A jury found Gregory Leon Jackson, Jr., guilty on one count of aggravated child molestation, three counts of child molestation, and one count of sexual battery (as a lesser included offense of child molestation). Following the denial of his second amended motion for new trial, Jackson appeals, citing multiple claims of error, including several grounds of ineffective assistance of trial counsel. For the following reasons, we affirm.
1. Jackson argues that the State used its peremptory strikes to remove prospective African-American jurors in a racially discriminatory manner. Jackson complains specifically about the State’s striking of Juror #8 and Juror #20.
The United States Supreme Court in Batson v. Kentucky,
established a three-step process for evaluating claims of racial discrimination in the use of peremptory strikes: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven [the proponent’s] discriminatory intent. ... At Batson step two, the proponent of the strike need only articulate a facially race-neutral reason for the strike. Step two does not demand an explanation that is persuasive, or even plausible. At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.
(Citation and punctuation omitted.) Heard v. State,
Jackson established a prima facie showing of discrimination by demonstrating that the State used its strikes to remove five African-American members of the jury panel. He presents argument with regard to two of those removed. The State explained that it struck Juror #8 because “[h] e was single. He doesn’t have any children. He’s young. We didn’t have a lot of information about him.... And pretty much watching him, most of the time he was disinterested in what was going on and not paying attention. So we struck him for that.” Jackson argues that because the State struck this juror based upon the prosecutor’s observation, and the trial court made no findings regarding the juror’s demeanor, there is nothing in the record to support the State’s proffered reason for the strike. But the record reveals that the State also struck this juror because he had no children, and explained in striking another juror for the same reason that “since we’re dealing with children here, we wanted somebody that had at least some kind of dealing with children.” The Supreme Court of Georgia has held that this explanation is race-neutral, Smith v. State,
Jackson also complains about the State’s explanation for striking Juror #20:
[H]is wife was an OB/GYN, and since we don’t have any specific evidence of anyinjury in this case, I don’t know what knowledge he would have with his wife, OB/GYN, so we struck him... [w] e don’t have any knowledge what he knows about OB/GYN from his wife and injuries from rape cases or child molestation cases, so we wanted to strike him because there’s no injuries that we’d show in this one.
Jackson asserts that this explanation is vague and could be used to strike anyone. But the “basis for a peremptory strike need not make sense or be persuasive; it must only be race [-] neutral and free from discriminatory intent.” (Citation and footnote omitted.) Hodge v. State,
2. Jackson contends that the evidence is insufficient to sustain his convictions. We disagree.
On appeal of a criminal conviction, this Court’s duty is to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,443 U. S. 307 , 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). The appellant no longer enjoys the presumption of innocence. Moreover, the Court does not re-weigh the evidence or resolve conflicts in testimony, but rather defers to the jury’s assessment of the weight and credibility of the evidence.
(Citation and punctuation omitted.) Maurer v. State,
Construed in favor of the verdict, the evidence showed that the first victim S. C., and her younger sister T. C., lived with their adoptive mother and other siblings. Jackson, the mother’s adult biological son, had lived with the family, moved out of the home when S. C. was 14 years old, but would often stay overnight on Sundays and Fridays. S. C. testified that Jackson began touching her breasts when she was 13 years old, that he later began touching her “below [her] - pants,” and then progressed to putting his penis in her mouth and putting “his penis inside of [her]” on more than one occasion. S. C. explained that this activity took place during the day while everyone else in the house was downstairs. She stated further that Jackson told her not to tell anyone.
S. C. eventually wrote a letter to her mother. She testified that she wrote the letter because she “didn’t want [Jackson] to come back over there.” The letter, admitted into evidence and read by the victim, stated:
Every time [Jackson] come over here to spend the night it started when we first started going to [H]oward Johnson. [H]e started touching me in a bad way then he started forcing me to do things after I said no. Then he ... me not to tell you[____] He do [sic] it every time he come [sic] over here. That’s why I don’t want he [sic] over here. That’s y [sic] he won’t [sic] to spend the night all the time. [Y] [sic] I didn’t tell you because I think you will fuse [sic] at me.
After reading S. C.’s letter, the mother questioned her other daughters. After first denying that Jackson touched her inappropriately, T. C. admitted to her mother that Jackson touched her breasts. She testified that this occurred only once when she was about ten years old, and that Jackson told her not to tell anyone. T. C. explained further that on one occasion she saw Jackson go into S. C.’s room with S. C. and shut the door.
