THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
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COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 24, 2020
In the Court of Appeals of Georgia
A20A0715. TUCKER v. STATE.
HODGES, Judge.
Jermaine Donte Tucker was convicted by a jury of statutory rape.1 Following
the denial of his motion for new trial, Tucker appeals, contending that the evidence
is insufficient to support his conviction, that the trial court erred in failing to appoint
conflict-free counsel, and that the trial court erred in finding he acquiesced to trial
counsel’s waiver of his presence at bench conferences. Tucker also contends that his
trial counsel rendered ineffective assistance in several regards. For the following
reasons, we find no error and affirm his conviction.
“On appeal from a criminal conviction, a defendant no longer enjoys the
presumption of innocence, and the evidence is viewed in the light most favorable to
1
Tucker was acquitted of aggravated child molestation and child molestation.
the guilty verdict.” (Citation and punctuation omitted.) Walker v. State, 349 Ga. App.
188 (825 SE2d 578) (2019).
So viewed, the evidence shows that starting in November of 2010, Tucker
would go to the house of the 14-year-old victim in the evening when her mother was
at work. Tucker, who was 26 years old at the time, had sexual intercourse with the
victim. When the victim went to her father’s house for the summer, he discovered that
she was pregnant, and she identified Tucker as the person who impregnated her.2
When brought in for questioning, Tucker confessed to having sexual
intercourse with the victim at least twice.3 Tucker was indicted for statutory rape.
Tucker did not testify in his own defense, and was convicted by a jury. The trial court
denied Tucker’s motion for new trial, as amended, and this appeal followed.4
2
No evidence was introduced at trial about the paternity of the victim’s child.
3
The videotape of Tucker’s confession, which was played for the jury, is not
in the record on appeal; however, two law enforcement officers testified about his
confession.
4
We take this opportunity to note that Tucker was indicted in 2011 and tried
in March of 2012. However, a particularized motion for new trial was not filed until
2019. At that point, the child discussed in this opinion was several years into
adulthood. Although Tucker raises no claim of prejudice as a result of the delay, our
Supreme Court has strongly rebuked delay in the resolution of post-conviction
matters. See, e.g., Owens v. State, 303 Ga. 254, 259-260 (4) (811 SE2d 420) (2018).
As our Supreme Court explained, “even if long-delayed appeals rarely result in
2
1. Tucker first argues that the evidence was insufficient to support his
conviction. We disagree.
In Georgia,
[w]hen a criminal conviction is appealed, the evidence
must be viewed in the light most favorable to the verdict,
and the appellant no longer enjoys a presumption of
innocence. And, of course, in evaluating the sufficiency of
the evidence, we do not weigh the evidence or determine
witness credibility, but only determine whether a rational
trier of fact could have found the defendant guilty of the
charged offense[] beyond a reasonable doubt. We will,
then, uphold a jury’s verdict so long as there is some
competent evidence, even though contradicted, to support
each fact necessary to make out the State’s case. Bearing
these guiding principles in mind, we turn now to [Tucker’s]
specific challenge to the sufficiency of the evidence to
support his conviction[] for . . . statutory rape.
outright reversals of convictions or only retrials or resentencings, these extended and
unjustified delays in resolving criminal cases make our State’s criminal justice system
appear unfair and grossly inefficient. . . . . [W]e must all work to prevent delays,
particularly in the most serious of our criminal cases, that cannot be explained or
justified to the parties in those cases, the victims of crimes, and the public we serve.”
Id.
3
(Citations and punctuation omitted.) Garner v. State, 346 Ga. App. 351, 353-354 (1)
(816 SE2d 368) (2018).
We note that Tucker’s entire argument concerning the sufficiency of the
evidence against him consists of only three sentences, lacks any citation to authority,
and merely states that the victim’s “testimony at trial was not such that it would have
positively identified Appellant as the perpetrator of the crime” without further
exposition. This enumeration is in violation of our rules and so deficient that we
could deem it abandoned; however, we will exercise our discretion to address the
merits. See Court of Appeals Rule 25; Cawthon v. State, 350 Ga. App. 741, 750 (2)
(830 SE2d 270) (2019).
