GA Court of Appeals Affirms Decision Not to Request Lesser Offense

The Court noted that when deciding whether trial counsel’s performance was deficient, it “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” A defendant also must show “a reasonable probability of a different outcome” as a result of the deficient performance.

The defendant argued that counsel was deficient because he failed to request that the jury be permitted to consider the lesser included offense of sexual battery. At a hearing on the defendant’s motion for new trial, the trial attorney testified that the defendant and counsel had decided on an “all-or-nothing” strategy—hoping that the jury would find the evidence insufficient for a child molestation conviction. The attorney also testified that the defendant told him that a sexual battery conviction may make it more likely that the defendant would then be prosecuted for illegally re-entering the United States. It was based on these conversations that counsel chose not to request a sexual battery charge.

The Court of Appeals has previously held that the decision not to request jury instructions on a lesser included offense is a matter of trial strategy that is “best left to the judgment of counsel after consultation with a client.” The Court held that the evidence authorized the trial court to find that counsel made a reasonable strategic decision after consulting with the defendant. Therefore, the Court held that counsel’s performance was not deficient.