The State v. Banks , 337 Ga. App. 749 ( 2016 )

FIRST DIVISION
DOYLE, C. J.,
ANDREWS, P. J., and RAY, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 8, 2016
In the Court of Appeals of Georgia
A16A0602. THE STATE v. BANKS.
ANDREWS, Presiding Judge.
Following a jury trial, the Superior Court of Glynn County entered judgments
of conviction against Levi Banks, Jr. on one count of aggravated child molestation
(OCGA § 16-6-4 (c)) and one count of child molestation (OCGA § 16-6-4 (a) (1)).
Banks obtained new counsel and filed a motion for new trial arguing, inter alia, that
he received ineffective assistance of trial counsel. The trial court granted Banks’
motion, and the State appeals. See OCGA § 5-7-1 (a) (8). Because we conclude that
the trial court erred in concluding Banks received ineffective assistance of trial
counsel, we reverse and remand.
Viewed in a light most favorable to the verdict, the evidence revealed that
Banks lived with his grandparents Wayne (“Amy”) and Olan Daffron and had resided
with them since he was approximately six years old. On Friday, July 27, 2012,
Victoria Boatright (Banks’ aunt and Olan Daffron’s daughter) visited the Daffrons’
residence with her daughter, Kelli, and Kelli’s four-year-old daughter and three-
week-old son. Kelli and her children planned to stay with the Daffrons for the
weekend. After dropping off Kelli and her children, Victoria left with plans to return
and pick them up the following Sunday afternoon.
That same evening, however, Victoria received a telephone call from Kelli.
Kelli was very upset and Victoria could hear Olan Daffron in the background as well.
When Victoria arrived, she saw Olan Daffron sitting on the front porch and Kelli and
her children standing in the front doorway. Victoria gathered the childrens’
belongings and loaded Kelli, the children, and their belongings into her car. As
Victoria began to drive away, Kelli’s daughter told her that Banks had “licked [her]
hiney” and had given her candy. Victoria stopped immediately, got the victim out of
the car, and walked up to Olan Daffron. She then asked what Banks had done, and the
victim repeated that Banks “licked my hiney and gave me candy.” When Victoria
asked the victim how the incident occurred, the victim pointed to her private area and
moved her shorts and panties to one side. Shocked, Victoria left with the victim and
reported the incident to police the next morning. After the incident, Victoria noticed
2
that the victim placed her hands inside her pants and masturbated, telling Victoria that
is where Banks licked her. The victim also frequently volunteered to tell others what
had happened to her.
After Victoria reported the incident to law enforcement, the victim appeared
for a forensic interview and a forensic medical examination. During the forensic
interview, the victim stated that Banks licked her on her “hiney,” which she identified
as her vagina through the use of anatomically correct drawings. At the forensic
medical examination, the victim stuck out her tongue, licked the air, and said Banks
licked her “where I pee.”
At trial, the victim testified that Banks had “licked [her] hiney” under her
clothes and had given her candy. The victim further stated the incident occurred in
Banks’ room while Kelli and the Daffrons were in another room in the house.
Furthermore, Banks’ cousin testified as a similar transaction witness that, when she
was ten years old, Banks fondled her breasts and vagina when the two were playing
“hide and go seek.” Finally, Banks testified that he gave the victim candy and that he
3
may have patted her buttocks, but denied licking her or otherwise touching the victim
inappropriately.1
In its sole enumeration of error, the State contends the trial court erred in
granting Banks’ motion for new trial as amended because Banks was not deprived of
the effective assistance of counsel. We agree.
