State v. Banks

• Decision Date: 08 June 2016
• Docket Number: A16A0602.
• Parties: The State v. Banks.
• Court: Georgia Court of Appeals

337 Ga.App. 749

789 S.E.2d 619

The State

v.Banks.

A16A0602.

Court of Appeals of Georgia.

June 8, 2016

Reconsideration Denied July 7, 2016

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellant.

Richard O. Allen, Kevin R. Gough, Brunswick, for appellee.

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 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 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 and made all significant decisions in the exercise of reasonable professional judgment.

(Citations and punctuation omitted.) Copeland v. State , 327 Ga.App. 520, 527, 759 S.E.2d 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 S.E.2d 280 (2012); Johnson v. State , 287 Ga. 767, 769, 700 S.E.2d 346 (2010) ; Stephens v. State , 265 Ga. 120, 121, 453 S.E.2d 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 S.E.2d 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 S.E.2d 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, 769 S.E.2d 62 (2015). In reviewing Banks' claims of ineffective assistance, the trial court recited Banks' grounds and found that testifying counsel “was not properly mentored throughout the proceedings by an experienced attorney and did not possess 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, 699 S.E.2d 291 (2010). Rather, it simply concluded that testifying counsel's performance “was deficient and that the deficient performance was prejudicial to [Banks'] defense.”³

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. 400, 407 (6)(b), 724 S.E.2d 419 (2012) (defendant distinguished between alleged errors by lead counsel and assistant counsel). According to his motion for new trial as 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 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 to...