author: Adams, Judge.

text:
    A10A2059.
    HINES v. THE STATE.
    (706 SE2d 156)
   Adams, Judge.

Michael Leon Hines was charged with two counts of child molestation and one count of enticing a child for indecent purposes for an incident involving his stepdaughter. Following a jury trial, Hines was convicted on one count of molestation. He contends the evidence was insufficient to support the verdict, that his trial counsel was ineffective, and that the trial court erred with regard to the chain of custody of certain evidence. We affirm.

Construed in favor of the verdict, the evidence shows the victim, B. B., was 12 years old at the time of the incident, and Hines, her stepfather, was 33. On December 20, 2004, while her mother was at work, B. B. and her younger stepbrother were playing and wrestling in their parents’ room. When her brother left the room, Hines asked B. B. to give him a back massage, which she had done before. B. B. massaged Hines’s back, legs, and feet. At one point B. B.’s brother returned and helped with the massage, but Hines eventually told the young boy to leave. B. B. then went into a light sleep on the bed. In a statement that she made on the day of the incident, B. B. stated, “I was in a light sleep but I heard him and like five minutes later I felt his penis in my rear end and he woke me up and I was pretending to be asleep because I was scared.” She told a police officer that she soon felt a liquid on her buttocks and that Hines got a washcloth and attempted to clean her up. At trial, when asked about the details of the incident, she claimed not to recall, and she testified, “I don’t remember honestly, I’ve tried to put this situation behind me.” But she admitted she signed a statement at the time and that the statement was hers. She also made a statement that Hines pulled down her pants and underwear before the incident. She remembered having to pull her pants up. Afterward, she called and left a message for her mother, then called a friend, and went to her friend’s home taking her stepbrother along.

When B. B.’s mother returned the call, either B. B. or her friend said that there was an emergency and that she had to come home because Hines had touched B. B. B. B.’s friend testified that B. B. told her at the time that Hines “was having sex with her from behind and she said she woke up but she just pretend[ed] like she was asleep because he [owned] weapons.” Later, B. B. told her mother that Hines had raped her. B. B.’s mother took her to the hospital for an examination.

At the hospital, a doctor performed a full physical examination. He discovered secretions on the victim’s body in both the vaginal and perineal areas of the victim, as well as evidence of another foreign material that he described as a K-Y jelly like substance. In the opinion of the doctor, the location of the secretions on the victim’s body ruled out the possibility that the source could be simple contact with sheets contaminated with the same secretions. The secretions isolated from the child’s body, which were stored in a sexual assault kit, were tested and shown to contain the DNA profiles of both Hines and the victim. Finally, the victim told the doctor essentially the same version of the facts as given in her statement to the police.

1. Hines contends the evidence was insufficient to support the verdict because the DNA identification evidence was fatally flawed. The crime lab employee who testified about the sexual assault kit and the testing of the material, testified that the kit contained five slides, or “smears,” of material to be tested and that one was labeled “vaginal cervical,” two were labeled “rectal,” and two were labeled “perineal.” She also testified that the results showed a match with Hines’s DNA on the “vaginal cervical swab” of the child. Hines points out that the doctor who performed the examination did not testify that he took a sample from the “vaginal cervical area.” But the doctor testified that he took the material from the “patient’s perianal area, and also the sub-pubic area which means right above the vaginal area,” as well as in the “perilabial area,” which is the outer portion of the vagina. And, as is further shown below, other evidence was presented to show that the tested sexual assault kit was the same kit the doctor prepared with the material that he obtained from the victim. Also, the crime lab employee, who was not present when the swab was taken, testified that the doctor would be the person who could say where the samples came from. Based on the evidence, the jury was authorized to conclude that the tested material came from the child.

Hines also contends the victim’s various statements were inconsistent and unreliable. But in general, the statements show consistency, and the victim admitted that she gave a written statement to the police that was, in fact, her statement. Furthermore, “ [i]t is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient. [Cit.]” Brooks v. State, 281 Ga. 514, 516 (1) (640 SE2d 280) (2007).

The evidence was sufficient to convict Hines of child molestation. See OCGA § 16-6-4 (a); Watson v. State, 222 Ga. App. 814, 816 (3) (476 SE2d 96) (1996) (evidence that defendant rubbed the victim’s vagina through her clothing was sufficient to convict defendant of child molestation). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Hines contends the trial court erred in overruling his chain of custody objection to the admission of the sexual assault kit into evidence. The chain of custody rule concerns itself with fungible evidence:

To show a chain of custody adequate to preserve the identity of fungible evidence, the State must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence.

(Citations, punctuation and footnotes omitted.) Maldonado v. State, 268 Ga. App. 691-692 (1) (603 SE2d 58) (2004). Like other questions regarding the admission of evidence, “[w]e review the trial court’s decision on the adequacy of the chain-of-custody evidence under an abuse-of-discretion standard.” Id.

We find no abuse of discretion. First, Hines admits there is no affirmative evidence of tampering. He also admits there was no chain of custody problem regarding the kit from the time it was collected at the hospital until it was in the custody of the Georgia Bureau of Investigation (“GBI”). Hines contends, however, that there is a break in the chain of custody because the kit was sent to a laboratory in New Orleans for testing and no one from the lab in New Orleans testified. But the simple fact “that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible.” (Citations and punctuation omitted.) Gassett v. State, 289 Ga. App. 792, 795 (3) (658 SE2d 366) (2008).

The evidence shows that at the hospital, a nurse gave the sexual assault kit to an investigating officer. The kit was then taken to the state crime lab. There, the GBI sealed the bag containing the kit, labeled it “2005-1000551,” marked it with the analyst’s initials and a bar code, and, on May 31, 2005, sent the kit to Reliagene, a private laboratory in New Orleans, to test for the presence of “seminal fluid or sperm.” Reliagene returned the entire kit to the GBI on February 22, 2006. At trial, the kit was shown to have the same identification number and bar code, and it had the initials of the GBI analyst who worked on the case. Thus, the kit itself, as marked, was not fungible and the witness testified to its identification. “In contrast to fungible evidence, if a piece of tangible evidence is a distinct item that could be recognized from its features from someone who saw it before, that person’s testimony identifying the item is sufficient to authenticate it.” (Punctuation and footnote omitted.) Phillips v. Williams, 276 Ga. 691, 692 (583 SE2d 4) (2003). See Roberts v. State, 232 Ga. App. 745, 748 (6) (503 SE2d 614) (1998) (item — back seat of car and results of tests for semen on the back seat of the car — not fungible).

Reliagene returned the kit with the samples, as well as a report showing that one of the samples contained sperm. After it received the kit, the GBI also concluded the same sample contained sperm, and it then compared the DNA found in that sample with DNA taken from the defendant’s mouth, which is called a buccal swab. The DNA in the two samples matched.

“DNA, like a fingerprint, is unique to a single individual and, therefore . . . may be admitted without demonstrating a chain of custody, since it can be readily identified by reference to the defendant’s DNA.” (Footnotes omitted.) Kuykendall v. State, 299 Ga. App. 360, 364 (683 SE2d 56) (2009). Thus, under the circumstances of this case, Hines’s complaint about the swab samples sent to Reliagene does not raise a chain of custody issue, per se. The real issue is the possibility of mishandling or contamination of the material in the sexual assault kit with another source of Hines’s DNA. See Thomas v. State, 288 Ga. App. 602, 606 (2) (654 SE2d 682) (2007). But no evidence was produced to show that there could be such a possibility prior to the time that the material was returned from Reliagene — the first point in time when the material taken from the victim was in the same location as the buccal sample taken from Hines’s mouth. No evidence was presented to suggest that the buccal swab was sent to New Orleans nor to show that Reliagene, or the doctor who took the swabs from the victim, had access to any of Hines’s sperm from any other source. Nor was any evidence presented to suggest the sample returned from Reliagene was mishandled or contaminated upon return to the GBI. “Whatever doubt may have arisen from the alleged mishandling of evidence in this specific case could have been argued to, and considered by, the jury, and the jury is charged with deciding how much weight to give evidence.” (Citations and punctuation omitted.) Id. (not error to admit DNA results over chain of custody objection even though sample had been sent to a private lab in New Orleans for testing and no witness testified about custody of the sample at that lab).

3. Hines contends his trial counsel was ineffective by failing to object to the DNA evidence. The part of Hines’s claim that is based on his argument regarding chain of custody of the sexual assault kit is without merit for the reasons stated above. His remaining arguments are that counsel should have objected to the DNA evidence because (1) the State failed to lay a foundation under the business records exception; (2) the test results were not certified; (3) no foundation was given for any aspect of Reliagene’s testing; and (4) the documents contained inadmissible evaluations, opinions and conclusions of third parties not before the court. Hines argues that these failures violated his right to confrontation under the Sixth Amendment and his rights to due process and a fair trial.