Under Georgia law,
to obtain reversal of a conviction based on a claim of ineffective
assistance of counsel, a defendant has the burden of proving that
counsel’s performance was deficient, and that, but for the deficiency,
there was a reasonable probability the outcome of the trial would have
been different. To establish deficient performance, a defendant must
show that counsel’s performance fell below an objective standard of
reasonableness under the circumstances confronting counsel at the time
without resorting to hindsight. In considering adequacy of performance,
trial counsel is strongly presumed to have rendered adequate assistance
1
Banks did not contest by cross-appeal, and we so find that this evidence was
sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt of
the crimes with which he was charged. See OCGA § 24-14-8 (“The testimony of a
single witness is generally sufficient to establish a fact.”); Jackson v. Virginia, 443
U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See also OCGA §§ 5-7-1 (b), 5-6-38
(a); State v. Nickerson, 324 Ga. App. 576, 581 (2) (749 SE2d 768) (2013) (“to secure
appellate review of the superior court’s adverse rulings on the other alleged violations
. . ., Nickerson was required to file either a cross-appeal to the instant appeal or a
separate notice of appeal”).
4
and made all significant decisions in the exercise of reasonable
professional judgment.
(Citations and punctuation omitted). Copeland v. State, 327 Ga. App. 520, 527 (3)
(759 SE2d 593) (2014). An attorney’s lack of experience, standing alone, is not
grounds for a claim of ineffective assistance of counsel. See Simmons v. State, 291
Ga. 705, 713 (10) (b) (733 SE2d 280) (2012); Johnson v. State, 287 Ga. 767, 769 (2)
(700 SE2d 346) (2010); Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443)
(1995). To the contrary, “a successful ineffectiveness claim must be based upon
specific errors made by counsel, rather than upon trial counsel’s experience or lack
thereof.” Sevostiyanova v. State, 313 Ga. App. 729, 737 (11) (a) (722 SE2d 333)
(2012). If a defendant fails to satisfy either prong of the test for ineffective assistance
of counsel, it is not incumbent upon this Court to examine the other prong. See, e.g.,
Thomas v. State, 318 Ga. App. 849, 857 (5) (734 SE2d 823) (2012).
“When reviewing a trial court’s decision to grant a motion for new trial based
on ineffective assistance of counsel, we defer to the trial court’s findings of fact
unless clearly erroneous, but owe no such deference to its conclusions of law which
we apply independently to the facts.” State v. Sims, 296 Ga. 465, 468-469 (2) (769
SE2d 62) (2015). In reviewing Banks’ claims of ineffective assistance, the trial court
5
recited Banks’ grounds and found that testifying counsel “was not properly mentored
throughout the proceedings by an experienced attorney and did not posses the
knowledge necessary to properly represent [Banks] in a capital case.” However, the
trial court failed to enter findings of fact and conclusions of law on Banks’ specific
grounds of ineffective assistance.2 See White v. State, 287 Ga. 713, 720 (4) (699 SE2d
291) (2010). Rather, it simply concluded that testifying counsel’s performance “was
deficient and that the deficient performance was prejudicial to [Banks’] defense.”3
2
Despite this lack of specificity in the trial court’s order, a remand is not
required. See Hendrix v. State, 268 Ga. App. 455, 457 (2) (602 SE2d 133) (2004)
(“[W]hen the record is sufficient, as here, an appellate court may decide
ineffectiveness issues without remanding the case when the remand would waste
judicial and legal resources and serve no useful purpose.”).
3
The trial court correctly recognized inexperience alone “falls far short of
demonstrating a complete failure of the adversarial process and would not support a
finding of ineffective assistance of counsel,” but added that “inexperience alone is not
what the Court is basing this decision on.” Although not specifically stated as a basis
for its ruling, it appears the trial court found that the supervision of lead counsel was
insufficient, which it determined is tantamount to ineffective assistance of counsel.
Neither Banks nor the trial court cited any Georgia authority, and we have found
none, in support of this proposition. But even if the proposition were true, Banks
made no showing concerning the effectiveness of the two additional counsel who
represented him at trial. See Division 1 infra. Similarly, neither Banks nor the trial
court cited any support for the position that a prospective attorney who has graduated
from law school and passed the bar examination, but has not yet been admitted to
practice law, constitutes a per se denial of a fair trial or of the effective assistance of
counsel. See People v. Denzel W., 930 NE2d 974, 980-981 (Ill. 2010); Wilson v.
