Murrell v. Ricks

Defense counsel was not deficient for failing to contest the receipt of information that the victim tested positive for a venereal disease 13 months after the crimes were committed, failing to ask for a continuance or failing to argue prejudice.

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A jury found Robert Van Ricks guilty of two counts of child molestation and acquitted him of one count of rape. His conviction was affirmed on appeal. Ricks v. State , 249 Ga. App. 80 546 SE2d 919 2001. The same counsel represented Ricks at trial and on appeal. Thereafter, Ricks retained new counsel and filed a petition for writ of habeas corpus claiming, inter alia, that he was denied constitutionally effective assistance of trial counsel. The habeas court agreed and granted the writ on that ground. Warden Murrell appeals pursuant to OCGA § 9-14-52 c. We reverse. The victim was the 14-year-old daughter of Ricks’ girlfriend. During the time alleged in the indictment, Ricks was sharing a residence with the child and her mother. The child did not come forward with the claim of rape and molestation until one year after the alleged crimes.

The defense filed a pretrial motion for discovery of exculpatory material, and in response, the State provided the victim’s medical records which contained information that she had tested positive for Trichomonas, a type of venereal disease.1 The test was performed during a physical examination of the victim conducted shortly after her initial outcry about 13 months after the crimes had been committed. During trial, the State sought to offer the testimony of the nurse who had conducted that examination, but also requested a motion in limine to prevent the witness from testifying concerning the results of the Trichomonas test on the basis that the information is protected by the rape shield statute. See OCGA § 24-2-3 a. After extensive colloquy, the trial court granted the State’s motion in limine concluding that the evidence is precluded under the rape shield statute, and that the statutory exceptions are inapplicable. See OCGA § 24-2-3 b. The court also observed that the ruling was not necessarily harmful to the defense as the evidence “could end up backfiring, very easily.” Defense counsel obtained a continuing objection.

Murrell v. Ricks

Defense counsel was not deficient for failing to contest the receipt of information that the victim tested positive for a venereal disease 13 months after the crimes were committed, failing to ask for a continuance or failing to argue prejudice.

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