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Court of Appeals Affirms Granting of New Trial in Molestation Case


September 19, 2016

In State v. Day, the Georgia Court of Appeals affirmed the trial court’s granting of the defendant’s motion for new trial on the grounds of ineffective assistance of counsel.

The defendant was convicted of rape, child molestation, aggravated sexual battery, and incest. At trial, defense counsel’s primary strategy was to attack the credibility of the alleged victims because there were no eyewitnesses and the medical results were inconclusive. The defendant retained new counsel for the appeal and the trial court subsequently granted a motion for new trial finding several instances where his trial attorney provided ineffective assistance.

On appeal, the State argued that the trial court erred in finding trial counsel ineffective for failing to obtain the counseling records of the alleged victims. Counsel learned that the alleged victims had received psychological counseling but failed for no “particular reason” to ask for the counselor’s clinical notes. In the clinical notes, there was evidence that one of the alleged victims spontaneously recanted the allegations. Because these notes were critically important to the alleged victim’s credibility, the Court affirmed the trial court’s determination that counsel’s failure to procure them constituted ineffective assistance.

The State also contended that trial counsel was not ineffective for failing to present expert testimony to show that the alleged victims’ behavior was inconsistent with that of sexually abused children. Although the defense presented expert testimony at trial, trial counsel never questioned the expert about this. Trial counsel testified that he did not believe that this type of testimony would be helpful.

At the motion for new trial hearing, the expert testified that “when a victim is physically injured during sexual abuse, they are likely to avoid or withdraw from the abuser.” At the new trial hearing, several family members testified that, during the time frame of the alleged abuse, “the children were never withdrawn from him and never acted fearful but were loving and playful.” The Court of Appeals held that due to the importance of the alleged victims’ credibility, the trial court correctly found that the failure to present this evidence constituted ineffective assistance of counsel.

Trial counsel was also found to be ineffective for failing to object to the testimony of an investigator that impermissibly bolstered the credibility of one of the alleged victims. The Court noted that the investigator’s testimony that “the evidence supported the allegations” was objectionable for invading the province of the jury. Trial counsel testified that he strategically chose not to object, but the Court affirmed the trial court’s finding that this strategic decision was an unreasonable one.

As a result, the Court concluded that, but for trial counsel’s deficient performance, there was a reasonable likelihood that the outcome of the trial would have been different. As a result, it held that the trial court’s granting of the defendant’s motion for new trial was not clearly erroneous. The trial court’s reversal of the defendant’s convictions was affirmed and the case was remanded back for a new trial.

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