People, 652 P2d 595, 597 (Colo. 1982). Moreover, the trial court’s finding is
6
Although a thorough review of the record reveals that three attorneys from the
Brunswick Judicial Circuit Public Defender’s Office represented Banks at trial,4 one
of whom was the chief circuit public defender, Banks presented the testimony of only
one of his three attorneys during the hearing on his motion for new trial.5 Notably,
Banks does not distinguish between his three attorneys which attorney was
responsible for the individual claims of ineffective assistance. Compare Kerdpoka v.
State, 314 Ga. App. at 406 (6) (defendant distinguished between alleged errors by
lead counsel and assistant counsel). According to his motion for new trial as
apparently based solely upon lead counsel’s statement on cross-examination that she
“didn’t feel like there was any mentorship. . . .”
4
A fourth attorney from the public defender’s office represented Banks during
a pretrial Jackson-Denno hearing.
5
The testifying attorney had been designated as lead counsel prior to trial. To
the extent Banks’ allegations of ineffective assistance of counsel are directed toward
attorneys who did not testify at the motion for new trial hearing, we note initially that
it is “extremely difficult to overcome the presumption that . . . counsel’s conduct was
strategic or that it falls within the wide range of reasonable professional conduct.”
Kerdpoka v. State, 314 Ga. App. 400, 407 (6) (b) (724 SE2d 419) (2012). See also
Davis v. State, 280 Ga. 442, 443 (2) (629 SE2d 238) (2006); McRae v. State, 289 Ga.
App. 418, 419 (657 SE2d 323) (2008). However, since there is no specific claim that
Banks’ two remaining counsel offered ineffective assistance, we conclude that any
such claims have been waived. See Morris v. State, 330 Ga. App. 750, 751 (2) (769
SE2d 163) (2015) (an appellant is required to “raise any issue of ineffective
assistance of trial counsel at the earliest practicable moment to avoid it being deemed
waived”).
7
amended, Banks contended that he received ineffective assistance of trial counsel due
to four specific errors. We address each in turn.
(a) Testimony of Dr. Greg Cox. First, Banks contends he received ineffective
assistance due to lead counsel’s failure to timely disclose Dr. Greg Cox as an expert
witness, which resulted in a limitation of Dr. Cox’s proposed testimony. Because the
record demonstrates that the attorney designated as lead counsel did not participate
in the notice and presentation of Dr. Cox, we conclude that Banks failed to
demonstrate ineffective assistance by lead counsel.
During trial, a State’s witness testified that the four-year-old victim became
“obsessed with her private areas” and masturbated after the abuse had been disclosed.
Lead counsel objected, arguing that the information concerning the victim’s
masturbation had not been disclosed in discovery. The trial court overruled the
objection. Following additional testimony, lead counsel renewed the objection,
moved for a mistrial, and argued that the State opened the door to child psychology
issues which required expert testimony “to explain to the jury why a four-year-old .
. . playing with herself is seemingly normal behavior.” The chief circuit public
defender then engaged in an extended colloquy with the trial court, focusing upon the
8
need for an expert witness to explain sexual behavior in children. The trial court
denied Banks’ motion for mistrial.
After a lunch recess, the circuit public defender revisited the need for an expert
witness in child psychology. The trial court required Banks to “let the State know
what you expect . . . your expert to testify about,” and stated that it would “protect
[the defense] on getting your expert in.” The next day, the circuit public defender
stated that Dr. Cox would testify concerning sexual behavior by children as well as
“aspects of child brain development and memory and recall.” The State objected to
any proposed testimony by Dr. Cox beyond the sexual behavior of children, and the
trial court deferred its ruling until Banks filed a written notice of Dr. Cox’s proposed
testimony.
Banks’ written notice of intent to present expert testimony identified Dr. Cox’s
proposed testimony in “the areas of child psychology and development, age
appropriate behaviors for young children, now discredited trauma syndromes . . ., and
with respect to the brain development, memory and recall of young children.” The
parties engaged in a lengthy discussion with the trial court concerning the scope of
Dr. Cox’s proposed testimony, after which the State met with Dr. Cox. The State then
renewed its objection to Dr. Cox offering expert testimony on any topic not related
9
to sexual behavior by children. The trial court agreed and limited Dr. Cox to “the age
appropriate sexual behavior” of young children.
