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Court of Appeals of Georgia.


No. A98A2050.

Decided: January 08, 1999

Joseph R. Neal, Jr., for appellant. Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

A Richmond County jury found Wade Gomillion guilty of armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and giving a false name.   Gomillion appeals, contending that he received ineffective assistance of counsel at trial.

In a light most favorable to the verdict,1 the record shows that two males approached a young couple who had been to dinner at the Riverwalk in Augusta.   As the males passed the couple, one male punched the young man in the face, dropping him to the ground.   The other male held a gun on the young woman and demanded her black backpack.   She complied.   After taking the backpack, the two males ran from the area.

The couple immediately informed a policeman who was nearby and provided a description of the perpetrators.   The policeman was a motorcycle patrol officer.   He mounted his motorcycle and set off in the direction in which the perpetrators fled.   Almost immediately, the officer spotted two males who fit the description given by the victims.   Both males were running and one was carrying a black backpack.   The two males saw the motorcycle officer and hid in some bushes behind a building.   The officer called for backup while watching the bushes.   When multiple patrol units arrived with sirens and lights activated, the two males in the bushes broke and ran.   They were apprehended in the middle of Broad Street and transported in separate patrol cars to Riverwalk for identification.

The female victim positively identified appellant Gomillion as the man who held the gun on her, demanded her backpack, and ran.   She identified the backpack which was recovered near the bushes where Gomillion had been hiding.   The gun was also recovered.   The male victim positively identified Gomillion's co-defendant, Kevin Parkman, as the one who punched him in the face, picked up the backpack, and ran.   At arrest, Gomillion told police that his name was “Antonio Rodriquez Adams.”   Held:

1. Gomillion's appellate counsel was appointed after the trial court had denied Gomillion's motion for new trial.   Counsel immediately filed a notice of appeal with this Court in order to protect Gomillion's right of appeal as to potential errors related to the denial of the motion for new trial.   Thereafter, counsel filed a “motion to stay appeal,” so that he could raise a claim of ineffective assistance of trial counsel in the court below and develop the record thereon.   See Herndon v. State, 229 Ga.App. 457, 494 S.E.2d 262 (1997).   We denied such motion because the “stay” of appeal process outlined in Herndon v. State was overruled in Howard v. State, 233 Ga.App. 724, 729, 505 S.E.2d 768 (1998).2

 It bears reiteration that, on direct appeal of a motion for new trial, this Court will determine the merits of the asserted enumerations of error related thereto.   If an appellant raises a claim of ineffective assistance of trial counsel, and we can decide such claim upon the record as a matter of law, we will resolve it.  Brundage v. State, 208 Ga.App. 58, 60, 430 S.E.2d 173 (1993) (Beasley, P. J., concurring specially);  Anderson v. State, 218 Ga.App. 872, 463 S.E.2d 502 (1995);  Wright v. State, 211 Ga.App. 474, 477-478, 440 S.E.2d 27 (1993).   If a claim of ineffective assistance of trial counsel cannot be decided as a matter of law upon the existing record, and the record supports appellate counsel's contention that direct appeal was the first opportunity to raise such claim, we will enter judgment on the appeal as to the claims raised pursuant to the denial of the motion for new trial, and remand to the trial court solely for a determination of the ineffectiveness claim.  Davitt v. State, 232 Ga.App. 427, 429, 502 S.E.2d 300 (1998).   Thereafter, “[i]f the trial court finds that [appellant] did not receive effective assistance of counsel, a new trial is required.   If the trial court finds that [appellant] did have effective assistance, [appellant] shall have 30 days in which to initiate an appeal of the trial court's ruling on the issue.”  Davitt v. State, supra at 429, 502 S.E.2d 300.

2. In this case the record shows that the instant appeal is the “earliest practicable moment” that appellate counsel could raise an ineffective claim against trial counsel.  Porter v. State, 258 Ga. 94, 365 S.E.2d 438 (1988).   Accordingly, if Gomillion's claims cannot be resolved as a matter of law upon the existing record, the instant case must be remanded.

