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Supreme Court of Georgia.


No. S08G1952.

Decided: April 28, 2009

Gerard Bradley Kleinrock, Decatur, for Appellant. Gwendolyn Keyes Fleming, Dist. Atty., Barbara B. Conroy, Asst. Dist. Atty., for Appellee.

Following his conviction for simple battery, Greg Miller appealed to the Court of Appeals asserting, inter alia, that trial counsel rendered ineffective assistance because he failed to object to hearsay evidence that Miller was inebriated when he committed the crime.   The Court of Appeals affirmed.   Miller v. State, 292 Ga.App. 636, 665 S.E.2d 692 (2008).   In analyzing the ineffective assistance of counsel claim, the court held that even if trial counsel's failure to object to the evidence constituted deficient performance, it was not prejudicial because Miller did not show “how the omission of a passing reference that he was drunk would have somehow resulted in the jury's believing that he was innocent.”  Id. at 640(2), 665 S.E.2d 692.   The court continued, “[c]onsequently, Miller cannot show that but for counsel's error, the outcome of the case would have been different.”  Id. We granted certiorari to the Court of Appeals and posed this question:

Whether the Court of Appeals erred by applying an incorrect legal standard to determine prejudice under the second prong of the test for constitutionally ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

 In Strickland, the Court established a standard by which to measure a claim of ineffective assistance of counsel under the Sixth Amendment.  “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Strickland, supra 466 U.S. at 686, 104 S.Ct. 2052.   There are two components to the inquiry:

First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.   Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.

Id. 466 U.S. at 687, 104 S.Ct. 2052.   The Strickland Court set forth the appropriate test for determining prejudice:  “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id. 466 U.S. at 694, 104 S.Ct. 2052.

This Court first applied the Strickland standards in Smith v. Francis, 253 Ga. 782(1), 325 S.E.2d 362 (1985).   To establish the prejudice prong of Strickland, Smith requires a defendant to show “a reasonable probability sufficient to undermine confidence in the outcome that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different.”  Id. at 784, 325 S.E.2d 362.   See also Brogdon v. State, 255 Ga. 64, 68(3), 335 S.E.2d 383 (1985) (a defendant “must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's unprofessional errors”).

 Over the years, our appellate courts have on occasion deviated from this standard by eliminating the “reasonable probability” language and requiring a defendant to show that but for counsel's error, the outcome of the case would have been different.   The Strickland Court specifically noted that “a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.”  Strickland, supra 466 U.S. at 693, 104 S.Ct. 2052.  “[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”  Id. 466 U.S. at 695, 104 S.Ct. 2052.   Cases which have ignored the reasonable probability requirement of Strickland have placed a more stringent burden on the defendant-an unconditional showing that the defendant would have been acquitted had counsel not performed deficiently.

The error in Miller is traced back to Turner v. State, 245 Ga.App. 294, 295(4), 536 S.E.2d 814 (2000), in which the Court of Appeals misstated the Strickland standard by omitting the “reasonable probability” language.   Compounding the error, the Turner court determined that even if Turner's counsel rendered ineffective assistance, he failed to show that it “prejudiced his cause or resulted in a different outcome at trial.”  Id. at 298, 536 S.E.2d 814.   Our research shows that the incorrect statement of the prejudice prong of Strickland as set forth in Turner and reiterated in Miller has been perpetuated by the Court of Appeals in numerous cases.1  Our Court as well has been guilty of the omission.   See Fargason v. State, 266 Ga. 463(4), 467 S.E.2d 551 (1996) (“To prove an ineffective assistance of counsel claim, the defendant must show that trial counsel performed deficiently and that the result of the trial would have been different but for the deficiency.”).   And the incomplete statement of law in Fargason has been followed by our Court of Appeals.2  To the extent that these and any other cases eliminate or dilute the “reasonable probability” standard set forth in Strickland, they are disapproved and will not be followed.3

Accordingly, we hereby vacate the opinion of the Court of Appeals and remand the case for consideration of whether Miller was prejudiced by counsel's deficient performance applying the correct Strickland standard.

Judgment vacated and case remanded.


1.   See e.g., Jowers v. State, 272 Ga.App. 614(3), 613 S.E.2d 14 (2005);  Lemming v. State, 272 Ga.App. 122(2), 612 S.E.2d 495 (2005);  Wright v. State, 265 Ga.App. 855(1), 595 S.E.2d 664 (2004);  Wiltshire v. State, 191 Ga.App. 426(1), 382 S.E.2d 166 (1989);  McAlister v. State, 204 Ga.App. 259(2), 419 S.E.2d 64 (1992);  Champion v. State, 238 Ga.App. 48(1), 517 S.E.2d 595 (1999);  Glore v. State, 241 Ga.App. 646(3), 526 S.E.2d 630 (1999);  Minter v. State, 245 Ga.App. 327(6), 537 S.E.2d 769 (2000);  Lewis v. State, 249 Ga.App. 812(5)(b), 549 S.E.2d 732 (2001);  Prins v. State, 246 Ga.App. 585(5), 539 S.E.2d 236 (2000);  Johnson v. State, 274 Ga.App. 69(2), 616 S.E.2d 848 (2005);  In the Interest of F.C., 248 Ga.App. 675(3), 549 S.E.2d 125 (2001);  Mahone v. State, 247 Ga.App. 596(2), 544 S.E.2d 514 (2001);  Peterson v. State, 253 Ga.App. 390(5), 559 S.E.2d 126 (2002);  Cortez v. State, 253 Ga.App. 699(6), 561 S.E.2d 142 (2002).

2.   See Trimble v. State, 274 Ga.App. 536(2)(b), 618 S.E.2d 163 (2005);  Taylor v. State, 270 Ga.App. 637(1), 607 S.E.2d 163 (2004);  Shelley v. State, 239 Ga.App. 841(4), 521 S.E.2d 855 (1999);  Roberts v. State, 229 Ga.App. 783, 494 S.E.2d 689 (1997).

3.   We further note that numerous other Court of Appeals cases have misstated the prejudice prong of Strickland, but have analyzed the issue by determining that counsel was not deficient under the first prong, or have gone on to analyze the prejudice issue correctly.   These cases have not been included in our compendium.

THOMPSON, Justice.

All the Justices concur.

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