To show ineffective assistance, a criminal defendant must show both that his counsel’s performance was deficient, and but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Upon review of a trial court’s ruling on the effectiveness of trial counsel “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citations and punctuation omitted.) Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

At the hearing on the motion for new trial, Hines’s trial counsel testified about several aspects of his representation of Hines. But, Hines’s new counsel did not ask any questions about, nor did trial counsel testify about, why he chose not to object to the DNA evidence on the grounds now argued on appeal. Consequently, trial counsel’s failure to object to the DNA evidence is presumed to be strategic:

Without such testimony, in the absence of other evidence that trial counsel’s performance was deficient, the trial court is to presume that trial counsel’s actions are part of trial strategy. In the absence of trial counsel’s testimony, it is extremely difficult to overcome this presumption.

(Citations and punctuation omitted.) Temple v. State, 253 Ga. App. 606, 609 (2) (a) (561 SE2d 132) (2002).

Here, Hines has not overcome the presumption that his trial counsel’s failure to object on the grounds now asserted was strategic. First, all of the testimony regarding the DNA testing was supplied by Investigator Connie Pickens, an assistant manager of the biology section of the GBI crime lab, who did not perform any of the initial testing herself. Rather, Pickens was the direct supervisor to Allen Dixon, the GBI employee who actually performed the DNA tests but who no longer works for the GBI. Pickens testified that upon receiving the Reliagene report that found evidence of sperm in the sample, a qualified GBI DNA scientist would have performed a “peer review” of those results before proceeding to DNA testing, as a normal part of his procedure. She also personally reviewed the results submitted by Reliagene, as well as their notes and a photograph of the sample at issue. She then described the GBI’s DNA analysis procedure in detail and testified that it was a method generally accepted in the scientific, medical, and academic communities for analyzing DNA. She testified that part of the procedure for comparing the DNA is called “P C. R.,” which appears to be the same method that has already been found valid in Georgia. See, e.g., Thrasher v. State, 261 Ga. App. 650, 651 (1) (c) (583 SE2d 504) (2003).

Pickens, who was admitted as an expert in the area of forensic biology, reviewed all the work that Dixon had done to test the sample returned from Reliagene. She had access to all of the data generated during his analysis, Dixon’s notes, and the ensuing reports. She also had work sheets showing that Dixon had followed GBI testing protocol. She examined all of the information, as well as the controls he had run that ensure validity of the data. She then reviewed the data obtained from the samples taken from the buccal swab and the sexual assault kit and drew her own opinion or conclusion regarding the results. “An expert may base her opinions on data gathered by others. [Cit.]” Watkins v. State, 285 Ga. 355, 358 (676 SE2d 196) (2009). She concluded that the two samples matched, just as Dixon had concluded. See also Rector v. State, 285 Ga. 714, 716 (4) (681 SE2d 157) (2009) (opinion of toxicologist admissible where toxicologist reviewed the work of report’s original author and reached the same conclusions regarding test of blood samples); Carolina v. State, 302 Ga. App. 40 (690 SE2d 435) (2010).

Decided February 11, 2011

Axam Roberts, Cinque M. Axam, for appellant.

Tracy Graham-Lauison, District Attorney, Anece Baxter White, Assistant District Attorney, for appellee.

Thus, Pickens’s testimony was admissible. Although the testing reports prepared by others may not have been admissible given that the author of the reports did not testify, see Carolina, 302 Ga. App. at 42, it may be that trial counsel determined that the reports themselves were, in essence, cumulative of Pickens’s testimony. Hines passed up the opportunity to question trial counsel on this point at the hearing on the motion for new trial. Accordingly, Hines has not overcome the presumption that his trial counsel’s failure to object was strategic. Furthermore, Hines has not shown how introduction of these reports would have changed the outcome of the trial given that Pickens’s testimony was admissible.

For all of the above reasons, the trial court properly denied Hines’s motion for new trial.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       “Where there is only a bare speculation of tampering it is proper to admit the evidence and let whatever doubt remains go to its weight.” (Citations and punctuation omitted.) Thomas v. State, 288 Ga. App. 602, 606 (2) (654 SE2d 682) (2007).


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A10A2083.
    WERNER ENTERPRISES, INC. et al. v. LAMBDIN.
    (706 SE2d 185)
   SMITH, Presiding Judge.

In this automobile accident case, Werner Enterprises, Inc. and David Bates (“the Werner defendants”) appeal from the trial court’s denial of their motion for summary judgment on Alice Lambdin s negligence claim. We granted the Werner defendants’ application for interlocutory review. Because summary judgment is appropriate here, we reverse.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, we apply a de novo standard of review, and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmo-vant. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the evidence showed that Lambdin was driving on a section of Interstate 75 that was undergoing construction. It was early morning and still dark outside. Lambdin was traveling in the far left lane which had no shoulder as a result of the construction. A tractor-trailer driven by Bates was traveling in the lane to the right of Lambdin, and a witness, Christopher Wright, was traveling immediately behind Lambdin. Wright deposed that Lambdin’s two driver’s side tires “dropped off the side of the road” to the left where there was only six to seven inches of pavement. He slowed down to give Lambdin time to return to the roadway. Lambdin then overcor-rected and abruptly came across her own lane of traffic and into the next lane to the right where her vehicle struck Bates’s tractor-trailer. Wright stated that Bates did nothing to cause the collision.

Bates deposed that Lambdin lost control of her vehicle and collided with his tractor-trailer. He stated that he was driving within the posted speed limit and that Lambdin sped up as she passed him just before the collision. Lambdin was severely injured and upon recovery had no recollection of the accident.

Lambdin sued Bates and his employer Werner Enterprises alleging, among other things, that Bates was negligent and that Werner Enterprises was liable under the theory of respondeat superior for its negligent hiring, supervision and retention of Bates. The Werner defendants moved for summary judgment, and the trial court granted their motion with respect to Lambdin’s claims of negligent hiring, supervision and retention, but found that issues of material fact remained as to whether Bates was negligent and whether such negligence could be imputed to Werner Enterprises.

On appeal, the Werner defendants contend that there is no evidence that Bates was negligent. Lambdin argues only that Bates was negligent because he had a history of speeding and had received numerous traffic tickets. But she presented no evidence to contradict the deposition testimony of both Bates and Wright that Bates was not speeding on this occasion.

Decided February 11, 2011.

Dennis, Corry, Porter & Smith, Grant B. Smith, Zachary S. Shewmaker, for appellants.

Allman & Peters, James P. Peters, for appellee.

An inference cannot be based on evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. A finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.

(Citations and punctuation omitted.) Butler v. Huckabee, 209 Ga. App. 761, 762 (2) (434 SE2d 576) (1993) (suggestion by plaintiff who had no memory of impact that defendant must have been speeding was not supported by evidence).

The evidence here shows only that Lambdin struck Bates’s tractor-trailer because she overcorrected after leaving the roadway.

It is well established that negligence may not be presumed, but must be affirmatively proven, and in the absence of such proof, we must presume performance of duty and freedom from negligence. Moreover, the mere fact that a vehicle is struck by another vehicle does not establish liability on the driver of either vehicle.

(Citations, punctuation and footnotes omitted.) Davis v. Sykes, 265 Ga. App. 375, 375-376 (1) (593 SE2d 859) (2004). In this case, the Werner defendants have shown that there is an absence of evidence to support Lambdin’s negligence claim. See Butler, supra, 209 Ga. App. at 762-763 (2). And Lambdin has pointed to no specific evidence giving rise to a triable issue. Id.; see also Lau’s Corp., supra, 261 Ga. at 491. The Werner defendants were therefore entitled to judgment as a matter of law, and the trial court erred in denying their motion for summary judgment on this ground.

Judgment reversed.

Mikell and Adams, JJ., concur.


author: Mikell, Judge.

text:
    A10A2109.
    SOWELL v. BRANCH BANKING & TRUST COMPANY.
    (706 SE2d 161)
   Mikell, Judge.

Lynn K. Sowell appeals from the trial court’s grant of summary judgment to Branch Banking & Trust Company (BB&T) in its breach of contract action, which it filed after Sowell defaulted on the terms of a loan modification agreement that she executed on behalf of the borrower, Everyday, Inc. We affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review de novo the grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.” So construed, the evidence shows that BB&T loaned $75,000 to Everyday on or about March 27, 2002. Manuela Evans, president of Everyday, signed the promissory note on the corporation’s behalf and executed a Guaranty Agreement simultaneously therewith. On or about March 21, 2007, Sowell executed a Guaranty Agreement (“Guaranty”) with BB&T, which mistakenly identified Sowell as the borrower, instead of Everyday. The Guaranty did not contain any other references to the original loan or promissory note executed on behalf of Everyday. On June 11, 2008, Sowell executed a ChoiceLine Modification Agreement (the “Modification”), under the section entitled “Additional Co-Borrowers or Guarantors,” which identified Everyday as the borrower, included the note number, account number, and loan amount from the original promissory note (March 27, 2002), and extended the maturity date of the loan to June 7, 2009. The Modification also provided that

[e]ach Guarantor hereby ratifies and affirms his/her Guaranty Agreement under which each Guarantor unconditionally guaranteed the payment when due of all indebtedness and obligations owing by Borrower to [BB&T] under this Agreement and the Loan Documents, all in accordance with the terms and conditions of the Guaranty Agreement.

BB&T filed its complaint for breach of contract against Everyday, Sowell, and Evans, alleging that they defaulted on the loan. BB&T then moved for summary judgment, which the trial court granted, entering a Final Order and Judgment against Sowell.

