A Paulding County jury found Larry Alan Robbins guilty of two counts of child molestation and two counts of aggravated sodomy. 1 On appeal, Robbins claims that the trial court erred (i) in denying his motion for a directed verdict, (ii) in denying his motion for a continuance, (iii) in denying his motion to suppress his custodial statement, and (iv) in denying his motion for new trial on grounds of ineffective assistance of trial counsel. For the reasons which follow, we disagree and affirm.
Viewed in a light most favorable to the jury’s verdict, the evidence shows that Robbins was the stepfather of M. H., a seven-year-old girl. Robbins’s wife testified that on May 4, 2006, M. H. complained to her mother of stomach pain which “started hurting when Alan got off of me.” M. H. told her mother that Robbins had been on her and had “poked [her] with his private.” After Robbins’s wife suggested to M. H. that it had happened accidentally, M. H. responded that Robbins’ “private” was “what I been feeling in the feeling game.” M. H. explained that in the feeling game, which they played on several occasions, Robbins would blindfold her and put something in her hand and make her feel it. M. H. told her mother that what she felt had a hole in the end, that it was a little bit hard and a little bit soft, that it was a little bigger in the end, and that it was wet around the hole. The child also described the object as having one bump. According to Robbins’s wife, Robbins’s penis has a bump in the middle, which she characterized as a mole or a skin tag.
M. H. also told her mother that she played the “tasting” game with Robbins. In this game, Robbins blindfolded the child and told
Robbins’s wife decided to talk to her husband before calling the police. She confronted Robbins when he came home and asked him about the feeling game. He admitted his involvement, initially maintaining that it was an accident and then blaming his wife because he had not been touched in a while. The following morning Robbins’s wife told her husband that they could stay together if he would move in with his parents, but that he would have to tell his parents what he did to M. H. They went to Robbins’s parents’ home, where he told his parents that he let M. H. feel his “private.” Robbins’s wife insisted that Robbins also tell his parents about the tasting game in which he put peanut butter and olive oil on his penis. He admitted that this was true.
That afternoon Robbins’s wife took M. H. to be interviewed by a forensic specialist outside the mother’s presence. According to the interviewer, who testified at trial as an expert in the field of forensic interviews, M. H. did not appear to have been coached. A videotape of the interview with M. H. was introduced into evidence and played for the jury. The videotape shows that M. H. told the interviewer that she played the “feeling” game and the “taste” game with Robbins. According to M. H., during the feeling game, which they played more than one time, Robbins would take M. H. into her mother’s bedroom and place her head under the covers. Robbins would place something in her hand and ask her to guess what it was. M. H. described the object as squishy and hard with a hole in the top. During the taste game, Robbins would blindfold the child. According to M. H., she licked peanut butter and “olive juice” on Robbins’s “private.”
At about the same time as M. H.’s forensic interview, an investigator interviewed Robbins at the offices of the Paulding County Sheriff. The investigator informed Robbins of his Miranda rights, and Robbins did not thereafter insist on his right to counsel. A videotape of the interview with Robbins was admitted into evidence and played for the jury. During the interview, Robbins told the officer that he and M. H. had played a “touchy-feely” game in which M. H. wanted to be blindfolded. He admitted that he and the child had wrestled around while he had on his briefs, and that at one point M. H. saw his penis. He also admitted that he and M. H. had been involved in a “taste test thing,” and that she had licked his penis twice.
1. In light of the evidence, including Robbins’s admissions to his wife, his parents, and to the police investigator, any rational trier of fact could have found him guilty beyond a reasonable doubt of the crimes of which he was found guilty and sentenced. 2 It follows that the trial court did not err in denying his motion for a directed verdict of acquittal. 3
