Gilmer v. State

• Decision Date: 18 November 2016
• Docket Number: A16A0919
• Citation: 339 Ga.App. 593,794 S.E.2d 653
• Parties: Gilmer v. The State.
• Court: Georgia Court of Appeals

339 Ga.App. 593

794 S.E.2d 653

Gilmer

v.The State.

A16A0919

Court of Appeals of Georgia.

November 18, 2016

Bernard Stephen Brody, Atlanta, for Appellant.

Robert D. James Jr., Gerald Mason, Atlanta, for Appellee.

McMillian, Judge.

Darius Gilmer appeals from his convictions for child molestation and aggravated child molestation against then-11-year-old F. P., arguing that he received ineffective assistance of trial counsel and that the trial court erred in dismissing a juror during the trial. For the reasons that follow, we find no error and affirm.

Viewed in the light most favorable to the verdict, see Douglas v. State , 327 Ga.App. 792, 792 (1), 761 S.E.2d 180 (2014), the evidence shows that for several months in 2007, Gilmer had a relationship with F. P.'s mother. Gilmer sometimes stayed at the mother's apartment with F. P. and his younger brother, W. G., while the mother was at work. On several such occasions, Gilmer engaged in sexual contact with F. P. These incidents included Gilmer having F. P. use his hand to stroke Gilmer's unclothed penis until Gilmer ejaculated; Gilmer penetrating F. P.'s anus with his penis while in the shower; and Gilmer touching F. P.'s penis while masturbating.

In 2008, the mother and the two boys moved to another state to live with a family friend. That friend began to suspect that F. P.'s brother, W. G., had been molested after W. G. inappropriately touched another child. She questioned both F. P. and W. G. separately, and both boys told her that they had been molested. They repeated their outcries in forensic interviews conducted by a law enforcement officer.

The indictment charged Gilmer with committing the offense of child molestation by touching F. P.'s penis with his hand and having F. P. touch his penis with his hand, and with committing the offense of aggravated child molestation by penetrating F. P.'s anus with his penis.¹ At trial, Gilmer was found guilty of both charges. After his motion for new trial, as amended, was heard and denied, he filed this appeal.

1. Although not enumerated as error, we find at the outset that the evidence recounted above was sufficient for the jury to find Gilmer guilty of these offenses under the standard set forth in Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See OCGA § 16-6-4 (a) (child molestation); OCGA § 16-6-4 (c) (defining aggravated child molestation).

2. In his first enumeration of error, Gilmer argues that trial counsel rendered ineffective assistance by: (1) failing to object to the bolstering testimony of the State's expert and the family friend who initially received the outcry; (2) failing to obtain and utilize DFCS and therapy records for the children; and (3) failing to obtain and introduce evidence of the mother's arrest for perjury. We discern no error in the trial court's denial of the motion for new trial on these grounds.

To prevail on his claim of ineffective assistance of trial counsel, Gilmer "must show both that his counsel's performance was deficient and that the deficient performance so prejudiced him that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different." Daniel v. State , 338 Ga.App. 389, 392 (3), 787 S.E.2d 281 (2016). "In reviewing a claim of ineffective assistance, we give deference to the trial court's factual findings and credibility determinations unless clearly erroneous, but we review a trial court's legal conclusions de novo." Grant v. State , 295 Ga. 126, 130 (5), 757 S.E.2d 831 (2014).

(a) Gilmer first argues that his counsel was deficient for, among other things, failing to object to testimony from two witnesses that improperly bolstered the credibility of F. P. Our Evidence Code provides that "[t]he credibility of a witness shall be a matter to be determined by the trier of fact[.]" OCGA § 24-6-620.² "It is well established that a witness, even an expert, can never bolster the credibility of another witness as to whether the witness is telling the truth. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury." (Citations omitted.) Bly v. State , 283 Ga. 453, 459 (3), 660 S.E.2d 713 (2008) ; see also Walker v. State , 296 Ga.App. 531, 535 (1) (b), 675 S.E.2d 270 (2009).

