Hutton v. State

Beasley, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 through 4 and in the judgment affirming the conviction. However, I respectfully dissent with respect to Division 5.

Appellant enumerates that he was denied due process because trial counsel was ineffective. The sole and entire ground for this enumeration is that because counsel “allowed the introduction of the tremendous amounts of inadmissible evidence,” counsel was ineffective under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The argument in the brief is contained in a single sentence to this effect.

“The” evidence referred to is obviously evidence enumerated as inadmissible in the preceding portions of the brief. Appellant does not expand this latter enumeration to identify additional evidence, or to cover other evidence by omitting the word “the.” It is clear that what he quantifies as “tremendous amounts” refers to the instances complained of in earlier enumeration. If this were not so, counsel on appeal would automatically be remiss in failing to enumerate these instances as error. The only reasonable reading of the basis upon which the claim of ineffective assistance of trial counsel is made is the failure to object to the evidence now challenged.

Since those evidentiary issues have been decided adversely to defendant in the opinion, see Division 2, there is no further consideration which must be undertaken by the trial judge related to the assistance of counsel. The failure to raise objections as noted in Division 2 would not be of such magnitude in this case to elevate counsel’s representation to constitutional infirmity. Therefore, the claim of ineffective counsel fails and, even though this is originally raised here by counsel who first appeared after the filing of the notice of appeal, no useful purpose would be served by remand for hearing on the issue by the trial court. Compare Green v. State, 187 Ga. App. 373, 375 (5) (370 SE2d 348) (1988).

It does not appear that the Supreme Court was faced with a claim in this posture in Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986), Lloyd v. State, 257 Ga. 108 (355 SE2d 423) (1987), or Bell v. State, 259 Ga. 272 (381 SE2d 514) (1989). When Lloyd was appealed after remand, the Court noted that remand was a “practice,” instituted to avoid later habeas corpus on the same issue. Thus it is not a rule of law and, under the facts in this case, remand is counter to the objective of the practice, which is to resolve the issue “promptly” and *243thus reach finality at the earliest practicable moment. Considering the ground of ineffective assistance raised here, a habeas corpus petition asserting it would be frivolous.

Decided July 11, 1989. Larry L. Duttweiler, for appellant. Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Remand should be principled and necessary, not automatic, delaying, and wasteful of judicial and legal resources.

I am authorized to state that Presiding Judge Deen joins in this opinion.