Molestation Conviction Affirmed Despite Recanted Allegations

The Court held that the defendant did not show that he had ineffective assistance of counsel because he suffered no prejudice, that the trial court properly allowed the lead investigator to remain in the courtroom, and that the trial court properly declined to instruct the jury on the defense of mutual combat.

The record shows that the defendant’s stepdaughters told their mother that the defendant had “messed with” them. The mother confronted the defendant, which led to a physical altercation. When the mother said that she was going to call 911, the defendant pulled the phone out of the wall. The two children then gave statements to the child advocacy center, which they then recanted days later. At trial, both children testified that they had lied at the advocacy center, and that they had told a police detective, their grandmother, their grandfather, their cousin, and their pastor that their recorded statements about the molestation were untrue.

On appeal, the defendant argued that trial counsel was ineffective because she failed to call the children’s grandparents and their pastor as witnesses to corroborate the girls’ testimony that they told them the statements were false. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and prejudice resulting from that deficiency.

The Court of Appeals held that the defendant could not make this showing because trial counsel made an informed strategic decision not to call the witnesses. At the motion for new trial, counsel testified that she decided not to call the witnesses because the alleged victims’ testimony “would be the best source of that information.” The Court held that the defendant could not show that the testimony of the grandparents and the pastor would be anything other than cumulative.

The defendant also alleged that based on the rule of sequestration, it was error to allow the lead investigator to remain in the courtroom during the trial. The defendant acknowledged that an exception to this rule provides that the trial court may allow an investigative officer to remain in the courtroom in order to assist the prosecutor in presenting the evidence in an orderly fashion; he argued that this exception should be abolished. The Court pointed out that this exception to the rule of sequestration was well-settled law from the Supreme Court of Georgia, and that the Court of Appeals “has no authority to overrule or modify a decision made by the Supreme Court of Georgia.”

The Court of Appeals also affirmed the trial court’s decision not to instruct the jury on the defense of mutual combat because the evidence did not show intention or agreement to fight and the defendant had not made a prima facie showing of justification as the mother’s injuries were much worse than the defendant’s.