“A person commits the offense of statutory rape when he or she engages in
sexual intercourse with any person under the age of 16 years and not his or her
spouse, provided that no conviction shall be had for this offense on the unsupported
testimony of the victim.” OCGA § 16-6-3 (a). Here, the victim was reluctant to testify
and ignored many questions asked of her, but she did eventually testify that she had
sexual intercourse with Tucker. Moreover, the victim’s father testified about her
4
disclosure to him and the jury watched the victim’s forensic interview.5 Most
importantly, Tucker confessed to police that he had sexual intercourse with the
victim. This evidence is sufficient to support Tucker’s conviction. See, e.g. Hill v.
State, 331 Ga. App. 280, 282 (1) (a) (769 SE2d 179) (2015) (“we conclude that there
was sufficient corroboration to support Hill’s statutory rape conviction. Specifically,
the victim’s testimony that Hill performed oral sex on her when she was 13 years old,
corroborated by her prior consistent statements to her father and to the responding
officers and by Hill’s confession to the officers, was sufficient to support Hill’s
conviction beyond a reasonable doubt”).
2. Tucker next contends that the trial court erred in failing to appoint him
conflict-free counsel because his trial counsel previously worked in the same public
defender’s office where appellate counsel worked. We find no error.
“The Sixth Amendment to the United States Constitution, and Paragraph
Fourteen of our Georgia Constitution’s Bill of Rights, both guarantee two correlative
rights – the right to be represented by counsel of choice, and the right to a defense
conducted by an attorney who is free of conflicts of interests.” Hill v. State, 269 Ga.
5
A copy of the video of the forensic interview which was shown to the jury is
not in the record on appeal.
5
23, 23-24 (2) (494 SE2d 661) (1998). Issues can arise when a criminal defendant
seeks to assert claims of ineffective assistance of trial counsel because an attorney
cannot reasonably be expected to assert his or her own ineffectiveness. Likewise, it
would not be reasonable to expect one member of a law firm to assert the
ineffectiveness of another member, where one represented a defendant at trial and the
other represented him on motion for new trial or appeal.
Ryan v. Thomas, 261 Ga. 661 (409 SE2d 507) (1991); see also Kennebrew v. State,
267 Ga. 400, 402 (480 SE2d 1) (1996). It is axiomatic that “[c]ounsel prosecuting an
ineffective assistance claim must be free to operate independently of the attorney
whose performance is in question.” Davis v. Turpin, 273 Ga. 244, 248 (3) (b) (539
SE2d 129) (2000). The Georgia Rules of Professional Conduct provide that “[w]hile
lawyers are associated in a firm, none of them shall knowingly represent a client
when any one of them practicing alone would be prohibited from doing so by [other
Bar Rules].” Rule 1.10 (a) of the Georgia Rules of Professional Conduct found in Bar
Rule 4-102.6 As our Supreme Court recognized, and approved of,
[u]nder a plain reading of [Bar] Rule 1.10 (a) and the comments thereto,
circuit public defenders working in the circuit public defender office of
the same judicial circuit are akin to lawyers working in the same unit of
6
None of the other Bar Rules cross-referenced in Rule 1.10 are relevant to the
issues in this appeal.
6
a legal services organization and each judicial circuit’s public defender’s
office is a “firm” as the term is used in the rule.
(Footnote omitted.) In re Formal Advisory Opinion 10-1, 293 Ga. 397, 398 (1) (744
SE2d 798) (2013)7; see also Delevan v. State, 345 Ga. App. 46, 52 (2) (811 SE2d 71)
(2018).”Therefore, if a public defender has an impermissible conflict of interest, then
that conflict is imputed to all of the public defenders in the same office.” Delevan,
345 Ga. App. at 52 (2).
Here, the lengthy delay in the prosecution of Tucker’s motion for new trial,
which contains claims of ineffective assistance of trial counsel, creates a novel
question. Tucker was tried in 2012, his trial counsel stopped working in the Houston
County Public Defender’s Office in August 2013 due to military service, and then
resigned from the office in January 2015. Although a motion for new trial was filed
by trial counsel in 2012, a particularized motion was not filed until July 2019, long
after trial counsel had left the office. Tucker’s trial counsel and his appellate counsel
did not work for the office at the same time. We must now decide whether, on these
7
The Supreme Court did not address the particular question before us in its
Advisory Opinion, which related specifically to conflict arising from joint
representation of co-defendants.
7
facts, trial counsel’s conflict is imputed to his current appellate counsel.8 We find that
it is not.
