A Gwinnеtt County jury found Roger Darst guilty beyond a reasonable doubt of four counts of aggravated child molestation, OCGA § 16-6-4 (c). He appeals from the denial of his motion for new trial, contending that his trial counsel provided ineffective assistance by failing to obtain certain records concerning the victims, present expert witness testimony, and object to certain testimony. He also contends that the trial court erred in failing to dismiss four jurors for cause. For the following reasons, we conclude that, although the evidence was sufficient
1. Viewed in favor of the jury’s verdict,
In October 2004, when S. C. was four years old, the child told Binzel that Darst had been playing the “private game” with her, that he had touched her “private part” with his hand, that he had forced her to put her mouth on his “private part” and told her to suck it, and that his “private part” was “sticking out.” According to S. C., Darst had warned her not to tell anyone or he would do “something bad.” Although Binzel told Darst about S. C.’s outcry shortly after the child made the statements, she did not report the outcry to law enforcement officials. Instead, Binzel called a therapist who had been treating the older child, C. C., and told her about S. C.’s outcry. Although the therapist did not testify at trial,
On Saturday, November 13, 2004, about a month after S. C.’s outcry to Binzel, seven-year-old C. C. told Binzel that Darst had touched her “private,” that he had forced her to put her hands and mouth on his “private,” and that he had showed her a magazine.
On Monday and Tuesday, November 15 and 16, 2004, Binzel took C. C. to the therapist. The next day, the therapist reported C. C.’s outcry to the Department’s case manager, who then contacted the special victims unit of the Gwinnett County Police Department. The case manager took the children to a Gwinnett County police station, where a police investigator attempted to question the children about their outcries. S. C., however, refused to talk to the investigator about anything but unrelated, “fun” topics. Similarly, C. C. refused to talk about her allegations other than to say that Darst had done something “bad” to her. As a result of the children’s reluctance to talk to the police investigator, and in an effort to help the children feel more comfortable talking with the police, the investigator asked a female detective to interview the children, but the children did not disclose anything to her, either.
In December, forensic interviews were conducted with both children at the Children’s Healthcare of Atlanta’s Child Protection Center.
As a result of the children’s allegations, the State charged Darst with committing two counts of aggravated child molestation
At trial, Darst, Binzel, and four character witnesses testified for the defense. Darst denied the allegations, and his defense was focused on attacking the children’s credibility by showing the jury that their outcries to Binzel, their interview statements, and their trial testimony were inconsistent and unbelievable. His counsel suggested that, if the children had been molested, it was by sоmeone else, such as their biological father or their “Uncle Billy.”
We conclude that the evidence presented at trial was sufficient to authorize the jury to find Darst guilty beyond a reasonable doubt of each count of aggravated child molestation
2. In several related claims of error, Darst contends that his trial counsel provided ineffective assistance and that the trial court erred in finding otherwise. Specifically, Darst argues that his counsel was ineffective when he failed to obtain and utilize the children’s therapy, school, and Department records; failed to consult with or present the testimony of experts on the issues of how to conduct reliable forensic interviews and the behavioral patterns of abused children; and failed to object or move for a mistrial when certain witnesses repeated hearsay that seriously undermined his defense strategy.
In order to establish a claim of ineffective assistance of cоunsel, a criminal defendant must address the two-pronged test enunciated by the Supreme Court of the United States in Strickland v. Washington,
When a defendant establishes that trial counsel’s performance was deficient in more than one respect, the court’s determination of whether he or shе was prejudiced thereby requires consideration of the “collective effect of the deficiencies.” (Citation omitted.) State v. Worsley,
Finally, when this Court reviews a trial court’s ruling on an ineffective assistance claim on appeal, “[w]e accept the trial court’s factual findings and credibility determinations
(a) Was trial counsel’s performance in this case deficient?
(i) Darst contends that his trial counsel’s failure to obtain the children’s school, therapy, and Department records constituted ineffective assistance because those recоrds demonstrate that the children’s documented behavior during the time he and Binzel were their foster parents was inconsistent with their allegations of his molestation of them.
The record shows that, on the first day of the three-day hearing on the motion for new trial, Darst’s appellate counsel stated that, unlike trial counsel, he had obtained the children’s school, therapy, Department, and juvenile court records for the three years they lived in Georgia.