Decided February 11, 2011.

Power, Jaugstetter & Futch, Warren R. Power, Patrick D. Jaug-stetter, Lauren A. Thompson, for appellant.

Quirk & Quirk, Kevin E. Quirk, Joseph P. Farrell, for appellee.

Sowell argues that the trial court erred because the Guaranty violated the Statute of Frauds, but the Modification is the document upon which Sowell’s liability is based.

The Statute of Frauds requires that, to be enforceable, a promise to answer for another’s debt “must be in writing and signed by the party to be charged therewith.” OCGA § 13-5-30 (2). This requirement has been interpreted to mandate further that a guaranty identify the debt, the principal debtor, the promisor, and the promisee.

Although the Guaranty did not meet these requirements, the subsequently signed Modification did. Regarding the Modification, Sowell argues only that it is unenforceable because she received no consideration in exchange for executing the document. However, BB&T gave Everyday and the guarantors additional time to pay off the debt. This forbearance from commencement of collection efforts constituted a benefit to Sowell so there was no failure of consideration.

Sowell also maintains that the default occurred only because BB&T would not extend the due date after she refused to execute an additional guaranty, but she cites no citation of authority in support of her argument, and we are aware of none which required BB&T to extend the maturity date. Accordingly, we affirm the grant of summary judgment to BB&T.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       (Footnotes omitted.) Decision One Mtg. Co. v. Victor Warren Properties, 304 Ga. App. 423, 424 (696 SE2d 145) (2010).

       Evans also executed the Modification as president of Everyday and as a guarantor.

       (Citation and punctuation omitted.) Capital Color Printing v. Ahern, 291 Ga. App. 101, 104 (1) (661 SE2d 578) (2008).

       See Graphic Prep v. Graphcom, 206 Ga. App. 689, 691-692 (3) (426 SE2d 183) (1992). Accord Kellogg v. Food Svc. Supplies, 246 Ga. App. 695, 697 (541 SE2d 683) (2000).


author: MlKELL, Judge.

text:
    A10A2125.
    DURRENCE v. THE STATE.
    (706 SE2d 180)
   MlKELL, Judge.

James H. Durrence was convicted of three counts of child molestation based on acts committed against his girlfriend’s seven-year-old daughter, H. M. He was sentenced as a recidivist to twenty years on each count, to run concurrently, with eight years to serve and the rest on probation. On appeal, Durrence contends that the trial court erred in admitting his statement into evidence and in granting the state’s motion in limine to exclude evidence of a report of molestation made by A. E, H. M.’s half-sister. Discerning no error, we affirm.

1. Durrence argues that the trial court erred in ruling that his pre-arrest statement was noncustodial, freely and voluntarily given, and admissible in evidence although he was not given Miranda warnings.

A person is considered to be in custody and Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Unless a reasonable person in the suspect’s situation would perceive that he was in custody, Miranda warnings are not necessary. Thus, the relative inquiry is how a reasonable person in [Durrence]’s position would perceive his situation.

Whether a person is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s factual findings on this issue will not be disturbed unless they are clearly erroneous. In the case at bar, the evidence supports the trial court’s ruling. GBI agent Cyrus Purdiman testified at the Jackson-Denno hearing that the DFCS worker assigned to H. M.’s case contacted Durrence to come in to Evans County DFCS’s office on March 14, 2006. The DFCS worker notified Purdiman, who arranged to be there to interview Durrence. Purdiman testified that before the interview began, he introduced himself to Durrence and stated that he worked as a special agent for the GBI. Purdiman told Durrence that he was not under arrest, was free to go, and did not have to make a statement. Purdiman explained that he wanted to discuss the allegations against Durrence. Durrence became emotional, even tearful, and he made disclosures regarding his conduct with H. M. Purdiman wrote down Durrence’s disclosures and gave him an opportunity to review his statement. Durrence signed each page and initialed corrections that were made. Purdiman signed the statement as well. Based on Durrence’s admissions that he touched H. M. inappropriately and exposed himself to her, Purdiman walked him over to the sheriffs office and placed him under arrest.

The statement was read into evidence for the purpose of the hearing. In the statement, Durrence admitted that he touched H. M. on her inner thigh near her vagina while she was sitting in his lap; that H. M. pushed his hand away from her private area; that twice on the same day in February 2006, Durrence pulled his pants away from his body so that H. M. saw his penis; and that on that same night, after H. M. went to bed, he went into her bedroom, pulled his penis out of his pants, held it in his hand, and pulled the skin back from the head of his penis. Durrence further stated that his penis was not erect when he exposed it to H. M.

According to Purdiman, the interview lasted between ninety minutes and two hours. Purdiman testified that he did not threaten Durrence in any manner; that the interview took place in a regular office at DFCS; that no other law enforcement officers were present; and that Durrence did not appear to be under the influence.

The trial court credited Purdiman’s testimony and found that Durrence was not in custody at the time he made his statement, so Miranda warnings were not required. The court also found that “the statement was freely and voluntarily given without the slightest hope of benefit or fear of injury.” Durrence contends that the trial court’s ruling is erroneous because he was lured into DFCS by a social worker, rendering his “surprise” interview by a GBI agent custodial. We disagree.

“[A] suspect is not entitled to Miranda warnings, as a matter of right, unless he has been taken into custody or has been deprived of freedom of action in another significant way.” The standard is an objective one. We consider whether, under the totality of the circumstances, a reasonable person would have felt that he was “not at liberty to terminate the interrogation and leave.” Applying these guidelines, we find no error in the trial court’s ruling that Durrence was not in custody for Miranda purposes when he made the statement. Durrence was interviewed in a DFCS office, and he came there voluntarily. Although he was not expecting Purdiman, the agent introduced himself as a GBI agent and stated that he wanted to discuss the allegations against Durrence. Purdiman told Durrence that he was not under arrest, was free to leave, and did not have to make a statement. There is no evidence that he was physically restrained or otherwise prevented from leaving the DFCS office until after he admitted to criminal conduct. Accordingly, the evidence authorized a finding that a reasonable person in Durrence’s position would have believed that he was free to terminate the interview and leave.

2. Durrence argues that the trial court erred in granting the state’s motion in limine to preclude the defense from introducing evidence of a molestation report made by A. E, H. M.’s half-sister. The state argued that the report was hearsay and that it was irrelevant because A. E was neither a victim nor a witness in this case. “The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” We discern no clear abuse of discretion in the case at bar.

The motion states that during a telephone call, an Evans County DFCS worker learned that A. E had made an unsubstantiated report of abuse in South Carolina and that the case had been closed. According to the motion, the call was reflected in Evans County DFCS’s records, which were produced during discovery. At the hearing on the motion, Durrence argued that A. E had made three unfounded allegations in South Carolina, which he intended to prove by cross-examining A. E’s mother, Janice M., concerning whether she had “been involved with [her] other daughter, A. E, with regard to making false sexual allegations against individuals.” Durrence stated that his defense was that Janice M. had caused H. M. to fabricate the allegations because Janice M. was jealous, vindictive, and suspected that Durrence was paying attention to another woman. The court permitted Durrence to question Janice M. at the hearing, and she testified that A. E had once reported that a male relative had touched her in a way that made her uncomfortable. Janice M. testified that she was not involved in making the report. Durrence presented no evidence. Finding no evidence that Janice M. encouraged A. E to make an unfounded allegation of molestation, the trial court granted the state’s motion in limine.

During trial, Janice M. was called as a defense witness; she did not testify for the state. Durrence questioned her extensively concerning her volatile relationship with Durrence, both before and after he molested H. M. Durrence also elicited testimony that Janice M. waited ten days from the time H. M. told her about what happened until she called DFCS.

On appeal, Durrence contends that the trial court’s grant of the state’s motion in limine violated his rights to a thorough and sifting cross-examination and to confront witnesses under the Sixth Amendment and Crawford v. Washington. At the outset, we note that the DFCS records produced during discovery have not been included in the appellate record. Consequently, we have no means of properly evaluating the propriety of the trial court’s ruling. “The burden is on the party alleging error to show it affirmatively by the record. This court cannot determine the propriety of the trial court’s ruling without a proffer of the excluded evidence or testimony.”

Even if the record had been properly perfected, we would find Durrence’s arguments meritless. He cites the rule that “[e]very party has a right to a thorough and sifting cross-examination of witnesses called against him,” which “includes the right to impeach the witness by revealing possible biases or prejudices concerning issues in the case.” But the state did not call Janice M. as a witness, and contrary to Durrence’s contention, “[tjhere is no requirement that the [sjtate call more witnesses than it needs to present its case.” In any event, pursuant to OCGA § 24-9-81, “[a]ny party, including the party calling the witness, may attack the credibility of a witness.” The statute gives the defendant the right to attempt to impeach his own witness. Here, however, Durrence proffered no proper impeachment evidence, so he cannot complain that the trial court abused its discretion in granting the state’s motion in limine.

Finally, Crawford is not applicable here. In Crawford, the United States Supreme Court ruled that the state’s admission of a testimonial statement against the accused, who had no opportunity to cross-examine the witness, violated the Sixth Amendment. There was no Crawford issue in this case because the trial court’s ruling did not involve the admission of any testimonial statement made by Janice M. against Durrence.

