Dаrrion Haynes appeals the denial of his motion for new trial following his conviction by a jury of rape, attempt to commit child molestation, and enticing a child for indecent purposes. On appeal, he asserts that the State failed to prove that he was guilty of rape beyond a reasonable doubt, that the trial court erred in rejecting his request to strike a juror for cause, and that he received ineffective assistance of counsel. Finding no error, we affirm.
Viewed in the light most favorable to the verdict,
One day in late 2006, during one of S. M.’s visits to the grandparents’ homе, she was sitting on the bed in her grandfather’s bedroom playing a video game when Haynes joined her. Everyone else was out of the house. After briefly discussing the video game, Haynes lay down on the bed and began to pull his pants down. He then hugged S. M. to him, and restraining her hands, put his penis inside the child’s vagina (the “First Incident”). S. M. testified that she did not want Haynes to have sex with her, and when Haynes penetrated her, it hurt and she felt nauseated.
Haynes also attemрted to have sexual relations with S. M. on another occasion. S. M. testified that Haynes came to where she was sleeping at the grandparents’ house and asked her to come into the kitchen to make him something to eat. Everyone else in the house was asleep. S. M. climbed on top of the washing machine to reach some food items, and when she climbed down, Haynes pushed her against the washing machine. S. M. pushed bаck. As they tussled, they fell to the floor, and Haynes began removing his pants and trying to get on top of her. They continued to struggle, and S. M. eventually was able to get away by kicking and pushing Haynes. She said that she did not tell anyone about these incidents because she was scared of her family’s reaction since they all liked Haynes.
Afterward, S. M.’s mother observed that S. M. was acting strangely. She did not want to go to her grandparents’ house, her grades sliрped, she did not want to sleep alone, and she repeatedly went to the bathroom. S. M.’s mother took her to a pediatrician to address the urinary issues on March 12,2007. S. M. and her mother reported that she had vaginal itching and a “white, watery, foul discharge.” S. M. initially told both the doctor and her mother that she had not been sexually active, but the doctor diagnosed her with a sexually transmitted disease (“STD”). The doctor further testified that аlthough she found no fissures or tearing in S. M.’s genital area,
Dr. Jennifer Hopkins-Naylor of the Georgia Center for Child Advocacy later interviewed S. M., and the videotaped interview was playedfor the jury. During that interview, S. M. stated that just before the First Incident, Haynes tried to lay on top of her, and she told him to get off. She told Hopkins-Naylor that Haynes “forced his penis inside [her] vagina” during the First Incident and that she pulled away from Haynes and pushed him off the bed onto the floor. She said the incident made her feel “sick.”
Haynes also testified in his own defense and denied having sexual relations with S. M. Both Haynes and his girlfriend also denied ever having an STD. But S. M.’s doctor testified that individuals, especially men, who contract the particular STD at issue could be asymptomatic, meaning they showed “absolutely no symptoms.”
1. Haynes argues that the State failed to present sufficient evidence on the requisite element of force to support his conviction for rape.
Under Georgia law, “[a] person commits the offense of rape when he has carnal knowledge of . . . [a] female forcibly and agаinst her will[.]” OCGA § 16-6-1 (a) (1). Applying this statute, the Supreme Court of Georgia has interpreted the terms
“forcibly5 ’ and “against her will,” as two separate elements in rape cases. The term “against her will” means without consent; the term “forcibly” means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. The fact that a victim is under the age of consent may supply the “against her will” element in a forcible rape case since it shows that the victim is incapable of giving legal consent. The same fact cannot supply the element of force as a matter of law in rape cases ....
(Citations omitted.) State v. Collins,
Here, the victim, who was ten or eleven years old at the pertinent time, testified at trial that she did not want Haynes to have sex with her, nor did she ask him to have sex. Instead, she was sitting alone in her grandfather’s bedroom playing a video game, with no one else in the house, when Haynes came into the room. He then hugged the child to him, restrained her hands and “forced” his penis inside her. This action hurt S. M. and made her feel sick. She pulled away from Haynes and then pushed him off the bed onto the floor. Under these circumstances, we find the evidence sufficient to authorize a finding of force within the meaning of OCGA § 16-6-1 (a) (1). See Bradberry v. State,
Moreover, the victim’s testimony was corroborated at trial by her mother’s observations of her behavior following the incidents, as well as evidence that she had contracted an STD. Even though no evidence existed that Haynes or his girlfriend had this disease, the doctor testified that it was often asymptomatic. And although the victim’s genital area showed nо sign of tearing or fissures, the doctor testified that this lack of evidence was not inconsistent with sexual assault. See Watson v. State,
Based upon this and other evidence at trial, we find that the jury was authorized to find Haynes guilty of rape beyond a reasonable doubt.
2. Haynes next asserts that the trial court erred in failing tо excuse a juror for cause after the juror indicated that she had been a victim of child molestation, that she was not impartial, that she had already formed an opinion about guilt or innocence, and that she would expect the defense to prove Haynes’s innocence.
Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will bе unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. The decision to strike a juror for cause lies within the sound discretion of the trial court, and that decision will not be disturbed absent an abuse of discretion.
(Citation omitted.) Foster v. State,
During voir dire, Juror No. 23 testified that when she was six years old, she was sexually assaulted by the son of her school’s principal, who was sixteеn or seventeen years old at the time. She did not report the incident until she was a teenager. She testified that she had already formed an opinion about guilt or innocence, she was not impartial, and that “you would have to convince me of innocence.” The prosecutor then asked her whether she could do what the law required and put the burden of proof on the State if the trial court instructed her that the Stаte had that burden, that the defense was not required to prove anything or to put up any evidence, and that the defendant was not required to testify. She replied, “I would — of course I would have to I guess as you keep saying compartmentalize and try and be impartial. I wouldn’t want to, but I could.” She indicated that she thought she could be fair and impartial. In response to defense questioning, Juror No. 23 reiterated that she could “compartmentalize,” but she did not want to and she did not believe that she was the right juror for the case.