Further, the Department’s records contained numerous reports from its case manager and caseworker, the children’s therapist, and other sources that documented the children’s positive social, developmental, and educational progress from the fall of2002 until the fall of 2004, while the children were living with Darst and Binzel, as well as the status of their relationships with Darst and Binzel. The records also showed, however, that the children’s behavior and academic performance began to deteriorate in September 2004, shortly after they learned that they would be moving to Pennsylvania to live with their grandparents.
During the hearing on the motion for new trial, trial counsel admitted thаt he had not obtained a subpoena for any of the records prior to trial, and he offered no strategic reason for failing to do so. Instead, he stated that it was his “understanding” that the Department’s records for the children had been lost.
We conclude that Darst has demonstrated that some of the information in the records at issue here was clearly favorable to his defense theory that, if the children had been molested, it was by someone other than him. Further, as explained below, the records
In contrast, trial counsel has offered no reasonable explanation for his failure to conduct any investigation into the availability or contents of the records in order to make an informed determination of whether the information therein would have been more favorable than harmful to Darst’s defense. Nor has he explained his failure to make any effort to obtain the school’s or the Department’s records. Instead, he has admitted that he decided to forfeit the possibility that the records supported his only defenses at trial for the chance to argue to the jury that the State had failed to present evidence that might have helped the jurors to better understand the children’s background.
Under these circumstances, we find that Darst has met his burden of demonstrating that counsel’s failure to obtain evidence that was both available and favorable to the defense constituted deficient performance. See Harris v. Upton,
(ii) Darst contends that trial counsel was ineffective for failing to consult with and utilize an expert witness who would have been able to show the jury that the children’s behavior was inconsistent with having been molested by him.
In perfecting the evidence on this issue during the motion for new trial hearing, appellate counsel first presented the testimony of five lay witnesses, including the children’s half-brother, half-sister, stepmother, Binzel’s sister, and Darst’s daughter, all of whom testified about their observations of the girls’ behavior when they were with Darst, particularly the girls’ apparent lack of fear of Darst and their consistently enthusiastic and affectionate physical contact with him. According to the witnesses, the сhildren called Darst “daddy,” ran to him when he came home from work, seemed excited to see him, liked to be held by him, hugged him and held his hand, jumped on him or sat on his lap, played games with him, and wanted to ride with him in his truck.
One of C. C.’s teachers testified about behavioral, social, and academic problems C. C. was exhibiting when she entered kindergarten in 2002, as well as the generally positive
Appellate counsel subsequently presented the testimony of Dr. Nancy Aldridge,
Dr. Aldridge testified about the typical behavioral patterns observed in children who have been sexually abused, particularly if some force was involved, as in this case. These behaviors include their active avoidance of the perpetrator, expression of their fear of the perpetrator, and serious psychological symptoms, including depression, anxiety, withdrawal from others, and hyper vigilance. In addition, the children often experience a decline in school performance due to their preoccupation with thoughts of the abuse, their inability to concentrate, аnd their tendency to be easily distracted.
According to Dr. Aldridge, the school, therapy, and Department records that documented C. C.’s numerous behavioral, social, and academic problems when she entered kindergarten in the fall of 2002 were consistent with her almost contemporaneous reports that she had been molested by her biological father before she was placed in foster care. In contrast, the lay witnesses’ hearing testimony that described the girls’ affectionate, fearless behavior with Darst was inconsistent with the behavior typically observed of children who are being sexually abused in the manner the girls had reported. Similarly, the school, therapy, and Department records that documented C. C.’s emotional, psychological, and academic improvement while living with Darst and Binzel were inconsistent with what would have been expected if she was being molested.
Dr. Aldridge also testified that C. C.’s behavioral problems that arose after the September 2004 custody ruling may not have been the result of molestation but, instead, may have been the result of a condition called “reactive attachment disorder,” which results when a small child is neglected or abused to the extent that the child becomes unable to develop a secure bond or attachment to a specific caretaker. In one type of this disorder, a child becomes emotionally distant, avoids eye contact, and does not want to be touched or held. In the other type, a child is uninhibited about seeking attention from others, but is unable to overcome his or her feeling of abandonment. Symptoms of this disorder include emotional withdrawal, low self-esteem, depression, aggressiveness, impulsive behavior, lack of remorse, anger, and lashing out. According to Dr. Aldridge, when a previously neglected child, such as C. C., has bonded with a trusted caregiver, but that secure relationship is disrupted, the disorder may devеlop as a defense mechanism to help the child cope with the change and the feeling of abandonment, leading the child to direct his or her anger at the caregiver.