Decided February 11, 2011.

John S. Wetzler, for appellant.

Tom Durden, District Attorney, Sandra Dutton, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       (Citations and punctuation omitted.) State v. Folsom, 285 Ga. 11, 12-13 (1) (673 SE2d 210) (2009); accord McAllister v. State, 270 Ga. 224, 227-228 (1) (507 SE2d 448) (1998).

        Axelburg v. State, 294 Ga. App. 612, 613 (1) (669 SE2d 439) (2008).

        Hendrix v. State, 230 Ga. App. 604, 605 (1) (497 SE2d 236) (1997). See also Humphreys v. State, 287 Ga. 63, 73 (6) (694 SE2d 316) (2010) (“Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement at a Jackson v. Denno hearing will be upheld on appeal”) (citation omitted).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       (Citations omitted.) Hendrix, supra.

       (Punctuation and footnote omitted.) Axelburg, supra.

       Id.; accord Sosniak v. State, 287 Ga. 279, 281-282 (1) (A) (1) (695 SE2d 604) (2010).

       (Punctuation and footnote omitted.) Cantu v. State, 304 Ga. App. 655, 657 (1) (697 SE2d 310) (2010).

       541 U. S. 36 (124 SC 1354, 158 LE2d 177) (2004).

       (Citation and punctuation omitted.) Bearfield v. State, 305 Ga. App. 37, 41 (2) (699 SE2d 363) (2010).

       (Citations, punctuation and footnote omitted.) Courrier v. State, 270 Ga. App. 622, 623 (1) (a) (607 SE2d 221) (2004).

       (Footnote omitted.) Baird v. State, 260 Ga. App. 661, 665 (3) (580 SE2d 650) (2003).

       (Citation and punctuation omitted.) Leatherwood v. State, 212 Ga. App. 342, 343 (3) (441 SE2d 813) (1994).

       See Warner v. State, 281 Ga. 763, 766 (3) (642 SE2d 821) (2007) (state may attempt to impeach its own witness).

       Compare Leatherwood, supra at 344 (3) (“Hearsay is admissible to impeach a witness by showing that a prior contradictory statement has been made”) (citation omitted).

       Supra, 541 U. S. at 68-69 (V) (C). See Lindsey v. State, 282 Ga. 447, 452 (4) (651 SE2d 66) (2007).


author: Blackwell, Judge.

text:
    A10A2208.
    HOWARD v. THE STATE.
    (706 SE2d 163)
   Blackwell, Judge.

J. B. Howard was indicted in December 2006 for a violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, OCGA § 16-14-1 et seq., based on allegations that he was involved in a conspiracy to pass forged checks. More than three years later, he filed a plea in bar, asserting that he had been denied his constitutional right to a speedy trial and seeking a dismissal ef the indictment. The trial court denied the plea in bar, and Howard brought this appeal. We see no error and affirm.

On December 1, 2006, a grand jury in Douglas County returned an indictment charging Howard and 11 other defendants with acquiring and maintaining property through a pattern of racketeering activity in violation of OCGA § 16-14-4 (a). The indictment alleged 20 distinct predicate acts of forgery as the basis for the charge. All these predicate acts involved the passing of forged checks at banks located in Douglas County, and all were alleged to have occurred in August and September 2006.

Howard was not arrested immediately for the crime charged in the indictment. Although the record does not reveal precisely what was done by Douglas County authorities to locate and apprehend Howard upon the return of the indictment, it does reflect that Howard was moving his residence between two homeless shelters in Atlanta in late 2006 and that Howard did not live at the address then appearing on his driver’s license. On March 23, 2007, Howard was arrested in Clayton County on an unrelated charge, and he was transferred to Douglas County in April, at which time he finally was arrested for the crime charged in the indictment. There is nothing in the record to suggest that Douglas County authorities knew or should have known of his whereabouts prior to his arrest in Clayton County in March 2007.

After his arrest in Douglas County, a lawyer was appointed to represent Howard, and this lawyer entered an appearance on his behalf in May 2007. Howard waived arraignment in June, and his case appeared on trial calendars in August and October. His lawyer announced “not ready” at the call of both calendars. On October 30, his lawyer filed a motion to reduce bond because Howard had been unable to post a sufficient bond and had been in jail since his arrest. On November 1, the trial court ordered that Howard be released on a signature bond, and Howard was released from jail soon thereafter.

By the time Howard was released from jail in November 2007, eight of his eleven co-defendants had entered guilty pleas and had been sentenced. The next month, a ninth co-defendant entered a guilty plea and was sentenced. But following this plea, it appears that nothing significant happened with the case for about a year. There is no record of any hearings in the case or any substantive filings in 2008, and there is no clear explanation in the record for this period of inactivity. Whatever the reason, there is nothing in the record that suggests the State intentionally delayed the proceedings in an effort to prejudice Howard or for any other improper reason.

In November 2008, the prosecuting attorney to whom Howard’s case then was assigned was elected as a judge of the superior court to succeed the judge to whom the case then was assigned. When this prosecuting attorney assumed judicial office in January 2009, he promptly recused from Howard’s case, and the case was assigned to another prosecuting attorney and another judge. Proceedings in the case resumed soon thereafter, and in April and May, the tenth and eleventh co-defendants entered guilty pleas and were sentenced.

With respect to Howard, his case reappeared on a trial calendar in August 2009. Although his lawyer announced “ready” at the call of this calendar, the case was not reached in August. It appeared again on a trial calendar in September, but this time, his lawyer apparently was unavailable. In December, the trial court entered an order permitting Howard’s original lawyer to withdraw from the case, and a new lawyer was appointed to represent Howard. The new lawyer entered an appearance on his behalf on December 18 and filed several additional demands for discovery. Nothing was said in any of these filings about the right to a speedy trial.

On February 3, 2010, the new lawyer filed a plea in bar, asserting that Howard had been denied his constitutional right to a speedy trial. The case appeared on an April trial calendar, at which time the trial court apparently intended to address the plea in bar, but Howard failed to appear for the call of the calendar, and a bench warrant for his arrest was issued. After Howard was apprehended on the bench warrant, the trial court held an evidentiary hearing on May 5 and denied the plea in bar in a ruling from the bench, finding that Howard failed to timely assert his right to a speedy trial and that Howard suffered no prejudice as a result of the delay in bringing him to trial. The trial court entered a written order denying the plea in bar on June 7, 2010. Howard appeals from the denial of his plea in bar.

1. In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992), the United States Supreme Court set out the principles that guide us when we consider whether the delay in bringing a defendant to trial amounts to a denial of his constitutional right to a speedy trial. Some delay is inevitable, of course, so we first consider whether the delay is long enough to warrant a more searching judicial inquiry. See Doggett, 505 U. S. at 651-652 (II); see also Barker, 407 U. S. at 530-531 (III). The right to a speedy trial attaches at the time of arrest or formal accusation or indictment, whichever occurs first, and we measure the delay from the time the right attaches. Scandrett v. State, 279 Ga. 632, 633 (1) (a) (619 SE2d 603) (2005). Most courts have said that a delay approaching one year is sufficient in most cases to warrant a more searching inquiry. See Doggett, 505 U. S. at 652, n. 1 (II); but see Barker, 407 U. S. at 530-531 (IV) (“[T]he length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.”). In this case, approximately 42 months elapsed between the return of the indictment and the entry of the order denying the plea in bar. We think a more searching inquiry is warranted here, and the State does not contend otherwise.

2. When a more searching inquiry is warranted, the United States Supreme Court has explained that a court should consider “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Doggett, 505 U. S. at 651 (II); see also Barker, 407 U. S. at 530-533 (IV). Of these factors, no one is dispositive. Instead, a court must weigh all four factors, along with any other relevant circumstances, in “a difficult and sensitive balancing process.” Barker, 407 U. S. at 533 (IV). We now proceed to consider and weigh these factors.

(a) We consider first whether the delay in this case was uncommonly long. Howard was indicted in December 2006, and the order denying his plea in bar was entered about three-and-a-half years later. The State concedes that this delay was uncommonly long, and we agree. Nevertheless, we recognize that a prosecution like this one — involving 12 defendants, a continuing criminal enterprise, and 20 predicate acts — might justifiably require more time than a prosecution involving a lone defendant or an isolated incident. Accordingly, we weigh the length of the delay against the State, see State v. Gleaton, 288 Ga. 373 (703 SE2d 642) (2010) (delay approaching four years properly weighed against State), but the significance of this factor is tempered by our recognition that a longer delay may be justified in a complex case like this one than in more typical cases. See Barker, 407 U. S. at 531 (IV) (“[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”).

(b) We next consider who is more to blame for the delay. Our consideration of this factor not only requires us to decide whether Howard or the State bears responsibility for the various circumstances that contributed to the delay, but it also requires us to examine the reasons for the delay. State v. Johnson, 274 Ga. 511, 512 (555 SE2d 710) (2001). As the United States Supreme Court has explained, “different weights should be assigned to different reasons.” Barker, 407 U. S. at 531 (IV). For instance:

Deliberate delay to hamper the defense weighs heavily against the prosecution. More neutral reasons such as negligence or overcrowded courts weigh less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.
In contrast, delay caused by the defense weighs against the defendant: If delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine. That rule accords with the reality that defendants may have incentives to employ delay as a defense tactic: delay may work to the accused’s advantage because witnesses may become unavailable or their memories may fade over time.

