Darst v. State, 323 Ga. App. 614

Background

Darst and his girlfriend became foster parents to two girls (S.C., age 4; C.C., age 7 at relevant times). Each later alleged sexual contact by Darst; forensic interviews and a psycho-sexual evaluation contributed to charges for four counts of aggravated child molestation.
The foster mother (Binzel) first heard S.C.’s outcry in Oct 2004 and then C.C.’s outcry in Nov 2004; she repeatedly questioned C.C. before authorities became involved.
Forensic interviews (recorded) later captured both children describing oral and manual sexual acts by Darst; those recordings were played for the jury.
Darst’s trial defense attacked the children’s credibility and suggested other possible perpetrators (biological father, “Uncle Billy”). Trial counsel did not subpoena school, therapy, Department, or juvenile records, did not retain defense experts on forensic interviewing or child-abuse behavioral patterns, and did not object to hearsay testimony about psycho-sexual evaluations of other potential suspects.
The jury convicted Darst on all counts; he moved for a new trial claiming ineffective assistance of counsel and juror-bias errors. The trial court denied relief; on appeal the Georgia Court of Appeals reversed and remanded for a new trial, concluding counsel’s performance was deficient and prejudicial in combination.

Issues

Issue	Darst's Argument	State's Argument	Held
Failure to obtain school/therapy/Department records	Records contained exculpatory or impeaching information (prior allegations against others; behavioral history) that trial counsel should have subpoenaed	Records were unavailable or immaterial; trial counsel reasonably relied on belief records were lost	Counsel’s failure to obtain records was deficient; records were available and favorable and counsel offered no reasonable strategic reason for not obtaining them
Failure to retain expert on child-abuse behavior	An expert would have explained that the children’s affectionate behavior toward Darst and other record evidence were inconsistent with sexual abuse by him	State emphasized sufficiency of evidence and jury credibility findings	Failure to retain such an expert was deficient; the expert’s opinions (developed from records) would have been materially favorable
Failure to retain expert on forensic interviewing	An expert would have shown the interviews were contaminated by repeated, suggestive questioning and therefore unreliable	State relied on recorded forensic interviews and investigator testimony; no double-playback concerns	Failure to retain such an expert was deficient; expert testimony at a new trial could have undermined interview reliability and prejudiced the outcome
Failure to object to hearsay about other suspects’ psycho-sexual evaluations	Testimony that other men ‘‘passed’’ evaluations or had ‘‘no red flags’’ was inadmissible hearsay and eliminated alternative suspects	State downplayed prejudice or treated testimony as background	Counsel erred in not objecting; testimony was inadmissible hearsay and materially undermined Darst’s defense by removing alternative suspects

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-pronged ineffective-assistance test)
Jackson v. Virginia, 443 U.S. 307 (sufficiency-of-the-evidence standard)
Robinson v. State, 277 Ga. 75 (application of Strickland in Georgia)
State v. Worsley, 293 Ga. 315 (consider collective effect of counsel errors for prejudice)
Schofield v. Holsey, 281 Ga. 809 (prejudice arises from collective counsel errors; accept trial-court factual findings)
Goldstein v. State, 283 Ga. App. 1 (failure to present known favorable evidence can be deficient)
Terry v. Jenkins, 280 Ga. 341 (reasonable-probability prejudice standard applied)
Perkins v. Hall, 288 Ga. 810 (collective-effect review of ineffectiveness)
Green v. State, 291 Ga. 287 (remedy for ineffective assistance when evidence otherwise sufficient is a new trial)