Lead Opinion
Antonio Gregoire was charged with one count of aggravated sexual battery, two counts of aggravated child molestation, and three counts of child molestation, involving boys who were then two and three years old. The jury found him not guilty of aggravated sexual battery or either count of aggravated child molestation, and guilty of all three child molestation counts. On appeal, Gregoire contends that the trial court erred in allowing witnesses to testify that they believed the victims, and that his trial counsel was ineffective for raising or not objecting to this line of testimony. For the reasons that follow, we affirm the convictions.
Viewing the evidence on appeal in the light most favorable to the verdict on the child molestation counts, Brown v. State,
The words ... he used was Antonio told him to pull his pants down. He said, no. He said, if you don’t pull them down, I’m going to pull them down. And so Antonio pulled his pants down, and he put lotion on him, and he said he laid on top of him. . . . And then he wiped it off of him. He wiped him off afterwards.
The mother testified that when she asked the older boy to show her what Gregoire had done, “[h]e just laid on the ground and did the humping motion.” The younger boy, who was also in the room, told his mother that Gregoire “did me, too.”
An expert in forensic interviews with children testified that the older boy did not want to talk to her, but the younger boy did, and that interview was played for the jury. The boy identified his names for parts of the body and then said that Gregoire put lotion on him, pointing to his buttocks, and that it hurt. The expert testified that, during the conversation, the child corrected her when she said something wrong, which demonstrated that he was trying to be truthful, and had exhibited none of the signs of coaching she described.
Finally, a police investigator specially trained to interview children talked to both boys at their day care center. The older boy, who was then four, stood up, pointed to his genital area, began making “hunching motions” with his hips, and related that he was demonstrating what Gregoire had done to him after he told the boy to pull down his pants. The younger boy, then three, stated that Gregoire had “put lotion in” him, pointing to his buttocks and stating, “in here my bootie.” Then asked, “What did he do with a winkie?,” the child pointed to his genital area and answered, “He did that on me.” Audio recordings of both interviews were played for the jury.
1. Gregoire argues that the trial court committed reversible error “when it allowed the State to elicit testimony on the ultimate issue in this case on four occasions and when it allowed other testimony on the ultimate issue.” Because his trial counsel did not
2. Gregoire also contends that his trial counsel was ineffective for failing to object to questions about whether witnesses believed the children or not. To prevail on an ineffectiveness claim, a defendant must establish that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington,
To prove deficient performance, a defendant must rebut the strong presumption that trial counsel’s conduct fell within the broad range of reasonable professional conduct. Robinson v. State,
Here, trial counsel explained at the motion for new trial hearing that she and her client could never find a reason for these children to present an intentional, malicious lie about their cousin’s actions. Because the defense uncovered no plausible explanation for why the children would be angry at the defendant, the defense was built around the theme that very young children were susceptible to telling stories and misconstruing the facts. From voir dire, when counsel asked if the potential jurors had any experience with toddlers, to closing argument when counsel gave the example of a child who says her mother left her when the mother was actually just late picking her up, counsel’s trial strategy was to present a theme that the children in this case were lying unintentionally.
Trial counsel also testified that the victims’ mother did not want to prosecute the defendant, who was her sister’s son, and that counsel expected the mother “to the best of her ability, to try to be helpful to Mr. Gregoire.” The mother testified she did not call the police when the children first made an outcry because Gregoire was her nephew and she was concerned about him going to jail. She continued, “[I]t’s a disease and he needs help for it, if it happened.” It was at this point that the State asked whether the mother believed
On cross-examination, trial counsel asked the mother if she remembered telling DFCS that she was not sure anything happened, and she said, yes, regarding her younger son. As to her older son, she testified again that she had to believe him because she was his mother, and thought a child that age could not have made up his story. Counsel then asked if she would agree that a child could misconstrue a situation, not intentionally lying but interpreting the facts incorrectly. While she responded that she could not agree in this situation, the question continued the theme of the defense, that small children sometimes make up stories.
At the new trial hearing, trial counsel recalled that the mother was “very sympathetic” to Gregoire, that she testified as counsel had anticipated she would, and that counsel successfully established evidence as to her doubts about her younger child’s story. Counsel asked the forensic interviewer and the investigating police officer about the dangers of suggestive questioning in abuse cases involving children, and the recorded interviews of the children at the day care center were replete with such questions. Further, the strategy must have been at least partially successful, because the jury acquitted Gregoire of the more serious charges of aggravated sexual battery and aggravated child molestation, and only convicted on the three child molestation counts.
The trial court made a factual finding at the hearing that counsel’s decision not to object when a witness testified about believing a child’s statement was not an unreasonable trial strategy, and noted that the jury acquitted Gregoire of the most serious charges. We must affirm that factual finding unless it is clearly erroneous, Suggs,
This court has reversed convictions in cases where trial counsel failed to object to bolstering testimony,
In this case, applying the “clearly erroneous” standard to our review, the trial court did not err in concluding that trial counsel’s performance was not ineffective. Accordingly, we affirm the convictions.