Vermont v. Brillon, 556 U. S. 81 (II) (129 SC 1283, 173 LE2d 231) (2009) (citations and punctuation omitted).

In this case, Howard and the State each are responsible for some of the circumstances that caused the delay. The record shows that the case appeared on at least five trial calendars, but Howard’s lawyer announced “not ready” at the call of two calendars, his lawyer was unavailable for trial on another calendar, and Howard himself failed to appear for the call of yet another calendar. Moreover, the record suggests that, when a new lawyer was appointed in December 2009 to represent Howard, the new lawyer served demands for discovery that, at least to some extent, duplicated the demands for discovery that the original lawyer had served and to which the State already had responded. In light of these circumstances, Howard is responsible for at least some of the delay. See Vermont, 129 SC at 1290 (II) (because attorney is defendant’s agent when acting, or failing to act, in furtherance of litigation, delay caused by defendant’s attorney is charged against defendant).

Although Howard bears some responsibility for the delay in this case, the State is more to blame. There is nothing in the record to suggest that anything of substance happened in this case for more than a year. The record does not reflect any proceedings or substantive filings between December 2007 and April 2009. For most of this period of delay — between December 2007 and January 2009 — the record contains no explanation at all, and this delay is chargeable to the State. With respect to the delay between January and April 2009, the record reveals that the prosecutor to whom the case had been assigned was elected to succeed the judge to whom the case had been assigned, requiring the reassignment of the case to a new prosecutor and judge. Even this circumstance, however, is the responsibility of the State. See Brooks v. State, 304 Ga. App. 281, 283 (b) (696 SE2d 110) (2010); Kramer v. State, 287 Ga. App. 796, 798 (1) (652 SE2d 843) (2007). In addition, after activity resumed in the case in April 2009, there is no explanation for why Howard was not tried at that time or in August, when his lawyer announced “ready” at the call of the trial calendar, and this delay too is chargeable to the State. We must conclude, therefore, that the State is to blame for the preponderance of the delay.

Nevertheless, there is no evidence that any of this delay was deliberate or part of an effort to prejudice Howard. Instead, it appears that the delay for which the State is responsible was the result of, at most, mere negligence. In fact, at the hearing on the plea in bar, Howard’s counsel conceded as much: “I don’t have any evidence that this was intentional by the State, but. . . this is a case that just fell through the cracks.” Because Howard himself is to blame for a significant portion of the delay, and because the delay for which the State is responsible does not appear to have been deliberate, we weigh this factor against the State lightly. See Sweatman v. State, 287 Ga. 872, 874-875 (4) (700 SE2d 579) (2010).

(c) We consider now whether Howard timely asserted his right to a speedy trial. It is the responsibility of the defendant to assert his right to a speedy trial, and his failure to do so in a timely manner weighs strongly against him. Frazier v. State, 277 Ga. App. 881, 882 (c) (627 SE2d 894) (2006). Indeed, the “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Barker, 407 U. S. at 532 (IV). This factor weighs especially strongly against a defendant where he has been represented by counsel since soon after his arrest but does not assert his right to a speedy trial until just before trial. Ferguson v. State, 303 Ga. App. 341, 344 (2) (c) (693 SE2d 578) (2010).

Howard never filed a demand asserting his statutory right to a speedy trial under OCGA § 17-7-170, and he properly raised his constitutional right to a speedy trial for the first time in his plea in bar, which was filed more than three years after he was indicted. Nevertheless, Howard says that we should find he asserted his right to a speedy trial at a much earlier time, inasmuch as he filed pro se several papers referencing his right to a speedy trial in late 2007. But Howard was represented by counsel at the time he filed these papers, and

[t]his Court has repeatedly held that a pro se demand for a speedy trial filed while a criminal defendant is represented by counsel “was of no legal effect whatsoever.” The Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent himself and be represented by counsel.

Wallace v. State, 288 Ga. App. 480, 481 (654 SE2d 442) (2007) (citation and punctuation omitted); see also Bowling v. State, 285 Ga. 43, 45 (1) (c), n. 3 (673 SE2d 194) (2009). Accordingly, the third factor — the timely assertion of the right to a speedy trial — weighs heavily against Howard. See Brown v. State, 287 Ga. 892 (1) (c) (700 SE2d 407) (2010) (in review of trial court’s denial of plea in bar based on alleged violation of constitutional right to speedy trial, defendant’s failure to timely assert demand for speedy trial weighs heavily against him).

(d) Finally, we consider whether Howard actually was prejudiced by the delay, with an eye toward the three interests that the right to a speedy trial is intended to protect: “preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired.” Nelloms v. State, 274 Ga. 179, 181 (549 SE2d 381) (2001). Howard was incarcerated as a result of this case for about seven months, but he has offered no evidence that this incarceration involved “sub-standard conditions or other oppressive factors beyond those that necessarily attend imprisonment.” Jackson v. State, 272 Ga. 782, 785 (534 SE2d 796) (2000) (punctuation omitted). Thus, he has not shown that his pretrial incarceration alone constituted prejudice. Id.

Howard contends that having this case pending for so long caused him great anxiety and concern. Specifically, he argues that he was unable to secure a loan because of the pending charges and that this caused him a significant amount of anxiety. But the only evidence offered by Howard that these charges, in fact, prevented the approval of his loan was hearsay and, therefore, of no probative value. See Taylor v. State, 298 Ga. App. 145, 147 (2) (b) (679 SE2d 371) (2009). Moreover, Howard could have mitigated any anxiety and concern by asserting his right to a speedy trial, but for more than three years following his indictment, he did not. See Lambert v. State, 302 Ga. App. 573, 577 (4) (692 SE2d 15) (2010). Finally, while the trial court may have been entitled to weigh the prejudice factor slightly in Howard’s favor in light of his testimony, given the lack of evidence that he suffered any unusual anxiety and concern, the trial court was not required to do so. State v. Reid, 298 Ga. App. 235, 241 (2) (b) (iv) (679 SE2d 802) (2009) (trial court did not err in finding defendant’s testimony that charges impaired his ability to obtain job was insufficient to weigh this factor in defendant’s favor).

Decided February 11, 2011.

James K. Luttrell, for appellant.

Howard also contends that the pretrial delay has impaired his defense because he cannot locate two witnesses. “To prove prejudice due to the unavailability of these witnesses, [Howard] must show that the unavailable witnesses could supply material evidence for the defense.” Robinson v. State, 298 Ga. App. 164, 168 (1) (b) (iv) (679 SE2d 383) (2009) (citation and punctuation omitted). In particular, Howard claims that because of the delay, he cannot locate the unknown man who asked him to cash the forged check or the woman, whom he knew only as “Big Girl,” who introduced Howard to the man. But Howard presented no evidence that he ever could have located either of these witnesses or that either of them would have provided information material to his defense. See Lynch v. State, 300 Ga. App. 723, 725 (1) (d) (686 SE2d 268) (2009). Indeed, based on Howard’s own testimony, the trial court properly found that these two witnesses would have done nothing but confirm Howard’s participation in the crime charged. Because Howard’s inability to locate the two witnesses demonstrates no actual prejudice to his defense, the fourth Barker-Doggett factor is weighed against him. See Ferguson, 303 Ga. App. at 346 (2) (d).

(e) We now balance each of the Barker-Doggett factors, noting that none of the individual factors is a necessary or sufficient condition to finding a deprivation of the right to a speedy trial. Ruffin v. State, 284 Ga. 52, 55 (2) (b) (663 SE2d 189) (2008). We do not condone the considerable delay in bringing Howard’s case to trial, and we are especially concerned by the year of apparent inactivity in his case. Nevertheless, Howard’s belated assertion of his constitutional right to a speedy trial weighs heavily against him, and to a lesser extent, so does his failure to show prejudice in light of such delay. Considering all these factors, we conclude that the trial court did not err in denying Howard’s plea in bar. See Falagian v. State, 300 Ga. App. 187, 190 (1) (e) (684 SE2d 340) (2009); see also Sweatman, 287 Ga. at 876 (6) (after balancing other factors, delay of nearly five years did not violate defendant’s constitutional right to a speedy trial).

For these reasons, we affirm the denial of the plea in bar.

Judgment affirmed.

Barnes, P. J., and Dillard, J., concur.

David McDade, District Attorney, Benjamin Von Schuch, James A. Dooley, Assistant District Attorneys, for appellee.

       We do not know why his lawyer was not then ready for trial. The record does reflect, however, that the State had provided his lawyer with discovery before the first of these trial calendars.

       A direct appeal properly may be taken from the denial of a plea in bar based on an assertion that the defendant has been denied his constitutional right to a speedy trial. Callaway v. State, 275 Ga. 332, 333 (567 SE2d 13) (2002).