Aside from the initial objection to testimony about masturbation by the victim,
lead counsel neither argued the motion to admit Dr. Cox’s testimony during trial, nor
executed the notice of intent to introduce Dr. Cox’s testimony. Furthermore, Banks
did not present either attorney responsible for introducing Dr. Cox’s testimony as a
witness during Banks’ motion for new trial hearing. See Morris, 330 Ga. App. at 752
(2); Kerdpoka, 314 Ga. App. at 407 (6) (b). Finally, although Banks proffered an
affidavit by Dr. Cox outlining his proposed testimony, the affidavit does not
demonstrate that the result of Banks’ trial may have been different had Dr. Cox’s
testimony been admitted. Inasmuch as lead counsel had no role in notifying the trial
court of Banks’ intent to introduce expert testimony, there is no action or inaction to
find erroneous. As a result, we conclude Banks failed to demonstrate ineffective
assistance of trial counsel.
(b) Testimony of Improper Interview Techniques. Second, Banks argued that
trial counsel failed to present expert testimony on allegedly improper interview
techniques during the forensic interview of the victim. During the motion for new
trial hearing, lead counsel testified that she approached the chief circuit public
10
defender in advance of trial concerning the need for an expert on “the interview
techniques by the two police officers.” The circuit public defender replied only that
they “couldn’t get an expert.” Lead counsel did not “follow-up after that
conversation.” The circuit public defender did not testify during the motion for new
trial hearing.
Pretermitting whether lead counsel erred in failing to do more to secure an
expert witness in the field of forensic interviewing, Banks “has failed to show
prejudice in this case because he has offered no evidence as to what an expert . . .
would have opined.” White v. State, 293 Ga. 635, 636 (2) (748 SE2d 888) (2013). See
also Brown v. State, 293 Ga. 518, 519 (2) (748 SE2d 388) (2013) (“Speculation that
[a witness] could have given testimony favorable to the defense does not establish
prejudice.”); Arbegast v. State, 332 Ga. App. 414, 421 (4), 426 (6) (g) (773 SE2d
283) (2015); Bagwell v. State, 329 Ga. App. 122, 129 (2) (b) (ii) (764 SE2d 149)
(2014).
To establish the prejudicial effect of trial counsel’s failure to present
certain evidence, an appellant is required to make an affirmative
showing that specifically demonstrates how counsel’s failure would
have affected the outcome of the case. Absent a proffer of what the
testimony of his expert would have been at trial, [Banks] cannot show
11
that there is a reasonable probability that the outcome of the trial would
have been different had his counsel taken the suggested course.
White, 293 Ga. at 636-637 (citing Smith v. State, 303 Ga. App. 831, 835 (4) (695
SE2d 86) (2010)). As a result, Banks again failed to demonstrate ineffective
assistance of trial counsel.
(c) Certified Copies of Prior Convictions of State’s Witnesses. Third, Banks
alleged that trial counsel failed to obtain certified copies of convictions of either Kelli
or Victoria Boatright, each of whom were identified as potential witnesses for the
State. At the hearing on Banks’ motion for new trial, lead counsel acknowledged that
Kelli Boatright was not a testifying witness. In addition, lead counsel could not state
whether Victoria Boatright even had a prior conviction, stating that she did not
believe Victoria Boatright “had ever been adjudicated guilty” and that a criminal
action was “still pending somewhere.”
Irrespective of whether lead counsel played any role in the search for prior
convictions, Banks failed to introduce copies of any convictions, certified or
uncertified, at the motion for new trial hearing. In the absence of any supporting
evidence, Banks failed to establish that he was prejudiced by lead counsel’s alleged
error. See, e.g., Wallace v. State, 294 Ga. 257, 259 (3) (a) (750 SE2d 302) (2013);
12
Aburto v. State, 327 Ga. App. 424, 431 (3) (759 SE2d 276) (2014); Long v. State, 324
Ga. App. 882, 896 (7) (752 SE2d 54) (2013); Leopold v. State, 324 Ga. App. 550, 555
(1) (b) (751 SE2d 184) (2013); Ashmid v. State, 316 Ga. App. 550, 557 (3) (a) (730
SE2d 37) (2012) (“there has been no showing in the record that any State witness
even had a criminal history to discover”). Compare Curtis v. State, 330 Ga. App. 839,
843 (1) (c) (i) (769 SE2d 580) (2015).
