Lead Opinion
On appeal from his conviction for child molestation, Michael Robinson argues that trial and first appellate counsel were ineffective. We affirm because these contentions have no merit.
“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State,
So viewed, the record shows that after having been kissed by Robinson on previous occasions, the 11-year-old victim and her friend walked to Robinson’s house, where he offered them removable tattoos and then indicated that the victim should go into his bedroom. As Robinson kissed the victim in the bedroom, the friend entered and encouraged the two to continue, at which Robinson put his hand down the victim’s pants, touching her buttocks. As Robinson moved his hand toward the front of her body, the victim became scared, told him to stop, and pulled his hand away. When the girls
After a trial including Robinson’s testimony in his own defense, a jury found him guilty of one count of child molestation. He was convicted and sentenced to 20 years with 13 to serve. At the hearing on Robinson’s motion for new trial, first appellate counsel called six new witnesses: three neighbors, the victim’s mother’s employer, and two investigators. The trial court denied the motion for new trial.
On appeal, this Court twice remanded the case: so that new counsel could prepare the case, and for a second evidentiary hearing. As the parties agreed at the outset of the remand hearing, the only issue presented on remand was whether trial counsel was ineffective for failing to forward evidence to first appellate counsel. New counsel proffered statements from witnesses including Robinson’s mother, his sister, his brother, his uncle, and his grandmother. Of these witnesses, only the sister had not testified at trial. After the hearing, the trial court again denied Robinson’s motion for new trial.
1. The evidence outlined above was sufficient to sustain Robinson’s conviction. See OCGA § 16-6-4 (a) (defining child molestation); Jackson, supra.
2. Robinson asserts that trial counsel was ineffective in failing (a) to ask for a hearing on the admissibility of the victim’s videotaped statement; (b) to confront the victim at trial; (c) to question the qualifications and credibility of the expert who took the victim’s statement; and (d) to investigate and argue the credibility of other witnesses, including the eyewitness and the victim’s parents. Robinson also argues that (e) first appellate counsel failed to argue trial counsel’s ineffectiveness in failing to assert Robinson’s right to confront the victim.
To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Suggs v. State,
(a) OCGA § 24-3-16 provides:
A statement made by a child under the age of 14 years*47 describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.
As this Court has held, “OCGA § 24-3-16 does not require a hearing to determine indicia of reliability be held prior to receiving the testimony.” (Punctuation omitted; emphasis supplied.) Xulu v. State,
It should be obvious that trial counsel was under no obligation to invoke his client’s legal right to a hearing designed to protect that client’s interests if the invocation of that abstract right would, in his professional judgment of the circumstances presented by a specific case, do actual harm to those interests. Raymond v. State,
(b) Likewise, the mere existence of a defendant’s right to confront a witness at trial cannot be taken to mean that it is always in his interest to do so. A defendant’s confrontation rights are not violated by his own counsel’s failure to call a child molestation victim to the stand if that victim is available to testify at trial. Williams v. State,
(c) The State’s direct examination at trial shows that the expert who took the victim’s statement was well qualified, with 15 years’ experience in assisting children and teenagers suffering from severe
(d) “Motions for new trial on the ground of newly discovered evidence are not favored and are addressed to the sole discretion of the trial judge, which will not be controlled unless abused.” (Punctuation omitted.) Merka v. State,
On remand, the trial court held that five witnesses’ statements proffered by first appellate counsel concerned the victim’s and her family’s poor reputation in the community, and were thus cumulative of evidence already introduced at trial, which included testimony by four out of the five. The trial court also held that the statement by Robinson’s sister, who had not previously testified, could only have had the effect of impeaching other defense witnesses. See Timberlake v. State,
As we have noted, the victim’s own statement to the child advocacy expert showed that the eyewitness to the molestation both encouraged the defendant just before the act and reported the crime to the victim’s parents. The record also shows that counsel conducted an effective cross-examination of the eyewitness, exposing inconsistencies, misstatements, and inattention, including her comments on the case, whether Robinson was holding the victim, and whether he put his hands down her pants. And counsel was under no responsibility to attack the credibility of the victim’s parents when they had been called as witnesses for the defense.
More important, the record before us does not include a transcription of either Robinson’s opening or his closing argument. Without this information, and having reviewed the remainder of the record, we cannot categorize trial counsel’s handling of either the eyewitness or the victim’s family as defective, nor can we second-guess the trial court’s discretionary determination that all of the evidence proffered at the hearings on the motion for new trial went to the credibility of the witnesses. Merka,
(e) As we have held above, trial counsel could not have been ineffective for failing to call the victim as a witness. It follows that first appellate counsel could not have been ineffective for failing to assert this unmeritorious argument before or at the hearing on the motion for new trial. Davis v. State,
For all of the above reasons, the trial court did not err when it denied Robinson’s motion for new trial.
Judgment affirmed.
Concurrence Opinion
concurring specially.
I concur in the judgment only as to Division 2 (d). I concur fully in the remainder of the opinion.
The standard for granting a new trial on the basis of ineffective assistance of counsel is distinct from the standard for granting a new trial on the basis of newly discovered evidence. As detailed in the majority opinion, the two-prong standard for ineffective assistance is set out in Strickland v. Washington,
(1) that the evidence has come to [the movant’s] knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. All six requirements must be complied with to secure a new trial.
(Citations and punctuation omitted.) Merka v. State,
Because it is important that those two standards remain distinct, I do not concur in the majority’s analysis. But as the evidence adduced at the new-trial hearings was insufficient to satisfy either prong of the Strickland standard, I concur in the judgment.