As discussed, our case law and Bar Rule 1.10 treat attorneys at private law
firms and attorneys in the public defender’s office the same for purposes of
imputation of conflict. See, e.g., In re Formal Advisory Opinion 10-1, 293 Ga. at 398
(1). Comment 6 for Rule 1.10 further explains that
[t]he rule of imputed disqualification . . . gives effect to the principle of
loyalty to the client as it applies to lawyers who practice in a law firm.
Such situations can be considered from the premise that a firm of
lawyers is essentially one lawyer for purposes of the rules governing
loyalty to the client, or from the premise that each lawyer is vicariously
bound by the obligation of loyalty owed by each lawyer with whom the
lawyer is associated. Paragraph (a) operates only among the lawyers
currently associated in a firm.
8
This issue was previously mentioned, but not addressed, in the case of Hung
v. State, 282 Ga. 684, 685 (2) (653 SE2d 48) (2007). In that case, the district attorney
argued the lack of a conflict because trial counsel was no longer employed by the
public defender’s office by the time of the motion for new trial hearing; however, the
record did contain any support for that assertion, so it was not analyzed.
8
(Emphasis supplied.) Rule 1.10 of the Georgia Rules of Professional Conduct found
in Bar Rule 4-102.
We see no reason to stray from the scope of the Bar Rule’s application of
imputed conflict. Tucker’s trial counsel was no longer employed at the public
defender’s office at the time the motion for new trial was litigated or appealed, and
trial counsel was not employed at the public defender’s office at the same time as
Tucker’s appellate counsel; thus, his conflict was not imputed to appellate counsel
from the same office and the trial court did not err in refusing to appoint Tucker
different counsel.
3. Tucker also contends that the trial court erred in finding that he acquiesced
to his counsel’s waiver of his presence at bench conferences during jury selection and
trial. We find no error.
“It is well-established that a defendant has a constitutional right to be present
at every stage of the proceedings materially affecting his case[.]” (Citation and
punctuation omitted.) Jackson v. State, 278 Ga. 235, 237 (3) (599 SE2d 129) (2004).
The right to be present attaches at any stage of a criminal proceeding
that is critical to its outcome if the defendant’s presence would
contribute to the fairness of the procedure. Thus, a “critical stage” of a
criminal proceeding is defined as one in which the defendant’s rights
9
may be lost, defenses waived, privileges claimed or waived, or one in
which the outcome of the case is substantially affected in some other
way. Proceedings during which the jury is selected or modified, for
example, are a critical stage at which the right to be present attaches. On
the other hand, pre-trial hearings and bench conferences pertaining to
purely legal issues, such as the admissibility of evidence or jury
instructions, ordinarily do not implicate the right to be present.
(Citations and punctuation omitted.) Brewner v. State, 302 Ga. 6, 10 (II) (804 SE2d
94) (2017).
Here, Tucker contends that his rights were violated because he was excluded
from bench conferences during voir dire and during the trial. No transcript was
submitted of voir dire, and it appears that none exists. Nevertheless, Tucker implies
that the conferences during jury selection concerned the dismissal of two prospective
jurors for cause. Because there is no transcript of voir dire proceedings for us to
review, Tucker has failed to meet his burden to show harm by the record. Walker, 349
Ga. App. at 192 (3) (“If counsel raise[s] issues on appeal relating to voir dire, they
also must transcribe the voir dire in order for there to be an appellate review, as an
10
appellant carries the burden of showing error by the record.”) (citation and
punctuation omitted).9
As for the bench conferences during trial, the record demonstrates that four
transpired. The first two bench conferences were transcribed and concerned the
victim’s refusal to offer any response whatsoever to questions asked of her. The other
two bench conferences were not transcribed. Tucker was not entitled to be present at
the bench conferences where the lawyers and the judge discussed the logistical issue
of getting the victim to actually provide testimony. See Heywood v. State, 292 Ga.
771, 774 (3) (743 SE2d 12) (2013) (“many . . . bench conferences involve logistical
and procedural matters[.] A defendant’s presence at bench conferences dealing with
such topics bears no relation, reasonably substantial, to the fullness of his opportunity
to defend against the charge, and the constitutional right to be present does not extend
to situations where the defendant’s presence would be useless, or the benefit but a
shadow. Thus, a defendant’s right to be present is not violated by his absence from
9
Tucker references his trial counsel’s request that all of the proceedings be
transcribed, though he does not enumerate the failure to do so as error. “Where the
transcript or record does not fully disclose what transpired at trial, the burden is on
the complaining party to have the record completed in the trial court under the
provisions of OCGA § 5-6-41 (f). When this is not done, there is nothing for the
appellate court to review.” (Citation and punctuation omitted.) Ivory v. State, 199 Ga.
