Tucker v. State

355 Ga.App. 796

845 S.E.2d 759

TUCKER

v.STATE.

A20A0715

Court of Appeals of Georgia.

June 24, 2020

Kindall E. Browning, for Appellant.

Daniel Patrick Bibler, George Herbert Hartwig III, for Appellee.

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 the guilty verdict." (Citation and punctuation omitted.) Walker v. State , 349 Ga. App. 188, 825 S.E.2d 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

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.

(Citations and punctuation omitted.) Garner v. State , 346 Ga. App. 351, 353-354 (1), 816 S.E.2d 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 S.E.2d 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 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 S.E.2d 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. 23, 23-24 (2), 494 S.E.2d 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 S.E.2d 507 (1991) ; see also Kennebrew v. State , 267 Ga. 400, 402, 480 S.E.2d 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 S.E.2d 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 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 S.E.2d 798 (2013)⁷ ; see also Delevan v. State , 345 Ga. App. 46, 52 (2), 811 S.E.2d 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), 811 S.E.2d 71.

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 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), 744 S.E.2d 798. 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.

(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 S.E.2d 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

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