During the motion for new trial hearing, trial counsel testified that he was aware that expert witness testimony on the behavioral patterns of sexually abused children was admissible in child molestation cases.
Under these circumstances, we conclude that trial counsel’s failure to enlist the services of an expert witness constituted deficient performance. See Goldstein v. State,
(iii) Darst also contends that his trial counsel was ineffective for failing to consult with and utilize an expert on the subject of conducting reliable forensic interviews. According to Darst, such an expert would have been able to demonstrate at trial that the statements made by the children during their forensic interviews were unreliable due to the methodology used during the interviews and the contamination that resulted from the repeated questioning of the children by untrained individuals prior to the forensic interviews.
As shown above, before a forensic interview was conducted with either of the children in this case, Binzel, the children’s therapist, and two police investigators either questioned them about their outcries or attempted to do so. A sexual abuse medical examination was also conducted on each child. In addition, S. C. was subjected to a psycho-sexual evaluation, and two months passed between her initial outcry to Binzel and her forensic interview. As for C. C., before she spoke to anyone else about her allegations, she was subjected to several hours of questioning by Binzel over a two-day period.
At the new trial hearing, appellate counsel presented the testimony of Amy Morton,
According to Morton, a forensic interviewer should avoid the following: using suggestive statements and leading questions that contain information that the child has not yet disclosed; selective reinforcement of the child’s statements, i.e., communicating to the child, either verbally or through your demeanor, approval or disapproval of what the child is saying; “co-opting” the child, i.e., encouraging the child to help in the investigation; using a type of “peer pressure” by telling the child that a sibling or someone else has already talked about the issue; and using anatomical drawings and dolls before the child discloses abuse, because premature use of the tools may improperly influence the child. Finally, the interview should be recorded or otherwise objectively documented in order to later assess the reliability of the interview process.
During her testimony, Morton offered a few criticisms of the forensic interviews at issue in this case. For example, she expressed some concern that the Department case manager was allowed to be present throughout S. C.’s interview and that S. C. was allowed to sit on the manager’s lap. The primary focus of Morton’s testimony, however, was her harsh criticism of the professionals in this case, including the therapist, the Department case manager, the police investigators, and the psycho-sexual evaluator, each of whom allowed the children to be subjected to repeated, suggestive questioning about the allegations, instead of ensuring that forensic interviews of the children were cоnducted without unnecessary delay. According to Morton, the “ball got dropped” by these professionals. Morton characterized the circumstances as a “collection of error [s]” that began when S. C. made her outcry to Binzel, stating that “[i]t is not one person’s fault, it is a collective [,] building situation where these children . . . did not get the care and attention needed in a timely manner to make it most possible that they would provide reliable information.”
Morton was also extremely critical of Binzel’s post-outcry interactions with both children, especially her prolonged, intensive questioning of C. C. She described Binzel as an untrained interviewer whose participation was suggestive, biased, antagonistic, and threatening, and opined that Binzel’s influence was one of the factors that rendered the children’s statements unreliable.
Significantly, Darst’s trial counsel failed to address any of these issues in his cursory cross-examination of the forensic examiner.
(iv) Darst contends that trial counsel’s failure to object to certain testimony constituted ineffective assistance. Specifically, Darst argues that counsel should have objected to inadmissible hearsay testimony that the children’s biological father and uncle had successfully completed psycho-sexual evaluations, as well as hearsay testimony that there had been a recommendation that he submit to a psycho-sexual evaluation, but that it was unclear whether he had done so. The following statements are at issue.
First, during cross-examination of the Department case manager who had taken the children to meet with the police investigator after C. C.’s outcry, trial counsel asked the manager if the Department had received a report that someone other than Darst had inappropriately touched the children. The manager responded that, in 2002, after the Department had placed the children in foster care, C. C. had made some statements about possible sexually inappropriate behavior by her biological father when she had lived with him. According to the manager, the behavior at issue was his walking around the house naked in the child’s presence, and there were no reports of inappropriate touching, fondling or acts of sodomy by the father.