App. 283, 284 (1) (405 SE2d 90) (1991).
11
such bench conferences.”) (citations and punctuation omitted.) As for the remaining
bench conferences, Tucker has failed to show error from the record as the substance
of those conferences is unknown. See, e.g. Hertz Corp. v. McCray, 198 Ga. App. 484,
486 (2) (402 SE2d 298) (1991) (“appellant must show [error] by the record as harm
cannot be established by unsupported assertions contained in trial briefs”).
4. Tucker alleges he received ineffective assistance of trial counsel in several
regards. We disagree.
In Georgia,
[t]o prevail on a claim of ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient and that the
deficient performance so prejudiced the defendant that there is a
reasonable likelihood that, but for counsel’s errors, the outcome of the
trial would have been different. Strickland v. Washington, 466 U. S. 668,
687 (III) (104 SCt 2052, 80 LEd2d 674) (1984). If an appellant fails to
meet his or her burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong.
(Citations and punctuation omitted.) Walker, 349 Ga. App. at 192 (4). With this
framework in mind, we address Tucker’s specific enumerations of error.
a. Bench Conferences
12
Tucker contends that trial counsel was ineffective for failing to preserve his
right to be present at bench conferences. We disagree because, for the reasons more
specifically described in Division 3, Tucker either was not entitled to be present at
those bench conferences or has not shown from the record that he was entitled to be
present.
b. Right to Testify
Tucker also contends that the trial court erred in failing to find his counsel
ineffective for failing to inform him of his right to testify in his own defense. Again,
we disagree.
Although Tucker testified at the motion for new trial hearing that he was never
advised of his right to testify at trial, his trial counsel testified that he was so advised.
“When considering claims of ineffectiveness of counsel, the trial judge determines
witness credibility and is not required to accept the defendant’s version of events.”
(Citation omitted.) Anderson v. State, 352 Ga. App. 275, 281 (2) (834 SE2d 369)
(2019).
c. Failure to Request Expert Funds
Tucker claims that his trial counsel was ineffective for failing to seek funds to
hire an expert witness to question the credibility of the victim’s forensic interview.
13
Pretermitting the fact that Tucker has failed to proffer what a different expert would
have said about the forensic interview,10 this enumeration fails because Tucker cannot
show that he was prejudiced by the lack of expert testimony. The evidence against
Tucker was overwhelming even without the forensic interview. The victim testified
that she had sexual intercourse with Tucker, the victim’s father testified about her
disclosure to him, and Tucker confessed to having sexual intercourse with the victim.
See Hardin v. State, 344 Ga. App. 378, 387 (1) (g) (810 SE2d 602) (2018)
(“[P]retermitting whether this failure . . . was deficient performance, in light of the
overwhelming evidence of his guilt, Hardin cannot show the requisite prejudice in
order to sustain his claim of ineffective assistance.”); Hill, 331 Ga. App. at 282 (1)
(a).
d. Theory of Defense
Lastly, Tucker contends that his trial counsel was ineffective for failing to
investigate a theory of defense concerning the victim’s initial disclosure to her father
that the person who impregnated her was a teenager around her own age. We yet
again disagree.
10
Tucker requested funds to hire such an expert at the motion for new trial
hearing, which the trial court denied. Tucker does not enumerate as error the denial
of this motion on appeal, and thus any potential error has been waived.
14
Tucker’s trial counsel testified at the motion for new trial hearing, but he was
not questioned about his decision not to pursue at trial a defense based on the victim’s
initial identification of a different individual. “As to trial counsel’s conduct with
regard to [the theory of defense pursued], [Tucker] failed to question trial counsel
about it at the motion-for-new-trial hearing; thus, any decision not to [pursue the
alternate theory of defense] is presumed to be a strategic one which will not support
a claim of ineffective assistance of counsel.” Futch v. State, 286 Ga. 378, 383 (2) (c)
(687 SE2d 805) (2010).
Judgment affirmed. McFadden, C. J., and Doyle, P. J., concur.
15