Lead Opinion
Darius Gilmer appeals from his convictions for child molestation and aggravated child molestation against then-11-year-old F. P, arguing that he received ineffective assistance of trial counsel and that the trial court erred in dismissing a juror during the trial. For the reasons that follow, we find no error and affirm.
Viewed in the light most favorable to the verdict, see Douglas v. State,
In 2008, the mother and the two boys moved to another state to live with a family friend. That friend began to suspect that F. P’s brother, W. G., had been molested after W. G. inappropriately touched another child. She questioned both F. P and W. G. separately, and
The indictment charged Gilmer with committing the offense of child molestation by touching F. P.’s penis with his hand and having F. P. touch his penis with his hand, and with committing the offense of aggravated child molestation by penetrating F. P’s anus with his penis.
1. Although not enumerated as error, we find at the outset that the evidence recounted above was sufficient for the jury to find Gil-mer guilty of these offenses under the standard set forth in Jackson v. Virginia,
2. In his first enumeration of error, Gilmer argues that trial counsel rendered ineffective assistance by: (1) failing to object to the bolstering testimony of the State’s expert and the family friend who initially received the outcry; (2) failing to obtain and utilize DFCS and therapy records for the children; and (3) failing to obtain and introduce evidence of the mother’s arrest for perjury We discern no error in the trial court’s denial of the motion for new trial on these grounds.
To prevail on his claim of ineffective assistance of trial counsel, Gilmer “must show both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different,.” Daniel v. State,
(a) Gilmer first argues that his counsel was deficient for, among other things, failing to object to testimony from two witnesses that improperly bolstered the credibility of F. P Our Evidence Code provides that “[t]he credibility of a witness shall be a matter to be determined by the trier of fact[.]” OCGA § 24-6-620.
The State’s expert witness, Anique Whitmore, testified at trial about F. P.’s use of the word “blowtorch” to describe his experience of the aggravated molestation during a forensic interview. When asked why “that kind of descriptive language [is] important in a disclosure of abuse,” Whitmore responded:
. . . [W]hen you look for the genuine nature of a child’s response, you look for words that one would assume — feeling like a — if you got hit by a blowtorch what that might feel like. A child this age perhaps has never experienced anything like this before. That to them is how they describe that pain, that interaction, that force. For him, perhaps he saw a blowtorch and that’s how he would — would relate that pain. So the — the spontaneity and the genuineness of that response, for me, adds credibility to what [F. R] was saying.
We agree that this testimony constitutes improper bolstering. See Buice v. State,
Moreover, as explained by our Supreme Court,
we are not limited in our assessment of the objective reasonableness of lawyer performance to the subjective reasons offered by trial counsel for his conduct. If a reasonable lawyer might have done what the actual lawyer did — whether for the same reasons given by the actual lawyer or different, reasons entirely — the actual lawyer cannot be said to have performed in an objectively unreasonable way.
Shaw v. State,
With respect to Whitmore’s bolstering testimony, a review of the record reveals that a reasonable lawyer might have decided not to object and that such decision would fall within the realm of sound trial strategy Whitmore was called as an expert witness by the State in forensic interviewing and forensic psychotherapy and was qualified without objection by trial counsel. On direct, Whitmore explained that she had not conducted the forensic interviews of the children, which had taken place in Kentucky. However, she testified at length regarding the nature of forensic interviews and various relevant factors to evaluate the interviews, including signs the victim has been coached, the use of leading questions, the child’s suggestibility, rapport building, and studies regarding why a child victim may or may not disclose sexual abuse to one individual versus another. Whitmore intimated that she was critical of the forensic interview several times, noting that “there were areas in which [she] would suggest adjusting,” that there was confusion between the interviewer and the child at times, and that she might have asked certain questions “in a different, way”
On cross-examination, trial counsel established that Whitmore had no personal knowledge whether the children had been molested and had not interviewed them. Trial counsel also was able to elicit that Whitmore was an experienced expert in this area and that she was critical of the way that the forensic interviews were conducted, including that she “would not give [the interviews] a higher — a very high grade”; some of the questions were leading and suggestive; the interviewer did not ask follow-up questions to ensure a full disclosure from the child; and the interviewer spent more time in building rapport with the child than drawing out details of the allegations.
It is clear from the face of the record that trial counsel’s strategy was to co-opt Whitmore as his own expert witness to challenge the
(b) The State also presented the testimony of a family friend with whom F. P. and his family had been living regarding the outcries that F. P. and his younger brother made to her about the molestation. On cross-examination, Gilmer’s trial counsel established that this witness had never met Gilmer. The questioning proceeded:
[COUNSEL]: But you are so certain and positive that this stuff happened?
[WITNESS]: I’m positive that it happened because —
Counsel then interrupted the witness, drawing an objection from the State. The court ruled that the witness could finish her answer, which led to the following colloquy:
[WITNESS]: I know this happened for a fact to these kids because these kids wouldn’t sit up here and lie. But I have something to say because, for one, I’m one of them kids, too. And when [F. P] told me that — we was the same age that we was both molested. And —
[COUNSEL]: So you’ve been molested before?