The state's expert witness, Anique Whitmore, testified at trial about F. P.'s use of the word "blowtorch" to describe his experience of the aggravated molestation during a forensic interview. When asked why "that kind of descriptive language [is] important in a disclosure of abuse," Whitmore responded:

... [W]hen you look for the genuine nature of a child's response, you look for words that one would assume—feeling like a—if you got hit by a blowtorch what that might feel like. A child this age perhaps has never experienced anything like this before. That to them is how they describe that pain, that interaction, that force. For him, perhaps he saw a blowtorch and that's how he would—would relate that pain. So the—the spontaneity and the genuineness of that response, for me, adds credibility to what [F. P.] was saying.

We agree that this testimony constitutes improper bolstering. See Buice v. State , 239 Ga.App. 52, 55 (2), 520 S.E.2d 258 (1999) (expert witnesses may not testify regarding truthfulness or credibility). However, to establish his claim of ineffective assistance of counsel, Gilmer must also demonstrate that his trial counsel's failure to object to this testimony was constitutionally deficient. See Ford v. State , 298 Ga. 560, 566 (8), 783 S.E.2d 906 (2016). There is a "strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct." (Citation and punctuation omitted.) Green v. State , 291 Ga. 579, 581 (2), 731 S.E.2d 359 (2012). "[H]indsight has no place in an assessment of the performance of trial counsel, and a lawyer second-guessing his own performance with the benefit of hindsight has no significance for an ineffective assistance of counsel claim." (Citation and punctuation omitted.) Simpson v. State , 298 Ga. 314, 318 (4), 781 S.E.2d 762 (2016) (even where counsel rejected characterization of his performance as strategic, examination of his entire testimony shows his decisions were, in fact, strategic). See also McNair v. State , 296 Ga. 181, 184 (2) (b), 766 S.E.2d 45 (2014) ("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).

Moreover, as explained by our Supreme Court,

we are not limited in our assessment of the objective reasonableness of lawyer performance to the subjective reasons offered by trial counsel for his conduct. If a reasonable lawyer might have done what the actual lawyer did—whether for the same reasons given by the actual lawyer or different reasons entirely—the actual lawyer cannot be said to have performed in an objectively unreasonable way.

Shaw v. State , 292 Ga. 871, 875 (3) (a) n.7, 742 S.E.2d 707 (2013).

With respect to Whitmore's bolstering testimony, a review of the record reveals that a reasonable lawyer might have decided not to object and that such decision would fall within the realm of sound trial strategy. Whitmore was called as an expert witness by the State in forensic interviewing and forensic psychotherapy and was qualified without objection by trial counsel. On direct, Whitmore explained that she had not conducted the forensic interviews of the children, which had taken place in Kentucky. However, she testified at length regarding the nature of forensic interviews and various relevant factors to evaluate the interviews, including signs the victim has been coached, the use of leading questions, the child's suggestibility, rapport building, and studies regarding why a child victim may or may not disclose sexual abuse to one individual versus another. Whitmore intimated that she was critical of the forensic interview several times, noting that "there were areas in which [she] would suggest adjusting," that there was confusion between the interviewer and the child at times, and that she might have asked certain questions "in a different way."

On cross-examination, trial counsel established that Whitmore had no personal knowledge whether the children had been molested and had not interviewed them. Trial counsel also was able to elicit that Whitmore was an experienced expert in this area and that she was critical of the way that the forensic interviews were conducted, including that she "would not give [the interviews] a higher—a very high grade"; some of the questions were leading and suggestive; the interviewer did not ask follow-up questions to ensure a full disclosure from the child; and the interviewer spent more time in building rapport with the child than drawing out details of the allegations.

It is clear from the face of the record that trial counsel's strategy was to co-opt Whitmore as his own expert witness to challenge the way that the forensic interviews were conducted. Under these circumstances, it would not have been unreasonable for counsel to decline to object to the bolstering testimony, inasmuch as it would draw attention to an error Whitmore made in her testimony, which would be inconsistent with counsel's attempt to show that Whitmore was a qualified expert who had serious concerns with the forensic interviews. See Jones v. State , 292 Ga. 593, 600–01, 740 S.E.2d 147 (2013) (reasonable for counsel to fail to object to bolstering testimony by law enforcement). See also Terry v. State , 284 Ga. 119, 122 (2) (d), 663 S.E.2d 704 (2008) ("It is reasonable strategy for defense counsel to place disagreeable information before the jury in a manner he can control rather than allow the subject matter to be presented in a more damaging fashion.")....