Gilmer v. the State
339 Ga. App. 593
| Ga. Ct. App. | 2016Background
- Defendant Darius Gilmer was convicted of child molestation and aggravated child molestation based on outcries and forensic interviews by an then-11‑year‑old victim, F.P.; incidents allegedly occurred in 2007.
- Allegations included forced manual stimulation, attempted/actual anal penetration in a shower, and other sexual contact; a separate charge as to the younger brother was placed on the dead docket.
- The children later moved to Kentucky; a family friend elicited outcries and law‑enforcement forensic interviews were conducted there in 2008.
- At trial the State presented an expert on forensic interviewing and the family friend who received the outcries; both witnesses made testimony the majority characterized as improper bolstering of the victim’s credibility.
- Gilmer moved for a new trial arguing ineffective assistance of counsel (failure to object to bolstering testimony; failure to obtain DFCS/counseling records; failure to use mother’s perjury arrest), and appealed the trial court’s removal of a juror during trial.
- Majority affirmed convictions: found evidence sufficient, rejected ineffective‑assistance claims (strategy and lack of prejudice), and upheld juror removal; a three‑judge dissent would have found counsel ineffective based on failure to object to bolstering and would reverse.
Issues
| Issue | Plaintiff's Argument (Gilmer) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Was counsel ineffective for failing to object to expert's bolstering testimony? | Counsel’s failure to object was deficient and prejudicial because the expert vouched for the child’s credibility. | Counsel reasonably chose not to object as part of a strategy to co‑opt the expert and expose flaws in the forensic interviews; any error was harmless. | Majority: Not ineffective — reasonable strategy and no prejudice. Dissent: Deficient and prejudicial; would reverse. |
| Was counsel ineffective for failing to object to family friend’s bolstering testimony? | Failure to object was deficient; testimony impermissibly vouched for victims. | Defense counsel cross‑examined to show emotional basis and lack of firsthand knowledge; not unreasonable strategy. | Majority: Not ineffective — reasonable tactic and no prejudice. Dissent: Deficient performance and prejudicial. |
| Was counsel ineffective for not obtaining DFCS and therapy records? | Records would have impeached credibility, shown alternative explanations, and possibly identified other perpetrators. | Counsel had no notice such records existed; no evidence records would have aided defense or identified another perpetrator. | Not ineffective — no deficiency shown and no reasonable probability of a different outcome. |
| Could defendant impeach mother with her prior perjury arrest? | Mother’s arrest (even if dismissed) was relevant impeachment that counsel should have used. | Extrinsic evidence of specific acts is barred; court discretion to allow cross‑examination unclear and likely not probative given dismissal. | Not ineffective — failure to present this was not shown admissible or prejudicial. |
| Was removal of Juror No. 10 erroneous? | Removal was arbitrary and abused discretion. | Trial court properly investigated juror familiarity with defense witness and juror had discussed it with the jury; removal was supported. | Not error — trial court did not abuse discretion in removing juror. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (legal sufficiency standard for verdict)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficiency and prejudice)
- Bly v. State, 283 Ga. 453 (expert may not vouch for witness credibility)
- Jones v. State, 292 Ga. 593 (reasonable strategy can justify not objecting to testimony)
- Moon v. State, 288 Ga. 508 (trial court discretion to remove juror for cause)
- Douglas v. State, 327 Ga. App. 792 (review of evidence in light most favorable to verdict)
- Orr v. State, 262 Ga. App. 125 (bolstering testimony can be extremely harmful where victim testimony is critical)
- Walker v. State, 296 Ga. App. 531 (failure to object to bolstering can constitute prejudice when victim testimony is sole evidence)