The mother testified that around the time S. C. gave her the letter, S. C. had “seemed very angry a lot of the times, very angry. And she started getting in trouble at school. She wouldn’t do her work at school like the teachers would tell her.” The mother explained further that S. C. “would just lie about different things. Just a whole lot of stuff was going on, and she got in fights — well, almost fights . . . arguments with children, so much so that I had to go to the school several times.”
S. C. was interviewed by a counselor at a children’s advocacy center. The counselor did not provide details of her conversation
Jackson denied any wrongdoing and agreed to take a polygraph examination. The examiner testified that he concluded that Jackson was being deceptive when denying that he molested S. C.
Jackson presented his own witnesses at trial, including his girlfriend with whom he had lived, and who had six children of her own. The girlfriend testified that no one had ever alleged that Jackson touched her children inappropriately, and that she had never witnessed Jackson do so. This witness’ adult daughter testified that when Jackson lived with her family, he never tried to touch her inappropriately. A third witness testified that Jackson and her mother “used to talk” when she was a teenager, and that Jackson lived in their home for some time. This witness testified that Jackson never tried to touch her inappropriately, and that she never witnessed him touch her younger sister inappropriately.
The evidence presented here was sufficient to sustain Jackson’s convictions for aggravated child molestation for placing his penis in S. C.’s mouth, child molestation for touching S. C.’s breast and vagina and for placing his penis on her vagina, and sexual battery as a lesser included offense to child molestation for touching the breasts of T. C. See OCGA § 16-6-4 (a) (1) (child molestation); OCGA § 16-6-4 (c) (aggravated child molestation involves physical injury or act of sodomy); OCGA § 16-6-22.1 (a), (b) (sexual battery); see also Wofford v. State,
3. Jackson asserts that the trial court erred in overruling his objection to the admission of testimony regarding the change in demeanor of the victim during the time the evidence showed the molestation occurred. He argues that this resulted in the jury improperly considering “its own ‘mental heath diagnosis,’ ” and that the State was required to offer an expert to testify concerning the meaning of the victim’s conduct. We disagree.
“[A]s a general rule, [the] admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” (Citation, punctuation and footnote omitted.) Wheeler v. State,
4. Jackson contends that trial counsel rendered ineffective assistance on several grounds. Pursuant to the two-prong test set forth in Strickland v. Washington,
[i]n order to prevail on his claim of ineffective assistance, [Jackson] must show deficient performance on the part of counsel and prejudice to his defense resulting from that deficient performance. Moreover, he must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. On appeal, this Court accepts the trial court’s findings of fact, unless they are clearly erroneous. The trial court’s legal conclusions are reviewed de novo.
(Citations and punctuation omitted.) Griffin v. State,
(a) Jackson asserts that counsel was ineffective in failing to object to the admission of the letter S. C. gave to her mother in which she made her initial outcry, because it was self-serving and bolstered the victim’s testimony.
Moreover, even if the letter went out with the jury in violation of the continuing witness rule, Jackson has failed to show a reasonable probability that the outcome of the trial would have been different had counsel objected on that ground. With regard to Jackson’s actions, the victim’s letter to her mother stated only that Jackson “started touching [her] in a bad way then he started forcing [m]e to do things,” and was not nearly as specific and detailed as her trial testimony concerning the specific sex acts, the
(b) Jackson contends that trial counsel was ineffective in failing to object to the presence of S. C.’s counselor in the courtroom. The record reveals and the parties agree that when S. C. entered the courtroom to take the stand, a woman walked in with her and then sat in the courtroom audience. Trial counsel then asked to approach the bench, and the following colloquy took place:
[TRIAL COUNSEL]: Your Honor, somebody walked in with [S. C.] I’m not sure who she is, but I want to —
THE STATE: She’s not — She’s not a witness.
[TRIAL COUNSEL]: I just wanted to insert — make sure that we invoke the rule at this time.
THE STATE: That’s fine. She’s not — She’s just her counselor.
THE COURT: Okay.
(Bench Conference Concluded)
Counsel testified at the motion for new trial hearing that after he was told that the counselor was not a witness, he felt it was her right to be present in the courtroom. Jackson has failed to show that this decision was made in error. As noted by the trial court, “[t]he child testified completely on her own with no coaching or prompting by this person.” Moreover, the counselor’s presence or the fact that she was S. C.’s counselor was not brought to the attention of the jury. In the absence of such evidence, Jackson cannot establish the prejudice prong of the Strickland test. Cf. Jones v. State,
(c) Jackson argues that counsel was ineffective in failing to adequately challenge the testimony regarding the polygraph examination. He contends counsel performed deficiently by failing to object to the examiner’s qualifications and failing to restrict his testimony regarding the evidence to its limited lawful purpose. Trial counsel testified that he did not recall particularly asking questions regarding the examiner’s foundation as an expert, but that if he did not ask, it was for the purpose of “not further bolstering his credentials.” Counsel explained further that his strategy was to challenge the manner in which the examiner conducted the examination because the video recording of the exam showed the examiner “fondling with the equipment... placing ... the leads on ... Jackson’s body ... put them on, take them back off, and ... he kind of went behind the machine and unplugged something and plugged it back up.” Counsel testified that because it appeared either that the machine was not working properly or the examiner was not conducting himself properly, he chose to challenge the administration of the test.
