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GA Child Molestation Conviction Reversed Due to Trial Attorney Errors

August 28, 2013

In Darst v. State, the Georgia Court of Appeals reversed the defendant’s convictions for aggravated child molestation on the grounds that his defense attorney at trial provided ineffective assistance of counsel.

Specifically, the Court found that the defense attorney failed to (1) obtain critical records supporting the defendant’s innocence, (2) seek the assistance of an expert, and (3) object to improper testimony from a key State’s witness. The Court found that the evidence was sufficient to convict Darst, but that he was nevertheless entitled to a new trial because he received ineffective assistance of counsel. In evaluating the facts of the case, the Court of Appeals laid out a standard for what a criminal defense attorney in Georgia must do to provide effective assistance to a defendant charged with a child molestation offense.

The evidence showed that Darst and his girlfriend were the foster parents of two children, S.C. and C.C. The children’s biological mother and paternal grandparents were involved in custody proceedings to attempt to gain permanent custody of the girls. In September of 2004, the children were told that they would be moving to Pennsylvania to live with their grandparents. The next month, S.C. stated that Darst had touched her private part, and forced her to put her mouth on his private part. A month later, C.C. stated that Darst had touched her private.

Darst was charged with two counts of aggravated child molestation against each of the children, four counts total. At trial, Darst denied the allegations, contending that the children’s testimony was unbelievable, and that if the children had been molested, it was by someone else. The jury found Darst guilty and he moved for a new trial contending that trial counsel provided ineffective assistance.

Darst first contended that his defense attorney failed to obtain records from the Georgia Department of Family and Children Services (DFCS), from the children’s school, and from their therapist. Appellate counsel obtained these records and presented them at the motion for new trial. The records from DFCS contained statements by C.C. that her biological father had “made [her] touch him” and engaged in “secret touching of [her] privates.” The children’s therapist then testified that C.C. had made similar statements, which the therapist had reported as required by law. Additionally, DFCS and school records showed positive social and educational development of the children while they were living with Darst, and that the children’s behavior worsened after the children learned they would be moving to live with their grandparents.

Trial counsel admitted that he had not obtained any of these records prior to trial, stating that he was under the impression that the records were unavailable. The Court notes that trial counsel did not identify any measures he had taken to determine whether the records were in fact available.

The Court of Appeals found that Darst had demonstrated the records were available pursuant to a subpoena, and that much of the information contained in the records were favorable to the defendant’s theory that if the children had been molested, it was by someone other than the defendant. Having found that this evidence was “both available and favorable to the defense,” the Court held that the trial attorney’s failure to obtain the records constituted deficient performance.

At the hearing on the motion for new trial, appellate counsel also presented testimony from Dr. Nancy Aldridge and Amy Morton, who were qualified by the trial court as experts in the forensic interviewing of children. Both experts expressed concerns about a “collection of error[s]” made by the interviewer in this case, including repeated suggestive questioning which, in their opinion, rendered the children’s statements unreliable. The Court of Appeals found that the trial attorney’s failure to consult with an expert was deficient, reasoning that trial counsel had no strategic reason for failing to pursue this course of action.

Darst also contended that trial counsel was ineffective because he failed to object to inadmissible hearsay testimony at trial. A DFCS caseworker testified that because the children’s biological father and uncle would have contact with the children when they moved to live with their grandparents, the father and the uncle were ordered to complete psychosexual evaluations, and that the evaluations had been completed with “no red flags.” The Court of Appeals held that these statements were inadmissiable hearsay, and that trial counsel should have objected to this testimony.

The Court of Appeals stated that trial counsel’s errors should be evaluated for prejudice “collectively” and that, based on the multiple instances of deficient performance, the Court concluded that Darst was clearly prejudiced by counsel’s errors. The Court held that but for counsel’s errors, there was a reasonable probability that the outcome of Darst’s trial would have been different. Therefore, the Court reversed Darst’s convictions for aggravated child molestation and granted him a new trial.

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