Lead Opinion
Rebecca Wiggins appealed the denial of her motion for new trial after a jury convicted her of sexual exploitation of children, aggravated sodomy, child molestation, and cruelty to children in the first degree.
On remand, the trial court held a hearing and issued an order denying Wiggins’ motion for new trial on the general grounds. Wiggins now appeals from that order, reasserting the enumerations of error not reached by this Court in Wiggins I and further asserting that on remand, the trial court failed to give the proper weight to the defense expert’s testimony in reviewing the evidence on the general grounds.
The charges in this case arose out of allegations that sometime between November 17, 2001 and November 16, 2003, Wiggins took sexually explicit pictures of the victim, and sometime between February 25, 2004 and September 30, 2004, she took the victim to David Ray’s house and was present when Ray sodomized her. We summarized the evidence from Wiggins’ trial in Wiggins I, and we need not restate the evidence here. However, we note that the victim
1. In her first enumeration, Wiggins asserts that the trial court erred in denying her motion in limine to prevent testimony and evidence showing that she had been a victim of molestation when she was a child.
Wiggins’ trial counsel (“Defense Counsel”) made an oral motion in limine at trial to exclude any evidence alleging that Wiggins was the prior victim of sexual assault after the prosecution stated that it wanted to elicit evidence that Wiggins told the victim that she had been molested by her father when she was a child. Defense Counsel argued that such evidence placed her client’s character into evidence, was highly prejudicial, and was hearsay. The prosecutor argued, however, that the evidence was not hearsay because it was a statement made by Wiggins as a part of the crime and that the evidence was admissible because it went to the issues of Wiggins’ intent, knowledge, and motive.
Generally, appellate courts review a trial court’s decision on the admission of evidence for an abuse of discretion. See Moore v. State,
[w]here[, as here,] the evidence at a hearing on a motion in limine is uncontroverted, and no issue exists regarding the credibility of witnesses, we review the trial court’s ruling to ensure that there was a substantial basis for it. The trial court’s application of the law to the undisputed facts is subject to de novo review.
(Citation omitted.) State v. Barnard,
The evidence at issue concerned statements made by Wiggins as she took the victim to Ray’s house where he performed sexual acts upon the child. Former OCGA § 24-3-3, which was applicable at the time of Wiggins’ trial,
Moreover, the evidence was relevant to the issue of Wiggins’ knowledge and intent in taking the child to Ray’s house.
Evidence which is relevant and responsive but which minimally places the character of the defendant into issue, is nevertheless admissible where the relevance of the testimony outweighs any prejudice it may cause. Relevant evidence is not rendered inadmissible because it incidentally puts the defendant’s character into issue.
(Citation omitted.) Moore,
Here, Wiggins’ statements to the victim showed her intent in bringing the victim to Ray and her knowledge of what was going to happen when they got there. Under the facts of this case, therefore, we find no error in the admission of Wiggins’ statements to the victim. See, e.g., Young v. State,
“A question is leading when it is so framed as to suggest to the witness the answer which is desired; on the other hand, a question not suggesting the desired answer is not leading where it inquires only into a single fact.” (Citations and punctuation omitted.) Milner v. State,
Wiggins identified the following questions as leading:
— Now, would she actually hold your hand during this time?
- Now, did he ever get his private part inside of your vagina?7
However, because each of these questions inquired into a single fact and did not suggest the answer desired, the questions were not leading. Thus, the trial court did not abuse its discretion in overruling Defense Counsel’s objections. See Burden,
3. Wiggins also asserts that the trial court erred in denying her motion for mistrial based on juror misconduct.
Following a break in Dotterweich’s testimony, the prosecutor notified the trial judge that he had received information that one of the jurors had spoken with the witness during the break. Dotterweich was called to testify about the incident outside the jury’s presence, and she stated that one of the female jurors told her that she was “doing a great job,” to which she replied, “thank you.” The juror was with two other women jurors when this exchange occurred, and the victim/witness coordinator from the district attorney’s office, who was also present, told the juror she could not talk to a witness.