3. Gomillion contends that his trial attorney was ineffective because trial counsel allegedly (a) failed to move for severance from Gomillion's co-defendant;  (b) failed to object to the introduction of prejudicial character evidence;  (c) failed to file Requests to Charge or to reserve objection to the trial court's charge to the jury;  and (d) failed to have Gomillion properly arraigned and to plead Gomillion “not guilty.”

“[T]he proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [ (1984) ].   First, appellant must show that counsel's performance was deficient;  second, he is required to show that he was prejudiced by counsel's deficient performance.   There is a strong presumption that trial counsel's performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.   As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel's errors, the jury would have had a reasonable doubt regarding appellant's guilt, that is, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  (Citations and punctuation omitted.)  White v. State, 216 Ga.App. 583(1), 455 S.E.2d 117 (1995).

Under the applicable legal standard as noted above, we have reviewed Gomillion's claims of ineffective assistance of trial counsel and the trial record upon which they are based.   We will not remand this case.   On the record in this case, Gomillion's claims are meritless as a matter of law.

 (a) “The decision whether to file a motion to sever is a matter of trial tactics and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective.   Further, [Gomillion] must do more than raise the possibility that a separate trial would have given him a better chance of acquittal.  [Gomillion] must make a clear showing of prejudice and a consequent denial of due process.”  (Citations omitted.)  Pierre v. State, 223 Ga.App. 43, 44, 476 S.E.2d 829 (1996).

Before this Court, Gomillion has put forward no legal basis for the granting of a severance.   Gomillion “has not shown any evidence that the joint trial created confusion concerning the evidence and law applicable to each defendant and that the defendants' defenses were somehow antagonistic.   [Cit.]” Id. at 44, 476 S.E.2d 829.   Far from antagonistic defenses, co-defendant Parkman took the stand and testified that Gomillion did not have a gun;  that there was no intent to rob;  that he did not know how the victim's backpack ended up in Gomillion's possession;  and that neither Gomillion nor he ran from the police.

Moreover, Gomillion was apprehended almost immediately after the armed robbery.   The victim's backpack was located in the same area Gomillion was found.   The gun was also found in the same location.   Within minutes of the crime, the victim positively identified Gomillion as the man who robbed her at gunpoint.   Accordingly, “in light of the overwhelming evidence of guilt as to the crimes for which he was convicted, it is highly unlikely that the evidence involving only [Parkman], affected the verdict.”  Id. at 44, 476 S.E.2d 829.

Finally, while Parkman did give a statement to the police which was introduced at trial, Gomillion has failed to show that the statement was inadmissible.   Sebastian v. State, 195 Ga.App. 346, 347, 393 S.E.2d 492 (1990).   Parkman's statement was initially redacted to remove reference to Gomillion and thus provides no legal basis for severance.   See Harris v. State, 218 Ga.App. 472, 474(3), 462 S.E.2d 425 (1995).   Further, there was no objection to Parkman's statement as redacted, and Parkman later took the stand to testify on his own behalf, making the issue of redaction moot.

Under these facts, Gomillion has failed as a matter of law to show the requisite prejudice to his defense to support his claim of ineffective assistance of counsel and has failed to show any reasonable probability that the jury would have reached a different result had the counts been severed.

 (b) Trial counsel was not ineffective for failing to object to testimony regarding Gomillion's ownership of a gun and his custom of carrying such weapon.   Contrary to Gomillion's conclusory contentions, gun ownership and carrying such weapon does not, by itself, impute bad character.   OCGA §§ 16-11-129;  16-11-126(c).   Gomillion does not explain how the testimony about which he complains improperly placed his character in evidence, and it would appear that Gomillion's real objection to this testimony is its relevance to his ability to perpetrate an armed robbery because of the availability of a weapon.   To that end, such testimony was relevant and objection would not be appropriate.   See, e.g., Richie v. State, 258 Ga. 361, 362(3), 369 S.E.2d 740 (1988);  Mantooth v. State, 197 Ga.App. 797, 800(5), 399 S.E.2d 505 (1990);  Perez v. State, 182 Ga.App. 628, 629(3), 356 S.E.2d 706 (1987).

