BLACKWELL, Judge.
Dante Terrance Shields was tried by jury and convicted of several crimes in connection with a home invasion and attempted armed robbery in Hall County.
To prevail on his claim of ineffective assistance of counsel, Shields must prove both that the performance of his lawyer at trial was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that the performance of his lawyer was deficient, Shields must show that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-688, 104 S.Ct. 2052; see also Kimmelman v. Morrison, 477 U.S. 365, 381(II)(C), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). And to prove that he was prejudiced by the performance of his lawyer, Shields must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694(III)(B), 104 S.Ct. 2052; see also Williams v. Taylor, 529 U.S. 362, 391(III), 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This burden, although not impossible to carry, is a heavy one. See Kimmelman, supra, 477 U.S. at 382(II)(C), 106 S.Ct. 2574. We think Shields has failed to carry his burden.
1. We begin with Shields's claim that his lawyer was ineffective because he misunderstood the number of peremptory challenges to which Shields was entitled during jury selection. Under OCGA § 15-12-165, a defendant charged with a felony for which the State does not seek the death penalty may exercise nine peremptory challenges in the selection of the jury, and the State is entitled to the same number. Shields's lawyer, however, mistakenly believed that Shields was only entitled to six peremptory challenges. Although Shields's lawyer asked the trial court whether each party would be entitled to exercise six peremptory challenges, the trial court either shared his mistaken belief that six was the usual number of challenges or misunderstood that the parties, although entitled to more challenges, had agreed to exercise no more than six each:
(a) We consider first whether the fact that Shields's lawyer misunderstood the number of peremptory challenges to which Shields was entitled is sufficient to establish that his representation of Shields at trial was objectively unreasonable, and we conclude that it is not. As we consider this question, we bear in mind the admonition of the United States Supreme Court that
Strickland, supra, 466 U.S. at 689(III)(A), 104 S.Ct. 2052. And although the thinking of the lawyer may be relevant to our inquiry, we must remember that our inquiry properly is focused on what the lawyer did or did not do, not what he thought or did not think.
Which, and how many, prospective jurors to strike is a quintessential strategic decision.
Although it is clear that Shields's lawyer misunderstood the number of peremptory challenges to which Shields was entitled, it does not follow that this misunderstanding necessarily affected his strategic decisions to strike only five prospective jurors. If the lawyer reasonably would have made the same strategic decisions — even if he knew that Shields was entitled to nine strikes — it cannot be said that the mistake of law affected the conduct or performance of the lawyer. And it is conceivable that he might still have struck the jury in precisely the same way for
The record does not prove that the lawyer's mistaken thinking actually affected his conduct in selecting a jury. Shields's trial lawyer was asked at the hearing on the motion for new trial whether he would have conducted voir dire and jury selection differently if he had known that he had nine strikes, and his responses to these questions do not establish that he certainly, or even probably, would have done so:
At most, these responses indicate that there was some possibility that the lawyer's misunderstanding of the number of peremptory challenges allowed might have affected the way in which he performed his duties at trial.
(b) We also conclude that Shields's claim of ineffective assistance with respect to the misunderstanding about peremptory strikes fails in any event because, even if the misunderstanding amounted to deficient performance, Shields has not shown prejudice.
Shields nevertheless says that the decision of the Supreme Court of Georgia in Fortson v. State, 277 Ga. 164, 587 S.E.2d 39 (2003), compels us to presume prejudice in this case. We do not agree. Like this case, Fortson involved a mistake by defense counsel in the course of striking a jury. There, the defense lawyer asked the trial court to excuse a specific prospective juror for cause, and the trial court did so, but for some reason, this prospective juror never was removed from the list from which a jury would be struck. Consequently, when the time came to strike a jury, the defense lawyer mistakenly used a peremptory challenge to strike the same prospective juror, whom the trial court already had excused for cause. Before the twelfth juror was selected, the defense lawyer exhausted all of the peremptory challenges to which the defendant was entitled. Asserting that her lawyer wasted one of her peremptory
Two years before it decided Fortson, the Supreme Court addressed another claim of ineffective assistance involving jury selection in Head v. Carr, 273 Ga. 613, 544 S.E.2d 409 (2001).
We think that the crucial distinction between Fortson and Carr is that, in the former, the defense lawyer exhausted all of his peremptory challenges before the twelfth juror was selected and, in the latter, he did not. Because Shields's lawyer did not use all of the six peremptory challenges to which he believed Shields was entitled, this case is more like Carr than Fortson.
Shields has failed to carry his burden of showing that he actually was prejudiced by his lawyer's misunderstanding about the number of peremptory challenges to which he was entitled. As we said in Division 1(a), supra, the record does not establish that Shields would have exercised a peremptory challenge as to any of the 12 jurors selected if his lawyer had known that he had more challenges. Shields does not contend that any unqualified juror sat in his case. And there is no indication that the prospective jurors who were not reached before the twelfth juror was selected — but who would have been reached if the parties had exercised more peremptory challenges — were more favorably inclined toward Shields's case than the jurors who actually were selected. In these circumstances, Shields has failed to show that he was prejudiced by his trial lawyer's misunderstanding about the number of peremptory challenges to which he was entitled. See Carr, supra, 273 Ga. at 624, 544 S.E.2d 409.
2. Shields also contends that his trial lawyer was ineffective because he failed
One victim explained that she had erroneously identified Shields because, "as I heard, there was two people going around breaking in people's houses." Another victim said that she had identified Shields as the perpetrator only after she described the perpetrator to her boyfriend, who told her that "only two people look like that. That's Buddha and [Shields]. And those are the only two that's doing crazy stuff right about now." This victim also said that, before identifying Shields, she "actually had to call Hall County and see if he had been released, and he had been released that Thursday." When asked why she now was recanting her prior identification of Shields, she explained that "I thought it was kind of wrong for us to call Hall County Detention Center to see if that person had been released from jail and just start calling his name. ..." Shields now says that his trial lawyer should have objected to this testimony. Because his lawyer did not object, Shields contends that he was deprived of the effective assistance of counsel.
In assessing the performance of Shields's lawyer, we must remember that "[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, supra, 466 U.S. at 689(III)(A), 104 S.Ct. 2052. We think that some reasonable lawyer might not have objected to this testimony for sound strategic reasons, and for this reason, Shields cannot show that his lawyer performed in an objectively unreasonable way. It is important to remember that the testimony of these victims at trial was not all bad for Shields. Indeed, the testimony that the victims had erroneously or falsely identified him as the perpetrator was quite positive. A reasonable trial lawyer might believe that the recantation of the prior identifications would be more believable if accompanied by an explanation for the prior identifications, even if that explanation reflected badly upon Shields's character. In other words, a reasonable trial lawyer might think that any explanation for a witness having erroneously identified his client as the perpetrator of the crimes charged — even if the explanation also reflected badly on the character of his client — would be more valuable than no explanation at all. Moreover, a reasonable trial lawyer might also be concerned that objecting to this testimony would tend to draw the attention of the jury away from its positive implications and focus the jury more on its negative ones. Finally, some reasonable lawyer might believe that the testimony that some other person, known as "Buddha," also was "doing crazy stuff" would be helpful in proving that someone else might have perpetrated these crimes and, for this reason, might not have objected to the testimony. Shields's trial lawyer testified that he did not object to this testimony for similar strategic reasons. We cannot say that this strategy was an unreasonable one.
For these reasons, we affirm the judgment below.
Judgment affirmed.
BARNES, P.J., and DILLARD, J., concur.