In State v. Banks, the Georgia Court of Appeals reversed the trial court's granting of the defendant's motion for new trial, holding that the defendant failed to prove his ineffective assistance of counsel claims.
Following a jury trial, the defendant was convicted of child molestation and aggravated child molestation. He hired new appellate counsel and filed a motion for new trial. The trial court granted the motion and held that his trial attorneys were ineffective in a number of ways. The State then appealed.
The Court of Appeals pointed out that the defendant was represented by three attorneys from the public defender’s office, but only one of them testified at the motion for new trial hearing. The Court noted that the defendant did not distinguish which of his attorneys was responsible for each of the individual claims of ineffective assistance of counsel. As a result, the Court held that he failed to meet his burden of proof with respect to several of his claims.
Moreover, the Court held that the defendant could not show how his attorneys were ineffective for failing to secure a forensic interview expert since he presented no evidence as to what such an expert would have testified to at trial. Without such evidence, the defendant could not establish that the failure to secure an expert prejudiced him at trial.
Also, the Court found that the evidence was insufficient to support his claim that two witnesses for the State should have been impeached with prior felony convictions as he failed to introduce certified copies of these convictions at the motion for new trial hearing.
Lastly, the defendant contended that his lead trial counsel was not qualified to try the case as she had just passed the bar exam on the Friday before the trial, and had not yet even been sworn in as a member of the State Bar of Georgia. The Court rejected this argument and held that since she was being assisted by two other active members of the bar throughout the trial, her lack of qualifications was not a sufficient basis to warrant a new trial.
The defendant raised several additional grounds for new trial that were never ruled on by the trial court since it granted his motion based on the ineffective assistance of counsel issues. As a result, the Court of Appeals reversed the granting of the new trial but remanded the case back to the trial court for consideration of the defendant’s remaining claims.
NOTE: This case is a perfect example of how failing to follow appellate practice procedures can jeopardize the defendant’s ability to succeed on appeal. Had the appellate attorneys in this case made a proper record in the trial court, and presented sufficient evidence and testimony at the motion for new trial hearing, the Court of Appeals likely would have affirmed the granting of the defendant’s new trial motion.
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