571 S.E.2d 427 | Ga. Ct. App. | 2002
David Davitt was convicted of child molestation and aggravated child molestation. Although his convictions were affirmed on direct appeal, the case was remanded to the trial court for consideration of Davitt’s claim of ineffective assistance of trial counsel.
Davitt asserts that he was denied effective assistance of counsel because trial counsel failed to: (1) object to alleged bolstering by the child’s mother; (2) object to the trial court’s statement in the jury’s presence that the child was qualified to testify; (3) develop the record as to whether the jury overheard testimony from a Jackson-Denno hearing; and (4) either make an opening statement or file written requests for jury charges.
In his earlier appeal, Davitt claimed that the trial court erred in allowing the child’s mother to bolster the child’s credibility.
2. Counsel’s failure to object to the trial court’s statement that the child was qualified to testify provides no basis for reversal.
Davitt also complained in his earlier appeal that the trial court, in violation of OCGA § 17-8-57, expressed its opinion as to what had been proved by stating in the jury’s presence that the child was qualified to testify.
Because the prosecution invoked the Child Hearsay Statute
Under OCGA § 17-8-57, relied on by Davitt, “[i]t is error for any judge in any criminal case, during its progress or in [the] charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Although a trial judge certainly violates this statute by expressing his opinion as to a witness’s credibility,
3. Counsel’s failure to perfect the record on the issue of whether the jury overheard testimony from a Jackson-Denno hearing was a strategic decision which has not been shown to have prejudiced the defense.
Davitt also claimed in his earlier appeal that the trial court erred in failing to determine whether jurors actually heard testimony taken during the Jackson-Denno hearing.
On remand, Davitt’s trial counsel testified that he did not ask for any relief at trial because of his concern that questioning the jurors on the subject would prejudice them if they heard nothing. Trial strategy such as this does not equate with ineffective assistance of counsel.
4. Finally, trial counsel testified on remand that, as a matter of trial tactics, he chose to waive his opening statement, and that he did not request any jury charges because the court’s standard charge was adequate. Davitt has not shown that counsel’s decisions were unreasonable.
Judgment affirmed.
Davitt v. State, 232 Ga. App. 427, 429 (4) (502 SE2d 300) (1998).
Pittman v. State, 274 Ga. 260, 264 (5) (553 SE2d 616) (2001).
Davitt, supra at 427 (1).
Id.
Cf. Roberson v. State, 241 Ga. App. 226, 229 (1) (526 SE2d 428) (1999) (mother’s testimony that her child lied about normal things that children lie about was ambiguous as to whether the child was truthful with respect to her allegations against the defendant and did not contribute to the verdict; Eldridge, J., concurring specially and concurring in the judgment only, but noting that mother’s statement neither bolstered the credibility of the victim nor contributed to the verdict).
Davitt, supra at 428 (2).
Id.; Paul v. State, 272 Ga. 845, 848 (3) (537 SE2d 58) (2000), subsequently held that, even in the absence of an objection at trial, violations of OCGA § 17-8-57 will be reviewed on appeal under the plain error rule.
OCGA § 24-3-16.
See Sosebee v. State, 257 Ga. 298, 299 (357 SE2d 562) (1987).
OCGA § 24-9-5 (b); Sizemore v. State, 262 Ga. 214, 217 (416 SE2d 500) (1992).
See Sizemore, supra.
See Jones v. State, 189 Ga. App. 232 (1) (375 SE2d 648) (1988).
See Williams v. State, 239 Ga. App. 30, 31-32 (2) (521 SE2d 27) (1999); see generally Gallagher v. State, 196 Ga. App. 153, 154 (395 SE2d 358) (1990) (competency of witness determined by court); compare Ray v. State, 181 Ga. App. 42, 43 (3) (351 SE2d 490) (1986) (determination of voluntariness of confession ultimately for jury).
Davitt, supra at 428 (3).
Id. at 428-429.
See Powell v. State, 210 Ga. App. 409, 413-414 (6) (b) (437 SE2d 598) (1993).
See generally Harris v. State, 274 Ga. 774, 775 (3) (560 SE2d 642) (2002).