Second, during the State’s questioning of the Department caseworker who had supervised the children’s foster placement in Georgia from March to November 2004, the caseworker testified that the children’s paternal grandparents, who lived in Pennsylvania, had completed foster parent training and other state-mandated requirements in support of their efforts to get permanent custody of the children. According to the caseworker, because the children’s biological father and a paternal uncle would have contact with the children if they were placed in their grandparents’ custody, the men were
Finally, during direct examination by the State, the caseworker testified that, as a result of S. C.’s outcry about inappropriate sexual acts by Darst, it had also been recommended that Darst undergo a psycho-sexual evaluation. The caseworker testified, however, that she did not know if he had completed the evaluation.
It is undisputed that the professional(s) who conducted the psycho-sexual evaluations on the children’s biological father and “Uncle Billy” did not testify at trial and that neither of the Department employees who testified about those evaluations had any actual personal knowledge of what occurred during those purported out-of-state evaluations. Further, there is nothing in the record to show that the caseworker had any personal knowledge about Darst’s alleged referral for a psycho-sexual evaluation and, if she was relying on a document in the Department’s records, that document was never admitted at trial. Under these circumstances, the witnesses’ testimony about whether Darst, the children’s biological father, or “Uncle Billy’ participated in and/or passed a psycho-sexual evaluation constituted inadmissible hearsay. See former OCGA § 24-3-1 (a) (“Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.”);
Thus, trial counsel erred in failing to object to these references to psycho-sexual evaluations.
(b) Did the collective effect of trial counsel’s errors prejudice Darst?
In determining whether the collective effect of trial counsel’s deficient performance, as described above, prejudiced Darst’s defense, we reach the following conclusions.
Because trial counsel failed to petition the trial court to subpoena the children’s Department records, he was unable to show the jury that, not only did C. C.’s biological father walk around in front of her while nude, but that he allegedly molested her by touching her “privаtes,” which would have provided significant support for Darst’s defense theory
Further, Morton’s expert testimony about the many factors that may have improperly influenced the children’s memories and, in her opinion, reduced the reliability of their forensic interview statements and trial testimony supported Darst’s contention that the children’s allegations against him were not credible.
Finally, the improper presentation of hearsay evidence regarding the lack of “red flags” resulting from the psycho-sexual evaluations of the biological father and “Uncle Billy” essentially eliminated them as possible molestation suspects and, as a result, severely undermined one of Darst’s primary defense theories, a fact the State specifically emphasized in its closing argument.
Consequently, we conclude that Darst has met his burden of demonstrating that, absent trial counsel’s errors, there is a reasonable probability that the outcome of the trial would have been different. State v. Worsley,
It follows that, although the evidence was sufficient to support Darst’s convictions, the trial court erred in finding that Darst did not receive ineffective assistance of counsel and, as a result, in denying his motion for new trial. We remand this case to the trial court for a new trial. See Green v. State,
3. As a result of our rulings on Darst’s ineffective assistance claims, his remaining allegation of ineffective assistance of counsel is moot. Goldstein v. State,
Judgment reversed.
Notes
Jackson v. Virginia,
The children moved to Pennsylvania in January 2005.
See Division 2, infra, regarding the therapist’s testimony during the motion for new trial hearing, as well as testimony by an expert witness on her opinion about the therapist’s actions in this case.
The person who conducted the psycho-sexual evaluation did not testify at trial.
At trial, C. C. also testified that Darst sometimes slapped and yelled at her, particularly when Binzel was not present.
The forensic interviewer’s expert qualifications included obtaining Bachelor’s and Master’s degrees in Social Work; attending several week-long training sessions in forensic interviewing; conducting approximately 525 forensic interviews during her career; having been repeatedly qualified as an expert in forensic interviewing by courts; and serving as a supervisor of new forensic interviewers. The interviewer testified that, during such interviews, she often uses anatоmical drawings to allow a child to name various body parts using his or her own terms and, if a child reports any inappropriate contact, to give him or her a chance to point to the body parts that were touched. She also uses anatomically correct dolls for demonstration purposes if a child has reported some inappropriate sexual contact but has difficulty describing what happened to them.
