Germain v. State, 011421 GACA, A20A1854

Docket NºA20A1854
Opinion JudgeMcFadden, Chief Judge.
Party NameST. GERMAIN v. STATE.
AttorneyAppellant Mr. Donald Paul Geary Appellant Ms KELSEY LYNNE GEARY Appellee Mr. Cliff Head Appellee Mrs. Shannon Glover Wallace
Judge PanelMCFADDEN, C. J., DOYLE, P. J., and HODGES, J. Doyle, P.J., and Hodges, J., concur.
Case DateJanuary 14, 2021
CourtCourt of Appeals of Georgia

ST. GERMAIN

v.

STATE.

No. A20A1854

Court of Appeals of Georgia, Third Division

January 14, 2021

Superior Court Clerk of Cherokee County Case Number: 15CR0333 Hon. ELLEN MCELYEA, Judge Appealed Order: September 30, 2019

Appellant Mr. Donald Paul Geary

Appellant Ms KELSEY LYNNE GEARY

Appellee Mr. Cliff Head

Appellee Mrs. Shannon Glover Wallace

MCFADDEN, C. J., DOYLE, P. J., and HODGES, J.

McFadden, Chief Judge.

After a jury trial, Justin St. Germain was convicted of rape, incest, two counts of child molestation, and three counts of aggravated child molestation. St. Germain appeals, challenging the effectiveness of his trial counsel; but he has failed to show that counsel's performance was both deficient and prejudicial. St. Germain also claims that the trial court erred in denying a motion to exclude evidence of prior difficulties due to the lack of notice from the state; but the court properly denied the motion as notice was not required and St. Germain has not shown plain error with regard to any further objections that were not raised below. St. Germain argues that the court erred in denying a motion to compel transcription of opening statements and closing arguments; but he has shown no harm resulting from the missing transcripts. St. Germain's further contention that the state committed a Brady violation that was not preserved for appellate review. We therefore affirm the convictions.

1. Ineffective assistance of counsel.

St. Germain claims that his trial counsel was ineffective in failing to call two witnesses at trial, in failing to call character witnesses at sentencing, in conceding guilt during closing argument, and in failing to obtain a police report. To prevail on these claims, St. Germain "must show both that his counsel's performance was professionally deficient and that, but for the unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different. We need not review both parts of this test if [St. Germain] fails to prove one of them." Strother v. State, 305 Ga. 838, 848 (5) (828 S.E.2d 327) (2019) (citations omitted). St. Germain has failed to show that trial counsel's performance was both deficient and prejudicial.

(a) Failure to call witnesses at trial.

St. Germain claims that his trial counsel was ineffective in failing to call a psychologist as an expert witness and in failing to call the victim's minor sister as a witness to attack the victim's credibility. The claims are without merit. [T]he decision whether to present an expert witness, like other decisions about which defense witnesses to call, is a matter of trial strategy that, if reasonable, will not sustain a claim of ineffective assistance. And for a defendant to establish that a strategic decision constitutes deficient performance, a defendant must show that no competent attorney, under similar circumstances, would have made it.

Sullivan v. State, 308 Ga. 508, 512 (2) (b) (842 S.E.2d 5) (2020) (citations and punctuation omitted). Here, trial counsel testified at the motion for new trial hearing that he decided not to call the psychologist, who had examined St. Germain, to testify because he spoke to the psychologist after the examination and "there was stuff there that was not compl[i]mentary [about St. Germain] that didn't make it into the report. And I didn't want a chance for that stuff to come out. . . . I made the decision I didn't want a psychologist talking about what I had - was told that they had found in their testing and in their examination." Given counsel's reasonable explanation that he did not want to risk the possibility of harmful testimony from the psychologist, St. Germain "has failed to demonstrate that counsel's decision not to [call the psychologist as] an expert was constitutionally deficient." Horton v. State, __ Ga. __ (5) (b) (849 S.E.2d 382) (2020).

As for the victim's minor sister, St. Germain contends that counsel should have called her as a witness to ask her about her statement during a forensic interview that she and her mother do not tell the victim things because the victim cannot keep things to herself. But it is unclear from St. Germain's brief how such testimony would have undermined the victim's credibility since it did not pertain to the victim's truthfulness. Moreover, at the motion for new trial hearing, counsel testified that he probably would have presented testimony from a witness who actually said the victim was a liar, but he would not automatically have introduced the proposed testimony from the victim's sister because such a decision depends on all the circumstances, including the difficulty of controlling a child witness at trial. St. Germain has made no showing that the decision not to call the victim's minor sister as a witness was so unreasonable that it amounted to deficient performance. See Walker v. State, 301 Ga. 482, 491 (4) (c) (801 S.E.2d 804) (2017) ("[D]ecisions as to what witnesses and other evidence to present are matters of trial strategy and are ineffective only if [they are] unreasonable ones that no competent attorney would make.").

(b) Failure to call character witnesses at sentencing.

St. Germain contends that his trial counsel was ineffective in failing to call his parents, sister, and friends as character witnesses at the sentencing hearing. With regard to friends, St. Germain has not identified any particular witnesses or indicated specifically what testimony they could have given, and he made no such proffer at the motion for new trial hearing. "[A]t a motion for new trial hearing, either the uncalled witness must testify or the defendant must introduce a legally recognized substitute for the uncalled witness's testimony. Without having made such an evidentiary showing at the hearing, [St. Germain] cannot demonstrate prejudice on his claim that counsel was ineffective." Price v. State, 305 Ga. 608, 614 (4) (825 S.E.2d 178) (2019) (citations and punctuation omitted). See also Polk v. State, 275 Ga.App. 467, 470-471 (3) (620 S.E.2d 857) (2005) (where defendant offers no evidence as to identity of uncalled witnesses and makes no proffer as to their purported testimony, we cannot find that counsel's performance was deficient or prejudicial).

As for the parents and sister, although they testified at the motion for new trial hearing about St. Germain's good character, trial counsel was never asked specifically about those three witnesses and why he did not call them to testify at sentencing. Rather, the motion hearing transcript reveals that when counsel was asked if he had been given a list of potential character witnesses for the sentencing hearing, counsel did not say that he had been given such a list for sentencing. Instead, he testified that he had been given a list of...

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