dissenting.
Although I agree with the majority that the evidence was sufficient to support Pyburn’s conviction, I respectfully dissent to Division 2 (a) because I believe that the law requires that we presume Pyburn was prejudiced when his counsel told the jury that he did not believe the presumption that a defendant is innocent until proven guilty. Accordingly, he has shown that he received ineffective assistance of counsel and his conviction should be reversed. Because the evidence was sufficient, Pyburn can be retried.
During voir dire, counsel stated:
[T]he State has the burden of proof. We never have the burden of proof and when a person comes in and is charged with an indictment, quite often by grand jurors like this one for Mr. Pyburn, people come in and we say, [“]you jurors need to presume me innocent.[”] But I know from my own experience that when I read the newspaper, for example, and — about a crime and I’m reading the newspaper, and they say the suspect’s been captured, I say, [“]by God, that’s great. I’m glad.[”] And then we ask you to come in here and presume a person charged with a crime to be innocent and I’m wondering, do we really presume people to be innocent. I mean, I don’t. . . . I’m wondering how many might agree with me or feel the same way I do?5
Although the majority finds that this statement by Pyburn’s counsel constituted deficient performance, it nevertheless concludes that Pyburn cannot succeed on his ineffective assistance claim because he did not show that this deficiency prejudiced him. But, as the United States Supreme Court held in Strickland v. Washington,6 “[i]n *378certain Sixth Amendment contexts, prejudice is presumed.”7 Thus, in Edwards v. Lewis,8 the Supreme Court of Georgia noted that,
as the Supreme Court recognized in Strickland itself, [the] two-part test [for analyzing a claim of ineffective assistance of counsel] is inapposite under certain unusual circumstances. In some cases, prejudice is so likely that case-by-case inquiry into prejudice is not worth the cost. Thus, prejudice is presumed where there has been an actual or constructive denial of the assistance of counsel altogether.9
Both the United States Supreme Court and the Supreme Court of Georgia have recognized that a constructive denial of the assistance of counsel and the presumption of prejudice accompanying such a denial occur when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.”10 As the United States Supreme Court explained:
[T]he adversarial process protected by the Sixth Amendment requires that the accused have counsel acting in the role of an advocate. The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.11
To give rise to the presumption of prejudice, this breakdown in the adversarial process must be complete and pervade the judicial proceeding, rather than occurring only at specific points in the proceeding.12
Pyburn’s counsel did not require the prosecution’s case to survive the crucible of meaningful adversarial testing, as the Sixth Amendment right to counsel demands. “In all criminal cases, . . . tried under a plea of not guilty, the presumption of innocence is a fundamental doctrine of American criminal jurisprudence.”13 Py-burn, who entered a plea of not guilty, was entitled to have this *379fundamental doctrine enforced by his counsel. “[E]ven when no theory of defense is available, if the decision to stand trial has been made, counsel must hold the prosecution to its heavy burden of proof beyond reasonable doubt.”14 Pyburn’s counsel conceded at the hearing on his new trial motion that his defense to the incest charge rested on relying on the burden of proof, showing reasonable doubt, and seeking jury nullification. But instead of holding the prosecution to this burden of proving Pyburn’s guilt beyond a reasonable doubt, counsel expressed disbelief in the right of Pyburn, or any defendant, to be presumed innocent.
Decided December 1, 2009. Grayson P. Lane, for appellant.This represented a complete breakdown in the adversarial process, akin to that which some courts have held arises when counsel, without a defendant’s permission, admits the defendant’s guilt during trial.15 This breakdown permeated the trial and affected the entire proceeding, causing the trial to “lose[ ] its character as a confrontation between adversaries.”16 Notwithstanding counsel’s other references to the burden of proof at trial, the effects of this breakdown can be seen in the state’s ability to obtain at the trial three other convictions against Pyburn for which the prosecutor later admitted that there had been no supporting trial evidence.
Because counsel’s voir dire announcement of disbelief concerning the presumption of innocence prevented any meaningful adversarial testing of the charge against Pyburn, Pyburn was constructively denied counsel. Accordingly, Pyburn was not required to demonstrate actual prejudice to support his ineffective assistance claim.17
*380Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.(Emphasis supplied.)
466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).
Id. at 692 (III) (B).
283 Ga. 345 (658 SE2d 116) (2008).
Id. at 349 (2) (citations and punctuation omitted).
United States v. Cronic, 466 U. S. 648, 659 (III) (104 SC 2039, 80 LE2d 657) (1984); Turpin v. Curtis, 278 Ga. 698, 699 (1) (606 SE2d 244) (2004); State v. Heath, 277 Ga. 337, 338-339 (588 SE2d 738) (2003).
Cronic, supra at 656-657 (II) (citation, punctuation and footnotes omitted).
See Turpin, supra.
Kelly v. State, 204 Ga. 239 (1) (49 SE2d 489) (1948); see Ayala v. State, 262 Ga. 704, 706 (1) (425 SE2d 282) (1993). See generally OCGA § 16-1-5 (codifying presumption of innocence until proven guilty beyond a reasonable doubt).
Cronic, supra at 656, n. 19; see In re Winship, 397 U. S. 358, 364 (I) (90 SC 1068, 25 LE2d 368) (1970) (Due Process Clause protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the accused is charged).
See, e.g., United States v. Williamson, 53 F3d 1500, 1511 (2) (10th Cir. 1995) (counsel’s admission of client’s guilt to jury represented a “paradigmatic example of the sort of breakdown in the adversarial process that triggers a presumption of prejudice”) (citations omitted); United States v. Swanson, 943 F2d 1070, 1074 (9th Cir. 1991) (counsel’s concession at trial that there was no reasonable doubt concerning whether defendant perpetrated crime lessened government’s burden of proof, thereby tainting integrity of the trial and causing a breakdown of the adversarial system such that prejudice could be presumed in ineffectiveness of counsel analysis).
Cronic, supra at 656-657.
Edwards, supra.