Judgment affirmed.
Notes
See, e.g., Word v. State,
See, e.g., Ellison v. State,
Concurrence Opinion
concurring fully and specially.
I concur fully that Gregoire waived the contention set forth in Division 1 of the majority. I concur specially with the majority’s determination in Division 2 that Gregoire has failed to show reversible error in the trial court’s conclusion that he was not entitled to a new trial based upon his claim of ineffective assistance of counsel. To prevail on an ineffectiveness claim, pursuant to Strickland v. Washington,
Gregoire complains, specifically, that his trial counsel failed to object to four cited instances in which he claims the state elicited testimony that bolstered the credibility of the two boys, B. C. and his younger brother B. T. The first instance cited by Gregoire occurred during direct examination of the boys’ mother. The prosecutor asked her, “Did you have any reason not to believe what B. C. was telling you?” She answered, “No, he’s my child.” The second instance
“A witness, even an expert, can never bolster the credibility of another witness as to whether the witness is telling the truth. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury.”
1. Performance component. The majority has determined that the “trial court made a factual finding at the hearing that counsel’s decision not to object when a witness testified about believing a child’s statement was not an unreasonable trial strategy.” The majority thus concludes, “applying the ‘clearly erroneous’ standard to our review, the trial court did not err in concluding that trial counsel’s performance was not ineffective.” Further, the majority states that trial counsel’s “strategy must have been at least partially successful, because the jury acquitted Gregoire of the more serious charges.” For the following reasons, I cannot agree with the majority’s analysis, nor with the resulting outcome that the prejudice component of the ineffectiveness inquiry need not be addressed.
The majority has resolved Gregoire’s contention by accepting, as a factual matter, that Gregoire’s trial lawyer employed some type of strategy. But merely invoking the word “strategy” or “tactics” — even if there is evidence to show that some defensive strategy or tactics were employed — “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.”
Moreover, the majority provides no record support for crediting Gregoire’s trial counsel for the not guilty verdicts returned by the jury. “[Ajppellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense. The reason could be [lack of sufficient evidence,] an error by the jury in
Viewed under applicable tests, the record shows that Gregoire’s trial counsel’s failure to object or otherwise seek curative measure from the trial court amounted to deficient performance.
2. Prejudice component.
The Strickland Court set forth the appropriate test for determining prejudice: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”18
Subjected to this test, the record fails to show that a new trial is warranted.
In analyzing the issue presented here, this court has repeatedly considered whether the jury had evidence, other than the bolstering testimony, from which it could assess the credibility of the person(s) at issue.
The dissent points out that the boys were young at the time of the crimes. However, the dissent overlooks the fact that the jury was presented with the boys’ specific ages, and with that evidence, the jury could assess whether, and to what extent, the boys’ ages factored into their credibility. The dissent further points out that the boys’ credibility was not tested by cross-examination before the jury. But the dissent overlooks the fact that Gregoire had the opportunity to cross-examine the boys, and chose to forgo it. At the outset of the trial, the court specifically asked whether both boys were available to testify at trial. The prosecutor and Gregoire’s trial lawyer confirmed that they were so available. Thereafter, neither side called either boy as a trial witness. The decision whether to call a certain witness is a matter of trial strategy and tactics.
While the dissent also points out that there were repeated instances of bolstering testimony, there is no bright line rule regarding any specific number of instances. Moreover, the record reveals that the four instances of bolstering concerned the beliefs of only two individuals — the children’s parents. The boys’ mother — whose belief of B. C.’s account led to three of the four complained-of
Moreover, the mother testified that, while she had already begun having talks with her boys about their private areas and had told them to tell her if they thought anyone was touching them inappropriately, she had never specifically mentioned to them anyone using lotion on their private areas or lying on top of them; she had no personal knowledge as to how they could have known about what they described. Likewise, B. T.’s father testified that he had not had any “birds and bees” talk with either child and had never talked to them about anything like what they had described. B. T.’s father testified that he had “never heard them talk about sex before or anything of that nature.”
Given these circumstances, the record shows no reversible error. As set forth above, the potential for the mother’s complained-of credibility opinion to influence the jury was diminished. Furthermore, the jury had evidence, other than the bolstering testimony, from which it could assess the boys’ credibility. The jury was presented with a video recording of B. T.’s forensic interview, as well as audio recordings of both boys’ separate interviews with the police investigator. Before these recordings were played, the jury was presented expert testimony about proper and improper techniques and procedures for interviewing children as young as B. T. and B. C.; about indicia of credibility, including factors such as the age and developmental levels of children; and about the types of language used by young children describing abuse. And the expert testified that, during B. T.’s interview, the child exhibited no sign of having been coached. In addition, the boys’ accounts of Gregoire’s acts remained consistent — to their mother, to B. T.’s father, to a forensic interviewer (regarding B. T), and to the police investigator. And neither the boys’ mother nor B. T.’s father had any personal knowledge of how their young children could have known about the sexual acts that they were describing and that B. C. was demonstrating.
