Gainey v. State

• Decision Date: 01 June 2022
• Docket Number: A22A0226
• Citation: 364 Ga.App. 75,874 S.E.2d 121
• Parties: GAINEY v. The STATE.
• Court: Georgia Court of Appeals

364 Ga.App. 75

874 S.E.2d 121

GAINEY

v.The STATE.

A22A0226

Court of Appeals of Georgia.

June 1, 2022

Robert Lawrence Persse, Statesboro, for Appellant.

Charles Keith Higgins, Benjamin E. Gephardt Gephardt, for Appellee.

Hodges, Judge.

Following a jury trial, the Superior Court of Glynn County entered a judgment of conviction against Marco Gainey for five counts of sexual battery against a child under 16 ( OCGA § 16-6-22.1 (d) ) and three counts of child molestation ( OCGA § 16-6-4 (a) ).¹ Gainey appeals from the trial court's denial of his motion for new trial as amended, arguing that he received ineffective assistance of trial counsel because counsel elicited bolstering testimony from a witness and failed to move to sever Gainey's trial based upon his three separate victims. In the alternative, Gainey also contends that his sentences should be vacated because the trial court included an impermissible Fourth Amendment waiver in his sentence. Finding no reversible error, we affirm.

Viewed in a light most favorable to the verdict,² the evidence adduced at trial revealed that 11-year-old M. G. visited her aunt in Brunswick, Glynn County, during the summer of 2010. Gainey, whom M. G. knew as "Polo," also visited the aunt. On one occasion, when M. G. spent the night at her aunt's house, Gainey entered M. G.’s room as she was "halfway asleep," touched her breasts and her vagina, and placed her hands on his penis. Gainey's abuse ended when someone called for him and he left the room. M. G. called for her brother, but Gainey came in with her brother. Eventually, M. G. was able to leave the room, find her brother alone, and told him what had happened.

Meanwhile, in the summer of 2012, 14-year-old A. C. stayed with her aunt and her aunt's family in Brunswick. Gainey was the father of one of A. C.’s cousins and also lived at the residence.³ On one evening, while A. C. was asleep, she was awakened by Gainey touching her breasts and his penis. Gainey's pants were pulled down. When A. C. told Gainey to stop, he forcefully removed her pants and attempted to penetrate her vagina with his penis; he also put his fingers inside A. C.’s vagina. She again told him to stop, and he left the room. One of A. C.’s cousins asked her if anything had happened to her "because one of [the cousin's] friends said something happened to another girl[;]" A. C. then confided in her cousin and told her about Gainey's abuse.

Finally, 13-year-old J. B. also resided in Brunswick in the summer of 2012. On one occasion, Gainey, whom J. B. also knew as "Polo," came over to give J. B.’s mother a tattoo. Gainey ended up staying late, and J. B. was awakened by Gainey rubbing her breasts as he masturbated. When Gainey attempted to move his hand lower on J. B.’s body, she got up, left the room, and reported Gainey's abuse to her grandmother.

A Glynn County grand jury indicted Gainey for eight counts of child molestation and five counts of sexual battery against a child under 16 arising from his actions against each of the three victims. Following trial, a jury returned verdicts of guilty against Gainey on each count of the indictment, and the trial court denied Gainey's motion for new trial as amended. This appeal followed.

1. In his first enumeration of error, Gainey argues that he received ineffective assistance of trial counsel because counsel: (a) elicited improper bolstering testimony during his cross-examination of a victim's grandmother; and (b) failed to move to sever Gainey's charges based upon the separate victims. We are not persuaded and, for the following reasons, conclude that Gainey has failed to demonstrate ineffective assistance of counsel.

It is well settled that

[t]o prevail on his claim of ineffective assistance of trial counsel, [Gainey] must prove both that counsel's performance was professionally deficient and that he was prejudiced by the deficient performance. To prove deficient performance, [Gainey] must show that his counsel performed in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.... To prove prejudice, [Gainey] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. This burden is a heavy one. And if [Gainey] fails to show either deficiency or prejudice, this Court need not examine the other prong of the [ Strickland v. Washington , 466 U.S. 668, 687 (III), 694 (III) (B), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] test.

(Citations and punctuation omitted.) DeLoach v. State , 308 Ga. 283, 287-288 (2), 840 S.E.2d 396 (2020).