[WITNESS]: Yes, I have. I was molested by my uncle. But [F. P] didn’t even know that. After he told me what happened*598 to him, I told him, me and you have something in common: I was molested. And he looked at me and said, Aunt Miss [A. R], you was? I said, yes, I was. We both hugged each other and we both cried. So I don’t have no reason to sit up here and lie or come in here and tell a story or anything. I believe them children.
We agree that this witness also gave improper bolstering testimony See Barmore v. State,
during the moments that she was testifying, and I think she was being real emotional, it’s quite a possibility that I wanted to get out to the jury that’s an emotional thing, that she really has no — she never observed or saw, or heard anything up to that point, so, how could she be so sure, when she had no personal observation, whatsoever.
We find that this was within the wide range of reasonable trial strategy See Arnold v. State,
(c) Gilmer also enumerates as error his trial counsel’s failure to obtain and introduce evidence of F. R’s mother’s arrest for perjury. It
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than a conviction of a crime as provided in Code Section 24-6-609, or conduct indicative of the witness’s bias toward a party may not be proved by extrinsic evidence. Such instances may however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness[.]
Thus, while trial counsel clearly would not have been permitted to introduce extrinsic evidence of the mother’s arrest for perjury, it is possible that he may have been able, subject to the trial court’s discretion, to cross-examine her regarding the arrest. See Gaskin v. State,
However, we have serious concerns as to whether evidence of the mother’s arrest, standing alone, and where the charges were subsequently dismissed, would be probative of her truthfulness. See, e.g., United States v. Lundy, 416 FSupp.2d 325, 332-33 (III) (A), (B) (E.D. Pa. 2005) (evidence of defendants’ prior arrests for false statements to police that were later dismissed or resulted in acquittal were excluded at trial on grounds that prejudicial effect would outweigh probative value, especially where the government offered no evidence to suggest defendants were in fact guilty of those charges).
(d) Gilmer also asserts that his trial counsel provided ineffective assistance when he failed to obtain and utilize the children’s DFCS and counseling records, which related to events after the alleged molestation but before trial. We disagree. At the motion for new trial hearing, trial counsel testified that he was generally familiar with the procedure for requesting DFCS and therapy records. Specifically, trial counsel testified that his trial strategy for investigating similar child molestation cases was, “If I received information that DFCS may be involved in something, I’ll file a motion [to request the records]. . . (Emphasis supplied.) And to determine whether DFCS may have been involved in a case, his strategy was to submit a discovery motion to the State and to get the information from “the client, or family or friends of the client or something along those lines to lead me to information about DFCS records.” Trial counsel did not testify, however, that he received any information in this case that would have led him to believe there were relevant DFCS or therapy records, and nothing else in the record indicates that counsel had notice of any relevant records. Thus, Gilmer has failed to overcome the strong presumption that counsel’s conduct fell within the broad range of reasonable professional conduct. See Kimble v. State,
Moreover, even assuming arguendo that trial counsel’s performance was deficient, we find that Gilmer has failed to show that there is a reasonable probability that obtaining the records would have led to a different, trial outcome. Gilmer first argues that the records contained discrepancies regarding whether the children first made their outcry of sexual abuse in Georgia or after they moved to Kentucky However, whether the children made their initial outcry in Georgia or Kentucky was not relevant to trial counsel’s strategy, which was to discredit the children’s mother as a spurned lover and to attack the children’s ability to identify Gilmer following the passage of six years. And trial counsel pursued this strategy during his cross-examination of both F. P. and his mother and his direct examination of Gilmer’s mother.
Gilmer also maintains that the records reveal numerous instances of prior untruthful conduct on the part of F P. and his brother and provide an alternative explanation for the children’s “flat affect” during their forensic interviews in 2008, which the State’s expert witness testified was consistent with the alleged sexual abuse.
Accordingly, we also find that Gilmer cannot satisfy the prejudice prong of the Strickland test; that is, he has failed to show “a reasonable probability that, but for counsel’s unprofessional errors, the re-
3. And finally, Gilmer asserts that the trial court erred in removing a juror during the course of the trial. Although he acknowledges that this decision was within the trial court’s discretion, see Moon v. State,
Georgia law “provides that the trial court may remove a juror at any time, whether before or after final submission of the case to the jury if good cause is shown to the court that the juror is unable to perform his duty, or for other legal cause.” (Citation and punctuation omitted.) Moon,
During the second day of trial, Gilmer’s counsel made the trial court aware that Gilmer’s mother, an anticipated witness for the defense, recognized one of the jurors, Juror No. 10, as someone she knew from church. The trial court questioned the juror, who denied knowing her. Over the State’s objection, the trial court declined to dismiss Juror No. 10. Gilmer’s mother testified during the third day of trial, at which point Juror No. 10 notified the trial court that he did actually recognize her, and that the jury had talked about it the previous day. The trial court expressed concern over Juror No. 10 having discussed the matter with the other jury members and noted that “the jury started laughing” when Juror No. 10 was called from the jury room for questioning. The trial court worried that the jury’s
After the close of evidence, the trial court removed Juror No. 10, explaining that the jury’s laughter was clearly audible from the jury room when the deputy had summoned Juror No. 10 to the courtroom. The trial court also noted that Juror No. 10 had said “they recognize I keep coming out because there’s supposed to be someone out here that I know,” and that he was certain that he knew Gilmer’s mother.