2. Robbins claims that the trial court erred in denying his motions for a continuance. We disagree.
Defense counsel moved for continuance on the first day of trial, a Monday, representing that he had gotten most of the discovery in the case the weekend before the last weekend, and that it was only until the immediately preceding weekend that he had the chance to go through some of the discovery documents with Robbins. According to counsel, he was not ready to proceed “until I have an expert look at this stuff and tell me whether he is going to be able to help me.” Counsel also maintained that he needed additional time to investigate four or five persons listed in the discovery material who had not previously come to his attention, although he could not identify the names of these persons when asked to do so by the trial court. Further
discussion showed that “part of the problem ... is that I got this case and went on two weeks’ vacation.” The defense attorney had arranged for other counsel to handle
The next morning, before resuming voir dire, defense counsel represented that he had located a psychological expert and asked for a three-day continuance, arguing that his expert needed time to interview Robbins and review the videotaped statements. The trial court denied the motion. During the trial, the defense presented the testimony of a psychologist who had interviewed Robbins, viewed the videotape of Robbins’ police interview, and who opined that Robbins was susceptible to being manipulated into a false confession.
All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require. Further, trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. 4
The record shows that defense counsel had more than a week before trial to review the state’s discovery, had reviewed the material with his client, and had also had time before trial to hire an expert. Under the circumstances, we cannot conclude that Robbins’s grounds for continuance were compelling. 5 Unlike Smith v. Greek, 6 and Tucker v. State, 7 relied on by Robbins, defense counsel in this case was not assigned or hired so close to trial that defense counsel could not prepare a defense. Robbins hired his defense counsel in May, several months before the August trial date. Further, it appears that the delay in counsel’s receipt of the discovery material was attributable to defense counsel’s failure to ensure the state had his correct mailing address. “In all cases, the party making an application for a continuance must show that he has used due diligence.” 8 Accordingly, we conclude that the trial court did not abuse its discretion in denying Robbins’s motion for a continuance.
3. Robbins also claims that the trial court erred in denying his motion to suppress his statement to the police investigator because the statement was obtained “through hope of benefit and promise of reward through the actions of a law enforcement officer.”
The state bears the burden of showing the voluntariness of a statement by a preponderance of the evidence. Factual and credibility determinations made by a trial judge after a voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous. 9
Evidence presented at the
Jackson-Denno
hearing showed that Robbins was interviewed by a Paulding County Sheriffs Office investigator. The state presented the investigator’s testimony, and the videotape of the investigator’s interview with Robbins was played for the trial court. According to the investigator, Robbins went to the interview voluntarily and was not placed under arrest until the conclusion of the interview. The investigator informed Robbins of his
Miranda
Although Robbins contends that his confession to the police investigator was not freely and voluntarily given because his “police/wife” promised the benefit of no divorce if he gave the statement, the fact that Robbins was married to a law enforcement officer has little relevance under the facts of this case. Robbins’s initial confession to his wife was not made in police custody nor was she present during his interview with the police investigator, which is the statement at issue here. Furthermore, the trial court was authorized to conclude that Robbins’s wife was acting as a wife and mother, and not an agent of the state, when she asked Robbins about his interaction with her daughter and subsequently encouraged Robbins to confess. 10 “Numerous cases hold that Miranda is not implicated when a suspect in custody is questioned or encouraged to confess by a father, mother, wife, or girl friend.”* 11 Thus, notwithstanding that Robbins’s wife was a law enforcement officer, and pretermitting whether he gave a statement while in custody, his statement was not made under governmental coercion and is not inadmissible for that reason.
Robbins also complains that his statement was not voluntary because it was made through “the hope of no divorce.” OCGA § 24-3-50 provides that “[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” A governmental actor is not required for a confession to be involuntary for purposes of this statute. 12 Nevertheless, “[t]he phrase ‘hope of benefit’ generally means the reward of a lighter sentence. Thus, confessions made under a promise of collateral benefit are not for that reason excludable.” 13 We conclude that Robbins’s wife’s promise not to divorce her husband, which did not bear on the question of punishment, was a promise of collateral benefit. 14 It follows that the trial court did not err in finding Robbins’s statement to be voluntary and in denying the motion to suppress.
