A jury convicted Christopher Williams of two counts of child molestation, one count of sexual battery and one count of aggravated child molestation. Williams appeals the trial court’s denial of the claims of ineffective assistance of trial counsel he raised in his motion for new trial. We affirm.
The evidence at trial showed that the eight-year-old daughter of Williams’s girlfriend reported to her teacher that Williams had “put his stuff inside” her, leading the teacher to report the matter to the school guidance counselor, who subsequently notified the Department of Family and Children Services (“DFCS”) and the police. The girl made similar statements to the DFCS caseworker, the police officer who responded to the report, and the detective who investigated the case. Although Williams’s girlfriend initially did not believe her daughter’s reports about Williams, she later changed her mind and testified at trial that her daughter told her that Williams had stuck his penis in her on two occasions.
Williams denied the charges, asserting that he had merely checked the child’s underwear for hygiene purposes. He agreed to take a stipulated polygraph examination, which was audio- and video-recorded. The examiner, who testified at trial, concluded that the examination indicated deception and thus determined that Williams did not pass the polygraph.
The doctor who examined the girl testified that she detected no tears or other injuries to the child’s genital area; she also observed that the child had poor hygiene. No male DNA was recovered during the examination. But the doctor observed certain physiological reactions in the child that she testified were consistent with the child’s accusations against Williams and further testified that the lack of trauma to the affected area was not inconsistent with the allegations.
Williams’s motion for new trial asserted the evidence was insufficient to support his convictions and further asserted that the trial court erred in denying his claims that his trial counsel was ineffective
In considering Williams’s appeal, we apply the two-prong test for determining the validity of a claim of ineffectiveness of counsel established in Strickland v. Washington,
asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.
(Citation and punctuation omitted.) Philpot v. State,
1. Williams first asserts that his trial counsel was ineffective in failing to object to the police officer’s hearsay testimony regarding the victim’s description of conversations she had with her mother, Williams’s girlfriend.
According to the police officer, the victim said that Williams “put his stuff” in her the morning she reported him to her teacher. When her mother returned home that morning after taking the victim’s grandmother to work, she asked the victim what was wrong, and the victim told her what had happened. At that point, Williams’s attorney posed a hearsay objection but did not obtain a ruling from the trial court. Instead, the prosecutor instructed the witness to “just describe... how [the victim] seemed about talking to her mom or whether she described her mom as supportive or angry or anything else.” Despite
Even if Williams’s attorney was ineffective in failing to pose a further hearsay objection or to obtain a ruling on the earlier objection, the officer’s testimony was merely cumulative of other, admissible evidence. The victim testified that she had told her mother about Williams’s actions that morning but her mother did not really do anything. The police officer confirmed that the mother was defensive on the day the victim made the report and made excuses for why Williams might have touched the child. Although the mother denied that the victim had reported Williams’s actions to her that morning, she admitted that she told the victim that she would not leave her alone with Williams again. The mother also said that she did not believe her daughter’s accusations at first and that she covered for Williams, although she later came to believe her daughter’s story.
Thus, even if the officer’s testimony was inadmissible hearsay, “[t]he erroneous admission of hearsay is harmless where, as here, legally admissible evidence of the same fact is introduced. In such a case, the hearsay is cumulative and without material effect on the verdict.” (Punctuation and footnote omitted.) Skinner v. State,
2. Williams next argues that his trial counsel was ineffective in failing to object to opinion testimony by the polygraph examiner regarding his hygiene, which he asserts improperly invaded the province of the jury to determine credibility.
The trial court qualified Alphonso Hagan, the polygraph examiner, as an expert witness for the State “to render opinions with respect to polygraph examinations and administration].” Hagan testified that prior to administering the polygraph examination, he spoke with Williams about the victim and explored ways in which he may have touched the child accidentally. Williams told him that the child had a habit of not cleaning herself properly after going to the
The thing that concerned me about this was Mr. Williams came in that morning, his hygiene was way below standard. I mean I could barely stay in the room with him. So my thing was if someone was concerned of a child’s hygiene, . . . I’m sure he would have taken care of his own hygiene a lot better than, you know, claimin[g] he was so concerned about hers. And that’s one of the things that really stood out with me in dealin[g] with Mr. Williams that day.
“Although an expert witness may not testify as to his opinion of the other witnesses’ truthfulness, the expert witness may express an opinion as to whether medical or other objective evidence in the case is consistent with the other witnesses’ story.” (Citation and punctuation omitted.) Cade v. State,
But even if this testimony could be considered improper, Williams has failed to demonstrate that he was prejudiced by it, especially in light of Hagan’s later expert opinion testimony that the polygraph indicated that Williams was “deceptive” in response to his questions regarding the victim’s allegations. Thus, Williams failed to show a reasonable probability that the outcome of his trial would have been different but for his counsel’s failure to object to Hagan’s testimony about Williams’s hygiene.
3. Williams also asserts that his trial counsel was deficient in failing to object when the State did not limit Hagan’s testimony to the results of the polygraph examination, citing Brown v. State,
Here, Williams’s counsel raised no objection to the State’s publication of the entire audio and video recording Hagan made of the polygraph session, including his discussions with Williams both before and after the polygraph test. The discussion before the test included a review of Williams’s constitutional rights in connection
Even if this evidence generally would not be admissible, a presumption exists that Williams’s counsel made a strategic decision not to object:
With regard to the deficiency prong [of the Strickland test], there is a strong presumption that trial counsel’s performance is not deficient but falls within the wide range of reasonable trial strategy, in which unwise tactics do not amount to ineffective assistance of counsel.
(Citation omitted.) Allen v. State,
Williams bore the burden of overcoming the strong presumption that his trial counsel’s decision not to object to the admission of the entire tape was reasonable trial strategy and of proving instead that it constituted deficient performance. See Peterson v. State,
Moreover,
[effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that [appellant] and his present counsel disagree with the decisions made by trial counsel does not require a finding that [Williams’s] original representation was inadequate.
(Citation and footnote omitted.) Hazelrigs v. State,
4. Williams further contends that his trial counsel was deficient in failing to produce his medical records to the State “no later than five days prior to trial” as required under OCGA § 17-16-4 (b) (1), resulting in the exclusion of the records at trial.
Although the trial court excluded the actual medical records from evidence, the court noted that this ruling did not necessarily exclude testimony regarding the contents of the records from those with personal knowledge. And, in fact, both Williams and his mother testified to his prior use of medication for his “nerve problems.” But in any event, because Williams failed to proffer the excluded medical records, we cannot review his claim that the exclusion of this evidence was prejudicial to his defense and that his trial counsel was ineffective in failing to comply with OCGA § 17-16-4 (b) (1). See White v. State,
Judgment affirmed.