Based on this evidence, Defense Counsel asked to question the juror involved and further requested that the juror be removed or a mistrial be declared for juror misconduct. The trial court denied the request for a mistrial but stated that it would instruct the jury on the issue. After the trial court told the jury that it had received information that a juror had violated the court’s repeated instructions not to discuss the case with anyone, the court cautioned the jurors to follow his instructions to the letter, reminded them that the case was not over, and instructed them that they should not consider the case until they returned to the jury room at the close of the evidence.
The next day, Defense Counsel again moved for a mistrial based on this incident and again requested that she be allowed to question the jurors. The victim/witness coordinator was then called to identify the jurors involved in the incident, and those jurors were questioned.
Juror Lacy was identified as the juror who made the comment. After apologizing to the court, Juror Lacy said that she told Dotter-weich “thank you,” because the expert had helped her understand “what was going on.” Juror Lacy stated that two other jurors were there at the time, and when a lady told her “no conversation,” they got on the elevator and went to lunch. She also said that after the trial court raised the issue, she told the other jurors that she had spoken with Dotterweich and said, “thank you.” The jurors
Juror McClure was questioned next, and she stated that she had heard Juror Lacy tell Dotterweich, “thank you,” and another lady tell Juror Lacy that she could not talk to the witness. Juror McClure stated that she had no further conversations with any jurors about the matter and that she had not talked to the witness. Juror McClure stated that she understood the trial court’s instructions, that she believed that she could be fair and impartial, and that she could keep an open mind until after the close of the evidence, the arguments of counsel, and the court’s instructions.
The third juror, Juror Atkins, stated that she did not hear Juror Lacy speak to the witness, nor did she hear the witness say anything because she was “digging around” in her purse. However, she heard someone “yell out” to Juror Lacy that she was not allowed to speak to the witnesses and then heard Juror Lacy say “sorry.” Juror Atkins also said Juror Lacy had identified herself to the other jurors as the subject of the trial court’s inquiry and apologized to them. But she said that the jurors had only talked among themselves about following the trial court’s instructions not to discuss the case.
Following this questioning, Defense Counsel again moved for a mistrial, or, in the alternative, to keep the jury intact but remove Juror Lacy from the deliberative panel at the end of the case and replace her with an alternate. The trial court denied the motion for a mistrial, but granted the defense motion to replace Juror Lacy at the close of the evidence.
On appeal, Wiggins asserts the trial court erred in not asking Juror Atkins if she could remain fair and impartial and in not investigating “how it might affect the jury as a whole.” “Whether a mistrial is warranted is a question committed to the sound discretion of the trial court, and when an appeal is taken from the denial of a motion for mistrial, we consider only whether the court below abused its discretion.” (Citations omitted.) Brown v. State,
Wiggins “was entitled to be tried by a jury untainted by improper influence, and improper communication with a juror raises a presumption of prejudice to the defendant, which the State must rebut beyond a reasonable doubt.” Russell v. State,
Here, although the communication involved the case, there was ample evidence to support the trial court’s conclusion that Wiggins suffered no prejudice as a result. Juror Lacy and Juror McClure each stated that this communication would not affect her ability to remain fair and impartial. Although the trial court did not specifically question Juror Atkins about her ability to remain impartial, the evidence supported a finding that she was not tainted by the exchange as she did not hear it. Further, the remainder of the jury was told only that Juror Lacy had thanked Dotterweich and they did not discuss the matter further. Additionally, despite Juror Lacy’s statements that she could remain impartial, the trial court nevertheless removed her from jury service following the final charge to the jury, as Defense Counsel had requested.
Under these circumstances, the trial court was authorized to find beyond a reasonable doubt that Juror Lacy’s contact with the
4. Wiggins further contends that the trial court erred in overruling her objections to testimony by Dotterweich that bolstered the victim’s testimony and went to the ultimate issue in the case. Wiggins first cites the following testimony:
Q. And all the kids that you see in therapy and counseling, these are children at your place who have been sexually abuse [d,] correct?
A. Correct. I don’t see clients who have not made a disclosure in the interview process. There has to have been some sort of disclosure made and the detectives feel that it’s a credible disclosure.
