Reconsideration denied July 28, 2014.
Habeas corpus. Macon Superior Court. Before Judge Peagler.
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Benjamin H. Pierman, Assistant Attorney General, for appellant.
August F. Siemon III, for appellee.
HINES, Presiding Justice. All the Justices concur, except Nahmias and Blackwell, JJ., who concur in the judgment only, and Melton, J., who dissents.
Hines, Presiding Justice.
Warden Gregory McLaughlin appeals the grant of a writ of habeas corpus to William C. Payne. For the reasons that follow, we affirm.
In 2006, Payne was convicted on two counts of aggravated child molestation, three counts of child molestation, and one count of cruelty to children. At Payne's trial, then District Attorney for the Douglas Judicial Circuit, David McDade, appeared as a witness for the State. He identified himself to the jury as the district attorney, identified the examining prosecuting attorney as his assistant, and outlined his duties as district attorney. He also testified that: his daughter was a classmate of the victim named in the indictment; his daughter told him what she had heard of the crimes; he participated in an interview of Payne early in the investigation; during the first few days of the investigation, law enforcement efforts were focused on finding Payne; and, that after his interview with Payne, he realized he would likely be a witness at trial, and removed himself from Payne's prosecution. On appeal, Payne contended that he was not present at all critical stages of the trial, venue was not proven, evidence of a prior similar transaction was wrongly admitted, and trial counsel was ineffective in failing to object to certain evidence. His convictions were affirmed. See Payne v. State, 290 Ga.App. 589 (660 S.E.2d 405) (2008). See also Payne v. State, 285 Ga. 137 (674 S.E.2d 298) (2009), overruled by Reed v. State, 291 Ga. 10 (727 S.E.2d 112) (2012).
In 2009, Payne filed a petition for a writ of habeas corpus, raising, inter alia, a claim of ineffective assistance of appellate counsel. After multiple hearings, the habeas court found that McDade had a conflict of interest, had testified falsely at trial, and that appellate counsel should have pursued these two issues on appeal. The habeas court also found that had the issues been raised on appeal, the result of Payne's direct appeal
would have been different; consequently, that court granted the writ of habeas corpus.
The warden contends that the habeas court erred in finding that the representation by Payne's ...