BROWN v. STATE (2008)

A jury found James M. Brown guilty of burglary.   Following the denial of his motion for new trial, Brown appeals, contending that he received ineffective assistance of counsel.   For the following reasons, we affirm.

Viewed in the light most favorable to the verdict, the evidence showed that Brown and Johnny Josey entered the victim's home after Brown kicked in a basement door.   The two men took guns and other items from the home before fleeing.   Brown and Josey led officers on a high-speed chase before abandoning their car and running into Josey's mother's home.   At trial, Brown testified that Josey led him to believe that the two were going to Josey's father's home, and that he assumed that the guns belonged to Josey's father.   He stated further that he panicked and led police on the high-speed chase when Josey told him that he had stolen the items from the home.

On appeal, Brown contends that his trial counsel was ineffective in two respects.

To establish ineffective assistance of counsel under Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] a criminal defendant must prove (1) that his trial counsel's performance was deficient, and (2) that counsel's deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency.   A court need not determine whether trial counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiency.   We will not reverse a trial court's findings regarding either the deficiency or prejudice prong of the Strickland test unless clearly erroneous.

(Citations, punctuation and footnotes omitted.)  Hayes v. State, 281 Ga.App. 749, 750-751, 637 S.E.2d 128 (2006).

 1. Brown first contends that his trial counsel was ineffective in failing to request jury voir dire to determine whether jurors had seen him while he was wearing handcuffs.   Prior to the start of trial, Brown informed the court that he had been seen by jurors while he was in handcuffs.   The court then asked the deputy who escorted Brown through the courthouse whether jurors did, in fact, see Brown in handcuffs.   The deputy stated:  “Unless it was standing in the hallway I have no idea.   I brought him up through the back door, up the steps and out this way by the usual route ․ about 8:25 [a.m.]”   The trial court responded:  “Oh, I know jurors weren't here at that time, ․ I got here, it was about five after 8:00.   And the only people here were the Juvenile Court folks who were next door.   And there was a crowd of them around.”   The deputy then acknowledged that there were “people in the hall,” but did not explain whether he knew if they were jurors.

 “Absent justifying circumstances, the defendant normally should not be seen by the jury handcuffed in the courtroom or courthouse.”  (Citation and punctuation omitted.)  Hood v. State, 273 Ga.App. 430, 434(2), 615 S.E.2d 244 (2005).   But here, Brown has failed to present any evidence that any of the jurors actually saw him in handcuffs.   See Stevenson v. State, 272 Ga.App. 335, 342(3)(d), 612 S.E.2d 521 (2005).   Trial counsel did not testify at the hearing on the motion for new trial, and no jurors were presented at the hearing to state whether they saw Brown in handcuffs.   Brown has therefore failed to meet his burden of showing that his counsel's performance was deficient or that the outcome of his trial would have been different if counsel had sought permission to voir dire the jurors on this issue.   See id.;   Walker v. State, 268 Ga.App. 669, 674(4)(c), 602 S.E.2d 351 (2004).

 2. Brown also contends that trial counsel was deficient in failing to move for a directed verdict.   Since the evidence here sufficed to sustain Brown's conviction for burglary under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), “as a matter of law, counsel's failure to move for a directed verdict did not constitute ineffective assistance.”  (Citation omitted.)  Williams v. State, 270 Ga.App. 845, 846(1)(b), 608 S.E.2d 310 (2004).

Under these circumstances, the trial court did not clearly err in finding that Brown received effective assistance of counsel.

Judgment affirmed.

SMITH, Presiding Judge.

BARNES, C.J., and MILLER, J., concur.