(“First Incident”). Defense Counsel objected to this testimony, stating, “Objection, Your Honor, as to what the detective ■— what the detective surmises before it’s being —.” The trial court then interrupted to overrule the objection “in this context.” The basis of Wiggins’ objection is unclear from this exchange. And although the trial court issued a ruling, the basis for that ruling is also unclear.
Wiggins also cites the following exchange during Dotterweich’s testimony:
A. It’s not uncommon for offenders if they have molested one sister to not try — at least try to molest the other child. So, I was just exploring, not giving information, and that is —
Q. Is that important through therapy to get a history, an accurate history from a child as to what they have actually gone through?
(“Second Incident”). Although Defense Counsel raised no contemporaneous objection to this exchange, shortly thereafter she requested a sidebar conference. That conference was off the record, but Defense Counsel was later given the opportunity to place on the record the objections she raised at that time. Defense Counsel stated that she had objected because Dotterweich’s testimony was bolstering and went to the ultimate issue in the case.
At the time of Wiggins’ trial, former OCGA § 24-9-80 provided that “[t]he credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” Thus, “[a]n expert witness may not bolster the testimony of a victim by opining as to whether the complaining witness is telling the truth, because that is an ultimate issue of fact and the inference to be drawn is not beyond the ken of the average juror.” (Citation and punctuation omitted.) Thomas v. State,
Applying these principles, we examine the First Incident “in the context in which [the testimony] was given.” (Citation and punctuation omitted.) Strickland v. State,
Dotterweich’s testimony did not speak to the credibility of the victim in this case, but only to the criteria used for recommending therapy to children who make an outcry of sexual abuse. Because “[h]er testimony was not a clear comment on [the victim’s] credibility as to her allegations of molestation” in this case, it was not improper bolstering. (Citation and punctuation omitted.) Strickland,
Similarly, we find that the testimony in the Second Incident was neither bolstering nor did it go to the ultimate issue in the case. Considering the testimony in its context, Dotterweich testified that she received information that Ray had abused the victim’s sister before the victim disclosed that she had been abused by Ray. Dotter-weich subsequently told the victim that her sister had disclosed “some things” about Ray, without disclosing that the “things” were sexual in nature, and asked the victim to tell her about Ray. Dotter-weich did not go into further detail because she was not sure if the victim knew anything about Ray’s contact with her sister. Nevertheless, she asked the victim about Ray because it was not uncommon that if an individual had molested one sister, the individual might molest another sister. Thus, this testimony provided an explanation as to why she asked the child about Ray and did not go to the ultimate issue of whether Ray had molested the victim in this case.
Therefore, we find no abuse of discretion by the trial court in overruling Defense Counsel’s objections to the cited testimony.
5. Wiggins additionally argues that the trial court erred in allowing the State to play taped jailhouse phone calls recorded after the trial began between Wiggins and Jason Blanpied (the “jailhouse tapes”), neither of whom testified at trial, on the grounds that their admission violated the marital privilege.
In Georgia, confidential communications between a husband and wife are privileged. See former OCGA §§ 24-9-21 (1); 24-9-23. As the party seeking to invoke the marital privilege, Wiggins has the burden ofproving it applies to thejailhouse tapes. See Brown v. State,
Pretermitting whether the privilege could have been properly asserted here where the conversations were recorded after notice to the parties, we find that there was sufficient evidence to support the trial court’s
Accordingly, we find that Wiggins failed to establish that the admission of the jailhouse tapes violated the marital privilege.
6. Wiggins also contends that the trial court erred in denying a second motion for mistrial on the ground that Defense Counsel was rendered ineffective when she became the focus of alleged criminal conduct during the trial.
Although we review this ruling for an abuse of discretion, Brown,
we apply the two-prong test for determining the validity of a claim of ineffectiveness of counsel established in Strickland v. Washington,466 U.S. 668 (104 SCt 2052 , 80 LE2d 674) (1984), which asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.