Given these circumstances, the record shows that Gregoire failed to establish a reasonable probability that, but for his trial counsel’s failure to object to the cited bolstering testimony, the
I am authorized to state that Presiding Judge Miller joins in this opinion.
Conaway v. State,
Manzano v. State,
Buice v. State,
Strickland v. Washington, supra at 698 (IV).
Id. at 87 (4).
Id. at 88 (4) (footnote omitted).
Id. (emphasis supplied).
Jefferson v. Zant,
Benham v. State,
Benham, supra (emphasis in original).
Turner v. State,
See generally id.
See Mann v. State,
Miller v. State,
See, e.g., Carrie v. State,
See generally Anthony v. State,
B. C. was not interviewed by this individual.
See generally Anthony, supra.
Manriquez v. State,
Pierce v. State,
See Al-Attawy, supra (the impact of the bolstering testimony was diminished, where bolstering witness retreated from her credibility opinion).
See Strickland, supra; Carrie, supra (ineffective assistance of counsel claim based on alleged improper bolstering of victim’s credibility by psychologist who interviewed victim failed because requisite prejudice was not demonstrated, where jury was allowed to form its own assessment of victim’s credibility, victim’s outcry statements had remained consistent, and defendant had opportunity to test victim’s credibility in front of the jury); Al-Attawy, supra (ineffective assistance of counsel claim based on alleged improper bolstering of victim’s credibility by psychologist who interviewed victim failed because requisite prejudice was not demonstrated, where jury had other evidence from which it could assess credibility of victim; state showed child’s videotaped statement to jury, state called outcry witnesses, and victim was subjected to cross-examination; also, psychologist discussed various indicia by which a disclosure of abuse may be assessed, and psychologist’s retreat from bolstering testimony diminished its impact); Frazier, supra (ineffective assistance of counsel claim based on alleged improper bolstering of victim’s credibility by counselor who had interviewed victim failed because requisite prejudice was not demonstrated, where jury was allowed to form its own assessment of victim’s credibility; victim’s videotaped statements in interview with counselor were played during trial, victim’s account of sexual abuse remained consistent during her outcries, and defendant had an opportunity to test victim’s credibility during trial). Compare cases cited by the dissent: Mann, supra at 73-74 (requisite Strickland prejudice shown, where the only evidence concerning allegations against defendant came through testimony of victim and outcry witnesses; case hinged on victim’s credibility, yet victim’s testimony was “far from compelling,” victim’s outcry statements had varied in material respects, victim’s allegations had arisen only after victim found himself in trouble; victim’s family members testified that victim had lied previously about other people having abused him; and victim acknowledged that he sometimes blamed wrongdoing on others). The dissent also cites Pointer v. State,
Dissenting Opinion
dissenting.
I disagree with the majority’s holding that trial counsel’s repeated failures to object to improper bolstering testimony was a reasonable trial strategy. Instead, as explained in Division 1 of the special concurrence, those failures constituted deficient performance, and I therefore fully join in Division 1 of the special concurrence. However, I disagree with the special concurrence’s further conclusion that the defense was not prejudiced by that deficiency. Accordingly, I respectfully dissent.
The special concurrence relies on three cases in support of its conclusion that Gregoire has failed to show a reasonable probability that, but for his trial counsel’s failure to object to the four instances of testimony, the outcome of his trial would have been different. But those three cases — Carrie v. State,
In the instant case, the alleged victims were aged two and three at the time they made their statements accusing Gregoire of molesting them. As the state’s own expert testified, forensic interviews of such young children are very difficult because they have short attention spans, they do not understand abstract ideas and they are susceptible to suggestion. The children’s own mother even testified that she had thought that the younger child might have been copying what he had heard his older brother say and that he might have been coerced by his father. But because neither of the children testified at trial, their credibility was not tested on cross-examination before the jury. Rather, the jury was left to determine their credibility solely by listening to their taped interviews and by hearing the state’s witnesses recount the children’s out-of-court statements. I do not fault either party for making the strategic decision not to call the children to testify live. On the contrary, I assume that those decisions were founded on sound evaluations of the evidence, as well as the difficulty of predicting what children this age will say. Those evaluations further illuminate the importance in this case of third-party testimony. Moreover, unlike the single instance of bolstering among twenty-four witnesses in Carrie, supra, of the five witnesses who testified in this case, the state elicited improper bolstering testimony from three of them, and did so near the end of its examinations of each of those witnesses.
Here, as in Mann v. State,