck, but the
driver’s side door was jammed shut and the passenger’s side door was locked.
Concerned because the truck was leaking fluids and smoking, Blake broke out the
passenger’s side window and opened the door. Blake observed that Davis was
bleeding a “little bit” from his lip and appeared to be dazed and “out of it.” Blake said
the first thing that Davis did when he was out of the vehicle was to ask about the
location of his cell phone, and Blake told him it was still in the truck. Davis recovered
his cell phone, and then he asked Blake what happened. Blake told Davis what he
saw, and Davis told Blake that he had looked down at his phone and the next thing
he knew he was on the side of the road. Blake encouraged Davis to sit along the side
of the road, but Davis kept trying to go back in his vehicle and even after law
enforcement arrived, Davis had to be “repeatedly retrieved” from his vehicle. Blake
3
also testified that Davis did not complain about any injuries and that the only injury
he observed was a small trickle of blood on Davis’ lip.
Another witness – O’Neil Foster – stopped to render aid. He testified that when
he first saw Davis in his truck he appeared to be unconscious, but that after Davis was
taken out of the vehicle, he started smoking a cigarette and then he walked around his
truck. He testified that Davis appeared to be “nonchalant,” and that he did not observe
Davis go toward the work truck or attempt to render aid.
Deputy John Christopher Hiott with the Forsyth County Sheriff’s office was
the first law enforcement officer to arrive on the scene. Deputy Hiott first approached
the work truck and ascertained that everyone in the vehicle appeared to have suffered
injuries and that Mendoza was entrapped and appeared to be severely injured. Deputy
Hiott then approached Davis, who was walking around and seemed “dazed and
confused,” although when asked, he told Deputy Hiott he was fine. Davis provided
his driver’s license, but did not comply with Deputy Hiott’s repeated requests that he
wait outside of his vehicle. Deputy Hiott testified that it appeared that Davis was
trying to find something in his truck, looking under the seat, behind the seat, and in
the center console; he also observed Davis move objects around in the back of the
truck. While Davis initially appeared to be disoriented and confused, by the time
4
Davis was questioned by emergency medical services workers, he did not appear to
have any immediately detectable cognitive impairment. Davis was asked several
times if he wanted medical treatment, but he declined.
Mendoza was transported to Grady Memorial Hospital where he died from his
injuries several weeks later. The passengers of the work truck were transported to
another hospital, and two of the passengers were determined to have suffered serious
injuries.3
Due to the injuries and severity of the accident, Deputy Hiott contacted the
traffic specialist unit, and Deputy Andrew Ives of the Forsyth County Sheriff’s Office
was assigned to investigate the collision. Based on his initial walk-through of the
crash cite, Deputy Ives concluded that Davis’ vehicle had crossed over the centerline.
After completing his walk through and speaking with Deputy Hiott, Deputy
Ives approached Davis. He said that he noticed that Davis had some dried blood on
his lip, that he had scratches on his arm, an abrasion on his knee, and an abrasion on
his left shoulder and neck consistent with seat belt use. Deputy Ives testified that
3
Mendoza is the named victim in Counts 1 and 2 of the indictment charging
Davis with vehicular homicide. The two passengers who suffered significant injuries
are named as the victims in Counts 3 through 6 of the indictment charging Davis with
serious injury by vehicle.
5
based on Davis’ speech – which he said seemed “somewhat thick and a little slow”
– Davis’ “unusually” constricted pupils, and the manner in which the crash occurred,
Deputy Ives requested another deputy to conduct a DUI investigation while he
continued to investigate the crash.
Davis told Deputy Ives that he had reached down to grab his cell phone shortly
before the collision, and prior to his arrest, Davis gave law enforcement permission
to look at his phone. When Deputy Ives examined the phone, he noticed that it
appeared that call and text data from approximately 12:30 p. m. to 4:00 p. m. had
been erased from Davis’ phone. When asked about the missing information, Davis
told police that his fiancee had deleted it the day before. Deputy Ives asked Davis
how his fiancee could have deleted information the day before it occurred, and Davis
did not have an answer. The phone was taken into evidence and a more extensive
analysis was consistent with Davis having deleted information from his phone, which
was also confirmed by an examination of Davis’ cell phone records.
