Clyde B. Bynum, Jr., was convicted of child molestation in 2002 for acts committed against his 15-year-old daughter. In the instant case, his third appeal before this court, he appeals from the trial court’s order finding, contrary to his contentions, that his trial counsel was effective.1 In the second of Bynum’s appeals, Bynum v. State Bynum II ,2 which is relevant to the instant case, we upheld, inter alia, the sufficiency of the evidence supporting Bynum’s conviction, but remanded the case to the trial court for an evidentiary hearing on whether Bynum’s trial counsel was ineffective; we also found that, pending a decision on that issue, we could not address Bynum’s contentions related to a delay in the appellate process.3 We fully adopt the facts and procedural history in Bynum II and do not recount them here.4 Bynum appeals from the trial court’s denial of his claim that counsel was ineffective, alleging that: 1 the trial court erred in finding his trial counsel effective; 2 the trial court erred in applying an incorrect legal standard to determine counsel’s effectiveness; and 3 a seven-year delay in the appellate process violated his constitutional due process rights. Finding no error, we affirm. On appellate review of a trial court’s determination as to effectiveness of counsel, Bynum, under a two-part test, first must show that counsel’s performance was deficient and second, that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different. In evaluating the first prong of this test, a strong presumption exists that counsel’s conduct falls within the broad range of professional conduct. Failure to satisfy either component of this test is fatal to an ineffectiveness claim. Moreover, the court need not address both components if the defendant has made an insufficient showing on one of them. On appellate review of the trial court’s ruling, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”5 1. Bynum elected not to testify in his own defense at trial. On appeal, he argues that trial counsel was ineffective in failing to file a written request to charge and in not orally requesting a charge or instruction to the jury on his decision not to testify. He also asserts ineffectiveness because counsel did not object to or reserve the right to object to the trial court’s charges, which, a careful review of the record shows, apparently did not include a charge on Bynum’s election not to testify.
a Bynum argues that he was prejudiced because, if counsel had requested a jury charge on his decision not to testify, the trial court’s failure to give such a charge would have been error requiring a new trial, given that the suggested pattern jury instructions require the charge be given if requested.6 As it is impossible to know in retrospect what the court would have done had the charge been requested, this argument fails. An ineffectiveness claim is judged by whether counsel rendered reasonably effective assistance, not by hindsight.7