(Citation omitted.) Janasik v. State,
When the prosecutor first informed the trial court that the jailhouse tapes contained evidence suggesting that Defense Counsel had instructed Blanpied to leave Georgia so that the State could not call him as a witness,
At the hearing on the motion for new trial, Defense Counsel explained that when the prosecutor said that he was investigating her during the trial, “everything went off the rails.” She stated that she spent that afternoon during the trial on her phone texting to seek advice about her own situation and further asserted that she was unable to prepare for the next day of trial because she was listening to the jailhouse tapes and addressing the issue of whether charges would be filed against her.
However, Defense Counsel was unable to point to any instance where she rendered inadequate representation to her client
Although the evidence and Wiggins’ arguments indicate that Defense Counsel was concerned about and distracted by the possibility that she might be investigated in connection with the jailhouse tapes, as our Supreme Court has explained, “it is the conduct of the lawyer, not his thinking, that we assess for reasonableness, even though the thinking of the lawyer may inform the reasonableness of his conduct.” (Emphasis omitted.) Powell v. State,
[a] convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.
Strickland,
And, in fact, the record demonstrates that following the initial discussion of the jailhouse tapes and the suggestion of possible criminal liability, Defense Counsel, inter alia, prepared and argued her motion for mistrial; argued against the introduction of the jailhouse tapes; raised numerous objections during the prosecution’s examination of witnesses and its attempts to introduce evidence; conducted cross-examination and/or re-cross-examination of nine witnesses for the State; reasserted her motions for mistrial and made a motion for directed verdict at the close of the State’s case; and presented evidence from three witnesses on behalf of 'the defense. She also participated in the charge conference; argued about the procedure for releasing Juror Lacy and seating the alternate; and gave her closing argument to the jury. Wiggins raised no timely assertion that her counsel’s performance was deficient
Therefore, because Wiggins failed to meet the first prong of the Strickland test, we need not address the second prong, and we find that Wiggins has failed to show that the situation involving the jailhouse tapes rendered her counsel ineffective.
Likewise, we find that Wiggins has failed to establish the existence of any conflict that adversely affected Defense Counsel’s performance. Any such conflict of interest “must be palpable and have a substantial basis in fact. A theoretical or speculative conflict will not impugn a conviction or sentence which is supported by competent evidence.” (Citation and punctuation omitted.) Henry v. State,
Accordingly, we cannot say that the trial court abused its discretion in denying the motion for mistrial on this ground.
7. Wiggins also argues that Defense Counsel provided ineffective assistance of counsel by failing to understand and to communicate the maximum penalties to the defendant. Wiggins did not assert this argument in her motion for new trial or her two amendments to this motion. However, at the hearing on the motion, her appellate counsel elicited pertinent testimony on the issue and argued that Defense Counsel failed to inform Wiggins of the maximum penalty she faced on each count and without such information she could not make an intelligent decision whether to accept the State’s plea offer.
As noted above, to prevail on this argument, Wiggins must establish both prongs of the Strickland test. See Sutton v. State,
“Objective professional standards dictate that a defendant, absent extenuating circumstances, is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him.” Lloyd v. State,
In determining whether a defendant has been prejudiced by counsel’s failure to communicate [her] choices accurately, we must examine the facts of each case to determine whether there is at least an inference from the evidence that defendant would have accepted the offer as made or something similar.
(Citation and punctuation omitted.) Biggins v. State,
Wiggins testified that Defense Counsel never discussed the maximum penalties for her offenses and never told her that she could get a life sentence. She said she would have never turned down the State’s plea offer if she had known she could get a life sentence. Nevertheless, Wiggins later conceded that it was possible that her attorney had told her she could get a life sentence. And Defense Counsel stated that although she did not recall the specific discussions, she reviewed the indictment with Wiggins and she informed Wiggins that she faced a maximum sentence of life on the aggravated sodomy charge. She also stated that Wiggins turned down the State’s best offer of fifteen years, to serve eight, because “she was very specific in that she wanted a five- or a three-year-to-serve deal. That was the most she wanted in the case.”
In denying the motion for new trial on this ground, the trial court found that Defense Counsel had discussed the indictment and the fact that Wiggins could get a life sentence, and the evidence supports these findings.
