As we concluded in Division 1, the basis for this objection is not clearly supported under current law. And an attorney is not deficient for failing to "make an objection that would call for an extension of or a change in the law." Williams v. State, 318 Ga. 83, 95 (5) (d) (896 S.E.2d 109) (2024) (citing Lowe v. State, 314 Ga. 788, 796 (2) (b) (879 S.E.2d 492) (2022); Rhoden v. State, 303 Ga. 482, 486 (2) (a) (813 S.E.2d 375) (2018)).
(citation and punctuation omitted)); Rhoden v. State, 303 Ga. 482, 486 (2) (a) (813 S.E.2d 375) (2018) ("Counsel is not obligated to argue beyond existing precedent." (citation and punctuation omitted))
(citation and punctuation omitted)); Rhoden v. State , 303 Ga. 482, 486 (2) (a), 813 S.E.2d 375 (2018) ("Counsel is not obligated to argue beyond existing precedent." (citation and punctuation omitted)).
Furthermore, "[e]ven though [Appellant's] trial counsel died prior to the hearing on the motion for new trial, [Appellant] still must overcome this presumption and is not relieved of his heavy burden of proving ineffective assistance." Rhoden v. State , 303 Ga. 482, 484 (2), 813 S.E.2d 375 (2018). "In reviewing the trial court's decision, we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts."
(citation and punctuation omitted)); Rhoden v. State, 303 Ga. 482, 486 (2) (a), 813 S.E.2d 375 (2018) ("Counsel is not obligated to argue beyond existing precedent." (citation and punctuation omitted)).
Griffin v. State , 309 Ga. 516, 520 (2), 847 S.E.2d 168 (2020) (citation and punctuation omitted). See also Rhoden v. State , 303 Ga. 482, 486 (2) (a), 813 S.E.2d 375 (2018) ("[T]here is no requirement for an attorney to prognosticate future law in order to render effective representation. Counsel is not obligated to argue beyond existing precedent."
See Esprit v. State , 305 Ga. 429, 438, 826 S.E.2d 7 (2019) ("A criminal defense attorney does not perform deficiently when he fails to advance a legal theory that would require an extension of existing precedents and the adoption of an unproven theory of law." (citation and punctuation omitted)); Rhoden v. State , 303 Ga. 482, 486, 813 S.E.2d 375 (2018) ("[T]here is no requirement for an attorney to prognosticate future law in order to render effective representation.... Counsel is not obligated to argue beyond existing precedent." (citations and punctuation omitted)).
Because existing precedent does not resolve whether "abdomen" is included in the definition of bodily "member," Moss cannot show that trial counsel's failure to file a demurrer claiming that the abdomen is not a bodily "member" amounted to deficient performance. See Griffin v. State , 309 Ga. 516, 520, 847 S.E.2d 168 (2020) (Where "we have not yet squarely decided" an issue, "trial counsel's failure to raise a novel legal argument does not constitute ineffective assistance of counsel.") (citation and punctuation omitted); Rhoden v. State , 303 Ga. 482, 486, 813 S.E.2d 375 (2018) ("[T]here is no requirement for an attorney to prognosticate future law in order to render effective representation. Counsel is not obligated to argue beyond existing precedent.") (citations and punctuation omitted).
Williams v. State , 304 Ga. 455, 458 (2), 818 S.E.2d 653 (2018). See also Rhoden v. State , 303 Ga. 482, 486 (2) (a), 813 S.E.2d 375 (2018) (trial counsel is not required to argue beyond existing precedent). Moreover, even if Volkova could show that trial counsel performed deficiently by failing to object in this circumstance, she has failed to show that she suffered any resulting prejudice. Ultimately, the jury was provided with no information about Robinson or his conclusions.
Esprit v. State , 305 Ga. 429, 438, 826 S.E.2d 7 (2019) ("A criminal defense attorney does not perform deficiently when he fails to advance a legal theory that would require ‘an extension of existing precedents and the adoption of an unproven theory of law.’ ") (quoting Williams v. State , 304 Ga. 455, 458, 818 S.E.2d 653 (2018) ); Rhoden v. State , 303 Ga. 482, 486, 813 S.E.2d 375 (2018) ("[T]here is no requirement for an attorney to prognosticate future law in order to render effective representation. ... Counsel is not obligated to argue beyond existing precedent.") (citations and punctuation omitted). It appears that the suggested pattern jury instructions had included the conflicts in evidence charge until a January 2013 update removed it.