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Court Affirms Conviction Despite Counsel’s Failure to Investigate

July 11, 2016

In King v. State, the Georgia Court of Appeals affirmed the defendant’s convictions for statutory rape, aggravated child molestation and enticing a child for indecent purposes, finding that his trial counsel was not ineffective for failing to obtain video surveillance footage and cell phone records that could have been helpful to the defense.

The defendant, who was a church pastor, was charged with bringing a 15-year-old girl to a hotel room and engaging in oral sex, as well as sexual intercourse, with her.

On appeal, the defendant argued that his lawyer was ineffective for failing to obtain video surveillance footage from the hotel. He argued that, had his lawyer been able to obtain the footage, it would have shown that he had checked into the hotel alone. Trial counsel’s first attempt to obtain this evidence was four months after he was appointed to represent the defendant. He testified that when he finally attempted to obtain the video footage, he was told that the hotel no longer had it.

The Court found that the defendant offered no evidence that the video footage in question even existed when defense counsel was assigned to the case—which was three months after the alleged incident. The Court also held that, even if the footage had existed, the fact that he checked into the hotel alone would not have contradicted the alleged victim’s testimony (she testified that the hotel room had been rented prior to her being taken there by the defendant).

The defendant also argued that his trial counsel failed to obtain cell phone records which he claimed would have shown that he was on the phone with another woman for several hours during the time of the alleged incident.

Trial counsel testified that, although he did not obtain the phone records before trial, he subpoenaed the woman with whom the defendant said he was speaking. He stated that he decided not to have her testify at trial because she could not provide concrete dates for her interactions with the defendant, but could simply tell the jury that she had intercourse with him at the hotel on multiple occasions. Trial counsel decided that such testimony might only serve to hurt the defendant’s credibility with the jury.

The Court found that, although trial counsel’s failure to subpoena the phone records might have been deficient, the defendant failed to produce these records at the motion for new trial hearing. Therefore, there was nothing in the record to show how these records would have changed the outcome of the trial.

As a result, the defendant’s convictions for statutory rape, aggravated child molestation and enticing a child for indecent purposes were affirmed.

NOTE: It is unclear why appellate counsel in this case did not subpoena the cell phone records for the motion for new trial hearing. One reason could be that the cell provider no longer had the records at that time. The trial attorney’s decision not to subpoena the records, but merely to rely on the testimony of the woman, is perplexing. He stated that he didn’t call her to testify because she couldn’t recall exact dates. Having those records could have helped refresh her recollection.

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