       The principles set out in Barker and Doggett apply equally to a claimed denial of the right to a speedy trial under the United States Constitution and a claimed denial of the same right under the Georgia Constitution. Redd v. State, 261 Ga. 300, 301, n. 1 (404 SE2d 264) (1991). Howard asserts his right to a speedy trial under both the United States and Georgia Constitutions.

       We also note that Howard moved to sever his trial from that of his co-defendants. When a defendant moves to sever, he ought to know that, if his motion is granted, the multiplication of proceedings may cause some additional delay. In this case, the trial court never ruled upon the motion to sever because it was rendered moot by the entry of guilty pleas by all of the co-defendants.

       The record on appeal reveals one filing during this period: a request for a short leave of absence by Howard’s attorney. There is no indication, however, that this request caused any proceedings to be rescheduled or delayed.

       The record does reflect that the prosecutor to whom the case was assigned in 2008 was involved in prosecuting a death penalty case. Although we recognize that a death penalty case requires significant time, there is no indication in the record of the extent to which the death penalty prosecution contributed to a delay of this case. In any event, delay occasioned by overworked prosecutors is chargeable to the State. See Teasley v. State, 307 Ga. App. 153 (2) (b) (704 SE2d 248) (2010) (unintentional delays caused by overcrowded court dockets and overworked prosecutors are weighed against State).


text:
    A10A2281.
    SHIELDS v. THE STATE.
    (706 SE2d 187)
   Blackwell, Judge.

Dante Terrance Shields was tried by jury and convicted of several crimes in connection with a home invasion and attempted armed robbery in Hall County. Shields then moved for a new trial, claiming that he was deprived at trial of the effective assistance of counsel because his lawyer, among other things, misunderstood the number of peremptory strikes to which he was entitled during jury selection and failed to object to certain evidence that reflected badly upon Shields’s character. After the trial court denied his motion for a new trial, Shields brought this appeal. We see no error and affirm.

To prevail on his claim of ineffective assistance of counsel, Shields must prove both that the performance of his lawyer at trial was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). To prove that the performance of his lawyer was deficient, Shields must show that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-688; see also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SC 2574, 91 LE2d 305) (1986). And to prove that he was prejudiced by the performance of his lawyer, Shields must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra, 466 U. S. at 694 (III) (B); see also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SC 1495, 146 LE2d 389) (2000). This burden, although not impossible to carry, is a heavy one. See Kimmelman, supra, 477 U. S. at 382 (II) (C). We think Shields has failed to carry his burden.

1. We begin with Shields’s claim that his lawyer was ineffective because he misunderstood the number of peremptory challenges to which Shields was entitled during jury selection. Under OCGA § 15-12-165, a defendant charged with a felony for which the State does not seek the death penalty may exercise nine peremptory challenges in the selection of the jury, and the State is entitled to the same number. Shields’s lawyer, however, mistakenly believed that Shields was only entitled to six peremptory challenges. Although Shields’s lawyer asked the trial court whether each party would be entitled to exercise six peremptory challenges, the trial court either shared his mistaken belief that six was the usual number of challenges or misunderstood that the parties, although entitled to more challenges, had agreed to exercise no more than six each:

DEFENSE COUNSEL: Your Honor, we’re going to pick a jury at 12:00 with six strikes a side and then two alternates with how many strikes?
THE COURT: I’m going to let you pick a jury of 12 and then three alternates if I have — still have the right number of jurors to allow you to do that.
DEFENSE COUNSEL: With six strikes a side to pick the 12?
THE COURT: Correct.

In any event, Shields’s lawyer proceeded to strike a jury with the understanding that he had six peremptory challenges. Shields’s lawyer ultimately exercised only five of these challenges.

(a) We consider first whether the fact that Shields’s lawyer misunderstood the number of peremptory challenges to which Shields was entitled is sufficient to establish that his representation of Shields at trial was objectively unreasonable, and we conclude that it is not. As we consider this question, we bear in mind the admonition of the United States Supreme Court that

[j]udicial scrutiny of counsel’s performance must be highly deferential. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

Strickland, supra, 466 U. S. at 689 (III) (A). And although the thinking of the lawyer may be relevant to our inquiry, we must remember that our inquiry properly is focused on what the lawyer did or did not do, not what he thought or did not think. Here, Shields’s lawyer exercised five peremptory challenges in striking a jury and did not exercise another. To establish deficient performance, Shields must overcome the “strong presumption” that conducting jury selection in this way fell “within the wide range of professional assistance.” We think he has failed to overcome the presumption.

Which, and how many, prospective jurors to strike is a quintessential strategic decision. Shields’s lawyer admitted that his comments to the trial court before jury selection commenced — in which he attempted to confirm his belief that Shields and the State each were entitled to exercise six peremptory challenges — was not part of a strategy to reduce the number of peremptory challenges allowed, but instead was a result of his misunderstanding of the law. But his decisions about which prospective jurors to accept, and which to strike, certainly were strategic. Shields does not contend that these strategic decisions were unreasonable apart from the misunderstanding about the number of peremptory challenges to which Shields was entitled.

Although it is clear that Shields’s lawyer misunderstood the number of peremptory challenges to which Shields was entitled, it does not follow that this misunderstanding necessarily affected his strategic decisions to strike only five prospective jurors. If the lawyer reasonably would have made the same strategic decisions — even if he knew that Shields was entitled to nine strikes — it cannot be said that the mistake of law affected the conduct or performance of the lawyer. And it is conceivable that he might still have struck the jury in precisely the same way for strategic reasons, regardless of whether he thought he had six, nine, or twenty peremptory challenges. Because Shields bears the burden of proving deficient performance, and because our inquiry properly is focused on the reasonableness of what trial counsel did — not what he thought — we think that Shields, to establish deficient performance, must prove that his lawyer’s misunderstanding of the law actually affected his decisions about which, and how many, prospective jurors to strike.

The record does not prove that the lawyer’s mistaken thinking actually affected his conduct in selecting a jury. Shields’s trial lawyer was asked at the hearing on the motion for new trial whether he would have conducted voir dire and jury selection differently if he had known that he had nine strikes, and his responses to these questions do not establish that he certainly, or even probably, would have done so:

Q. Do you think you would have conducted your voir dire differently if you thought that you had nine strikes?
A. You know, that’s a tough question. It just is. I hate to be ambivalent. I just don’t know that I can answer that because I only used five of my — I only used five of my six strikes anyway. You know, stepping back in time, if I had known or been more properly aware of the fact of my nine strikes in all honesty it may — yes, it may have impacted the way I picked a jury.
Q. Now, in addition to your perhaps conducting voir dire differently, do you think that you would have struck the jury differently?
A. It’s very difficult. I know you asked me to do it to, quote, unquote, Monday morning quarterback it. It’s hard to right here, sitting here today. Had I selected the jury a little bit differently with my nine strikes that I should have used, I can’t really state with certainty. But would it have changed things, yes, it possibly could have.
Q. So I guess again Monday morning quarterbacking, is it possible that you were maybe allowing jurors on earlier in the panel so as not to reach the jurors later in the panel?
A. I’m really trying to be fair here. It’s just very difficult for me to sit here under oath and really come down hard [on] one side or the other on that. I’m being as honest as I can. There is a likelihood had I been operating under the proper assumption of nine strikes that the composition may have been different because I may have exercised my strikes differently. I think that’s a fair statement.

At most, these responses indicate that there was some possibility that the lawyer’s misunderstanding of the number of peremptory challenges allowed might have affected the way in which he performed his duties at trial. To overcome the presumption of professional reasonableness, Shields must offer something more than mere speculation. See Williams v. State, 284 Ga. 849, 851 (3) (672 SE2d 619) (2009). Because he fails to do so, we think he has not demonstrated deficient performance with respect to the selection of a jury.

(b) We also conclude that Shields’s claim of ineffective assistance with respect to the misunderstanding about peremptory strikes fails in any event because, even if the misunderstanding amounted to deficient performance, Shields has not shown prejudice. We begin by addressing Shields’s contention that, when a lawyer makes a mistake of law regarding the number of peremptory challenges to which he is entitled, we should presume prejudice rather than require affirmative evidence of it. As the United States Supreme Court has explained, “[ajttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial,” and for this reason, such errors generally “cannot be classified according to likelihood of causing prejudice.” Strickland, supra, 466 U. S. at 693 (III) (B). Although the United States Supreme Court has said that prejudice can be presumed in certain extraordinary circumstances, a mistake about the law governing the selection of a jury is not among them. See, e.g., United States v. Cronic, 466 U. S. 648, 659 (III), n. 25 (104 SC 2039, 80 LE2d 657) (1984) (“The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.”); Cuyler v. Sullivan, 446 U. S. 335, 349-350 (IV) (B) (100 SC 1708, 64 LE2d 333) (1980) (“[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.”). Absent such extraordinary circumstances, claims of ineffective assistance of counsel “are subject to a general requirement that the defendant affirmatively prove prejudice.” Strickland, supra, 466 U. S. at 693 (III) (B).

