657 S.E.2d 562 | Ga. Ct. App. | 2008
Following a jury trial, Alfonso Ellis was convicted on two counts of child molestation*
Viewed in the light most favorable to the verdict, Davis v. State,
Ellis was indicted on one count each of child molestation, aggravated sexual battery, and rape of Ch. B. and was indicted on two counts of child molestation of C. B. At trial, both Ch. B. and C. B. testified that Ellis had sexually abused them. The school counselor testified regarding the day that both girls made their initial outcry to her, and the nurse practitioner who examined the girls testified as to her medical findings. In addition, the State also proffered the testimony of 13-year-old T. F. as similar transaction evidence. T. F. testified that, when she was ten years old, Ellis was her foster mother’s boyfriend and that he had sexually abused her by putting his privates into her privates. At the close of the State’s evidence, the trial court directed a verdict on one of the counts of child molestation as to C. B. The jury found Ellis guilty on one count of child molestation of Ch. B., one count of aggravated sexual battery of Ch. B., and one count of child molestation of C. B. but was unable to reach a verdict on the count alleging rape of Ch. B.
Subsequently, Ellis obtained new counsel and filed a motion for new trial, arguing that trial counsel rendered ineffective assistance by failing to move for an in camera inspection of T. F.’s (the similar transaction witness) DFCS file. In the motion, Ellis also argued that the State improperly withheld exculpatory evidence, including the results of a sexual abuse medical examination of T. F. and her DFCS file, in violation of Brady and the reciprocal discovery act. The trial court held a hearing on the motion, at which time it ordered the State to produce T. F.’s medical report as well as her DFCS file and reserved
1. Ellis contends that the trial court erred in denying his claim of ineffective assistance of counsel, arguing that his trial counsel was ineffective in failing to move for an in camera inspection of T. F.’s DFCS file. We disagree.
To establish ineffective assistance of counsel under Strickland v. Washington,
At the hearing on his motion for new trial, Ellis’s appellate counsel questioned trial counsel as to why he did not move the court to subpoena T. F.’s DFCS records for an in camera inspection pursuant to OCGA § 49-5-41 (a) (2), given the fact that such an inspection would have yielded (i) the medical report, which showed that the examination of T. F. found no physical evidence of the sexual abuse she alleged, and (ii) evidence of T. F.’s reputation for dishonesty. Trial counsel responded that his strategy was to attack T. F.’s credibility by implying that she was making “outlandish claims” and that reviewing her DFCS file would have only been a “fishing expedition.” With regard to the medical report, trial counsel further testified that while he was aware of the fact that T. F. had been examined and that no physical signs of sexual abuse were found, it was his experience,
Although trial counsel did cross-examine T. F. at trial, Ellis argues that his attempt to attack T. F.’s credibility would have been more effective if he had moved for an in camera inspection of her DFCS file. However, “[t]he manner in which an attorney attacks the credibility of a witness falls within the ambit of trial tactics.” Washington v. State.
2. Ellis further contends that the State withheld exculpatory evidence in violation of his due process rights under Brady and the reciprocal discovery act. We disagree. Brady holds that the suppression by the prosecution of evidence favorable to a defendant is a violation of due process. Supra, 373 U. S. at 87. “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” (Punctuation omitted.) Nelson v. State.
had to show that: (1) the State possessed the information favorable to [Ellis]; (2) [Ellis] did not possess the evidence nor could he obtain it with due diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the trial would have been different had the evidence been disclosed.
(Punctuation omitted.) Pinson v. State.
Prior to trial, Ellis filed motions requesting that the State provide him with all exculpatory evidence pursuant to Brady and the reciprocal discovery act. He now argues that the State violated Brady and the reciprocal discovery act by failing to provide him with T. F.’s
[t]he proper procedure for obtaining access to such records in cases such as the one at bar is to petition the trial court to subpoena the records and conduct an in camera inspection as to whether the records are necessary for determination of an issue before the court and are otherwise admissible under the rules of evidence.
Davidson, supra, 183 Ga. App. at 559 (4) (b). See OCGA§ 49-5-41 (a) (2). This procedure affords a defendant the ability to obtain exculpatory evidence pursuant to his due process rights while also upholding the State’s interest in protecting the confidentiality of DFCS’s files. See Pennsylvania v. Ritchie;
Moreover, even assuming that the report regarding the sexual abuse medical examination of T. F. was in the State’s possession independent of its inclusion in her DFCS file, Ellis has not shown that his failure to obtain the report constituted a Brady violation. At the hearing on Ellis’s motion for new trial, Ellis’s trial counsel testified that he recalled the State’s prosecutor mentioning the fact that T. F. had been medically examined shortly after she alleged that Ellis molested her and that the examination found no physical signs of sexual abuse. Thus, the potentially exculpatory medical report’s existence was known to Ellis, and he made no showing that he could
Judgment affirmed.
OCGA§ 16-6-4 (a).
OCGA§ 16-6-22.2 (b).
Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).
OCGA§ 17-16-1 et seq.
Davis v. State, 275 Ga. App. 714, 715 (1) (621 SE2d 818) (2005).
Strickland, v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).
Mency v. State, 228 Ga. App. 640, 642 (2) (492 SE2d 692) (1997).
Simpson v. State, 278 Ga. 336, 337 (2) (602 SE2d 617) (2004).
Rose v. State, 258 Ga. App. 232, 234-235 (2) (573 SE2d 465) (2002).
Washington v. State, 276 Ga. 655, 659 (3) (a) (581 SE2d 518) (2003).
Abernathy v. State, 278 Ga. App. 574, 587 (3) (b) (v) (630 SE2d 421) (2006).
Nelson v. State, 279 Ga. App. 859, 864 (2) (632 SE2d 749) (2006).
Nikitin v. State, 257 Ga. App. 852, 854 (1) (572 SE2d 377) (2002).
Pinson v. State, 266 Ga. App. 254, 263 (8) (596 SE2d 734) (2004).
Davidson v. State, 183 Ga. App. 557, 559 (4) (b) (359 SE2d 372) (1987).
Pennsylvania v. Ritchie, 480 U. S. 39, 60-61 (III) (C) (107 SC 989, 94 LE2d 40) (1987).
Honeycutt v. State, 245 Ga. App. 819, 820 (2) (538 SE2d 870) (2000).
Horne v. State, 192 Ga. App. 528, 531 (4) (a) (385 SE2d 704) (1989).
Tessmer v. State, 273 Ga. 220, 225 (6) (539 SE2d 816) (2000).