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Davis v. State

Court of Appeals of Georgia

September 5, 2014

DAVIS
v.
THE STATE

Effective assistance of counsel. Decatur Superior Court. Before Judge Chason.

Judgment affirmed.

Michael W. Tarleton, James C. Bonner, Jr., for appellant.

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellee.

Andrews, P. J., and Ray, J., concur.

OPINION

Page 372

McFadden, Judge.

Norman Davis appeals his convictions of child molestation, aggravated child molestation, and kidnapping. Davis argues that trial counsel was ineffective for stipulating to the admissibility of his custodial statement and for asserting a legally invalid mistake-of-fact [329 Ga.App. 18] defense to the child molestation charges. In light of the evidence that Davis initiated the communication with the investigator and gave his custodial statement after knowingly waiving his right to counsel, we find that Davis has failed to demonstrate that he received ineffective assistance of trial counsel. We therefore affirm his convictions.

Davis was represented by appointed counsel at his February 2000 trial and was convicted of child molestation, aggravated child molestation, and kidnapping. Davis v. Frazier, 285 Ga. 16, 17 (673 S.E.2d 215) (2009). Davis was granted the right to file an out-of-time notice of appeal, and post-conviction counsel timely filed a notice of appeal, asserting two claims of ineffective assistance of trial counsel.

To prevail on his claims of ineffective assistance of counsel, Davis was required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 S.E.2d 362) (1985). If Davis " fails to meet his burden of proving either prong, then we do not need to examine the other prong." Works v. State, 301 Ga.App. 108, 114 (7) (686 S.E.2d 863) (2009) (citation omitted). " We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." Robinson v. State, 277 Ga. 75, 76 (586 S.E.2d 313) (2003) (citation and punctuation omitted). Our review of counsel's performance is highly deferential. Humphrey v. Walker, 294 Ga. 855, 859-860 (II) (A) (757 S.E.2d 68) (2014). The law recognizes a strong presumption that counsel performed reasonably,

and [Davis] bore the burden of overcoming this presumption. To carry his burden, [Davis] had to show that no reasonable lawyer would have done what his lawyers

Page 373

did, or would have failed to do what his lawyers did not, or put another way, that his lawyers made errors so serious that they were not functioning as the counsel guaranteed the defendant by the Sixth Amendment. And to carry that burden, [Davis] had to show these things by competent evidence, for ...

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