4. Robbins further claims that he received ineffective assistance of trial counsel.
In order to prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Appellant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellatecourt gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo. 15
In addition, the combined effects of counsel’s errors should be considered together as one issue with regard to the prejudice test. 16
(a) Robbins contends that his defense counsel was ineffective in failing to file a pre-trial motion or demurrer to require the state to identify the specific date and time of the charged incidents. During the hearing on motion for new trial, Robbins’s trial counsel testified that making the state narrow the range of time in which the crime is alleged to have occurred was important, but that he failed to demur to the indictment on that account.
The indictment accused Robbins of committing crimes against M. H. between “December, 2005 and the 5th day of May, 2006 inclusive,” and did not allege that the date of the offense was material. As a rule, “if an indictment alleges that a crime occurred between two particular dates, and if evidence presented to the trial court shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred, the indictment is subject to a special demurrer.” 17 Here, the charges were based on the recollections of a seven-year-old child, and Robbins does not show how the state could have reasonably narrowed the dates alleged in the indictment. Further, Robbins does not demonstrate that the length of the period in which the indictment alleged the crimes were committed materially affected his ability to present a defense, which did not rely on an alibi or other time sensitive claim. Thus, even if the indictment was subject to a special demurrer, Robbins failed to demonstrate a reasonable likelihood that, but for defense counsel’s failure to demur to the indictment, the outcome of the trial would have differed. 18
(b) Robbins claims that his trial counsel was ineffective in failing to hire an expert to rebut the state’s forensic expert regarding techniques employed in the interview of M. H. But he fails to show there was anything improper as to those interviewing techniques. It is simply a matter of speculation as to whether Robbins’s trial counsel could have presented expert testimony favorable to the defense on this issue. “Absent a proffer of what the testimony of his expert would have been at trial, [Robbins] cannot show that there is a reasonable probability that the outcome of the trial would have been different had his counsel taken the suggested course.” 19
(c) Robbins claims his trial counsel was ineffective in failing to prepare any voir dire questions regarding publicity and pre-trial contamination of the jurors. According to trial counsel’s testimony, M. H.’s mother was on television a couple of nights in a row and there were newspaper articles about the case. Counsel testified that he could not recall if he examined the jurors during voir dire concerning pre-trial publicity, although he maintained “that’s something you have to get into.” However, the court reporter did not take down all of voir dire, and so the record does not show whether trial counsel did or did not ask the venire about pre-trial publicity. Nor does the record show whether the pre-trial publicity was incorrect or
(d) Robbins argues that his trial counsel was ineffective in failing to ask the trial court to review M. H.’s taped interview for indicia of its reliability. According to trial counsel’s testimony, such a motion needed to be made, he did not prepare the motion, and the reason he did not do so was the lack of time.
M. H.’s out-of-court statements were admissible if, among other things, the trial court found “that the circumstances of the statement provide sufficient indicia of reliability.” 21
There is no requirement that the trial court make a specific finding of sufficient indicia of reliability for out-of-court statements of a child victim to be admissible. The statutory requirement is met if, after both parties have rested, the record contains evidence which would support such a finding. 22
M. H.’s videotaped statement contained numerous indicia of its reliability. 23 Among other things, M. H. was interviewed at a neutral location outside the presence of her mother, 24 she did not give the interview under any threat of punishment or promise of reward, 25 and an expert testified that M. H. did not appear to be coached. 26 M. H.’s videotaped statements were consistent with the evidence of her other out-of-court statements. 27 They were also consistent with Robbins’s statement to his wife, his parents, and the police investigator.
In ruling on Robbins’s motion for new trial, the trial court indicated that it stood by its rulings as to the admission of child hearsay. To the extent trial counsel failed to specifically challenge the admission of M. H.’s videotaped statement on the grounds that it contained insufficient indicia of reliability, Robbins does not show that such a motion would have had any merit. “Failing to file a futile or meritless motion cannot amount to ineffective assistance.” 28
(e) Robbins claims his trial counsel was ineffective because he failed to call M. H. as a witness or to attempt to interview the child before trial. We disagree.
Defense counsel testified at the hearing on motion for new trial that he did not call M. H. as a witness and therefore had no opportunity to cross-examine the child because “I didn’t think of it.”
