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Bryant v. State

Court of Appeals of Georgia, Fifth Division

June 8, 2018

BRYANT
v.
THE STATE.

          MCFADDEN, P. J., RAY and RICKMAN, JJ.

          McFadden, Presiding Judge.

         After a jury trial, Michael Jerome Bryant was convicted of rape. He appeals the denial of his motion for new trial, arguing that trial counsel was ineffective, but he has not met his burden of showing both deficient performance and prejudice. He also argues that the trial court erred by refusing to admit certain sexually explicit photographs the victim allegedly sent Bryant, but the trial court's ruling was within his discretion. So we affirm.

         1. Facts.

         Viewed in the light most favorable to the verdict, Newsome v. State, 324 Ga.App. 665 (751 S.E.2d 474) (2013), the evidence showed that the victim and Bryant had an on-again, off-again romantic relationship that lasted about two-and-a-half years. Months after their relationship had ended, Bryant showed up at the victim's apartment, surprising her.

         The victim was wearing a house dress, so she went upstairs to change clothes. Bryant entered her bedroom, uninvited, while she was changing. The victim asked Bryant to return downstairs, but instead he closed and locked the door. He told the victim that he wanted to have sex with her. She responded that she was in a relationship with someone else and did not want to have sex with him. Bryant became aggressive. He pushed the victim onto the bed, removed her clothing, and had sexual intercourse with her.

         2. Ineffective assistance of counsel.

         Bryant argues that his trial counsel was constitutionally ineffective in failing to inform him that he was under no obligation to testify and in failing to object to the assistant district attorney's reference to his post-arrest silence. To prevail on this claim, Bryant

must show that his trial counsel provided deficient performance and that, but for that unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). In examining an ineffectiveness claim, a court need not address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.

Jones v. State, 290 Ga. 576, 578 (3) (722 S.E.2d 853) (2012) (citation and punctuation omitted).

         (a) Failure to advise Bryant of his right not to testify.

         Bryant argues that trial counsel was ineffective for failing to inform him that he was not obligated to testify and that the choice to testify was his. Because we conclude that Bryant has not shown prejudice, we need not decide whether the record shows that trial counsel performed deficiently by failing to advise Bryant that he did not have to testify.

         At the motion for new trial hearing, trial counsel testified that the defense strategy was to show that the victim had consented, so Bryant's testimony was essential. Bryant agreed with this defense. Although Bryant testified at the motion for new trial hearing that he would not have testified had he been informed that the choice was his, he conceded that he was the only person who could tell his side of the story.

         Bryant does not argue that the outcome of the trial would have been different had he not testified. He "cannot show harm because his testimony at trial provided the [only testimonial] evidence in support of his defense that [any] sexual contact with the victim [was consensual]. As such, there is no probability, much less a reasonable one, that the outcome of [Bryant's] trial would have differed but for trial counsel's alleged error." Stevens v. State, 329 Ga.App. 91, 93 (b) (762 S.E.2d 833) (2014). See also Neal v. State, 308 Ga.App. 551, 554 (4) (b) (707 S.E.2d 503) (2011) (no ineffective assistance of counsel because, assuming trial counsel prevented defendant from ...


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