Deputy Ives’ investigation of the crash confirmed his initial impression that the
collision was the result of Davis leaving his lane of travel and crossing over into the
oncoming lane, at which point he struck the work truck. Deputy Ives also testified
that it appeared that Mendoza had attempted to take evasive action to avoid the
6
collision but there was no physical evidence indicating that Davis had braked or
otherwise tried to avoid the collision.
Davis was on probation at the time of the collision and had waived his Fourth
Amendment rights as a condition of his probation. The parties agreed that a
stipulation to that effect would be read to the jury, and the trial court gave a limiting
instruction before the State read the stipulation. The stipulation specifically stated
that, as part of waiving his Fourth Amendment rights, Davis had consented to testing
of his bodily fluids for drugs or alcohol. In addition to the limiting instruction, the
stipulation itself advised the jury that the fact that Davis was on probation was
introduced only for the limited purpose of explaining the Fourth Amendment waiver
and should not be considered for any other purpose.
Deputy Mike Downing, a member of the Forsyth County Sheriff’s Office DUI
Task Force, conducted the DUI portion of the investigation. Deputy Downing
testified that he noticed that Davis had a bloody lip, and observed that Davis’
demeanor was casual, appearing somewhat nonchalant. Deputy Downing also noticed
that Davis’ pupils were pinpointed, but he also noted that Davis was sitting in direct
sunlight. He described Davis’ speech as “thickened,” with a “heavy context of
consonant sounds.”
7
Deputy Downing asked Davis if he would consent to field sobriety testing.
Davis agreed, and Deputy Downing questioned him about any injuries or preexisting
conditions that would affect his performance. Davis mentioned that he had been
injured in the eye with a stick at an early age, and mentioned his knee being injured
in the wreck. Deputy Downing first conducted the horizontal gaze nystagmus
(“HGN”) evaluation; and Davis exhibited zero clues out of six on the test. Deputy
Downing testified that his performance on this test basically eliminated central
nervous system depressants, such as alcohol and inhalants, as a cause of impairment.
Deputy Downing also had Davis blow into an alco-sensor, and the results indicated
Davis was not under the influence of alcohol.
Davis also performed the walk and turn test. On this test, Davis exhibited three
out of eight clues indicating possible impairment; Deputy Downing testified that two
clues were indicative of impairment. Deputy Downing then had Davis perform the
one-leg stand. Davis exhibited three out of four clues on that test, and Deputy
Downing testified two out of four clues indicates possible impairment. Deputy
Downing also testified that Davis’ tongue was green, his eyes were red, and his pupils
remained constricted even when sitting in the shade.
8
Based on Davis performance during field testing, his physical manifestations,
and what he saw at the crash site, Deputy Downing placed Davis under arrest for
being a less safe driver due to being under the influence of cannabis or some sort of
narcotic analgesic. Deputy Downing read Davis the implied consent warning and then
asked him if he would consent to testing of his blood and urine. Davis refused to take
the State’s test and stated that his attorney had told him never to take those tests.
Davis “passed out” while being transported to jail and had to be awakened several
times.
Benjamin Rosser, a probation officer with the Georgia Department of
Community Supervision, testified that Davis was requested to give a urine sample for
drug screening on the date of the collision and on the following day, and that Davis
refused both times.
