Foote v. State

Banke, Presiding Judge,

dissenting in part.

1. “ ‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. 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. 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.’ Strickland v. Washington, 446 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).” Askin v. State, 178 Ga. App. 810, 811 (344 SE2d 699) (1986).

The appellant’s conviction clearly resulted not from any inadequacy on the part of his trial counsel but from the overwhelming evidence of his guilt. It was shown without dispute that the appellant produced a pistol and intentionally fired two shots at the victim, hitting him once, after the victim intervened in a domestic quarrel between the appellant and the victim’s daughter. Although the appellant maintained that he fired the shots because the victim was advancing on him with a knife, it was further established without dispute that the victim was hit in the back, which evidence was consistent with the victim’s testimony that he was attempting to walk away from the appellant when the shooting occurred. Moreover, no knife was ever located at the scene. While the appellant’s counsel may have been remiss in failing to move for a severance of the firearm possession charge from the aggravated assault charge, I do not believe there is any reasonable likelihood under these circumstances that the omission contributed to the verdict. Accord Askin v. State, supra. Consequently, I would simply affirm the conviction.

2. Assuming that a remand were appropriate, the correct disposi*903tion of the case would not be to affirm the conviction but rather to vacate the denial of the motion for new trial, which, contrary to the first paragraph of the majority opinion, is obviously the order appealed from. It strikes me as inherently contradictory simultaneously to affirm the appellant’s conviction and to remand his case for further proceedings which may ultimately result in the reversal of that conviction.

Decided November 18, 1987. Theresa M. Clyne, for appellant. Harry N. Gordon, District Attorney, Kenneth W. Mauldin, Assistant District Attorney, for appellee.