Judgment affirmed.
Notes
The indictment also charged Gilmer with an offense against W. G., but that charge was placed on the dead docket.
Because this case was tried in 2013, Georgia’s new Evidence Code applies. See Ga. L. 2011, p. 99, § 2.
The family friend would not agree to speak with him prior to trial.
The provisions of OCGA § 24-6-608 were patterned after Rule 608 of the Federal Rules of Evidence. See Gaskin,
See Court of Appeals Rule 33 (a).
We also note that the trial court expressed concern at the new trial hearing regarding the admissibility of the records at trial. See Jones,
For example, Gilmer points out that the children exhibited flat affect following a brutal domestic violence incident in 2009.
Gilmer asserts that the cumulative effect of his trial counsel’s errors mandate a finding that counsel was ineffective. “We evaluate only the effects of matters determined to be error, not the cumulative effect of non-errors.” (Citation and punctuation omitted.) Wofford v. State,
The trial court further noted that Juror No. 10 had waved toward the State’s table while Gilmer’s mother was on the witness stand, likely making the jury aware of whom he was supposed to know.
Dissenting Opinion
dissenting.
Gilmer has shown that his trial counsel’s failure to object to the bolstering testimony of two witnesses was deficient performance and so prejudiced him that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different,. See Daniel v. State,
1. Deficient performance.
As the majority finds, both the state’s expert witness and the family friend to whom F. P. made his outcry gave impermissible bolstering testimony And at the hearing on the motion for new trial, Gilmer’s trial counsel agreed that these were both instances of improper bolstering testimony and that such testimony generally should draw an objection. Trial counsel testified that there was no
While “trial counsel is afforded tremendous deference over matters of trial strategy,” such “trial strategy must be reasonably supported and within the wide range of professionally competent assistance.” Westbrook v. State,
A strategic choice is necessarily part of a strategy. It is a choice to forgo one potential advantage in favor of another. See, e.g., Jones v. State,
Trial counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland v. Washington,
But invoking the words “tactics” and “strategy” does not automatically immunize trial counsel against a claim that a tactical decision or strategic maneuver was an unreasonable one no competent attorney would have made under the same circumstances. “Tactics” and “strategy” provide no talis-manic protection against an ineffective assistance of counsel claim.
Benham v. State,
For this reason, Gilmer overcame “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland,
For Gilmer to satisfy the prejudice prong for ineffective assistance of counsel, the “likelihood of a different result must be substantial, not just conceivable.” Hill v. State,
And this is a case in which we should not be too sure that the outcome is right. As an investigating officer conceded at trial, the boys’ outcries were the only evidence that Gilmer had molested F. P. There was no corroborating physical evidence of molestation. The outcries occurred more than a year and a half after the molestation was alleged to have occurred. The state’s expert witness admitted that the forensic interviews of the boys were not well done; the interviewer asked some leading questions of the boys, did not elicit full disclosures from them, and appeared to confuse the younger boy, W. G., with his questioning. At trial, F. P. gave testimony that contradicted part of his earlier outcry regarding the aggravated molestation; he stated that Gilmer had not succeeded in his attempt to anally penetrate F. P in the shower. And W. G. testified at trial that he did not remember Gilmer doing to him the things that W. G. had described in his outcry. Moreover, there was evidence that the boys disliked Gilmer for a reason unrelated to the alleged molestation; they both had witnessed Gilmer commit acts of violence against their mother, to the point where, at times, the boys felt compelled to defend their mother with a knife.
This court has found bolstering testimony to be particularly harmful under circumstances such as these. In Orr,
Consequently, “a reasonable probability — a probability sufficient to undermine confidence in the outcome — exists that but for trial counsel’s unprofessional errors [in failing to object to the witnesses’ bolstering testimony], the outcome of this trial would have been different.” Douglas v. State,
I am authorized to state that Presiding Judge Miller and Presiding Judge Phipps join in this dissent.
The trial court found that the family friend’s bolstering testimony was not responsive to questions from Gilmer’s trial counsel and that trial counsel did not elicit that testimony. However, the trial court also found that, had Gilmer’s trial counsel elicited the bolstering testimony, that act would have been consistent with a reasonable trial strategy of emphasizing the witness’s emotionality and lack of factual knowledge. And the trial court held that, had Gilmer’s trial counsel elicited the bolstering testimony, he could not have objected to it. Gilmer’s trial counsel testified that he neither intentionally elicited the bolstering testimony nor sought it as part of his trial strategy.