Sergeant Bobby Francis with the Forsyth county Sheriff’s Office, who had been
certified as a Drug Recognition Expert, was allowed to testify as an expert in DUI and
drug recognition at trial. Sergeant Francis testified that he observed Davis at the
detention center and he also reviewed the video recording of Davis performing the
field sobriety tests and his contact with officers at the scene. Based on his review of
the video, Sergeant Francis opined that Davis was under the influence of a drug to the
9
extent it was less safe from him to drive. Sergeant Francis also noted Davis appeared
relaxed despite the severity of the situation, as well as the fact that he appeared to be
in a semi-conscious state while being transported to the jail. Sergeant Francis also
testified that he personally observed that Davis was drowsy and that his eyes were
droopy and his pupils were constricted; according to Sergeant Francis, these
manifestations were consistent with Davis having ingested a narcotic analgesic.
Davis also presented several witnesses in his defense – including a nurse at the
jail where Davis was incarcerated, an emergency room physician, and an expert in
DUI detection – who disagreed that Davis was impaired at the time of the collision.
Davis also presented testimony from an expert in accident reconstruction, who opined
that Davis would not have had time to react before the collision; the expert
acknowledged, however, that Davis crossed the center line before the collision.
1. Davis challenges the sufficiency of the evidence, arguing that there was no
true conflict in the evidence and that he should not be held criminally responsible for
what he says was just an accident.
When reviewing the sufficiency of the evidence on appeal, “the relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
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crime beyond a reasonable doubt.” (Citation and punctuation omitted.) Dunbar v.
State, 309 Ga. 252, 253 (1) (845 SE2d 607) (2020). In making this determination, “we
put aside any questions about conflicting evidence, the credibility of witnesses, or the
weight of the evidence, leaving the resolution of such things to the discretion of the
jury.” (Citation and punctuation omitted.) Scott v. State, 309 Ga. 764, 766 (1) (848
SE2d 448) (2020).
In essence, Davis seeks to have this Court ignore our standard of review by
reweighing the evidence and resolving evidentiary conflicts in his favor, particularly
the evidence of his impairment and the evidence concerning how the collision
occurred. However, as stated above, these questions are for the jury; “[a]s long as
there is some competent evidence, even if contradicted, to support each fact necessary
to make out the State’s case, the jury’s verdict will be upheld.” (Citations and
punctuation omitted.) Id. Having reviewed the evidence set out above as well as other
evidence presented at trial, we conclude the jury was authorized to find beyond a
reasonable doubt that Davis was guilty of the crimes of which he was convicted.
Accordingly, this enumeration presents no grounds for reversal.
2. Citing Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017), and Elliott v.
State, 305 Ga. 179 (824 SE2d 265) (2019), Davis argues that the trial court erred by
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admitting evidence that he refused to submit to a State-administered test of his blood
or urine. However, as the special concurrence in Elliott points out, the holdings of
Olevik and Elliott are limited to chemical tests of a driver’s breath; they do not apply
to tests of a driver’s blood. Elliott, 305 Ga. at 224 (Boggs, J., concurring fully and
specially). Subsequently, this Court has addressed whether Olevik and Elliott
prohibited admission of a suspects’s refusal to consent to blood testing, and held that
it did not. See State v. Johnson, 354 Ga. App. 447, 454 (1) (b) (841 SE2d 91) (2020);
see also State v, Voyles, 355 Ga. App. 903, 904-905 (846 SE2d 170) (2020). And
more recently, this Court reached the same conclusion with regards to a State-
administered urine test. See State v. Awad, 357 Ga. App. 255, 256-257 (1) (850 SE2d
454) (2020).4 The trial court did not err by admitting evidence concerning Davis’
refusal to submit to a State-administered blood or urine test.
3. Davis argues that the trial court should have granted a mistrial after the State
made numerous improper arguments during closing. As explained below, none of
Davis’ claims entitle him to a new trial.
4
We noted in Awad that the decision of whether to admit evidence of the
refusal to submit to the state’s test might “depend[] on the details of the test.” 357 Ga.
App. at 258 (1). However, as was the situation in Awad, we have no evidence
concerning that issue before us, and, accordingly, this is not an appropriate case to
parse that issue.
