Bradley v. State

• Decision Date: 04 August 2017
• Docket Number: A17A0668.
• Parties: BRADLEY v. The STATE.
• Court: Georgia Court of Appeals

342 Ga.App. 486

804 S.E.2d 144

BRADLEY

v.The STATE.

A17A0668.

Court of Appeals of Georgia.

August 4, 2017

Rodney Samuel Zell, Atlanta, for Appellant.

Richard Lowery Perryman III, Nashville, Charles M. Stines, Valdosta, Rebekah Maddox Ditto, for Appellee.

Self, Judge.

Following a jury trial, Shelton Bradley was found guilty of aggravated child molestation, rape, and incest for sexually abusing his 15-year-old stepdaughter. Bradley appeals the denial of his motion for new trial, contending that the trial court erred by not answering a question from the jury and by commenting on the credibility of the victim. He also alleges ineffective assistance of counsel. For the reasons set forth below, we affirm Bradley's convictions but remand for his claim that counsel was ineffective for failing to present evidence that DNA recovered from the victim was male DNA that did not match Bradley.

Viewed in the light most favorable to the jury's verdict, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence adduced at trial shows that on the evening of December 10, 2007, Q. H. was watching television in the den of her family's home when Bradley took her into the laundry room and asked if he could touch her. When Q. H. refused, Bradley pulled down her pants and licked her vagina. Q. H. ran to the bedroom she shared with her sister and locked the door. Bradley knocked on the door and told Q. H. to come out because he wanted to talk to her. When Q. H. left the bedroom, Bradley took her into the den where he forced her to have sex with him. Following the incident, Bradley took Q. H. into the bathroom, at which point Bradley removed the condom he had used and put it in the sink. Bradley told Q. H. that if she said anything, he would hurt her mother.

Q. H.'s brother helped her escape with her sister through a bedroom window and the two girls ran to a neighbor's house. The neighbor testified that Q. H. and her sister came into her house screaming and crying and told her that Bradley had sex with Q. H. Q. H. also told the neighbor that Bradley left a condom in the bathroom sink. The neighbor called the police. A physical examination conducted at The Haven Rape Crisis Center showed an abrasion of the labia consistent with friction, such as forced sexual intercourse.

Officers arrested Bradley that night, and during a walk-through of the home, a detective discovered a condom in the sink, a condom wrapper on the couch in the den, and a tissue with blood on it in the laundry room. At trial, Q. H. testified that she lied about the entire incident to get Bradley out of the house because he was strict and would argue with her mother. When asked why she did not recant her allegation sooner, Q. H. testified that she was told that if she changed her story she would be prosecuted.

1. Bradley complains that the trial court erred in not answering a question from the jury about whether "unconsented" oral sex constitutes rape. In response, the trial court stated, "I cannot—or none of us can enter into a general discussion with [you] concerning these issues." The trial court then recharged the jury on the definitions of rape and aggravated child molestation as follows:

A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of a female sex organ with a male sex organ. The law of Georgia provides that a person not married to the defendant under the age of 16 is legally incapable of giving consent to sexual intercourse. This means such act would be against the will of the victim....

A person commits the offense of aggravated child molestation when that person does an immoral or indecent act to a child less than 16 years of age with the intent to arouse or satisfy the sexual desires of the person and the act involves the act of sodomy. The act of sodomy is defined as performing or submitting to a sexual act involving the sex organs of one and the mouth or anus of another. The State must also prove beyond a reasonable doubt that the child was under the age of 16 at the time of any such act.

A juror asked the trial court to read the rape charge one more time and the court acquiesced. The jury then asked if there is a difference between statutory rape and rape to which the trial court responded: "Legally there is of the definition, but [you] are not concerned with statutory rape. That's not one of the issues for [you] to consider in this case." Bradley did not object.

Initially, it is important to note that [Bradley] did not object to any portion of the trial court's jury charges, and under OCGA § 17-8-58, "any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate." And the failure to so object precludes appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error....

