Carrie v. State

• Decision Date: 04 May 2009
• Docket Number: No. A09A0886.,A09A0886.
• Citation: 298 Ga. App. 55,679 S.E.2d 30
• Parties: CARRIE v. The STATE.
• Court: Georgia Court of Appeals

679 S.E.2d 30

298 Ga. App. 55

CARRIE v. The STATE.

No. A09A0886.

Court of Appeals of Georgia.

May 4, 2009.

Reconsideration Denied May 20, 2009.

Barry M. Hazen, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Peggy R. Katz, Asst. Dist. Atty., for appellee.

BLACKBURN, Presiding Judge.

Following a jury trial, Susan Ball Carrie was convicted on one count of child molestation.¹ She appeals her conviction and the denial of her motion for new trial, arguing that her trial counsel provided ineffective assistance of counsel (i) by eliciting and failing to object to numerous instances of bad character testimony, (ii) by failing to request a jury instruction on similar transaction evidence, (iii) by eliciting and failing to object to several instances of hearsay testimony, (iv) by failing to object to testimony regarding inadmissible evidence, (v) by apologizing to the victim's parents, (vi) by failing to object to the State prosecutor's comments regarding a witness's credibility during closing argument, and (vii) by failing to move to redact or object to inadmissible portions of a video-taped forensic interview of the victim. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, Davis v. State,² the evidence shows that Carrie was the close family friend of 15-year-old I.C., who was in town from Florida to visit her father. Late in the afternoon of June 27, 2008, I.C. and her best friend K.G., who was 16 years old and also from Florida, went to a barbecue at Carrie's home. That night after most of the other guests had left, Carrie invited her friend Tim Bridges to her house. Carrie had been providing I.C. and K.G. with alcoholic beverages and marijuana, and when Bridges arrived, she had the two girls dance provocatively for Bridges and another older male friend. Later, Bridges led I.C., who was apparently intoxicated at this point, into Carrie's bedroom, and the two engaged in sexual intercourse. Shortly thereafter, K.G. came into the bedroom and was able to pull I.C. off the bed, at which point Carrie came into the room and began having sexual intercourse with Bridges in front of the two girls.

Early the next morning, K.G. was picked up by another family friend in order to catch a scheduled flight back home. Upon arriving at the airport, K.G. told the family friend about what had happened overnight. The family friend immediately informed I.C.'s mother, who then informed her father. The father picked up I.C. from Carrie's home and drove her to the hospital so that she could be examined for signs of sexual abuse. Later that day, I.C.'s father took her to the police station to report the incident.

Carrie was indicted on one count of aiding and abetting statutory rape, one count of child molestation based on her engaging in sexual intercourse with Bridges in front of I.C., one count of enticing a child for indecent purposes, one count of pimping, and one count of pandering.³ She was tried and convicted on the child molestation count but was acquitted on the counts of enticing a child for indecent purposes, pimping, and pandering. The trial court declared a mistrial on the statutory rape count after the jury was unable to reach a verdict. Thereafter, she obtained new counsel and filed a motion for new trial, alleging ineffective assistance of counsel. Following a hearing, the trial court denied Carrie's motion, giving rise to this appeal.

In her seven enumerations of error, Carrie cites more than thirty instances in which her counsel allegedly provided ineffective assistance.

To establish ineffective assistance of counsel under Strickland v. Washington,⁴ a criminal defendant must prove (1) that his trial counsel's performance was deficient, and (2) that counsel's deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency.

Kurtz v. State.⁵ "Making that showing requires that [Carrie] rebut the strong presumption that [her] lawyer's conduct falls within the wide range of reasonable professional assistance." Simpson v. State.⁶ "As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel." (Punctuation omitted.) Beck v. State.⁷ "We will not reverse a trial court's findings regarding either the deficiency or prejudice prong of the Strickland test unless clearly erroneous." Kurtz, supra, 287 Ga.App. at 825, 652 S.E.2d 858.

