Fоllowing a jury trial, Ricky Lee Barmore was convicted of three counts of child molestation and three counts of sexual battery.
Viewing the facts in the light most favorable to the verdict,
At some point later in the evening while in Barmore’s camper, Barmore gave his thirteen-year-old daughter and K. R. Mike’s Hard Lemonade, beer and vodka while playing the drinking game “Quarters” with them. The girls eventually went to bed with the thirteen-year-old daughter and K. R. sharing a bed in the back bedroom and the other girl sleeping on the couch. While the two girls were sleeping in the bed, Barmore came into the room, lay next to K. R. and began to touch her breasts. He then moved his hand down toward her groin area. K. R., then pretending to be asleep, rolled over on her stomach away from Barmore. Barmore attempted to enter her pants from the rear trying to again get to the groin area. K. R. then jerked away, and Barmore stopped and lеft the room. The daughter did not wake up during the incident.
K. R. told the thirteen-year-old daughter what had happened the following morning via text message so that her younger sister would not hear, and both girls began crying. The thirteen-year-old daughter later called Pair who stopped what she was doing and came to the pool party to get thе girls. The girls got into Pair’s vehicle without telling Barmore and left. Pair did not take K. R. directly home, but instead, took K. R. to Pair’s home where she questioned her about the incident, and K. R. stayed the night at Pair’s home. Pair took K. R. back to her home the following day.
Upon learning of what happened, K. R.’s mother contacted the Whitfield County Sheriff’s Office, which began an investigation. As protocol, the Sheriff’s Office arranged for Katie Walker, forensic interviewer for The Friends of the GreenHouse, Inc. (the “GreenHouse”) to interview K. R. about the incident.
The GreenHouse is a Whitfield County child advocacy corporation with Charles Eicholtz as the president of the board of directors. Charles Eiсholtz also served as the foreperson on the jury that convicted Barmore. According to Brenda Hoffmeyer, Secretary of the GreenHouse board, the GreenHouse was formed under a prior Whitfield County district attorney and is a government agency under the Victim Assistance Program of the district attorney’s office.
During voir dire, Eicholtz acknowledged being the president of the board for GreenHouse. Defense counsel inquired about his position, to which Eicholtz replied, “oversight of operations of The GreenHouse.” According to Eicholtz, oversight included hiring and interviewing standards, but he did not say the board actually did the hiring or interviewing. Eicholtz also acknowledged knowing Stephen Spencer, the prosecutor in the case, Katie Walker who interviewed K. R. at the GreenHouse, and Glenn Swinney, аn investigator in the case. However, Eicholtz said even though he worked with law enforcement often, he could be an impartial juror.
At trial, J. S., Pair’s older, biological daughter and Barmore’s stepdaughter, testified to four prior occasions in which Barmore molested her as a child while she lived with Pair and Barmore during their marriage. J. S. only told her mother about one of the incidents, which Pair cites as the reason for warning her thirteen-year-old daughter about leaving K. R. alone with Barmore. Neither J. S. nor Pair ever called the police about the incidents related to J. S.
Barmore asserts that the trial court erred in denying his motion for new trial on the ground that his counsel was ineffective. In order to show that counsel provided ineffective assistance, it must be shown that his performance was deficient and that the deficient performance prejudiced Barmore. Strickland v. Washington,
1. We will first address Barmore’s contention that his trial counsel was ineffective when he did not move to strike juror Charles Eicholtz for cause. Under OCGA § 15-12-164 (d),
[t]he court shall also excuse for cause any juror who from the totality of the juror’s answers on voir dire is determined by the court to be substantially impaired in the juror’s ability to be fair and impartial. The juror’s own representation that the juror would be fair and impartial is to be considered by the court but is not determinative.