Shields nevertheless says that the decision of the Supreme Court of Georgia in Fortson v. State, 277 Ga. 164 (587 SE2d 39) (2003), compels us to presume prejudice in this case. We do not agree. Like this case, Fortson involved a mistake by defense counsel in the course of striking a jury. There, the defense lawyer asked the trial court to excuse a specific prospective juror for cause, and the trial court did so, but for some reason, this prospective juror never was removed from the list from which a jury would be struck. Consequently, when the time came to strike a jury, the defense lawyer mistakenly used a peremptory challenge to strike the same prospective juror, whom the trial court already had excused for cause. Before the twelfth juror was selected, the defense lawyer exhausted all of the peremptory challenges to which the defendant was entitled. Asserting that her lawyer wasted one of her peremptory challenges on a prospective juror that should have been, and actually had been, excused for cause, the defendant claimed that she was denied the effective assistance of counsel, and the Supreme Court agreed. 277 Ga. at 165-167. With respect to prejudice, the Supreme Court in Fortson did not say anything about the likelihood that, but for the lawyer’s mistake, the result of the trial would have been different. Instead, the Supreme Court pointed to the value of peremptory challenges and then focused on the lawyer’s “unnecessary waste” of such a valuable peremptory challenge. From this fact alone, the Supreme Court concluded that the defendant “suffered actual prejudice.” Id. at 166. It does not follow, however, that every “waste” of a peremptory challenge is prejudicial.

Two years before it decided Fortson, the Supreme Court addressed another claim of ineffective assistance involving jury selection in Head v. Carr, 273 Ga. 613 (544 SE2d 409) (2001). In Carr, the defense lawyer failed to ask the trial court to excuse two prospective jurors for cause — the Supreme Court assumed that, if the lawyer had asked the trial court to do so, the trial court properly would have excused both for cause — and the lawyer then used peremptory challenges to strike both prospective jurors. But unlike the lawyer in Fortson, the lawyer in Carr did not exhaust all of the peremptory challenges to which the defendant was entitled before the twelfth juror was selected. 273 Ga. at 623-624. In this context, the Supreme Court did not presume prejudice or summarily find prejudice based simply on the waste of a peremptory challenge. Id. at 624. Instead, the Supreme Court required the usual showing of actual prejudice under Strickland and, finding none in the record, rejected the claim of ineffective assistance of counsel. Id.

We think that the crucial distinction between Fortson and Carr is that, in the former, the defense lawyer exhausted all of his peremptory challenges before the twelfth juror was selected and, in the latter, he did not. Because Shields’s lawyer did not use all of the six peremptory challenges to which he believed Shields was entitled, this case is more like Carr than Fortson. Applying the principles set forth in Carr, we think that Shields must show actual prejudice.

Shields has failed to carry his burden of showing that he actually was prejudiced by his lawyer’s misunderstanding about the number of peremptory challenges to which he was entitled. As we said in Division 1 (a), supra, the record does not establish that Shields would have exercised a peremptory challenge as to any of the 12 jurors selected if his lawyer had known that he had more challenges. Shields does not contend that any unqualified juror sat in his case. And there is no indication that the prospective jurors who were not reached before the twelfth juror was selected — but who would have been reached if the parties had exercised more peremptory challenges — were more favorably inclined toward Shields’s case than the jurors who actually were selected. In these circumstances, Shields has failed to show that he was prejudiced by his trial lawyer’s misunderstanding about the number of peremptory challenges to which he was entitled. See Carr, supra, 273 Ga. at 624.

2. Shields also contends that his trial lawyer was ineffective because he failed to object to certain testimony that reflected badly upon Shields’s character. Before trial, several victims of the crimes with which Shields was charged told police that Shields was the perpetrator of these crimes. But at trial, these victims recanted their earlier statements and said Shields was not, in fact, the perpetrator. When confronted at trial with their prior inconsistent statements, these victims offered explanations for their prior identifications of Shields. Two of these explanations involved the testimony to which, Shields says, his lawyer should have objected.

One victim explained that she had erroneously identified Shields because, “as I heard, there was two people going around breaking in people’s houses.” Another victim said that she had identified Shields as the perpetrator only after she described the perpetrator to her boyfriend, who told her that “only two people look like that. That’s Buddha and [Shields]. And those are the only two that’s doing crazy stuff right about now.” This victim also said that, before identifying Shields, she “actually had to call Hall County and see if he had been released, and he had been released that Thursday.” When asked why she now was recanting her prior identification of Shields, she explained that “I thought it was kind of wrong for us to call Hall County Detention Center to see if that person had been released from jail and just start calling his name. ...” Shields now says that his trial lawyer should have objected to this testimony. Because his lawyer did not object, Shields contends that he was deprived of the effective assistance of counsel.

Decided February 14, 2011

Mark A. Begnaud, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, Lindsay H. Burton, Assistant District Attorney, for appellee.

In assessing the performance of Shields’s lawyer, we must remember that “[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, supra, 466 U. S. at 689 (III) (A). We think that some reasonable lawyer might not have objected to this testimony for sound strategic reasons, and for this reason, Shields cannot show that his lawyer performed in an objectively unreasonable way. It is important to remember that the testimony of these victims at trial was not all bad for Shields. Indeed, the testimony that the victims had erroneously or falsely identified him as the perpetrator was quite positive. A reasonable trial lawyer might believe that the recantation of the prior identifications would be more believable if accompanied by an explanation for the prior identifications, even if that explanation reflected badly upon Shields’s character. In other words, a reasonable trial lawyer might think that any explanation for a witness having erroneously identified his client as the perpetrator of the crimes charged — even if the explanation also reflected badly on the character of his client — would be more valuable than no explanation at all. Moreover, a reasonable trial lawyer might also be concerned that objecting to this testimony would tend to draw the attention of the jury away from its positive implications and focus the jury more on its negative ones. Finally, some reasonable lawyer might believe that the testimony that some other person, known as “Buddha,” also was “doing crazy stuff’ would be helpful in proving that someone else might have perpetrated these crimes and, for this reason, might not have objected to the testimony. Shields’s trial lawyer testified that he did not object to this testimony for similar strategic reasons. We cannot say that this strategy was an unreasonable one.

For these reasons, we affirm the judgment below.

Judgment affirmed.

Barnes, P. J., and Dillard, J., concur.

       More specifically, Shields was convicted of five counts of aggravated assault, three counts of attempted armed robbery, one count of burglary, and one count of battery. For these crimes, Shields was sentenced to a term of 18 years of imprisonment, followed by 32 years on probation.

       When we refer in this opinion to Shields’s lawyer, we refer to the lawyer who represented Shields at trial. A different lawyer represented Shields at the hearing on the motion for new trial, and yet another represents Shields on appeal.

       In Strickland, the United States Supreme Court said that
      [a] convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.
      466 U. S. at 690 (III) (A) (emphasis supplied); see also Harrington v. Richter, — U. S_(IV) (A) (1) (131 SC 770, 178 LE2d 624) (2011) (“Strickland . . . calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.”). In other words, it is the conduct of the lawyer, not his thinking, that we assess for reasonableness, even though the thinking of the lawyer may inform the reasonableness of his conduct.

       Relying on Reid v. State, 235 Ga. 378, 379 (1) (219 SE2d 740) (1975) and its progeny, the Supreme Court of Georgia and this Court repeatedly have cited “[t]he decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, [and] what trial motions should be made” as examples of strategic and tactical decisions that “are the exclusive province of the lawyer after consultation with his client.” See, e.g., Upton v. Parks, 284 Ga. 254, 257 (2) (664 SE2d 196) (2008); Snelson v. State, 286 Ga. App. 203, 204 (648 SE2d 647) (2007); Long v. State, 281 Ga. App. 356, 360 (636 SE2d 88) (2006); Griffin v. State, 281 Ga. App. 249, 251 (3) (635 SE2d 853) (2006); Abernathy v. State, 278 Ga. App. 574, 586 (3) (b) (630 SE2d 421) (2006); Paige v. State, 277 Ga. App. 687, 693 (4) (d) (627 SE2d 370) (2006).

       Shields does not claim, for example, that any of the five strikes actually exercised by his lawyer should have been used on other potential jurors.

       The idea that the inquiry should be framed in this way is not novel. In another context in which the thinking of counsel is alleged to have been corrupted — not by ignorance of the law, but by a potential conflict of interest — the United States Supreme Court has adopted the same approach, requiring proof that the potential conflict actually affected the way in which the lawyer acted at trial. See Mickens v. Taylor, 535 U. S. 162, 173-174 (II) (122 SC 1237, 152 LE2d 291) (2002). And although it has not said so explicitly, it appears to us that the Supreme Court has applied the same analysis in cases that, like this one, involve a lawyer’s misunderstanding of the law. In Williams, the Court found that the lawyer had represented the defendant at trial in an objectively unreasonable way, and the Court carefully explained how a mistake of law caused the lawyer not to investigate the circumstances of the defendant’s childhood, which in turn caused the lawyer to fail to present mitigating evidence to the jury. 529 U. S. at 395. This explanation suggests that it was important to the Supreme Court that the lawyer’s misunderstanding of the law actually affected the way in which he tried the case.

