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Lawskills.com Georgia Caselaw
SUGGS v. THE STATE.
64616.
BANKE, Judge.
Mutiny in penal institution. Tattnall Superior Court. Before Judge Findley.
In this appeal from his conviction for mutiny in a penal institution (Code Ann. 26-2507), the defendant contends that the evidence was insufficient to sustain the jury's verdict. He also contends, in a separate, pro se brief, that he received ineffective assistance of counsel. Held:
1. The evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that while in the lawful custody of a penal institution the defendant assaulted a prison guard with intent to cause serious bodily injury. See generally Crawford v. State, 245 Ga. 89 (1) (263 SE2d 131) (1980).
2. The defendant's contention that his trial counsel was ineffective is based on two factors: (1) Counsel's failure to challenge a prospective juror who was employed as a correctional officer at the same prison where the assault took place and (2) his failure to obtain and introduce a prison disciplinary report which would allegedly have served to impeach the victim's testimony.
The juror was properly qualified and indicated that his mind was perfectly fair and impartial. The transcript does not disclose what feelings the juror may have had towards the defendant or victim, and it is at least possible that counsel had some valid reason for wanting him to serve. The record before us discloses no basis on which to conclude that counsel's acceptance of this juror was harmful to the defendant.
As for the disciplinary report, no copy is contained in the record transmitted by the trial court. "This court may not decide cases upon the basis of factual allegations appearing only in the parties' brief and unsupported by the record from the trial court. (Cit.) The burden of showing harmful error rests upon the appellant. (Cit.)" Giddens v. State, 156 Ga. App. 258 (3), 260 (274 SE2d 595) (1980). "Exhibits contained in an appellate brief which do not appear in the record or transcript cannot be considered by this court and afford no basis for reversal. (Cits.)" Strickland v. American Motorists Ins. Co., 149 Ga. App. 690 (256 SE2d 92) (1979).
Dupont Cheney, District Attorney, Michael J. Bowers, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, John C. Walden, Marion O. Gordon, Senior Assistant Attorneys General, George M. Weaver, Staff Assistant Attorney General, for appellee.
Jon G. Branan, for appellant.
DECIDED OCTOBER 12, 1982 -- REHEARING DENIED NOVEMBER 1, 1982 -- CERT. APPLIED FOR.
Thursday May 21 21:55 EDT


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