A juror can be disqualified for cause only if it can be shown that an opinion held by the potential juror is fixed and definite such that the potential juror would be unable to set aside the opinion and decide the case on the evidence or the court’s charge upon the evidence. Rocha v. State,
Barmore argues that because Eicholtz was the president of the board of the GreenHouse, which interviewed the victim in this case, Eicholtz should be considered in essence an employee of the district attorney’s office and stricken for cause. See Beam v. State,
Unlike the juror in Beam, Eicholtz was president of the board of GreenHouse, a separate, duly formed corporation, operating under the district attorney’s Victim Assistanсe Program. Neither GreenHouse nor the district attorney’s office compensates Eicholtz for his work as president of the board of GreenHouse, and Barmore produced no evidence either during the trial or at the motion for new trial hearing that Eicholtz had any day-to-day operational role within GreenHouse or worked with victims in any way. Accordingly, we find that Eicholtz was not subject to be stricken for cause solely because of his position at GreenHouse. See Berry,
Moreover, while Eicholtz knew several individuals involved with the case professionally, his acquaintance with members of the district attorney’s office and law enforcement is not sufficient to strike him for cause. See Shiver,
2. Barmore further contends that trial counsel was ineffective for not using one of nine peremptory strikes against Eicholtz. Barmore claims that had his counsel properly counted the number of peremptory strikes he had used, he would have saved one for Eicholtz instead of mistakenly using all nine on other potential jurors. In a non-death penalty case, each side may use nine peremptory strikes of jurors. OCGA § 15-12-165. To show counsel was deficient in the use of peremptory challenges, Barmore must overcome a strong presumption that counsel conducted jury selection in a manner “within the wide range of professional assistance.” See Shields,
Applying these standards, we find that Barmore has not overcome the strong presumption that his counsel’s decisions on what prospective jurors to strike and which to keep were anything other than strategic. The trial transcript indicates that when the trial judge suggested to Barmore’s counsel that he had used all nine of his strikes, hе replied that he had only used eight. But as the trial court indicated to counsel, and as the record makes clear, the defense actually had used all nine of its strikes at that time, and thus had no strike left for Eicholtz. Nevertheless, Barmore’s counsel admitted at the hearing on the motion for new trial that he had valid tactical and stratеgic reasons for the nine strikes he made. And although counsel indicated that he had intended to strike Eicholtz, but miscounted his strikes, the test for ineffective assistance of counsel “calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.” (Citation omitted.) Brown v. State,
3. Barmore also contends that trial counsel provided ineffective assistance by failing to object when witness Beverly Pair improperly bolstered the testimony of K. R. and J. S., the similar transaction witness.
PAIR: I just said, I know what you done, I know everything you done.
THE STATE: You said that to him?
PAIR: Yeah. I know everything you done. I didn’t tell him what I knew. And I said, They wouldn’t lie to me, they wouldn’t lie to me. And he told me that they were crazy, he hadn’t done anything, that [the younger daughter] must have gotten off of the couch asleeр with him and got in the bed and touched [K. R.].
Later, on cross-examination, Pair testified to a conversation she had with J. S. about a prior alleged instance of molestation:
DEFENSE COUNSEL: You never told [J. S.] that Ricky is sorry and blamed [it] on Jager[meister]?
PAIR: No. He told her that. She said all she wanted was him to admit the truth, and I told her I knew she was telling the truth,... But she said, Mom, I want him to admit it in frоnt of me and — when he admits it to you, I want to be there and I want him to do it in front of me and I want him to apologize and admit it, and he did.
“It is well established that credibility of a witness is a matter for the jury, and a witness’s credibility may not be bolstered by the opinion of another witness as to whether the witness is telling the truth.” (Citation omitted.) Strickland v. State,
Here, the defense strategy was that Pair had orchestrated the claims against Barmore as retribution for his conduct in their tumultuous relationship and that Pair was therefore not credible as a witness. Defense counsel pursued this line of questioning directly after Pair bolstered J. S.’s testimony. Because objecting to Pair’s bolstering would be inconsistent with the strategy of showing that Pair was not to be believed at all, we cannot conclude that the decision to cross-examine Pair, rather than to object to the bolstering, was an unreasonable trial strategy. See Rawls v. State,
Mоreover, even if counsel had objected to the improper bolstering, Barmore has failed to show a reasonable probability that the testimony so prejudiced his defense that it affected the outcome of the trial. K. R.’s account of the incident remained consistent throughout — from her initial outcry to her friend and to Pair, her reporting of the incident to her mother, and the interview with the forensic examiner. Barmore also
Judgment affirmed.
Notes
Marriott v. State,
Trial counsel admitted in his testimony at the motion for new trial hearing that at the time of voir dire, he did not know the GreenHouse was formed by and under the district attorney's office, believing the GreenHouse to he a private organization that worked closely with the district attorney’s office.
In the motion for new trial, Barmore also pointed to other testimony in which trial counsel had objected to the bolstering as speculative, but failed to seek curative instructions after the objection was sustained. Barmore has not argued this error on appeal, so it is considered abandoned. See Wynn v. State,
The trial court gave the limiting instructions on similar transactions three times during the course of the trial — before Pair and J. S. testified and in the charge after the close of the evidence.