DECIDED: MARCH 15, 2010. Certiorari to the Court of Appeals of Georgia — 296 Ga. App. 163. Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellant.
She left with her clothes in her hands, got dressed, and ran to a nearby building, where she asked the people inside to call the police because she had been raped. We take these facts from the Georgia Court of Appeals's decision. Nejad v. State (Nejad I), 296 Ga.App. 163, 674 S.E.2d 60 (2009).On June 5, 2004, Ms. Hoy—the other victim—was working as a prostitute.
When Nejad was arrested, a plastic pellet gun, which looked like a Glock handgun, was found in his vehicle.Nejad v. State, 296 Ga. App. 163, 164 (2009), rev'd, 286 Ga. 695 (2010), and vacated, 305 Ga. App. 883 (2010). Initially, the Court of Appeals addressed the claim of ineffective assistance of counsel, and described the testimony at the hearing on the motion for new trial as follows:
See Georgia Rules of Professional Conduct, Preamble (11) ( “Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.”).In a number of cases that have come before this Court, none of the foregoing obligations appeared to have been taken as seriously as they should have been. See, e.g., Nejad v. State, 296 Ga.App. 163, 170, 674 S.E.2d 60 (2009) (Smith, J., concurring specially) (commenting that “[t]he developing trend of emphatically and even eagerly testifying to one's own incompetence or misconduct is dangerous to the administration of justice, particularly if it is allowed to continue without any consequences for the testifying trial counsel”); see also Carrie v. State, 298 Ga.App. 55, 62 n. 23, 679 S.E.2d 30 (2009) (recognizing that “[w]hether counsel's assessment of his performance was an honest admission of incompetency or a disingenuous attempt to secure a new trial for his former client is not for our determination,” but noting that it is a perversion of justice to allow such instances to continue without any consequences to trial counsel).In 2009, we noted that instances of trial counsel claiming his or her own ineffectiveness without consequence was a “worrisome trend” for this Court.
286 Ga. 695 ( 690 SE2d 846) (2010). 296 Ga. App. 163 ( 674 SE2d 60) (2009) ( Nejad I). The facts of this case are set forth fully in Nejad I. As stated therein, Ali Nejad was convicted of rape, aggravated sodomy, aggravated assault with a deadly weapon (two counts), and aggravated battery (two counts).
Specifically, Smith complains that the trial court instructed the jury that "[a] firearm when used as such is a deadly weapon as a matter of law," notwithstanding that the evidence failed to show that Smith used the handgun as a firearm. See Nejad v. State, 296 Ga. App. 163, 169 (2) ( 674 SE2d 60) (2009) (where a weapon is not per se a deadly weapon, whether it became one as used is an issue for the jury); Gober v. State, 247 Ga. 652, 656 (4) ( 278 SE2d 386) (1981) (recognizing that whether a handgun is a deadly weapon when used "as a club" presents a jury question). The record shows, however, that when the trial court asked if there were any exceptions to the jury charge, defense counsel responded that her only exception was to the charge that referred to possession of a firearm by a convicted felon, and she did not reserve the right to assert additional objections at a later time.
However, as we have previously noted, this trend is dangerous to the administration of justice if it is allowed to continue without any consequences for trial counsel. See Nejad v. State, 296 Ga. App. 163, 169 ( 674 SE2d 60) (2009) (Smith, P. J., concurring specially).Keith v. State, 279 Ga. App. 819, 827 (6) (f) ( 632 SE2d 669) (2006).
In light of this trial counsel’s extensive experience, moreover, "[w]hether counsel’s assessment of his performance was an honest admission of incompetency or a disingenuous attempt to secure a new trial for his former client is not for our determination." Carrie v. State , 298 Ga. App. 55, 62 (5), n.23, 679 S.E.2d 30 (2009), citing Nejad v. State , 296 Ga. App. 163, 169-170, 674 S.E.2d 60 (2009) (Smith, P.J., concurring fully and specially); see also State v. Nejad , 286 Ga. 695, 690 S.E.2d 846 (2010) (reversing Court of Appeals’s determination that trial counsel had been ineffective in failing to adequately explain a defendant’s right to testify). Because counsel’s decision not to attack the victim’s character to this extent or in this way was an objectively reasonable one, and because the trial court’s judgment that counsel was not ineffective in this regard was supported by some evidence, not clearly erroneous, and correct as a matter of law, we affirm the denial of the motion for new trial on this ground.
April 1, 2009. Appeal from the 296 Ga. App. 163. Reversed, 286 Ga. 695.
April 1, 2009. Appeal from the 296 Ga. App. 163, 286 Ga. ___. Applications to the Supreme Court for Certiorari, Supreme Court Decisions where the Writ Was Granted, Reversed.