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Worthman v. State2/23/2004
nstruction to constitute reversible error, the refused request must be a correct statement of law that is pertinent and material to an issue in the case and not substantially covered by the charge actually given." [FN13] Here, the trial court's charge was full and fair and substantially covered all the legal principles relevant to the determination of guilt. Specifically, the trial court charged the jury that "merely showing that the defendant had been drinking ... without proof of the manner of driving or the ability to drive is insufficient to prove the defendant was guilty of driving under the influence of alcohol." Considering the charge as a whole, the trial judge did not mislead or confuse the jury, nor did he commit reversible error by failing to give Worthman's requested charges.
FN13. (Citations and punctuation omitted.) Carter v. State, 263 Ga. 401, 403(4), 435 S.E.2d 42 (1993); Boone v. State, 256 Ga.App. 220, 222(3), 568 S.E.2d 91 (2002).
5. Worthman contends his trial counsel was ineffective because he could have accepted the state's offer to eliminate the breath test and per se count, but chose not to do so. Notwithstanding whether this issue was properly raised below, we find no merit to the ineffectiveness claim.
*213 The record shows that when the state moved to nolle pros the per se count, it also offered to remove the breath test results from the jury's consideration and allow the trial court to give curative instructions to the jury as long as Worthman's attorney agreed not to call his expert witness and allow her to testify about a person's blood-alcohol content. Worthman's attorney declined the offer, opting to challenge the validity of the breath test with an expert witness. According to the trial attorney, "we've had too much testimony from [the officer] to leave this unanswered."
It is well established that trial counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment, and judicial scrutiny of counsel's performance must be highly deferential. [FN14] "Particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight, result, or how another lawyer may have conducted the defense." [FN15] Moreover, counsel's decisions on matters of tactics and trial strategy, even if unwise, do not amount to ineffective assistance of counsel. [FN16] Here, trial counsel chose to proceed with his expert testimony on blood-alcohol content as a means of attacking evidence that was already in front of the **648 jury. This is a matter of trial tactics and strategy and does not equate to ineffective assistance of counsel, [FN17] and we will not judge this tactical decision in hindsight. We conclude that trial counsel's performance did not fall outside the wide range of reasonable professional judgment.
FN14. See Hunt v. State, 247 Ga.App. 464, 469(6), 542 S.E.2d 591 (2000).
FN15. (Citation and punctuation omitted.) Howard v. State, 232 Ga.App. 430, 431(1), 502 S.E.2d 292 (1998).
FN16. Hunt, supra at 470, 542 S.E.2d 591.
FN17. See Lanning v. State, 261 Ga.App. 480, 482(2), 583 S.E.2d 160 (2003).
Judgment affirmed.
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