Aburto v. State
327 Ga. App. 424
Ga. Ct. App.2014Background
- Aburto, the appellant, was convicted of aggravated sodomy, two counts of aggravated child molestation, aggravated sexual battery, attempted rape, two counts of enticing a child for indecent purposes, and three counts of child molestation; he appeals asserting denial of two Uniform Act subpoenas and a curative OCGA 17-8-57 comment, plus ineffective assistance of trial counsel.
- The offenses relate to acts against seven-year-old S. A. in 2006 in Whitfield County; S. A. disclosed the abuse in 2010 after moving to Illinois.
- Aburto sought certificates of materiality under the Uniform Act to compel Illinois witnesses (C. A. and Dr. Abhilasha Jones) to testify in Georgia, but the trial court denied them as non-material; this denial was preserved on appeal.
- The trial court’s OCGA 17-8-57 comment occurred during voir dire when the state objected to a defense question; the court explained its relevancy concerns and sustained the objection; appellate review found no reversible error.
- Aburto argued ineffective assistance for (a) failure to move to excuse an unqualified juror for cause (M. Q.), and (b) failure to impeach S. A.’s mother with an Illinois conviction; the court held no deficient performance or prejudice.
- The Georgia appellate court ultimately affirmed the judgment and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Uniform Act certificates of materiality abused? | Aburto claims the court erred denying material witnesses. | State contends no abuse; witnesses not material. | No abuse; certificates properly denied. |
| OCGA 17-8-57 comment constituted reversible error? | Aburto asserts the judge’s comment implied irrelevance. | State argues comments were not improper or binding on jury. | No reversible error; not an expression of guilt or provable matters. |
| Counsel's failure to strike juror M. Q. for cause? | Counsel deficient for not moving to strike; bias shown. | Court could reasonably find bias not fixed; no merit. | No merit; no prejudice established. |
| Failure to impeach S. A.’s mother with Illinois conviction? | Impeachment would have been admissible and helpful. | No prejudice; evidence insufficient and copy not certified. | No ineffective assistance; no prejudice proven. |
Key Cases Cited
- Paslay v. State, 285 Ga. 616 (Ga. 2009) (trial court comments on admissibility not reversible error)
- Smith v. State, 292 Ga. 588 (Ga. 2013) (court may note admissibility without presuming guilt)
- Parker v. State, 326 Ga. App. 217 (Ga. App. 2014) (prosecutor/questioning of jurors; rehabilitation guidance)
- Wallace v. State, 294 Ga. 257 (Ga. 2013) (impeachment evidence; certified copies requirement)
- Young v. State, 324 Ga. App. 127 (Ga. App. 2013) (propensity evidence and impeachment considerations)