(a) Bolstering Testimony. Gainey first contends that he received ineffective assistance of trial counsel because counsel, during his cross-examination of J. B.’s grandmother, elicited improper bolstering testimony about J. B.’s truthfulness. We do not agree.

During Gainey's cross-examination of J. B.’s grandmother, the following exchange occurred:

Q: Okay. And that's — as far as you know, that's — from the time you went to bed until that, you have no idea as to specifically what happened other than what [J. B.] told you, right?

A: Yes, and he was — [J. B.] did not know Polo was in the house for her to name Polo, to say his name. I knew he was in the house before I went to bed. [J. B.] never knew Polo was there until she woke up and seen him touching her breast.

Q: And, in fact, I think you might've told the police officer that you thought [J. B.] was telling the truth because she wouldn't have known Polo was there, right?

A: I know [J. B.’s] telling the truth because she would not know Polo was there. Plus, I teach my grandkids to tell me everything and anything that happens, good or bad, even if they're getting in trouble, you take your medicine.

At Gainey's motion for new trial hearing, trial counsel testified that he asked the grandmother about J. B.’s truthfulness because he

believed that [J. B.] had reason to exaggerate and she had reason to say things previously that had — her grandmother had found not to be true, and I believed — what we were trying to get out of her grandmother was that she — not that she would lie, but that she would exaggerate or that she would have illusions or other dreams, things like that, that she would tell her grandmother. That was my understanding of things that had happened in the past and that's what we were trying to elicit from her.

Trial counsel further testified that if he could elicit testimony from the grandmother that J. B. was " ‘young, or sometimes she'll say things and then I can find out that that's not quite true,’ that even that would bring us a little bit of doubt to argue to the jury." Finally, trial counsel confirmed that he had spoken with Gainey about such questioning of the grandmother "as a possible strategy."

We find no error. "Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them." (Citation and punctuation omitted.) Hardin v. State , 344 Ga. App. 378, 383 (1) (b), 810 S.E.2d 602 (2018). In particular, "[d]ecisions about what questions to ask on cross-examination are quintessential trial strategy and will rarely constitute ineffective assistance of counsel." (Citation and punctuation omitted.) Washington v. State , 357 Ga. App. 184, 189 (d), 850 S.E.2d 251 (2020) ; see also Brewer v. State , 328 Ga. App. 801, 762 S.E.2d 622 (2014) ("The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his or her client.") (citation and punctuation omitted). Here, even though counsel's questioning elicited testimony that may have bolstered J. B.’s credibility, counsel's strategy, which he discussed with Gainey — specifically, to "bring us a little bit of doubt to argue to the jury" by attempting to get the grandmother to admit that the victim was not always truthful — was not "so patently unreasonable that no competent attorney would have chosen [it]."⁴ (Citation and punctuation omitted.) Hardin , 344 Ga. App. at 383 (1) (b), 810 S.E.2d 602 ; see also Damerow v. State , 310 Ga. App. 530, 538 (4) (a) (ii), 714 S.E.2d 82 (2011) (finding no ineffective assistance of trial counsel where counsel elicited bolstering testimony from victim's mother to demonstrate that victim's allegation of abuse was "totally inconsistent" with mother's decision to allow defendant to move into her residence). It follows that Gainey has failed to demonstrate ineffective assistance of trial counsel based upon counsel's cross-examination of J. B.’s grandmother.⁵

(b) Motion to Sever. Gainey next asserts that he received ineffective assistance of trial counsel due to counsel's failure to move to sever his charges because there were three separate victims. Again, we disagree.

A Glynn County grand jury indicted Gainey for a total of 13 different crimes, consisting of both child molestation and sexual battery against a child under 16, against three different victims. The incidents were alleged to have occurred between July 4 and 10, 2010, between June 4 and October 18, 2012, and on September 26, 2012. Trial counsel did not move to sever the counts against Gainey based upon each individual victim. In response to a question during Gainey's motion for new trial hearing, trial counsel testified that he had considered a motion to sever Gainey's charges, but concluded that he "did not see any merit in doing that." He added that the events "had either happened at the same time or at least fairly close enough to the same time that that was going to kill any kind of motion to sever."

To prevail on his claim of ineffective assistance, Gainey must demonstrate that a motion to sever would have been...