Counsel also testified that neither he nor a defense investigator talked to the child before trial and indicated that
“[T]he decision as to which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel.” 29 Trial counsel’s performance is deficient if shown to fall “below an objective standard of reasonableness.” 30 The theory of the defense was that M. H., whose sight was obstructed during the feeling and tasting games, came to the conclusion that she had contacted Robbins’s “private” because that is what her mother told her. For example, defense counsel argued in closing that the mother was a liar, and “we know it because even [M. H.], bless her heart, said I know that’s what it was because mama told me daddy told her. Mama told me Alan told her.” The defense did not need to discredit M. H. in order to advance their theory of the case. It follows that trial counsel’s failure to call M. H. as a witness was not objectively unreasonable and therefore not deficient performance. 31 As to defense counsel’s failure to pursue a pre-trial interview with M. H., which evidence showed to be a rarely successful undertaking in the context of a child victim, Robbins did not show that his counsel’s performance in this respect, even if deficient, was prejudicial.
(f) Robbins contends that his trial counsel was ineffective because he failed to interview the persons to whom M. H. told her story in order to ascertain if there were discrepancies in the child’s statements. According to defense counsel’s testimony at the hearing on motion for new trial, M. H. talked to between five and ten persons about the alleged molestation, including the child’s mother, grandmother, police, the forensic interviewer, DFCS personnel, and hospital personnel. Counsel testified that these persons should have been interviewed by counsel or a defense investigator before trial, but that they were not interviewed. Even assuming that Robbins’s trial counsel was deficient in failing to interview or attempt to interview these persons, Robbins fails to show that there were any discrepancies in the child’s pre-trial statements or how his counsel’s failure to conduct these interviews otherwise affected the outcome of the trial. 32
(g) Robbins contends that his trial counsel was ineffective in failing to object to the prosecutor’s improper cross-examination of defense expert witness Dr. James Millhouse concerning prior bad acts. Pretermitting whether Robbins’s trial counsel was ineffective for this reason, Robbins failed to raise this issue before the trial court. This aspect of his ineffective assistance claim is therefore waived for purposes of appeal. 33
(h) Robbins further argues that the combined effect of his trial counsel’s deficient performance was prejudicial. We disagree. Trial counsel testified that he was not adequately prepared for trial, and thus failed to, among other things, seek to narrow the range of dates for the commission of the crimes set forth in the indictment, hire an expert witness to contest the state’s forensic expert, and investigate or attempt to interview certain witnesses. But even accepting that these actions constituted deficient performance,
Judgment affirmed.
Notes
The jury also found Robbins guilty of two counts of aggravated child molestation which the trial court merged into the two counts of aggravated sodomy for purposes of sentencing.
OCGA §§ 16-6-2 (a) (1), (2); 16-6-4 (a).
See
Williams v. State,
(Citations and punctuation omitted.)
Hartley v. State,
See
Hall v. State,
OCGA § 17-8-20. See also
Davis v. State,
(Footnotes omitted.)
Davenport v. State,
See, e.g.,
Cook v. State,
(Citations omitted.) Id. at 826 (2).
Griffin v. State,
(Citation, punctuation and footnote omitted.)
Jackson v. State,
Pasuer v. State,
(Citation omitted.)
Glidewell v. State,
Schofield v. Holsey,
State v. Layman,
Berman v. State,
(Citations and footnotes omitted.)
Madge v. State,
See
Williams v. State,
OCGA § 24-3-16.
(Footnotes omitted.)
Ingram v. State,
Indicia of reliability which trial court may consider include:
(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present. ..); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.
(Citations and emphasis omitted.)
Gregg v. State,
See
Howard v. State,
See
Revells v. State,
See
In the Interest of K. C.,
Mikell v. State,
(Citation omitted.)
Moon v. State,
(Citation omitted.)
Elrod v. State,
(Citations omitted.)
Benham v. State,
See, e.g.,
Brown v. State,
Owens v. State,
See
Thompkins v. State,
Compare
Goldstein v. State,
Johnson v. State,