12
(a) Davis first argues that the State violated the trial court’s pre-trial order
prohibiting the State from mentioning his probation except in the context of the
Fourth Amendment waiver pursuant to the stipulation read to the jury. Specifically,
Davis says that the prosecuting attorney violated that order by stating to the jury
“Keep in mind, ladies and gentlemen, he is facing more ramification with probation
by the refusal. He so badly doesn’t want the State to know what’s in his system, that
he’s willing to face w[hat] the consequences are on probation.” Davis objected,
arguing that the argument referenced facts not in evidence and was improper given
the court’s limiting instruction prior to the introduction of the Fourth Amendment
waiver stipulation. Following Davis’ objection, the trial court stated, “That evidence
was admitted for a limited purpose. The jury will be given the limiting instruction on
that. . . . The jury needs to listen closely to see where it is permissible to draw
inferences from that refusal and where it’s not permissible to draw inferences from
the refusal.” The trial court then cautioned the prosecuting attorney to observe those
rules, and the prosecuting attorney did not continue that line of argument.
Davis argues that the “jury is not to concern themselves with punishment,” and
that the State’s argument told the jury that Davis was already facing punishment by
stating there was “more ramification” because of his probation. However, we cannot
13
see how Davis was harmed by the jury being told that he might be punished because
of violating his probation – if anything, the fact that Davis might be facing a double
punishment would more logically enure to his benefit than his detriment because the
jury might believe that he was going to be punished regardless of whether he was
found guilty at trial. Pursuant to the stipulation and the evidence introduced at trial,
the jury knew that Davis was on probation and that he had violated his probation by
refusing to consent to the State’s tests, and we see nothing in the trial court’s rulings
or the limiting instructions the court gave to the jury that would prevent the State
from making arguments concerning inferences drawn from that refusal. The
prosecuting attorney did not ask the jury to consider the fact that Davis was already
on probation in deciding his guilt or innocence of the current charges or to otherwise
hold that against him outside the context of his Fourth Amendment waiver. Counsel
is afforded wide latitude in arguing reasonable inferences from the evidence
presented to the jury, and Davis has not shown that the State violated any order of the
trial court or otherwise interjected impermissible matters into the trial by arguing
those inferences here. See Ford v. Tate, 307 Ga. 383, 431 (III) (B) (835 SE2d 198)
(2019) (“Counsel certainly are permitted to argue reasonable inferences from the
14
evidence presented at trial.”) (citation and punctuation omitted). Accordingly, this
enumeration presents no reason to grant Davis a new trial.
(b) Davis also argues that the trial court should have granted a mistrial when
the State made what he characterizes as burden-shifting arguments by pointing out
that Davis failed to introduce proof to support his allegation of a past knee injury that
he said impaired his physical ability to perform the field sobriety tests and that he
tried to prove a head injury through the testimony of an emergency room doctor
instead of a doctor with a specific expertise in head injuries. However, as Davis
acknowledges , and the transcript shows, in both instances, Davis failed to object to
the State’s argument. Accordingly, he has waived consideration of his contention that
the trial court erred by failing to grant a mistrial in response to these arguments. See
e.g., Scott v. State, 290 Ga. 883, 885 (2) (725 SE2d 305) (2012) (“In the appeal of a
non-capital case, the defendant’s failure to object to the State’s closing argument
waives his right to rely on the alleged impropriety of that argument as a basis for
reversal.”) (citation and punctuation omitted); Shepherd v. State, 347 Ga. App. 306
(819 SE2d 300) (2018) (failure to object waived appellate review of allegedly
improper closing arguments).
15
Further, such alleged errors are not subject to review for plain error on appeal.
Gates v. State, 298 Ga. 324, 328-329 (4) (781 SE2d 772) (2016); Shepherd, 347 Ga.
App. at 307; see also Brooks v. State, 309 Ga. 630, 638 (3) (847 SE2d 555) (2020).
(c) Davis argues that the trial court should have granted a mistrial when the
State made an improper argument concerning Davis’ constricted pupil size. Again,
however, Davis has waived consideration of this issue by failing to interpose an
objection to the allegedly improper argument at the time it was made. See Division
3 (b).