The defense subsequently asked that Juror No. 23 be stricken for cause, but the trial court denied the request. The judge explained:
I think she said that she could compartmentalize, [but] she doesn’t want to. If we left it up to the jurors, we would have three of them serving, if we said who wants to. Most folks always indicate they don’t [want to] be here. And particularly these сharges, nobody wants to do it. So the question is can you do it. She said she could. So I’ll leave her.... [I]f she can do it, she can do it. She’s on the jury.
Thus, “the trial court reasoned that the [juror’s] comment did not establish a bias or a fixed belief in the guilt or innocence of the accused, but rather reflected a common opinion of jurors in this type of case involving a difficult and unpleasant subject.” Pearce v. State,
It is well settled that
[a] potential juror’s doubts as to his or her оwn impartiality or reservations about his or her ability to set aside personal experiences do not require the court to strike the juror, as the judge is uniquely positioned to observe the juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict.
Despite Juror No. 23’s initial reaction to the charges in the case, she never indicated any bias against Haynes personally. Moreover, she indicated that she could put aside her prior life experiences and try to be fair and impartial. Accordingly, we find no abuse of discretion. See Pearce,
3. Haynes further asserts that he received ineffective assistance of сounsel because his trial attorney failed to test the adversarial process by not utilizing an expert to testify about the problems with the forensic interview of the victim; by failing to cross-examine the forensic interviewer on her interviewing techniques and potential bias for the prosecution; by not addressing the impact those questions would have had on the victim; and by not cross-examining the victim on her inconsistent statements.
In order tо prevail on this claim, [Haynes] must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. To meet the first prong of the required test, he must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of rеasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different. We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.
(Citations and punctuation omitted.) Norton v. State,
Haynes has the burden of proof under both prongs of this test. Brown v. State,
[t]he standard regarding ineffective assistance of counsel is not errorless counsel and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance. In determining what constitutes ineffective assistance, a critical distinction is made between inadequate preparation and unwise choices of trial tactics and strategy. Particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight or result.
(Citation omitted.) Davis v. State,
At the hearing on the motion for new trial, the evidence showed that at the time of Haynes’s trial, his trial attorney had been
(a) Failure to call expert witness — Haynes asserts that his trial counsel erred in failing to call an expert witness to testify as to flaws in Dr. Hopkins-Naylor’s interviewing technique and thus in failing to address the potential effect those questions may have had on the victim.
But trial counsel testified that he was trying another case with similar charges at around the same time he was handling Haynes’s case, and he contacted a psychologist for consultation as a potential expert in both cases. The expert did not preрare written reports, but approximately one year after the expert received the case files, trial counsel spoke with him on the phone. They discussed both cases at the same time, and trial counsel recalled that the expert had more concerns with the inconsistencies in one case than in the other. He commented on the number of leading questions in one of the videotaped victim interviews, and he also discussed the suggestibility of, and flaws in, the interviewing technique with regard to one of the videos. At the hearing, however, trial counsel could not recall which of the two cases caused the expert more concern.
Trial counsel could not recall why he did not put the expert he had retained on the stand, but he did not use the expert for either of the two cases. He conceded that it was possible that hе chose not to call the expert because he did not want to give undue influence to the interviewing techniques, but rather wanted to focus on the inconsistencies in the victim’s story.
It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics; tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.
(Citations omitted.) Dickens v. State,
We find that Haynes failed to carry his burden of demonstrating that the failure to call the expert constituted deficient performance. Although his trial attorney could not remember the specific reasons he chose not to call the expert, he made that decision shortly after speaking with him, suggesting that he could have made that decision based on his chosen trial strategy. We agree that reasonable, competent trial counsel could have made the strategic decision not to call the expert based on what counsel learned in his interview of the expert and the anticipated trial strategy to focus on inconsistencies in the victim’s statements. Accordingly, we find no ineffective assistance of counsel on this ground. See Wade v. State,
(b) Failure to cross-examine forensic interviewer ■—Similarly, we find no merit to Haynes’s contention that his trial counsel
(c) Failure to cross-examine victim — Trial counsel also testified that he did not cross-examine the victim regarding the inconsistencies in her statement because to him the inconsistencies seemed “pretty obvious.” He recalled that the victim was “all over the place,” just “one inconsistency after another.”
Although trial counsel did not specifically cross-examine the victim on inconsistencies in her statements, he said he thought these inconsistencies were obvious from the videotape and her trial testimony. Thus, trial counsel’s “method of cross-examination was a matter of tactics and trial strategy.” Brogdon v. State,
Accordingly, we affirm the trial court’s denial of Haynes’s motion for new trial on the ground of ineffective assistance of counsel.
Judgment affirmed.
Notes
Jackson v. Virginia,
The doctor explained that the child’s hymen was not intact “per se,” hut that the area appeared to be undergoing a softening that occurs as a female transitions from pre-puberty to puberty, which makes the hymen less visible.
“Collins was superseded by statute as stated in State v. Lyons,
Under OCGA § 16-6-1 (a) (2), “carnal knowledge of . . . [a] female who is less than ten years of age” is rape without regard to proof of lack of consent and force.
The expert did not testify at the motion hearing, hut Haynes’s appellate counsel made a proffer of the expert’s expected testimony.