The Court of Appeals reversed the defendant’s child molestation convictions and remanded the case back to the trial court for a new trial
In Tumlin v. State, the Georgia Court of Appeals reversed the defendant’s child molestation convictions, finding that he received ineffective assistance of counsel as his trial attorney failed to properly investigate the defendant’s claim that the allegations against him were influenced by an episode of the Dr. Phil show.
The defendant was arrested for aggravated child molestation after he was accused of sexually abusing his four-year-old daughter. The defendant denied the allegations and his defense, in part, relied on an encounter that he and his wife had just before the allegations were made.
He testified that he came home from work and found his wife and daughter watching an episode of Dr. Phil entitled, “Forgiving the Unforgivable.” The episode was about victims of child molestation. The defendant then scolded his wife for permitting their daughter to watch something with such a mature and sexual subject matter.
He testified that the episode aired on Tuesday and Wednesday of the week the allegation was made against him. On cross-examination, the prosecutor asked him, “[d]o you have any explanation as to why that show didn’t even air in the Atlanta area on Tuesday?” The defendant responded, “To my knowledge, I remembered it being on two days that week.”
His wife then testified that she could not remember ever watching the Dr. Phil show and had no recollection of this episode. However, on cross-examination, she changed her testimony and admitted that she “may have s[een] four or five episodes” of Dr. Phil.
At the defendant’s motion for new trial, his trial counsel testified that she knew that this evidence “was very important” but that she did not have the “manpower” to be able to obtain it. She made no attempt to subpoena this evidence from the studio to prove that this episode did, in fact, air in the days preceding the allegation.
To make matters worse, the trial attorney questioned the defendant about it at trial in a manner that implied that he may not be telling the truth. She prefaced her questions to him with, “You realize that you’re under oath right now?” and asked him “you’re trying to tell this jury that…?”
Appellate counsel’s investigator testified at the motion for new trial hearing that he was able to subpoena a video recording of this episode, which centered around two girls who made molestation allegations against their stepfather but blamed their mother for letting it happen. Evidence showed that the episode likely aired just two days prior to the allegation being made against the defendant.
The Court of Appeals noted that the defendant’s entire case centered on the credibility of the witnesses and that, in these cases, a defense attorney’s failure to secure available evidence that corroborates a defendant’s testimony will support a finding that trial counsel’s performance was deficient.
The alleged victim was so young that, by the time of trial, she had no recollection of who her father even was nor the allegations that had led to his arrest. The Court emphasized that, in “close cases,” mistakes by trial counsel take on greater significance.
To prevail on an ineffective assistance of counsel claim, the defendant must show:
1. That the trial attorney’s performance was deficient – Attorneys don’t have to be perfect. However, their performance is deficient if they fail to take the steps that a reasonable attorney would to effectively defend their client; and
2. The defendant was prejudiced by the deficient performance – It’s not enough to show that counsel’s performance was deficient. The defendant must also show how it may have affected the outcome of the trial.
The Court of Appeals concluded that there was a reasonable probability that had trial counsel secured and introduced this evidence, it would have changed the outcome of the trial. This evidence not only would have corroborated the defendant’s theory as to what influenced the making of this allegation against him, but it would have served to impeach his wife’s credibility.
As a result, the Court reversed the defendant’s convictions for child molestation and aggravated child molestation and remanded the case back to the trial court for a new trial.
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