See Clough v. Richelo, 274 Ga.App. 129, 132 –133(1), 616 S.E.2d 888 (2005). This Court has observed that there is "conflict inherent in counsel's dual role as advocate and witness," Wright v. State, 267 Ga. 496, 497(2)(b), 480 S.E.2d 13 (1997), and for an attorney to act as both witness and advocate is a circumstance to be avoided. Id.
Moreover, Glass has failed to establish prejudice for the additional reason that, as noted above, "[t]he consistent testimony of [numerous] eyewitnesses provided overwhelming evidence of [Glass'] guilt. . . ." Wright v. State, 267 Ga. 496, 497 (2) (a) ( 480 SE2d 13) (1997). Judgments affirmed in part and vacated in part.
In December 2000, the trial court found that appellant's motion lacked justiciable issues of law or fact, and the motion was denied. Wright v. State, 267 Ga. 496 ( 480 S.E.2d 13) (1997). Id.
The reason is that, even assuming the testimony was improper and even assuming that defense counsel performed deficiently in failing to object to it, we conclude that, given the overwhelming evidence of guilt, there is no reasonable probability that the result of the trial would have been different if defense counsel had objected to the testimony and it had been excluded from evidence. See Mobley v. State, 271 Ga. 577, 578 ( 523 S.E.2d 9) (1999); Wright v. State, 267 Ga. 496, 497 ( 480 S.E.2d 13) (1997). 5. Jeffries additionally contends that he received ineffective assistance of counsel because, although defense counsel moved for a directed verdict after the close of the State's evidence, he failed to do so at the end of the evidentiary phase of the trial, thus precluding Jeffries from contesting the sufficiency of the evidence on appellate review.
White v. State, 163 Ga. App. 179(3) ( 292 S.E.2d 875) (1982). Without the testimony of trial counsel, it is impossible to discern whether his failure to request a charge to which he was entitled was purposeful or negligent. Our review of the evidence presented at trial (see Wright v. State, 267 Ga. 496(2) (a) ( 480 S.E.2d 13) (1997)) leads us to conclude that, even if trial counsel was negligent in failing to request the instruction, that deficient performance could not have prejudiced appellant since the undisputed evidence showed that the impression of his fingerprints in the bloody steering wheel could have only been placed there during the time of the crime. See Tyler v. State, supra, 198 Ga. App. 685(2).
Under these circumstances, we conclude that the decision to testify does not constitute deficient performance. Wright v. State, 267 Ga. 496, 497 ( 480 S.E.2d 13) (1997). A court may take judicial notice of the time of sunrise and sunset.
Strickland v. Washington, 466 U.S. 668, 687 ( 104 S.Ct. 2052, 80 L.Ed.2d 674) (1984).Wright v. State, 267 Ga. 496, 497 ( 480 S.E.2d 13) (1997). 2.
(Footnotes omitted.) Wright v. State, 267 Ga. 496, 497 (2) (b) ( 480 SE2d 13) (1997). 5.
Unlike the case upon which Hammond relies, the ADA was neither the defense counsel nor did he testify as a defense witness. Compare Wright v. State, 267 Ga. 496 (2) (a) ( 480 S.E.2d 13) (1997). Nor does Mobley v. State, 265 Ga. 292, 300 (18) (b) ( 455 S.E.2d 61) (1995), support Hammond's position. The Supreme Court in Mobley held that during the sentencing phase, prosecutors are precluded from testifying about the reasons for rejecting plea offers.
See Abney, supra. See Wright v. State, 267 Ga. 496, 497 (2) (b) ( 480 S.E.2d 13) (1997). Moreover, in reviewing a trial court's ruling on a claim of ineffective assistance, we must give proper deference to the trial court's factual findings.