(d) Inexperience of Trial Counsel. Finally, Banks contended that trial counsel
lacked experience “to litigate a case of this magnitude.” The gravamen of Banks’
claim is that the attorney from the Public Defender’s Office designated as lead
counsel was inexperienced and, despite receiving confirmation that she passed the
Georgia bar examination prior to trial, had not been sworn in as a member of the State
Bar of Georgia at the time of trial. These arguments fail.
(i) The attorney designated as lead counsel began working in the Brunswick
Judicial Circuit Public Defender’s Office in September 2013. At that time, she was
sworn in under the Graduate Practice Act, which permitted her to practice “through
the end of the month where I got my [b]ar results. . . .” See Supreme Court of Georgia
Rules 97, 100. She was designated lead counsel on October 11, 2013, and she learned
that she passed the bar examination on October 25, 2013, the Friday before Banks’
13
trial began on the following Monday. She was later sworn in as a member of the State
Bar on November 7, 2013.
To prepare for Banks’ trial, lead counsel met with Banks on two occasions;
discussed the State’s plea offer with him; received and reviewed discovery from the
State, including reports concerning law enforcement’s interviews of witnesses;
reviewed discovery with Banks; offered to review the victim’s forensic interview with
Banks, which Banks declined; interviewed Banks’ grandparents, his pastor, and a
potential witness (Tommy Clark); issued subpoenas to multiple witnesses; discussed
potential plea offers with the State; and filed three motions in limine, four motions
for in camera inspections of various records, open records requests, a motion for
individual voir dire, a motion for a special juror questionnaire, and the defense’s
requests to charge. In addition, lead counsel had participated in a child abuse case
during law school.
During trial, lead counsel individually argued multiple motions in limine; made
motions for mistrial (which resulted in curative instructions); cross-examined three
of the State’s witnesses; presented the direct testimony of three defense witnesses;
moved to strike the victim’s testimony; and gave the defense’s closing argument.
Lead counsel also conferred with other counsel at various points in the trial.
14
With this evidence in mind, and with no reference to a specific error by lead
counsel, see Sevostiyanova, 313 Ga. App. at 737 (11) (a), we cannot say that lead
counsel’s performance “fell below an objective standard of reasonableness under the
circumstances confronting counsel at the time without resorting to hindsight.”
Copeland, 327 Ga. App. at 527 (3). To the contrary, we conclude that lead counsel
rendered “adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id.
(ii) Banks’ argument targeting the inexperience and status of his lead counsel,
and the trial court’s reliance upon it, is flawed for at least two reasons. First, the
argument views one attorney in a vacuum and necessarily ignores the fact that two
additional attorneys actively participated throughout Banks’ trial. In addition to the
tasks lead counsel performed as outlined in Division 1 (d) (i), supra, lead counsel
consulted with, and yielded to, the other two attorneys throughout trial.6 Indeed, the
trial court noted that lead counsel “had very capable counsel sitting with you all the
6
In one instance, the circuit public defender stepped in to correct a
misstatement by lead counsel concerning the timing of a limiting instruction. In
another, the circuit public defender represented Banks when the trial court advised
Banks of his right to testify because lead counsel was “dealing with some witness
issues for the defense case.”