Accordingly, the trial court’s finding that Wiggins did not receive ineffective assistance of counsel is not clearly erroneous, and we will not disturb that finding on appeal.
8. In her only enumeration of error arising from the remand of the case, Wiggins asserts that the trial court abused its discretion in failing to give sufficient weight to the defense’s expert. However, when a defendant seeks appellate review of
a trial court’s refusal to grant a new trial on the general grounds ..., [the appellate courts] can only review the case under the standard espoused in Jackson v. Virginia, [443 U.S. 307 (99 SCt 2781 , 61 LE2d 560) (1979)], to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.
(Citation and punctuation omitted.) Lewis v. State,
Judgment affirmed.
Notes
The child molestation and cruelty to children counts were merged with the aggravated sodomy count for sentencing.
To the extent that Wiggins also attempts to re-argue that the evidence at trial was insufficient to support her convictions, any such argument is barred by our prior ruling in Wiggins I, and we will not consider it. See OCGA § 9-11-60 (h) (‘‘[A]ny ruling by the Supreme Court or the Court of Appeals in a case shall he binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case maybe.”); Pierce v. State,
The victim was 11 years old at the time she first made the allegations against Ray in this case. Wiggins I,
We note that Ray committed suicide on April 4, 2009, after police executed a search warrant on his home in connection with the victim’s allegations, Wiggins I,
The trial court qualified Dotterweich as an expert “in the field of child sexual abuse and the disclosure process,” including forensic interviewing.
Because the trial in this case was held before January 1, 2013, we apply Georgia’s old Evidence Code to the evidentiary issues raised on appeal. See Bragg v. State,
Wiggins also asserts that the prosecutor led the victim when he asked, “When Rebecca took you there, before you would go over there to David Ray’s house, would she talk to you about stuff to try to make you feel better?” However, Defense Counsel raised no objection to this question. “In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground.” (Citation and punctuation omitted.) Bennett v. State,
Wiggins also asserts that the jailhouse tapes constituted inadmissible hearsay and infringed on her Fifth and Sixth Amendment rights, as well as her rights to confront the witnesses against her under the Georgia Constitution. However, Wiggins failed to point us to any objections she raised at trial on these grounds, and thus any such arguments are waived. Bennett,
Although the trial court did not specifically rule on the invocation of the marital privilege, it denied Wiggins’ objections and allowed portions of the tapes to be played.
Although this principle was enunciated in connection with an invocation of the privilege by common-law spouses, we find no reason to apply a different standard when the existence of a legal marriage is challenged.
Blanpied, who lived in Texas, had been listed as a possible witness by Defense Counsel. Blanpied apparently had traveled to Georgia for the trial, visited with Wiggins at the jail, and then left the state without appearing at trial.
Additionally, Defense Counsel conceded that listening to the jailhouse tapes also served as preparation for the trial since the State was seeking to introduce portions of the tapes into evidence.
Although in a footnote in her appellate brief, Wiggins points to one instance where she contends her counsel’s performance was deficient, she failed to cite this incident in the trial court below, and thus any argument in that regard is waived. As our Supreme Court has held, claims of ineffective assistance of counsel must be raised “before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time.” (Citation omitted; emphasis in original.) Lewis v. State,
On appeal, Wiggins asserts that even if the evidence shows that she was aware that she could get a life sentence, she was never told that she could get life plus an additional sentence on the other charges. However, Wiggins failed to articulate this specific argument at the hearing on the motion for new trial, and in any event, her claim of ineffective assistance of counsel on such a ground would likewise fail under the prejudice prong of the Strickland test.
Concurrence Opinion
concurring fully and specially.
I fully concur in the majority opinion. I write separately to make clear that the threat to prosecute defense counsel was unwarranted and gravely improper.