Trial counsel’s decision here was a matter of reasonable trial strategy. Cf. Johnson v. State,
(d) Jackson asserts that counsel was ineffective in failing to object to the written summary and oral testimony of the counselor’s background and education and then allowing those qualifications to go out with the jury. Trial counsel testified that he did not
(e) Jackson asserts that trial counsel was ineffective in failing to object to the testimony of the counselor that “bolstered the truthfulness of the victim.” He argues that the counselor improperly bolstered the victim’s testimony when the State asked the counselor, “And by the end, did she tell you exactly what Mr. Jackson had done to her?,” to which the counselor responded, “She ... did.” “What is forbidden is expert opinion testimony that directly addresses the credibility of the victim, i.e., T believe the victim; I think the victim is telling the truth[ ].’ ” (Citations and punctuation omitted.) Odom v. State,
(f) Jackson argues that counsel failed to adequately interview and prepare two defense witnesses for trial. Specifically, he contends that counsel’s failure resulted in one witness testifying that she met Jackson through “Narcotics Anonymous,” and another witness offering nothing relevant at trial because she stated that she had never been alone with Jackson. Trial counsel testified that he interviewed the first witness, but did not recall cautioning her “not to say certain things and even if I did, I’m sure those things would’ve came out on cross-examination either way.” Counsel did not recall the second witness’ testimony that she had never been alone with Jackson, but the record shows this witness testified that her mother left her brothers and sisters alone in the home with him. Counsel explained that he called these two witnesses to put Jackson’s good “character up.” Jackson has failed to show that had these witnesses been better interviewed or prepared, they would not have testified as they did. Additionally, an attorney’s instructions to a nonclient witness can be explored during cross-examination, resulting in more potential harm from an allegation of coaching.
[Jackson] has offered no evidence to show a reasonable probability that more preparation would have changed the outcome at trial. To show prejudice, a defendant is required to offer more than mere speculation that, absent the counsel’s alleged errors, a different result probably would have occurred at trial.
(Citation and punctuation omitted.) Porter v. State,
(g) Jackson claims that trial counsel was ineffective in failing to present testimony regarding the results of S. C.’s physical exam, which he alleges would have shown that S. C.’s hymen was found to be intact. Jackson submitted this report at the second hearing on the motion for new trial. The report stated, “Estrogenized crescentic hymen [with] scalloped edges and normal vascularization .... Normal exam. Does not rule out sexual abuse.”
Although Jackson did not produce the physician’s testimony on motion for new trial, counsel testified at the hearing that “there was a note on exam the doctor did not rule out sexual abuse, but I don’t believe they exclusively say that they did find signs of any abuse.” Counsel was not asked during the
Because each ground of ineffectiveness asserted by Jackson fails either one or both prongs of the Strickland test, the trial court did not err in denying his motion for new trial on his claim that he received ineffective assistance of trial counsel. See, e.g., Brock v. State,
Judgment affirmed.
Notes
We note that voir dire is not a part of the trial transcript here on appeal. The transcript contains only the colloquy following Jackson’s Batson motion.
The trial court instructed the jury:
Polygraph evidence is considered opinion evidence and is governed by the law concerning opinion evidence.... A polygraph examiner’s opinion can only be used to indicate whether at the time of the polygraph examination the defendant believed that he was telling the whole truth. You are not bound by the polygraph examiner’s conclusions, and the examiner’s testimony is not controlling on the issues and may he entirely disregarded by you. It is for you to decide what weight, if any, should be given to the evidence concerning the polygraph test, its results, and the examiner’s opinions and conclusions.
We note that former OCGA § 24-3-16, Georgia’s Child Hearsay Statute, does not apply to the facts of this case because S. C. was 14 at the time of the outcry.
Trial counsel only objected that the letter should be redacted before being published to the jury. At the hearing on the motion for new trial, counsel testified that he did not recall objecting to the admission of the letter or it going out with the jury, and that he did not “believe that there would have been any reason not to object to that if I did not.”
In Georgia the “continuing witness” objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.
(Citation omitted.) Dunagan v. State,