4. Davis argues he is entitled to a new trial because his trial counsel was
ineffective. To prevail on this claim, Davis must prove both that his counsel’s
performance was professionally deficient and that he was prejudiced by the deficient
performance. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80
LE2d 674) (1984).
To prove deficient performance, Davis must show that his lawyer
performed at trial in an objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms.
Importantly, our inquiry is focused on the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind. Counsel’s
reasonableness is evaluated in conjunction with the attendant
circumstances of the challenged conduct and judged from counsel’s
16
perspective at the time with every effort . . . made to eliminate the
distorting effects of hindsight. Thus, deficiency cannot be demonstrated
by merely arguing that there is another, or even a better, way for counsel
to have performed.
(Citations and punctuation omitted.) Davis v. State, 306 Ga. 140, 143-144 (3) (829
SE2d 321) (2019).
It is also incumbent upon Davis to prove prejudice. Thus, in addition to
showing deficient performance,
Davis must demonstrate a reasonable probability that, in the absence of
counsel’s deficient performance, the result of the trial would have been
different. As we have said before, satisfaction of this test is a difficult
endeavor. Simply because a defendant has shown that his counsel
performed deficiently does not lead to an automatic conclusion that he
was prejudiced by counsel’s deficient performance. An appellant bears
the burden of both prongs of the Strickland test.
(Citations and punctuation omitted.) Id. at 144. It follows that if an appellant fails to
satisfy one prong of the Strickland test, we do not have to examine the other prong.
Id. at 143.
17
(a) Davis argues his trial counsel rendered ineffective assistance by failing to
object during closing argument when the State improperly shifted the burden of proof
and made conclusory statements about his constricted pupils. .
(i) First, we do not agree that the State’s comments about Davis’ failure to
introduce evidence to substantiate his allegation of a knee injury that impaired his
ability to walk and his failure to bring in an expert on head injuries improperly shifted
the burden to Davis of proving his innocence. As our Supreme Court recently held,
“the prosecutor may properly draw inferences in his argument from the nonproduction
of witnesses.” (Citation and punctuation omitted.) Long v. State, 309 Ga. 721, 728 (2)
(a) (848 SE2d 91) (2020). See also Overton v. State, 295 Ga. App. 223, 242 (13) (671
SE2d 507) (2008) (“[I]t is not error nor is it improper for a prosecutor to comment
upon the defense’s failure to rebut the proof presented by the State.”). Nothing the
State argued suggested that Davis, and not the State, had the burden to prove the
elements of the crimes that Davis was charged with committing; rather, the State
merely drew inferences from the evidence Davis presented in support of his defense.
Accordingly, “because the prosecutor’s comments during closing were within the
bounds of permissible argument, trial counsel’s failure to make a meritless objection
18
to the State’s closing argument is not evidence of ineffective assistance.” (Citation
and punctuation omitted.) Long, 309 Ga. at 728 (2) (a).
(ii) Davis also asserts his trial counsel was deficient because he failed to object
when the State argued about his allegedly constricted pupils in violation of the trial
court’s order. However, as the trial court found in the order denying Davis’ motion
for new trial, the pre-trial hearing transcript shows that the court “ultimately ruled that
the introduction of any evidence regarding the correlation between pupil size and
drug use would require expert testimony,” and the transcript shows that the State did,
in fact, put forth such expert evidence through the testimony of Sergeant Francis.
Accordingly, the State’s argument about Davis’ constricted pupil size did not violate
the trial court’s pre-trial order, and Davis has not shown that his counsel was
ineffective for failing to make a meritless objection.
(b) Davis also argues that his trial counsel was ineffective when he failed to
object, move for a mistrial, or request a limiting instruction after the State improperly
made a statement about causation, “the ultimate issue in the case.” The transcript
reflects that, while Davis’ accident reconstruction expert was testifying about reaction
time and braking, the prosecutor posed the following objection:
19
STATE: I’m objecting to any questions being asked about whether or
not the victim appropriately braked at all. It is quite obvious from the
evidence, even for [the defense witness] that the accident was caused by
this defendant crossing the double-yellow line.