Although he had not subpoenaed Jason Blanpied, the prosecutor promised in his opening statement that the jury would hear from Blanpied. Defense counsel had listed Blanpied as a possible witness. See OCGA § 17-16-8. But during the course of the trial, she made the strategic determination that his testimony would most likely be a net detriment to the defense and told him not to come to court. Blanpied apparently returned to his home in Texas, and the prosecutor found himself unable to keep some of the promises he had made to the jury. Rather than recognize that his own omissions were the cause of this embarrassment, he threatened to prosecute defense counsel. Those threats began during the course of trial, apparently continued for a year and a half, and compelled her to retain counsel of her own.
But although clothed in the power of the office of the district attorney, those threats were naked of legal justification. Defense counsel had not committed a criminal act.
The state has made no attempt to show that she had. Its appellate brief relies, correctly, on the Strickland standard and makes no effort to justify those threats. See Strickland v. Washington,
It is not the responsibility of defense counsel to help the state present its case. The state had no right to rely on defense counsel’s list of possible witnesses. See Byron v. State,
Contrary to the initial observation of the trial court
The controlling statute is OCGA § 16-10-93, which prohibits improperly influencing a witness. The parts of that statute that specify the prohibited conduct provide:
(a) A person who, with intent to deter a witness from testifying freely, fully, and truthfully to any matter pending in any court, in any administrative proceeding, or before a grand jury, communicates, directly or indirectly, to such witness any threat of injury or damage to the person, property, or employment of the witness or to the person, property, or employment of any relative or associate of the witness or who offers or delivers any benefit, reward, or consideration to such witness or to a relative or associate of the witness shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.
(b) (1) It shall be unlawful for any person knowingly to use intimidation, physical force, or threats; to persuade another person by means of corruption or to attempt to do so; or to engage in misleading conduct toward another person
with intent to:
(A) Influence, delay, or prevent the testimony of any person in an official proceeding;
(B) Cause or induce any person to:
(i) Withhold testimony or a record, document, or other object from an official proceeding;
(ii) Alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(iii) Evade legal process summoning that person to appear as a witness or to produce a record, document, or other obj ect in an official proceeding; or
(iv) Be absent from an official proceeding to which such person has been summoned by legal process; or
(C) Hinder, delay, or prevent the communication to a law enforcement officer, prosecuting attorney, or judge of this state of information relating to the commission or possible commission of a crimi-. nal offense or a violation of conditions of probation, parole, or release pending judicial proceedings.
(Emphasis supplied.) Obviously — even if defense counsel instructed Blanpied to leave the state, which she denied — her conduct did not involve any threat of injury or damage; benefit, reward, or consideration; intimidation, physical force, or threats; means of corruption; or misleading conduct.
But as the majority correctly holds, Wiggins cannot point to any instance in which defense counsel rendered inadequate representation at trial. And so she cannot satisfy the first prong of the Strickland standard. We therefore do not decide about the second prong. But as to the second prong it should be noted that
[i]n Strickland, the Supreme Court identified three instances in which the defendantwould be relieved of his burden to establish prejudice stemming from counsel’s errors: (1) an actual or constructive denial of counsel, (2) government interference with defense counsel, and (3) counsel that labors under an actual conflict of interest that adversely affects his performance.
State v. Heath,
Defense counsel has — as the state’s appellate brief asserts without contradiction — extensive experience as a prosecutor, as a criminal defense attorney, and in child molestation cases. And the record supports the state’s contention that its interference did not reduce her performance below — or anywhere close to — the Strickland standard.
But it does not follow from the inapplicability of Strickland that the prosecutor’s interference with defense counsel was without consequence. Defense counsel testified that she spent hours that ought to have been devoted to preparing her examinations and arguments listening to recordings of “garbage jail calls” and consulting colleagues about her own defense. We cannot know how defense counsel might have sharpened her arguments or what connections she might have drawn between seemingly unrelated facts if the state had not interfered with her preparation.
Nor does the inapplicability of Strickland in any way justify use of the power of the office of the district attorney to try to intimidate defense counsel. Nor does it justify subjecting defense counsel to the anxiety and expense of dealing with the prospect of a specious prosecution.
A district attorney “may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States,
The attorney she retained is now the sitting district attorney.
Different judges presided over the trial and the hearing on the motion for new trial.