Under the relevant portion of OCGA § 16-6-4 (c), a person commits the offense of aggravated child molestation when he or she commits an act of child molestation that involves an act of sodomy. See OCGA § 16-6-4 (a) (1) (“Aperson commits the offense of child molestation when such person... [d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person].]”).
Because due process requirеs the existence of sufficient evidence as to every element of the crime of which a defendant is convicted, Jackson v. Virginia,
(Citations omitted.) Garza v. State,
See also Smith v. State,
If a defendant fails to satisfy either prong of the test, he will be unable to prevail on his ineffective assistance claim, so the court is not required to consider the remaining prong. Covington v. State,
Specifically, appellate counsel obtained 68 pages of school records, 331 pages of therapy records, 232 pages of Department records, and 64 pages of juvenile court records.
Apparently, trial counsel relied on a statement hy the police investigator during his interview with Binzel that the Department had “mysteriously lost the children’s records. The investigator did not identify where he had obtained that information.
We acknowledge that the Department’s records involving child abuse allegations are deemed confidential under OCGA § 49-5-40 (b). See OCGA § 49-5-40 (a) (3) (B), (C) (The term “child abuse” includes neglect of a child by a parent or caretaker and sexual abuse of a child.). Such records may be obtained, however, by petitioning the trial court to subpoena the records under the provisions of OCGA § 49-5-4Í (a) (2), which states that reasonable access of confidential Department records shall be provided to
[a] court, by subpoena, upon its finding that access to such records may be necessary for determination of an issue before such court; provided, however, that the court shall examine such record in camera, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then before it and the record is otherwise admissible under the rules of evidence[.]
See Dunagan v. State,
We also note that, contrary to the State’s assertion, there is no competent evidence in the appellate record that the Department’s records were unavailable to trial counsel prior to trial.
The testimony of the children’s therapist echoed these observations.
The record shows that Dr. Aldridge has extensive educational and professional experience in conducting forensic interviews of children who had been physically or sexually abused, educating other professionals in appropriate interviewing techniques, conducting relevant research, and serving as the executive and clinical director of two advocaсy centers for physically and sexually abused children for a total of ten years.
See Hall v. State,
Cf. Gawlak v. State,
The record shows that Morton is a marriage and family therapist with specialized training and at least 25 years of experience in conducting forensic interviews of children who allegedly had been sexually abused and in training others to conduct such interviews. She also provides therapy for children who have been sexually abused.
Similarly, the other expert witness, Dr. Aldridge, testified that she believed the children’s purported memories of Darst’s molestation likely resulted from the numerous, suggestive interviews that occurred prior to the forensic interviews and injected improper third party influences, thereby contaminating the children’s original memories.
The record shows that, during trial counsel’s cross-examination of the forensic interviewer, he asked only three questions, all about whether the interviewer had talked with either of the children before the interviews. The interviewer responded that, other than what was said when she went into the waiting room and brought the children, separately, into the interview room, everything she and the children said to one another was on the recordings of the interviews.
Although trial counsel added that presenting such expert testimony at trial might require him to play the recordings for the jury a second time, which would not hаve been favorable to Darst, almost all of the opinion testimony offered by Amy Morton, the expert retained by appellate counsel, was directed at the events preceding the forensic interviews and their negative effect on the reliability of the children’s interview statements. The record shows that both Morton and Dr. Aldridge were able to testify during the hearing without replaying the interview recordings.
Cf. Gawlak v. State,
As shown in Division 2 (a) (i), supra, however, the Department’s records actually showed that C. C. had reported that her biological father had slept with her while he was naked and had touched her "privates.”
Notably, during cross-examination of the caseworker, defense counsel elicited her testimony that S. C.’s statements to the children’s therapist about inappropriate sexual behavior by her “Uncle Bill/’ was the reason he was оrdered to undergo a psycho-sexual evaluation.
In 2011, the Georgia General Assembly repealed the existing Evidence Code in its entirety and replaced it with a new Evidence Code, the provisions of which became effective on January 1,2013, and apply to any motion, hearing or trial commenced on or after such date. Ga. L. 2011, p. 99, §§ 1, 101. Pursuant to that legislative act, “hearsay” has been redefined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OCGA § 24-8-801 (c) (2013).
Trial counsel testified that his failure to object to the evidence was not the result of a strategic decision.
See also Terry v. Jenkins,