ANDREWS, P. J., MCFADDEN and RAY, JJ.
A Fulton County jury convicted Jonathan Robinson of two counts of rape, two counts of kidnaping and one count of armed robbery. He was acquitted of one count of rape, one count of aggravated sodomy and one count of impersonating a police officer. He appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion for recusal, in permitting evidence of his prior arrests and convictions into evidence for the purposes of impeachment, in failing to excuse a prospective juror for cause, and in issuing improper jury charges. He also contends that he received ineffective assistance from his trial counsel. For the following reasons, we vacate Robinson's conviction and remand the case to the trial court for further proceedings consistent with this opinion.
The evidence, construed in favor of the jury's verdict, showed that on May 13, 2000, K. C. was standing at a telephone booth near a gas station when Robinson approached her and offered her a ride. K. C. got into his vehicle, and he drove to a secluded street. Robinson "propositioned [her] with money", and she declined. He then got a police clipboard out of the back of his car and used a radio ostensibly to call for backup. Robinson then became aggressive, came around to K. C.'s side of the car, and raped her. K. C. had just had a baby and was still recovering from the birth. Robinson then drove K. C. home, where she told her mother that she had been sexually assaulted and that she needed to call 911. K. C. testified that she had never before met Robinson.
That same day, a sexual assault exam was conducted on K. C.. A rape kit was collected as evidence after the exam. K. C. was crying and upset while at the hospital. The Georgia Bureau of Investigation ("GBI") developed a male DNA profile from the rape kit and uploaded it into the CODIS database. On December 12, 2002, a CODIS match indicated Robinson as being connected with K. C.'s case.
On May 30, 1999, Robinson approached R. A. and offered her a ride in his truck. At first R. A. was going to get in the truck, but ultimately decided not to because something did not feel right to her. However, Robinson swung open the truck door and dragged R. A. into the truck by her hair. R. A. begged Robinson not to hurt her and gave him all the money she had. Robinson parked the truck, informing her that he had a weapon under the seat of his truck and that he would kill her if she did not comply with his demands. He then raped her. Robinson then told R. A. to put her money, cell phone and jewelry in her purse, and he took it and threw it in the back of the truck. Robinson also took R. A.'s panties. He told her to get out of the truck or that he would run over her, so she got out of the truck.
That same day, R. A. went to the hospital to have a sexual assault exam. R. A. was described as crying uncontrollably while at the hospital. The GBI developed a male DNA profile from the rape kit collected and uploaded it into the CODIS database. In February 2002, a CODIS match came indicated Robinson as being connected with R. A.'s case. R. A. testified that she had never met Robinson before.
Robinson testified in his own defense at trial, alleging that the victims consented to having sex with him.
1. Robinson contends that the trial judge erred in denying his untimely motion to recuse and in failing to recuse herself sua sponte. He also claims that his trial counsel rendered ineffective assistance for failing to properly pursue this claim. We disagree.
(a) At the time of Robinson's indictment, the trial judge was a chief senior assistant district attorney in the Fulton County District Attorney's Office in the Crimes Against Women and Children ("CWAC") Unit. The trial judge stated that she never touched any of the case files related to Robinson during her time with the District Attorney's Office.
"[W]hen a motion to recuse is filed, the trial judge shall immediately determine: (1) the timeliness of the motion; (2) the legal sufficiency of the affidavit; and (3) the legal sufficiency of the grounds, and has no power to do anything else in the case." (Citations omitted.) Baptiste v. State, 229 Ga.App. 691, 698 (2) (494 S.E.2d 530) (1997). See Uniform Superior Court Rule 25.1 ("All motions to recuse . . . shall be timely filed in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded").
Here, Robinson's motion to recuse was both untimely and failed to attach the required affidavit in support of the grounds he asserted in support of his motion. Robinson's trial counsel, who had been an assistant district attorney in the Fulton County District Attorney's Office at the same time as the trial judge, did not file a motion to recuse until more than three months after filing a notice of appearance in the case.
See Uniform Superior Court Rule 25.1 ("Filing and presentation to the judge shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification. . ."). Further, the motion alleged only the conclusory statement that the trial judge had a "conflict of interest . . . with [another judge] and the Fulton County District Attorney's Office Crimes Against Women and Children Unit." The motion was not accompanied by a supporting affidavit "clearly stat[ing] the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extra-judicial conduct or statements . . ." as required by Uniform Superior Court Rules 25.1 and 25.2. Accordingly, the trial court did not abuse its discretion in denying his motion to recuse. See Daker v. State, 243 Ga.App. 848, 855 (21) (533 S.E.2d 393) (2000) (A trial judge is authorize to deny a motion for recusal on its face when the motion is untimely and not supported by a sufficient affidavit).
Further, Robinson's motion itself failed to specifically allege facts that, if assumed true, would demonstrate that the trial judge, while still a prosecutor, ever had any personal or supervisory involvement in the present criminal matter. Rather, it simply asserted that the trial judge might have a "conflict of interest" because of her prior employment with the District Attorney's office. See Gude v. State, 289 Ga. 46, 49 (2) (a) (709 S.E.2d 206) (2011) (finding that a trial judge presiding over a criminal matter who previously worked in the district attorney's office while the office was involved in some aspect of the same criminal matter need not recuse herself unless the trial judge, while still a prosecutor, was personally involved in some aspect of the criminal matter or served in a supervisory role over another lawyer while that lawyer was personally involved in the case). Compare Birt v. State, 256 Ga. 483, 484-485 (3), (4) (350 S.E.2d 241) (1986) (defendant, who had made timely and verified motion to recuse setting forth sufficient factual allegations, was entitled to evidentiary hearing on motion, where verified motion set forth some factual allegations, which, if proved, could support finding of partiality sufficient to require recusal). We find no abuse of discretion in the trial court's denial of his motion to recuse.
(b) We further find that Robinson's ineffective assistance claim arising from his trial counsel's failure to file the affidavit is without merit. In order to prove that he received ineffective assistance of counsel, Robinson must show both "that his trial counsel's performance was deficient and that the deficiency was so prejudicial that a reasonable likelihood exists that the outcome of the trial would have been different but for counsel's error." (Footnote omitted.) Paul v. State, 296 Ga.App. 6, 10 (3) (673 S.E.2d 551) (2009). Robinson has not shown how a timely filed affidavit would have effected the ruling on his motion to recuse, we find that he has not supported his burden of proving that he was prejudiced by his trial counsel's error. See Gude, supra.
2. Robinson argues that the trial court erred in permitting the State to impeach him with evidence of ...