In Allen v. State, the Georgia Court of Appeals held that it was not impermissible for the trial court to allow a courtroom deputy to admonish the defendant for facing the jury and for crying during the trial.
It was also held that his trial counsel was not ineffective for failing to file a plea in bar on double jeopardy grounds. The Court affirmed the defendant’s convictions for incest, rape, child molestation, and aggravated child molestation.
The defendant was charged with molesting his two children. The first two trials ended in mistrials. On appeal, the defendant argued that his trial counsel was ineffective for failing to file a plea in bar on double jeopardy grounds after the first mistrial.
The Court disagreed, noting that although the mistrial resulted from the State failing to provide the defendant with the report from his son’s sexual assault examination, there was no evidence that this failure was the result of the prosecutor’s intent to abort the trial and to secure an opportunity to retry the case via mistrial.
Here, it was during a recess of the first trial that the defendant and the State learned that a sexual assault examination had been completed. The trial court granted the defendant’s motion for mistrial but found no misconduct on the part of the State. Defense counsel asserted that the detective involved had a pattern of misbehavior which should be imputed to the State. However, the Court noted that the Georgia Supreme Court has previously held that intent to create a mistrial by a State agent was insufficient to support a plea in bar when that agent was not the actual prosecutor.
The defendant also argued that the trial court impeded his presumption of innocence by allowing a deputy to admonish him for crying during the trial. The Court noted that the record showed only that the deputy instructed the defendant to face forward when he had been facing the jury on a few occasions.
The deputy testified on appeal that this was a security measure designed to give the deputy more time to react if the defendant had attacked a person in the courtroom, which had happened before but not with this defendant. The Court held that this security measure was not so inherently prejudicial as to threaten the defendant’s right to a fair trial. Further, the Court pointed out that this issue was not brought up at trial and that trial counsel could not recall any action by the deputy that would have prejudiced the defendant.
As a result, the Court affirmed the defendant’s convictions and affirmed the denial of his motion for new trial.
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