The trial court then responded:
TRIAL COURT: Wait, Wait, wait. The Court is going to overrule that
objection. These are all issues for the jury to decide, and the Court is not
going to rule as to causation. The Court expresses no opinion as to
causation. None of my rulings express an opinion as to causation. The
Court cannot make a ruling premised upon a finding of causation, that’s
outside the Court’s province and that’s the province of the jury.
Davis now argues the trial court’s statement was not enough, and that trial
counsel was ineffective because he did not request a more specific limiting instruction
or move for a mistrial due to the severity of the issue in order to prevent a manifest
injustice. Even if we were to presume that trial counsel should have objected – which
is a tenuous position – Davis has failed to demonstrate prejudice. The prosecutor’s
comment came during the course of an objection, and was not in the form of
testimony or argument directed to the jury. The jury previously had been given
preliminary instructions about the nature of objections by the attorneys and what did
and did not constitute evidence, the trial court explained at the time of the objection
20
that it was the jury’s duty to determine causation, and the jurors were instructed again
before they deliberated concerning what constituted evidence in the case. Thus, Davis
has not suffered prejudice due to this failure.
(c) Davis contends that his trial counsel should have objected or moved for a
mistrial when a State’s witness testified in violation of the trial court’s ruling not to
mention Davis’ probation outside of the Fourth Amendment waiver. As to this issue,
the transcript shows that in explaining his current job position, Ben Rosser, one of the
probation officers who requested a urine sample for testing, testified that the
department he worked for was more commonly known as the felony probation
department and that his current caseload involved sex offenders. However, the
witness went on to explain that Davis was assigned to another probation office, and
during re-direct he explained that he was tasked with conducting the urine screen
because Davis’ probation officer was female and it would not have been appropriate
for her to conduct the test since the officer had to observe procurement of the sample.
Further, during cross-examination, Rosser clarified that although his current duties
involved overseeing sex offenders, it should not be implied that that Davis was on
probation for that type of offense and testimony was again elicited that he was not in
fact Davis’ probation officer. In light of these clarifications, there is no merit to
21
Davis’ contention that the witness’ testimony was in violation of the trial court’s pre-
trial ruling concerning his probationary status. Further, when viewing the witness’
testimony in context and in its entirety, Davis cannot establish that he was prejudiced
by counsel’s failure to object. Davis has thus failed to prove that he is entitled to a
new trial due to ineffective assistance of counsel on this basis.
(d) Davis claims ineffective assistance in connection with a statement Davis
made to the trial court during sentencing. Although Davis argues on appeal that his
trial attorney did not adequately advise him about the implications of making such a
statement, the transcript from the hearing on Davis’ motion for new trial shows
differently, and the trial court rejected his contention. As the trial court found in the
order denying the motion for new trial, trial counsel testified that he spoke with Davis
several times before he was sentenced. During those conversations, trial counsel
cautioned Davis that it would not be the appropriate time to express dissatisfaction
with the verdict, and that his plan to “shoot from the hip” was not a good idea. The
fact that Davis ignored his counsel’s advice does not render counsel’s performance
deficient.
(e) Lastly, to the extent that Davis has shown more than one instance of
deficient performance, we have properly considered the cumulative effect of these
22
deficiencies and conclude that “the cumulative prejudice from any assumed
deficiencies . . . is insufficient to show a reasonable probability that the results of the
proceedings would have been different in the absence of the alleged deficiencies.”
Davis v. State, 306 Ga. at 150 (3) (j). Davis is not entitled to a new trial based on his
allegations of ineffective assistance of counsel.
Judgment affirmed. Barnes, P. J., concurs. Gobeil, J., concurs fully in
Divisions 1, 2, 3(b), 3(c) and 4 and concurs in the judgment only in Division 3(a).
.
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