Opinion
A01A0015.
DECIDED: FEBRUARY 14, 2001
DECIDED FEBRUARY 14, 2001.
Burglary. Spalding Superior Court. Before Judge Pickett.
Mario A. Pacella, for appellant.
Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.
A Spaulding County jury found Robert Archie guilty of burglary. Archie does not challenge the sufficiency of the evidence against him, but claims (1) that the trial court made an improper opinion comment in violation of OCGA § 17-8-57; and (2) that he received ineffective assistance of counsel at trial because his trial attorney failed to object to the court's allegedly improper opinion comment, and failed to object to alleged hearsay testimony by the victim of the burglary. Upon review, we affirm Archie's conviction.
1. In reversing this Court in its recent decision in Paul v. State, the Georgia Supreme Court announced a new rule of law wherein a claim of error alleging a violation of OCGA § 17-8-57 is not waived by an attorney's failure to object at trial, if such violation constitutes "plain error":
Case No. S00G0417 (decided 10/2/00).
"[W]e will apply the plain error rule to death penalty cases and other criminal cases in which the trial court violates OCGA § 17-8-57.
Id. at slip opinion p. 2.
This, although for twenty-five years the failure to object to an alleged violation of OCGA § 17-8-57 has resulted in the waiver of such claim on appeal. In fact, we have been especially assiduous in applying waiver ever since the Georgia Supreme Court granted certiorari to vacate an opinion of this Court for not finding waiver:
See Pickren v. State, 272 Ga. 421, 426 (8) (S.E.2d) (2000); Cammon v. State, 269 Ga. 470, 475 (8) ( 500 S.E.2d 329) (1998); Wilson v. State, 268 Ga. 527, 529 (5) ( 491 S.E.2d 47) (1997); Waldrip v. State, 267 Ga. 739, 751 (20) ( 482 S.E.2d 299) (1997); Rowe v. State, 266 Ga. 136, 137 (2) ( 464 S.E.2d 811) (1996);Crowe v. State, 265 Ga. 582, 594 (19) ( 458 S.E.2d 799) (1995);Gardner v. State, 263 Ga. 197, 200 ( 429 S.E.2d 657) (1993); Newton v. State, 259 Ga. 853, 854 (5) ( 388 S.E.2d 698) (1990); Walker v. State, 258 Ga. 443, 444 ( 370 S.E.2d 149) (1988); Kimbrough v. State, 254 Ga. 504 (3) ( 330 S.E.2d 875) (1985); Driggers v. State, 244 Ga. 160, 162 (2) ( 259 S.E.2d 133) (1979); Davis v. State, 234 Ga. 730, 731 (2) ( 218 S.E.2d 20) (1975).
The Court of Appeals opinion appears to hold that the purported statements require reversal regardless of whether there was a contemporaneous objection entered. The question of whether Code Ann. § 81-1104 [now OCGA § 17-8-57] has been violated is not reached unless an objection or motion for mistrial is made. . . . The failure of the appellant to object to the questions or to move for a mistrial at the trial estopped him from raising an objection on appeal.
(Citations and punctuation omitted.) State v. Griffin, 240 Ga. 470 ( 241 S.E.2d 230) (1978).
Notwithstanding such precedent, we will, of course, follow the current mandate of our Supreme Court as articulated in Paul v. State. And although the "plain error" rule is usually applied only in death penalty cases or other criminal cases involving "exceptional circumstances," we will do as directed and apply such rule to every criminal case alleging a violation of OCGA § 17-8-57. As such, we will determine herein whether the trial court comment about which Archie complains constituted "plain error" and thus requires reversal. If not, the claim will be waived by Archie's failure to object at trial.
Almond v. State, 180 Ga. App. 475, 480 ( 349 S.E.2d 482) (1986). See United States v. Atkinson, 297 U.S. 157, 160 ( 56 S. Ct. 391, 80 LE 555) (1936); Silber v. United States, 370 U.S. 717, 718 ( 82 S. Ct. 1287, 8 L.Ed.2d 798) (1962). See also Weems v. State, 268 Ga. 142, 145-146 (11) ( 485 S.E.2d 767) (1997).
Buice v. State, 239 Ga. App. 52, 56 ( 520 S.E.2d 258) (1999).
`Plain error' is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.
(Citation and punctuation omitted.) Id. at 56.
In this case, the victim of the burglary was called to the stand as the State's first witness. She testified that she arrived home and found her back door "tore up" and her television and VCR missing. The victim called the police to report the burglary. Thereafter, the victim's teenage son was called to the stand. After asking preliminary questions, the prosecutor directed the son's attention to the incident in question:
[Prosecutor:] Do you remember — I want to go back to September 17th. Do you remember the night when your house was burglarized?
[Witness:] Yes, ma'am.
Defense counsel objected because the question was leading and used the expression "burglarized." The trial court then stated:
[Court:] Well, we know the house was burglarized. We're just trying to find out and figure out who so that's not objectionable.
Archie now challenges the trial court's comment as being an expression of what was proved in violation of OCGA § 17-8-57. Archie, however, put forth an alibi defense wherein he readily agreed that the victim's home had been burglarized. He simply claimed that he did not do it and did not know who did. Since the fact that the victim's home was burglarized was not an issue in this case, we do not find the trial court's comment seriously affected the fairness, integrity or public reputation of the trial so as to constitute "plain error." Accordingly, Archie's claim of error is waived.
Buice v. State, supra at 56.
2. Archie alleges that he received ineffective assistance of counsel at trial. However,
defendant did not subpoena his trial counsel to appear at the hearing on his motion for new trial. Thus, defendant made no affirmative showing that the purported deficiencies in his trial counsel's representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy. The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed.
(Citations and punctuation omitted.) Foreman v. State, 200 Ga. App. 400, 401 (3) ( 408 S.E.2d 178) (1991). See also Smith v. State, 238 Ga. App. 605, 606 (2) ( 520 S.E.2d 13) (1999); Smith v. State, 224 Ga. App. 819, 820-821 (2) ( 481 S.E.2d 896) (1997).
In the absence of contrary evidence, defense counsel's actions are presumed to be part of trial strategy. Accordingly, we find no error in the trial court's denial of Archie's motion for new trial premised on claims of ineffective assistance of counsel.
O'Brien v. State, 242 Ga. App. 344, 345 (S.E.2d) (2000).
Judgment affirmed. Andrews, P.J., and Miller, J., concur.