Dority v. the State
335 Ga. App. 83
Ga. Ct. App.2015Background
- Defendant Demarkius Dority was convicted by a jury of aggravated sodomy, aggravated child molestation, child molestation, and three counts of enticing a child for indecent purposes arising from abuse alleged by two child victims and a similar-transaction witness; sentence: 45 years, 35 to serve.
- Prosecution evidence included victims’ courtroom testimony, redacted forensic-interview videos, a recorded police interview of Dority (with officer commentary), physical items recovered from Dority’s home, and testimony from a pediatric nurse-practitioner and outcry witnesses.
- Defense theory at trial: M.D.’s allegations were fabricated/coached by her mother amid marital hostility; C.S.’s allegations were motivated by a custody dispute; trial counsel cross‑examined witnesses and declined to present defense witnesses or expert testimony.
- Post-trial, Dority sought (1) a new-trial hearing, (2) in camera production of victims’ DFCS/juvenile/therapy/school/pediatric records and county funds for experts, and (3) to raise ineffective-assistance claims based on counsel’s investigative and trial choices; the trial court denied subpoenas and expert-fund requests and later denied the motion for new trial.
- On appeal, Dority challenged (a) admission of portions of the detective’s interrogation comments, (b) admission of a similar-transaction witness, (c) multiple ineffective-assistance claims, and (d) the denial of a remand to obtain victims’ records and expert funds. The Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Dority) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Admissibility of detective’s interrogation comments (opinion about victim/coaching) | Comments bolstered victim credibility and invaded jury province; should have been redacted | Comments were interrogation tactics, not opinion testimony; probative and not unduly prejudicial | Court upheld admission: interrogation comments are permissible; no abuse of discretion under OCGA §24‑4‑403 and §24‑7‑704 |
| Admission of similar‑transaction evidence (L.D.) | Evidence insufficient to establish prior child‑molestation acts and should be excluded | OCGA §24‑4‑414 allows prior child‑molestation evidence to show relevance, intent, pattern | Court affirmed: evidence properly admitted under §24‑4‑414; jury could infer intent from conduct |
| Ineffective assistance of counsel (multiple failures alleged: failing to obtain victims’ records, failing to call witnesses, failing to use/exploit Medlin report and audio, not seeking expert funds) | Counsel failed to investigate, call key witnesses, obtain records or experts, undermining defense and prejudice result | Many choices were strategic; defendant must show deficient performance and prejudice under Strickland | Court found most choices were reasonable strategy; only limited deficiency (failure to interview mother Rogers) but no prejudice shown; ineffective‑assistance claims denied |
| Motion to remand / request for in camera records and expert funds on appeal | Appellate counsel lacks the records; remand needed for in camera review and expert evaluation to assess prejudice | Trial counsel was not deficient for not seeking records; no prima facie need shown for a fishing expedition; remand unnecessary | Court denied remand and expert‑fund request because no showing that trial counsel was deficient or that records would produce prejudice |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance)
- Butler v. State, 292 Ga. 400 (2013) (admissibility balance for interrogation comments and undue prejudice)
- Roberts v. State, 313 Ga. App. 849 (2012) (recorded interrogation comments designed to elicit a response are not opinion testimony)
- McCowan v. State, 302 Ga. App. 555 (2010) (testimony that victim did not appear coached does not impermissibly bolster credibility)
- Darst v. State, 323 Ga. App. 614 (2013) (discusses counsel’s duty to investigate and obtain records; distinguished on facts)
- Reynolds v. State, 257 Ga. 725 (1987) (procedure for establishing indicia of reliability for child hearsay)
- Collum v. State, 281 Ga. 719 (2007) (law‑enforcement interviews aim to resolve ultimate issues and credibility)