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Court Affirms Denial of Out-of State Witnesses in Molestation Case

June 24, 2014

In Aburto v. State, the Georgia Court of Appeals affirmed the defendant’s convictions for aggravated sodomy, child molestation, criminal attempt to commit rape and related offenses.

The Court affirmed the trial court’s denial of the defendant’s motion to subpoena two out-of-state witnesses, holding that the defendant failed to make the required showing that the witnesses’ testimony would be material at trial. Also, the Court held that the trial attorney’s failure to introduce critical impeachment evidence pertaining to the alleged victim’s mother did not constitute ineffective assistance of counsel.

The record showed that seven year-old S.A. moved with her family into the house where the defendant and his brother lived. It was alleged that the defendant molested her while she was living there, however, the girl did not report this to anyone. Apparently, four years after the alleged incident, she told her mother about it and the police were called. The defendant was then arrested on charges of aggravated sodomy, aggravated child molestation, aggravated sexual battery, attempted rape, enticing a child for indecent purposes, and child molestation.

The defendant sought to introduce testimony that S.A. had previously been accused of molesting C.A., her younger half-brother. The defendant’s theory of the case was that S.A.’s mother coached her to make these allegations in retaliation after the defendant’s mother accused S.A. of molesting C.A. The defendant requested subpoenas for C.A. as well as the doctor who examined him. Both of these witnesses lived outside the State of Georgia.

In Georgia, a defendant seeking to secure the attendance of an out-of-state witness may request that the court issue a certificate of materiality. The judge decides whether the witnesses are sufficiently “material to the case” to justify the issuance of an out-of-state subpoena. If the judge issues a certificate of materiality, a judge in the state where the witnesses reside can then issue the subpoena requiring them to appear in Georgia to testify.  

The Court of Appeals held that it could not be shown whether the allegation that S.A. molested her brother preceded the allegation that the defendant molested S.A. The Court stated that the defendant also failed to show that either witness had personal knowledge of when S.A.’s mother found out about the allegation against S.A. Because the defendant could not show that the witnesses could testify about facts that were material to the case, the Court of Appeals held that the trial court did not abuse its discretion in denying certificates of materiality.

The defendant also alleged that his trial counsel failed to impeach S.A.’s mother with evidence that she had been convicted in Illinois of felony shoplifting. He argued that had the attorney introduced this into evidence at trial, he could have then requested a jury instruction that would have authorized the jury to disregard S.A.’s mother’s testimony.

The Court of Appeals held that while the trial attorney was likely deficient for failing to locate and introduce evidence of the conviction, the failure to do so did not warrant reversal. The Court noted that defense counsel was able to establish that S.A.’s mother had pleaded guilty to a charge of criminal damage to property in the second degree following an incident which involved C.A. The Court concluded that had the jury also been made aware of her conviction for shoplifting, it would not have made a significant difference in their determination of her credibility.

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