GAWLAK v. State
310 Ga. App. 757
| Ga. Ct. App. | 2011Background
- Gawlak was convicted after a jury trial of aggravated sexual battery, cruelty to children in the first degree, and two counts of child molestation.
- His defense was that his three-year-old daughter was molested not by him but by another man, Andy Burt.
- The State moved in limine to exclude testimony about hearsay statements allegedly made by Burt’s former wife concerning statements Burt made.
- Gawlak failed to proffer a definite description of the anticipated testimony at the in limine hearing, and thus this record cannot support admissibility or reversal.
- Gawlak asserted ineffective assistance of counsel for not presenting expert testimony and for not objecting to testimony that bolstered the victim’s credibility and to the State’s closing argument.
- The trial court’s ruling and the defense strategy were preserved for appellate review, and the court affirmed the judgment on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Hearsay evidence proffer and admissibility | Gawlak sought to admit Burt’s former wife statements. | State correctly excluded the statements; no proper proffer. | Record lacked a definite proffer; issue not preserved for review. |
| Ineffective assistance—failure to present Barlow/Hall expert testimony | Counsel should have presented expert testimony per Barlow/Hall. | Decision not to present was reasonable trial strategy. | No deficient performance; strategy reasonable; no prejudice. |
| Ineffective assistance—failure to object to bolstering testimony and closing argument | Counsel should have objected to witnesses' bolstering and to closing argument. | Actions were strategic; no error. | Record shows no basis to find ineffective assistance; closing argument permissible. |
Key Cases Cited
- French v. State, 288 Ga.App. 775, 655 S.E.2d 224 (2007) (Ga. App. 2007) (proffer requirement for excluded evidence; specific questions/answers needed)
- Boivin v. State, 298 Ga.App. 411, 413-414(2), 680 S.E.2d 415 (2009) (Ga. App. 2009) (distinguishes when hearsay testimony explained conduct with proper proffer)
- Johnson v. State, 246 Ga.App. 239, 242(4), 539 S.E.2d 914 (2000) (Ga. App. 2000) (need for a proffer at trial for excluded hearsay evidence)
- Holder v. State, 242 Ga.App. 479, 482(5), 529 S.E.2d 907 (2000) (Ga. App. 2000) (no proffer after ruling rule; preservation issue shift)
- Dent v. State, 220 Ga.App. 147, 149(3), 469 S.E.2d 311 (1996) (Ga. App. 1996) (adequacy of proffer after hearsay objection)
- Vaughn v. State, 307 Ga.App. 754, 758(4), 706 S.E.2d 137 (2011) (Ga. App. 2011) (ineffective assistance standard; reasonable probability; strong presumption of reasonableness)
- Thomas v. State, 284 Ga. 647, 650(3), 670 S.E.2d 421 (2008) (Ga. 2008) (trial strategy in handling expert testimony is reviewable only for reasonableness)
- Phillips v. State, 285 Ga. 213, 223(5)(i), 675 S.E.2d 1 (2009) (Ga. 2009) (tactical decisions if reasonable cannot form basis for ineffective assistance)
- Smallwood v. State, 296 Ga.App. 16, 25(4)(e), 673 S.E.2d 537 (2009) (Ga. App. 2009) (hindsight not used to evaluate trial strategy)
- Davis v. State, 286 Ga. 74, 78(3), 686 S.E.2d 249 (2009) (Ga. 2009) (no ineffective assistance where expert testimony would conflict with defense theory)
- Towry v. State, 304 Ga.App. 139, 147(2)(f), 695 S.E.2d 683 (2010) (Ga. App. 2010) (trial strategy in choosing not to call an expert)
- Hill v. State, 290 Ga.App. 140, 147(5)(h), 658 S.E.2d 863 (2008) (Ga. App. 2008) (prosecutor's closing argument; permissible inference; no object")