(Citations, punctuation and footnotes omitted.) Wheeler v. State , 327 Ga. App. 313, 318 (3), 758 S.E.2d 840 (2014). "[P]lain error ... will only be found if the jury instruction was erroneous; the error was obvious; the instruction likely affected the outcome of the proceedings; and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." (Citation and punctuation omitted.) Tran v. State , 340 Ga. App. 546, 548 (1), 798 S.E.2d 71 (2017). Because Bradley failed to object, our review is limited to whether the trial court's response constituted plain error. See Redding v. State , 296 Ga. 471, 473 (2), 769 S.E.2d 67 (2015).

Bradley contends the exchange between the trial court and the jury proves the jury was confused about the rape charge and likely convicted Bradley of rape based on conduct that did not constitute rape. He further argues that the trial court committed plain error by not answering the jury's question with a simple "no." "The trial court had discretion to decline to answer the jury's question directly. We have never held that the court must engage in a question and answer session with the jury or instruct the jurors individually on how to apply the law to the facts." (Punctuation omitted.) Redding , 296 Ga. at 473 (2), 769 S.E.2d 67. In this case, the trial court sought to avoid any "problematic situation" by recharging the jury on rape and aggravated child molestation, which effectively answered the question posed. See id. The trial court's recharge specifically instructed the jury that rape involves the penetration of a female sex organ with a male sex organ and that aggravated child molestation involves the sex organs of one and the mouth or anus of another. We conclude that the trial court's decision to answer the jury's question by recharging on rape and aggravated child molestation does not amount to plain error, was not obviously erroneous, and likely did not affect the outcome of the proceeding.

2. Bradley contends that the trial court violated his due process rights and OCGA § 17-8-57 by commenting on Q. H.'s credibility and expressing its opinion as to Bradley's guilt. At the close of the neighbor's testimony, the following colloquy occurred between the trial court and the neighbor:

THE COURT: Let me ask a question. We're trying to arrive at the—reach the truth in this case. Is this the first—you said a minute ago that you were not that—I'm rephrasing, okay? This is not exactly what you said, but I took it that you were not that close or friendly with, or that well acquainted with the people, or the girls, is that right?

[NEIGHBOR]: Right, I just knew them because of my kids. My girls hung with their daughters.

THE COURT: Had you ever seen them crying or upset before—

[NEIGHBOR]: No, sir.

THE COURT: —this time? Well, did anybody say why the brother didn't go with them?

[NEIGHBOR]: No, sir.

Bradley did not object.

OCGA § 17-8-57 was amended effective July 1, 2015. While the former version of OCGA § 17-8-57 was in effect at the time of Bradley's trial, the amended version applies. See Quiller v. State , 338 Ga. App. 206, 207-209, 789 S.E.2d 391 (2016) (amendment to OCGA § 17-8-57 entitled to retroactive effect). As amended, OCGA § 17-8-57 provides:

(a) (1) It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge's

opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.

(2) Any party who alleges a violation of paragraph (1) of this subsection shall make a timely objection and inform the court of the specific objection and the grounds for such objection, outside of the jury's hearing and presence. After such objection has been made, and if it is sustained, it shall be the duty of the court to give a curative instruction to the jury or declare a mistrial, if appropriate.

(b) Except as provided in subsection (c) of this Code section, failure to make a timely objection to an alleged violation of paragraph (1) of subsection (a) of this Code section shall preclude appellate review, unless such violation constitutes plain error which affects substantive rights of the parties. Plain error may be considered on appeal even when a timely objection informing the court of the specific objection was not made, so long as such error affects substantive rights of the parties.

(c) Should any judge express an opinion as to the guilt of the accused, the Supreme Court or Court of Appeals or the trial court in a motion for a new trial shall grant a new trial.

"The purpose of this limitation at least in part is to prevent the jury from being influenced by any disclosure of the judge's opinion regarding a witness's credibility." Craft v. State , 274 Ga. App. 410, 411 (1), 618 S.E.2d 104 (2005). However, "[i]t is well settled that a trial court may propound a clarifying question in order to develop the truth of a case" or to...