Clifford McClure was convicted of multiple offenses in connection with the vehicular homicide of Joshua Whitehead. His convictions were affirmed on appeal in McClure v. State , 273 Ga. App. 751 615 SE2d 856 2005. Subsequently, McClure filed a petition for writ of habeas corpus claiming that he was denied effective assistance of both trial and appellate counsel. The habeas court denied relief. This Court granted McClure’s application for certificate of probable cause asking the parties to address whether appellate counsel rendered ineffective assistance by failing to challenge McClure’s conviction under Cooper v. State , 277 Ga. 282 587 SE2d 605 2003.1 In Cooper , the Court held that the implied consent statute, OCGA § 40-5-55, which required chemical testing of the operator of a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities, violates Article I, Section I, Paragraph XIII of the 1983 Georgia Constitution and the Fourth and Fourteenth Amendments of the Constitution of the United States, insofar as it authorizes a search and seizure of bodily substances without probable cause. Cooper was decided after McClure’s conviction but while his direct appeal was pending. Because McClure’s case was in the pipeline he was entitled to claim the benefit of this new rule of criminal procedure on appeal. See Taylor v. State , 262 Ga. 584 3 422 SE2d 430 1992 adopting the pipeline approach for applying new rules of criminal procedure to all cases then on direct review or not yet final. But, as we further held in Taylor , application of a new procedural rule is dependent upon whether the claim was preserved for appellate review. Id. at 586. See also Green v. State , 279 Ga. 455 5 614 SE2d 751 2005 new rule in pipeline applied where claim of error preserved at trial; Freeman v. State , 269 Ga. 337 1 496 SE2d 716 1998 pipeline rule applied where error preserved below; Smith v. State , 268 Ga. 860 2 494 SE2d 322 1998 pipeline rule preserved below by objection to grant of State’s motion in limine; Mobley v. State , 265 Ga. 292 12 455 SE2d 61 1995 pipeline rationale not applied where issue not preserved by objection below; Fields v. State , 283 Ga. App. 208 1 b 641 SE2d 218 2007 pipeline error not preserved for appellate review. Thus, in order for McClure to have preserved the Cooper claim it was necessary that a motion to suppress evidence of test results of bodily fluids had been filed on his behalf in the trial court. Undisputedly, that had not been done.
This issue was developed at the habeas hearing where appellate counsel testified that in preparation for the appeal, he questioned trial counsel about the failure to file a motion to suppress. Trial counsel advised appellate counsel that he opted not to file such a motion because he did not believe it would have been meritorious based on the status of the implied consent law at the time of trial. Appellate counsel further testified that he agreed with trial counsel’s tactical decision and that he did not raise a claim of ineffective assistance of trial counsel because he found no legal basis to support it. See generally Slade v. State , 270 Ga. 305 2 509 SE2d 618 1998 reasonable strategic decisions predicated on circumstances as they existed at the time of trial did not amount to ineffective assistance. On the contrary, appellate counsel believed that trial counsel mounted a vigorous and effective defense utilizing an expert who challenged the State’s test results.