15
way through this” and that “[y]ou’ve got three attorneys over there.”7 Banks himself
acknowledged that he had the opportunity to communicate with each of his attorneys
at any time during trial. The circuit public defender also noted that, at one point, “two
gentlemen in the back of the courtroom are assistant public defenders and they’re
assisting us with the case.” Moreover, defense objections by more than one defense
counsel occurred with sufficient frequency that the trial court twice stated, “I’m just
going to let one of you object at a time. . . .”8 Finally, during a recess, the circuit
public defender noted that “we’ve got three lawyers here” to review the trial court’s
proposed charge. Taken together, this evidence belies Banks’ assertion in his brief to
this Court that other counsel merely made “brief guest appearances. . . .” To the
contrary, the record reveals a concerted effort by the Public Defender’s Office to
present a coordinated and thorough defense for Banks. Despite the active
7
A second attorney from the public defender’s office cross-examined three
State’s witnesses; examined two witness for the defense, including the defense’s
expert witness; argued various motions and objections; and appeared for sentencing.
Finally, the circuit public defender participated throughout the trial by arguing
various motions, most notably the motion to allow Dr. Cox’s unabridged expert
testimony.
8
Furthermore, the record is replete with several instances in which more than
one defense counsel participated in bench conferences or other hearings concerning
evidentiary rulings.
16
participation of a team of attorneys, Banks presented no testimony concerning the
performance and qualifications of the two remaining attorneys, one of whom was the
circuit public defender.
Second, the more concerning issue is that, to the extent the designation of lead
counsel was erroneous, Banks cannot invite error only to challenge the alleged error
after an unfavorable result at trial. See Stewart v. State, 239 Ga. 588, 590 (6) (238
SE2d 540) (1977) (“A party cannot induce an alleged error or ‘. . . ignore what he
thinks to be an injustice, take his chance on a favorable verdict, and complain
later.’”); Puckett v. State, 239 Ga. App. 582, 583 (1) (521 SE2d 634) (1999) (“‘one
cannot complain of a judgment, ruling or result he has procured or aided in causing
by his own strategy, tactics or conduct.”). In fact, the trial court knew that lead
counsel had not been sworn in as a member of the State Bar of Georgia at the time of
trial.9 The record reveals that, on the morning of the second day of trial, two of
Banks’ three counsel were late. Lead counsel stated that, “since I have not yet been
9
The only citation offered in support of Banks’ argument on this point is
inapplicable because the Illinois Supreme Court found that a violation of its rule
governing appearances by law school graduates did not amount to a per se denial of
counsel. Denzel W., 930 NE2d at 982, 983. It is further distinguishable because the
rule applicable in that case required the written consent of the client to be represented
by the graduate. See Id. at 980-981. There is no similar requirement in Georgia’s
rules. See Supreme Court of Georgia Rules 97-103.
17
sworn in yet, I’m not sure that we can conduct -- should conduct any proceedings
before they get here.” The trial court agreed. Similarly, lead counsel agreed that she
was not permitted “to do work in the courtroom without a supervising attorney with
[her.]” See Supreme Court of Georgia Rule 98. Finally, lead counsel did not express
any objection to the trial court concerning her inexperience.10
In sum, we conclude that Banks failed to carry his burden to prove that lead
counsel’s “performance was deficient, and that, but for the deficiency, there was a
reasonable probability the outcome of the trial would have been different.” Copeland,
327 Ga. App. at 527 (3). Because the trial court erred in concluding that Banks
received ineffective assistance of trial counsel, we reverse and remand.11
Judgment reversed, and case remanded. Doyle, C. J., and Ray, J., concur.
10
In contrast, lead counsel “emphatically and even eagerly” testified to her own
alleged ineffectiveness during Banks’ motion for new trial hearing, stating at one
point that she “basically escorted [Banks] to prison.” See Carrie v. State, 298 Ga.
App. 55, 62 (5), n. 23 (679 SE2d 30) (2009) (“this case is yet another example of the
worrying trend of trial counsel emphatically and even eagerly testifying to [her] own
incompetence.”).
11
Banks raised several additional alleged errors in his motion for new trial as
amended. The trial court concluded that, because it granted Banks’ motion for new
trial on fair trial and ineffective assistance of counsel grounds, Banks’ remaining
grounds were rendered moot. Because we reverse the trial court’s ruling on Banks’
claim of ineffective assistance of trial counsel, we remand to permit the trial court to
evaluate Banks’ remaining claims.
18