Jason Kyle Hopson was indicted by a grand jury on charges of rape, kidnapping, aggravated assault, aggravated sexual assault, and aggravated sodomy arising out of an incident on June 19, 2004. Then Fulton County Assistant District Attorney Ash Joshi prosecuted Hopson, and a jury convicted him of rape, but acquitted him of all other charges. Hopson appealed after the trial court denied his motion for new trial, and this Court affirmed his conviction in Hopson v. State , 281 Ga. App. 520 636 SE2d 702 2006 “Hopson I “. Hopson subsequently filed an “Extraordinary Motion for New Trial” on January 31, 2007, alleging that Joshi knew the victim and another prosecution witness were lying in their trial testimony and that he had an ethical obligation to stop the trial at that point. The trial court denied the motion following a hearing, and Hopson appeals. The evidence at the motion hearing established that sometime after Hopson’s trial, Joshi left the district attorney’s office and went into private practice. Hopson’s family subsequently consulted Joshi and another lawyer with whom Joshi shared a suite, about Hopson’s case. Hopson’s family recorded the conversation, and it was played for the court during the motion hearing. In that conversation, Joshi stated he knew at one point in the trial that the victim and her friend lied on the stand. At the motion hearing, however, Joshi explained that he had made an overstatement when he said he knew that they had lied because it was only his opinion. He was referring to a conflict in the evidence as to whether the victim had willfully gone with Hopson the night of the rape, or whether she was dragged to the location where the assault occurred. Joshi stated that this related only to the charge of kidnapping, not the rape charge. After the tape was played, Joshi acknowledged that he told Hopson’s family that he did not believe Hopson raped the victim, but he said that his statement was “inartfully worded,” and that he only meant to address the kidnapping charge. Nevertheless, Joshi told Hopson’s family that for $15,000 he could get Hopson released. He told them that his name could not be on any of the pleadings because he had an absolute conflict of interest. Joshi explained at the motion hearing that he knew that he could not be involved in any representation of Hopson, but he stated that he had discussed with the other lawyer with whom he shared a suite that he would not be prevented from basing an appeal on any mistakes Joshi made at trial. Hopson’s family did not retain Joshi or the other attorney, but instead turned the tape over to Hopson’s trial attorney, who filed the extraordinary motion in this case.
In denying Hopson’s motion, the trial court found that at the time of the recorded conversation Joshi was seeking to be hired by Hopson’s family, and therefore the credibility of his statements could reasonably be called into question. Even assuming his remarks to be credible and sincere, the lawyer’s comment constituted no more than an opinion. There is no evidence that the victim ever recanted to the prosecutor or anyone else. Moreover the facts, upon which the purported opinion was based were disclosed to trial counsel and were presented at Hopson’s trial. Even if Joshi’s comments could be considered new evidence, their only evidentiary effect would be to impeach the credibility of the victim and her friend, which evidence is insufficient to support the grant of a motion for new trial. Under the familiar test set forth in Timberlake v. State , 246 Ga. 488, 491 1 271 SE2d 792 1980,