1. In her first enumeration of error, Carrie cites 19 separate instances in which her trial counsel allegedly provided ineffective assistance by failing to object to bad character evidence or by eliciting the same. "Generally, the character of the parties is irrelevant and no evidence of a criminal defendant's general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue." (Punctuation omitted.) Bozzuto v. State.⁸ However, we have carefully reviewed the trial transcript and the motion for new trial transcript and have determined that ample evidence supported the trial court's finding that Carrie did not carry her burden of proving ineffective assistance. We now address these instances cited by Carrie.

(a) Carrie contends that her trial counsel provided ineffective assistance by failing to object to opening remarks from the State's prosecutor regarding the fact that I.C.'s mother thought Carrie was a bad person and did not want her daughter around her, and by eliciting and failing to object to similar testimony from several witnesses, including I.C., her mother, and her father. We disagree. A comment that a defendant has been in trouble or is a bad person does not place her character in issue, since it is unclear what is meant by such a remark. Waugh v. State.⁹ See Sneed v. State.¹⁰ Because these references did not put Carrie's character in issue, they were not subject to objection, and thus trial counsel's failure to object did not fall below the objective standard of reasonableness under Strickland. See White v. State.¹¹ See also Harris v. State¹² (counsel was not ineffective in failing to object to prosecutor's opening remarks referring to defendant as "totally evil" because a prosecutor's flights of oratory and figurative speech in opening statements are not reversible error).

(b) Carrie contends that her trial counsel performed deficiently by eliciting testimony from I.C.'s mother that in past interactions with Carrie, she had seen drug and alcohol use, and that Carrie had pulled a gun on her. We disagree. This testimony did not definitively indicate that Carrie had any prior criminal history and thus did not constitute bad character evidence. Sneed, supra, 267 Ga.App. at 642(2)(c), 600 S.E.2d 720. Accordingly, the fact that her trial counsel elicited this testimony did not constitute deficient performance. See id.

(c) Carrie contends that her trial counsel performed deficiently by eliciting testimony from I.C. that Carrie had provided her and K.G. with marijuana on the night of the barbecue and that this error was compounded when the State questioned I.C. concerning the marijuana use during its re-direct examination. However, evidence "that one has used marijuana or drunk alcohol does not place one's character in issue." Hearst v. State.¹³ Furthermore, "[t]he State is entitled to present evidence of the entire res gestae of a crime. This is so even if the defendant's character is incidentally placed in issue." Corza v. State.¹⁴ See Fuller v. State¹⁵ (State's questions regarding defendant's alcohol or drug use on the day of the crime was admissible as part of the res gestae even if it placed his character into evidence). Thus, trial counsel did not perform deficiently in this regard, and the trial court did not err in rejecting Carrie's claim of ineffective assistance of counsel on this ground. See White, supra, 267 Ga. at 525(7), 481 S.E.2d 804.

(d) Carrie contends that her trial counsel performed deficiently by eliciting and failing to object to testimony from Bridges and K.G. that Carrie had previously paid other girls to dance erotically at her home. Specifically, she argues that this testimony impermissibly placed her character into evidence because it constituted similar transaction evidence demonstrating that she had previously engaged in providing sex for money. These claims are without merit. Pretermitting whether this testimony constituted similar transaction evidence, its primary relevance related to the counts of enticing a child for indecent purposes, pimping, and pandering, on which Carrie was acquitted. Such a result "strongly supports the conclusion that the assistance actually rendered by [Carrie's] trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render." (Punctuation omitted.) Jackson v. State.¹⁶ See Hodge v. State.¹⁷ Accordingly, the trial court did not err in denying Carrie's claim of ineffective assistance of counsel on this ground.

(e) Carrie also contends that her trial counsel elicited bad character evidence when he asked Bridges if Carrie's husband had participated in the acts alleged by I.C., which resulted in Bridges's responding that her husband was not there because he was incarcerated. Specifically, Carrie argues that this testimony implied that she associated with persons of bad character. This claim is without merit. "[A] nonresponsive answer that impacts negatively on a defendant's character does not improperly place [her] character in issue." (Punctuation omitted.) Walker v. State.¹⁸ Furthermore, "mere mention that a defendant has been in jail falls short of placing his character at issue." Taylor v. State.¹⁹ It therefore follows that a passing reference to the fact that Carrie's husband was incarcerated would also fall short of placing her character at issue. Accor...