Appellee Ali Nejad was tried in Fulton County and convicted of various sexual offenses as well as assault with a deadly weapon and aggravated battery. The trial court1 denied Nejad’s motion for new trial based on ineffective assistance of counsel, finding that Nejad “failed to prove prejudice from any failure of trial counsel to properly define his right to testify, inasmuch as the credible evidence at the hearing shows that Mr. Nejad was in fact so informed by the trial court that the ultimate decision whether to testify was his alone, made after hearing the advice of his attorneys.” The Court of Appeals reversed the judgment of conviction based on its finding that Nejad had received ineffective assistance of counsel. Nejad v. State , 296 Ga. App. 1631 674 SE2d 60 2009. The appellate court also determined the trial judge had erred when it instructed the jury that a pellet gun was a deadly weapon per se . Id., at Div. 2. We granted the State’s petition for a writ of certiorari to the Court of Appeals and asked the parties to address whether the appellate court erred in reversing the trial court’s determination that Nejad had been advised of his right to testify and in finding error in the giving of the per se deadly weapon jury instruction. For the reasons that follow, we conclude the Court of Appeals erred in making both rulings, and we reverse the judgment entered by the Court of Appeals. 1. Following Nejad’s employment of post-conviction counsel and the filing of a motion for new trial contending trial counsel had rendered ineffective assistance, the trial court conducted a hearing at which Nejad testified that his lead trial counsel had not informed Nejad of his right to testify and had refused to permit Nejad to testify at his trial despite Nejad’s desire to do so.2 Lead trial counsel testified at the hearing and admitted he had engaged in the conduct to which Nejad had testified. Compare Finch v. State , 287 Ga. App. 319 1b 651 SE2d 478 2007 where defendant testified that trial counsel did not consult with him about his right to testify and trial counsel testified that he and the defendant had discussed the right to testify and the defendant had decided not to testify. The assistant district attorney who prosecuted Nejad testified at the hearing that she had a vivid recollection of the trial judge informing Nejad that he had the right to testify and that it was Nejad’s decision whether to exercise that right, and of Nejad waiving that right; Nejad and his trial counsel testified at the hearing that the trial judge did not so advise Nejad. Another of Nejad’s trial attorneys testified that the attorneys representing Nejad were in agreement it was not in his best interest to testify and that the attorney originally thought the trial judge had made Nejad aware of his right to testify because “that was consistent with normal practice.” The attorney testified that while he could not say it did not happen, his recollection did not support that it had happened. The third defense attorney testified it was “a general practice of most courts” to ensure the non-testifying defendant was aware of his right to testify, but he had no specific memory of the trial court engaging in such a colloquy with Nejad.
The transcript of Nejad’s trial certified by the court reporter does not reflect that the trial judge informed Nejad of his right to testify and that the decision whether to testify was to be made by Nejad after consulting with counsel. Compare Upton v. Parks , 284 Ga. 254 3 664 SE2d 196 2008 noting trial-transcript colloquy in which trial court explained to the defendant he had the right to testify, that it was his decision, and that he was not required to follow counsel’s advice on the matter.3 The transcript of the hearing on the motion for new trial makes it clear that the State’s position was that the certified trial transcript did not fully disclose what transpired in the trial court while Nejad’s position was that the certified transcript was true, complete and correct. See OCGA § 15-14-5. The State did not file a motion to supplement the record pursuant to OCGA § 5-6-41f, but presented without objection testimony concerning the alleged deficiency in the trial transcript through cross-examination of Nejad and his three attorneys and direct examination of the prosecuting assistant district attorney. In response to the query of post-conviction counsel for Nejad as to the location of the colloquy between the trial judge and Nejad in the trial transcript, the State freely admitted it was not in the transcript and stated the State’s assertion that the colloquy had taken place in open court without having been recorded. Two weeks after the evidentiary hearing, the parties submitted a stipulation that the trial judge had “reviewed his notes from Mr. Nejad’s trial and stated that he does not have any indication in his notes that he ever advised Mr. Nejad of his rights to testify.”
