Goodwin v. Cruz-Padillo

Rudolfo Cruz-Padillo’s petition for writ of habeas corpus was granted on the basis that he had received ineffective assistance of trial counsel. Warden Goodwin appeals and we reverse.

The evidence at trial established that the victim, who was Cruz-Padillo’s work supervisor, had engaged in a fist fight with Cruz-Padillo’s roommate the evening before the incident (during which the victim had slapped Cruz-Padillo on the face), but the fight had ended peacefully and the combatants had shaken hands. The next day, Cruz-Padillo shot the unarmed victim four times outside the restaurant where the two men worked. He asserted at trial that he acted in self-defense to avoid receiving a beating.

During presentation of the defense, trial counsel moved to admit evidence of the victim’s acts of violence towards others on the basis of Chandler v. State, 261 Ga. 402 (3) (405 SE2d 669) (1991), which had been rendered July 3, 1991 and was published in the Advance Sheets three days after Cruz-Padillo’s trial began. The trial court denied the motion on the basis that the change in law represented by Chandler was not applicable to Cruz-Padillo’s trial. In addressing on direct appeal Cruz-Padillo’s enumeration challenging this ruling, this Court found no reversible error because there had been no proffer at trial concerning what testimony Cruz-Padillo expected his witness to give. Cruz-Padillo v. State, 262 Ga. 629 (4) (422 SE2d 849) (1992).

At the habeas hearing, trial counsel testified that he had been prepared to make the required proffer at the time of the trial court’s evidentiary ruling, but that the witness whom counsel had subpoenaed for that purpose had refused at the last minute to testify. Cruz-Padillo argued, and the habeas court found, that trial counsel was ineffective because counsel failed to subpoena additional witnesses for the purpose of making the necessary proffer at trial as to the victim’s acts of violence towards third parties. Trial counsel testified that while investigating the matter, he had learned that the victim had assaulted other co-workers and acknowledged as correct that “there were other people . . . that actually told [trial counsel] ‘Yes, I’ve seen [the victim] beat other workers in this restaurant,’ ” but that counsel did not subpoena these others to make the proffer. This testimony by trial counsel constituted Cruz-Padillo’s sole evidence in support of his ineffective assistance claim.

In determining whether a convicted defendant’s claim that trial counsel’s assistance was so defective as to require reversal of the conviction, this Court applies the two-prong test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), under which the defendant is required to show both that counsel’s performance was deficient and that the deficiency prejudiced the defense. Peavy v. State, 262 Ga. 782 (2) (425 SE2d 654) (1993). “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, supra, 466 U. S. at 691 (B). In the instant case, we need not evaluate whether counsel’s performance was deficient, see id. at 697, because we conclude that Cruz-Padillo has failed to establish that counsel’s performance prejudicially affected his defense. See Peavy, supra; see also Hayes v. State, 262 Ga. 881 (3) (426 SE2d 886) (1993).

In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a petitioner is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.

[T]he failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of a showing that such evidence would have been relevant and favorable to the defendant. Because appellant failed ... to make any proffer of the uncalled witnesses’ testimony, it is impossible for appellant to show there is a reasonable probability the results of the proceedings would have been different. [I]t cannot possibly be said that the [additional witnesses] would have testified favorably to appellant.

(Citations and punctuation omitted.) Ponder v. State, 201 Ga. App. 388 (1) (411 SE2d 119) (1991). Accord Roberts v. State, 263 Ga. 807 (2) (b) (439 SE2d 911) (1994).

In the instant case, Cruz-Padillo’s sole evidence consisted of testimony by trial counsel that counsel knew there were other witnesses who had seen the victim assault unnamed co-workers; no further information was elicited by petitioner from trial counsel. Although Cruz-Padillo at the habeas hearing had the opportunity under OCGA § 9-14-48 to submit any affidavits of the actual testimony of these persons, see Gaither v. Cannida, 258 Ga. 557, 560-561 (2) (372 SE2d 429) (1988), he failed to do so. The other witnesses were not identified; no affidavits or other sworn testimony from these witnesses were adduced; and there is no evidence that these other witnesses, had they been subpoenaed, would have agreed to testify. Absent a proffer as to the expected testimony of these other witnesses, it was impossible for the habeas court to review numerous essential details, such as the nature and severity of the acts of violence witnessed, the circumstances surrounding the assaults, the presence or lack of provocation or justification for the acts, or the types of individuals against whom the acts of violence had been directed. These details were necessary in order to determine whether failure to call these witnesses would have indeed affected the outcome of Cruz-Padillo’s trial.

Because the evidence adduced by Cruz-Padillo at the habeas hearing provided nothing more than mere speculation as a basis for the habeas court’s ruling, it was error for the habeas court to find that the performance of Cruz-Padillo’s trial counsel was so defective as to require reversal of the conviction.

Judgment reversed.

All the Justices concur, except Hunt, C. J., Fletcher and Sears, JJ., who dissent.

See also Pless v. State, 260 Ga. 96 (4) (390 SE2d 40) (1990); Brown v. State, 257 Ga. 277 (2) (d) (357 SE2d 590) (1987).

In this regard, we agree with the holding in Alexander v. McCotter, 775 F2d 595, 602 (5th Cir. 1985) that

[i]n order for the appellant to demonstrate the requisite Strickland prejudice, the appellant must show not only that this testimony would have been favorable, but also that the witness would have testified at trial. [Cits.]

See also United States ex rel. Cross v. DeRobertis, 811 F2d 1008, 1016 (7th Cir. 1987).

Under the factual circumstances present here, we find this is “simply not the kind of case where there has been such a constructive denial of counsel . . . that prejudice can be presumed.” Aldrich v. Wainwright, 777 F2d 630, 634 (11th Cir. 1985).