       Other testimony at the hearing confirms this conclusion. In his brief, Shields suggests that, if he had known he had nine strikes, the lawyer might have struck Jurors 114 and 116 because they were “potentially hostile to the defense.” But there is no proof in the record that Shields would have used a peremptory challenge to strike either if his lawyer had known that he had more challenges. Although Shields’s trial lawyer testified at the hearing on his motion for new trial, the trial lawyer was never even asked about Juror 116, and there is nothing at all in the record about why this juror was accepted. And although the trial lawyer did say that Juror 114 had some of the characteristics of a juror “I probably wouldn’t want to pick,” and that in hindsight he probably should have struck Juror 114, he never testified that, if he had known Shields had more strikes, he would have struck Juror 114. Indeed, the trial lawyer testified that he would have saved strikes for four prospective jurors who, in fact, were never reached because the parties exercised fewer peremptory strikes. In addition, although the lawyer testified that he consulted with Shields about which prospective jurors to accept and which to strike — and that he generally defers to his clients about juror selection — Shields himself was not asked anything at all about jury selection, much less anything about Jurors 114 and 116, when he testified at the hearing. For this reason, there is nothing in the record from which we might conclude that Shields would have pressed his lawyer to pick jurors in a different manner if his lawyer had told him that he was entitled to exercise nine strikes.

       It is important to note that our inquiry with respect to deficient performance is not the same as the prejudice inquiry. As to deficient performance, we ask whether the defendant has shown that the lawyer should have done something different. With respect to prejudice, we ask whether, if the lawyer had done something different, there is a “reasonable probability” it would have made any difference in the result at trial.

       Because Shields has failed to demonstrate that his lawyer was ineffective, we are not required to consider the prejudice prong of Strickland. Sellers v. State, 294 Ga. App. 536, 537 (1) (669 SE2d 544) (2008). But because the issue of prejudice is the focus of the parties’ briefs and involves consideration of some unusual circumstances, we exercise our discretion to address the question of prejudice.

       When the Supreme Court decided Fortson, it did not purport to overrule Carr. In fact, its opinion in Fortson does not even mention Carr. Because we think, for the reasons set forth in this opinion, that Fortson and Carr can be reconciled, we do not understand Fortson to overrule Carr, and we think Carr is still binding authority.

       We recognize that Fortson might be distinguishable from this case on other grounds as well, including that the juror on which a peremptory challenge was “wasted” in Fortson was a juror that should have been excused for cause, a circumstance not presented here. So, we do not mean to suggest that, if only Shields’s lawyer had used all of the peremptory challenges to which he believed Shields was entitled, this case would be identical to Fortson. Because Shields’s lawyer did not exhaust those peremptory challenges, the distinction between Carr and Fortson is enough to decide this case, and we need not decide more. We leave for another day whether Fortson would govern a case in which the peremptory challenges are exhausted but no peremptory challenge is directed toward a juror that should have been excused for cause.


author: Andrews, Judge.

text:
    A11A0263.
    WATSON v. THE STATE.
    (706 SE2d 194)
   Andrews, Judge.

On appeal from the trial court’s denial of his motion to withdraw a guilty plea, Phillip Watson argues that because the motion was timely filed, the court erred in refusing to hold an evidentiary hearing concerning his ineffective assistance claim and in denying the motion. We agree that the motion remained pending, vacate the denial of the motion, and remand the case for further proceedings.

The record shows that on May 9, 2008, Watson pled guilty to three counts of electronically furnishing obscene materials to minors and was sentenced to thirty-six months with fourteen to serve. On May 21, 2008, Watson moved to withdraw his guilty plea on the ground that it was manifestly unjust. After notice to the State, a hearing was held on May 30, 2008, at which Watson’s counsel, who had also represented him at the plea hearing, asked for a continuance “two or three months down the road.” After noting that Watson had already been sentenced, the trial court said that “counsel can request [the hearing] to he put down at any time that you choose.” When counsel asked that the case be taken off the calendar, the trial court said: “All right, it will be removed from the calendar now.”

Almost two years later, on March 4, 2010, and represented by new counsel, Watson brought an amended motion to withdraw his plea on the ground that previous counsel had rendered ineffective assistance concerning the collateral consequences of his plea. Specifically, Watson alleged that previous counsel had told him that if he pled guilty, he would be released from Whitfield County jail that day and could evade Montana authorities, who were seeking his arrest, but that in fact Watson was not released and was instead arrested by Montana authorities, who transported him to that state before the hearing on his amended motion. After that hearing, the trial court entered an order denying the motion to withdraw on grounds including that it did not allege more than a legal conclusion, had been entered only for the purpose of “keep[ing] the record open,” did not relate back, and had been abandoned through inaction. This appeal followed.

1. The Supreme Court of Georgia has recently held that “the most relevant statutory framework” for the analysis of a motion to withdraw a guilty plea after entry of a sentence is laid out in OCGA § 17-9-60 et seq. McKiernan v. State, 286 Ga. 756, 759 (692 SE2d 340) (2010). “ ‘The authority for withdrawal in the same term of a plea of guilty after judgment is judicial in origin, and generally refers to an attack on a plea for defects dehors [outside] the record, as where the plea was rendered through mistake or undue influence.’ ” Id., quoting Bonner v. State, 268 Ga. App. 170, 171 (1) (601 SE2d 478) (2004). By contrast, though a motion in arrest of judgment “ ‘must [also] be made at the same term the judgment was obtained (OCGA § 17-9-61 (b)),’ ” the latter “ ‘addresses only a nonamendable defect on the face of the record. OCGA § 17-9-61 (a).’ ” (Emphasis supplied.) Id., quoting Bonner, 268 Ga. App. at 171-172 (1).

Here, as in McKiernan, Watson brought his initial motion to withdraw his plea before the end of the term in which the sentence was rendered, even though a hearing on the motion was not held until well after the expiration of that term. There is no dispute in this case that the State had adequate notice of the motion. Compare McKiernan, 286 Ga. at 758-759. Nor can we conclude that the timely motion was abandoned when Watson attached a rule nisi to both the original motion and the amended motion and where, as here, the trial court authorized Watson to reschedule the hearing on the motion “at any time that you choose.” It follows that the trial court’s denial of the motion on the ground of abandonment was error. Id. at 759-760 (vacating dismissal of motion to withdraw guilty plea and remanding for a rehearing on the motion); compare Vaughan v. State, 161 Ga. App. 265, 266 (287 SE2d 728) (1982) (finding no abuse of discretion in dismissal of motion to withdraw guilty plea when defendant failed to attach a rule nisi to the motion).

2. Proceeding under the rubric approved in McKiernan and Bonner, it appears that Watson’s claim depends on subject matter appearing outside the face of the record — that is, whether counsel’s representations to him before or during the plea hearing amounted to ineffective assistance. We therefore analyze his motion as one to withdraw a guilty plea, and not as one in arrest of judgment. McKiernan, 286 Ga. at 759.

According to the transcript of the hearing on the motion to withdraw, Watson’s previous counsel was hospitalized in June 2008, shortly after obtaining an indefinite continuance on the motion to withdraw and shortly before the end of the term of court in which Watson’s sentence had been entered. See OCGA § 15-6-3 (12) (B) (Whitfield County term of court begins on the second Monday in January and July). New counsel also represented to the court that not until the end of 2008 was it determined that previous counsel would not return to representation, after which time his cases were reassigned. It is thus possible that the amended motion to withdraw was the “earliest practicable moment” at which to raise the question of previous counsel’s ineffectiveness. Hills v. State, 296 Ga. App. 101, 102 (673 SE2d 614) (2009).

Decided February 14, 2011.

Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

“The plea withdrawal proceeding is a critical stage of the criminal prosecution and absent waiver, a defendant is entitled to counsel to assist him in seeking to withdraw his guilty pleas.” (Punctuation omitted.) Brown v. State, 295 Ga. App. 107, 108 (670 SE2d 900) (2008), quoting Fortson v. State, 272 Ga. 457, 459 (1) (532 SE2d 102) (2000). “This is so in part because a hearing on a motion to withdraw a guilty plea involves intricacies of the law and advocacy by the State against the defendant.” (Punctuation omitted.) Brown, 295 Ga. App. at 108.

In its current state, the record does not show whether or why previous counsel advised Watson that he would escape detention in Montana if he pled guilty. Compare Freeman v. State, 282 Ga. App. 185, 189 (3) (638 SE2d 358) (2006) (remand is not mandated if the reviewing court can determine from the record that the defendant cannot show ineffective assistance). We therefore vacate the trial court’s denial of Watson’s motion and remand this case to the trial court in order to “develop the record regarding his claim of ineffectiveness,” after which Watson may “appeal [any] denial of that motion.” (Punctuation omitted.) Brown, 295 Ga. App. at 108 (reversing trial court’s denial of motion to withdraw plea and remanding for further proceedings on the question of previous counsel’s ineffectiveness); Hills, 296 Ga. App. at 103-104 (vacating denial of motion to withdraw plea and remanding for evidentiary hearing on defendant’s claim that post-conviction counsel was ineffective).

Judgment vacated and case remanded with direction.

Phipps, P. J., and McFadden, J., concur.

       See Uniform Superior Court Rule 33.12 (A) (a defendant may move to withdraw a guilty plea “whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice”).