 Gomillion also claims that his attorney was ineffective for failing to object to testimony by the arresting officer that jail personnel notified him of Gomillion's real identity:  “The next day I was notified by the jail that, apparently, they were familiar with him and they were able to locate a picture of him.”   Contrary to Gomillion's contentions, this testimony provided no basis for objection.   Gomillion gave the arresting officer a false name, and he was indicted for giving such false information.   Accordingly, Gomillion, himself, made relevant the facts by which his real identity was discovered.  “Evidence which incidentally puts character in issue may be admitted if otherwise relevant.  [Cit.]” Waldrip v. State, 267 Ga. 739, 748(11), 482 S.E.2d 299 (1997).

 (c) Gomillion alleges that his attorney's performance was deficient because he did not submit any requests to charge.   However, upon review of the court's charge, it appears that the trial court covered all of the law applicable to the case.   The law regarding confessions as reflected in OCGA § 24-3-52 was not applicable since Gomillion's co-defendant testified at trial.   See Akins v. State, 173 Ga.App. 797, 328 S.E.2d 413 (1985).  “[T]he failure to file written requests to charge does not, without more, make trial counsel ineffective.”  Williams v. State, 211 Ga.App. 393, 396, 439 S.E.2d 11 (1993);  Jones v. State, 263 Ga. 835, 837-838, 439 S.E.2d 645 (1994).

 Gomillion also contends that his trial counsel was ineffective for failing to reserve objections to the jury charge.  “Failure to object to a court's charge, however, is not ineffective assistance where the appellant does not show how this prejudiced his case.”  Jones v. State, supra at 838, 439 S.E.2d 645.

 (d) Gomillion claims his attorney was ineffective for failing to ensure he was formally arraigned.   However, in this case, as in most cases, arraignment was waived.   See Bunn v. State, 150 Ga.App. 294, 257 S.E.2d 364 (1979);  Moore v. State, 153 Ga.App. 511, 265 S.E.2d 821 (1980).   Waiver of arraignment provides no basis for a claim of ineffective assistance of counsel when Gomillion does not claim he was unaware of the charges against him, which is the purpose of arraignment.  McArthur v. State, 169 Ga.App. 263(1), 312 S.E.2d 358 (1983).

 Also, when issue was joined and prior to sending the indictment to the jury, the prosecutor inadvertently circled “guilty” on the face of the indictment.3  Gomillion contends that his attorney was ineffective for failing to ensure that his plea of “not guilty” was clear on the face of the indictment.   However, the jury heard the evidence in this case, as well as the charge of the court.   In that regard, the trial court charged the jury, “To this indictment the defendants have entered their pleas of not guilty, and this makes up the issue which you are called upon to well and truly try.   The indictment is not evidence, it is the charge of the State of Georgia made by and through the Grand Jury of this County and you should not consider the indictment as evidence in the trial of this case.”   It is well settled that “qualified jurors under oath are presumed to follow the instructions of the trial court.”  Smith v. State, 267 Ga. 372, 374(3), 477 S.E.2d 827 (1996).   Gomillion has failed to demonstrate that, but for the prosecutor's error, there is a reasonable probability that he would have been found “not guilty.”

Accordingly, Gomillion's claims of ineffective assistance of trial counsel fail as a matter of law.

Judgment affirmed.


1.   Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2.   Jurisdiction cannot reside in two places at one time so as to permit a “stay” of a case in this Court and a remand of the same case to the trial court in order to decide an ineffective assistance of counsel claim.

3.   This was the prosecutor's error, not the defense attorney's.   OCGA § 17-7-96.


McMURRAY, P.J., and BLACKBURN, J., concur.

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