Goldstein v. State, A06A1280.

• Decision Date: 01 November 2006
• Docket Number: No. A06A1280.,A06A1280.
• Parties: GOLDSTEIN v. The STATE.
• Court: Georgia Court of Appeals

283 Ga. App. 1

640 S.E.2d 599

GOLDSTEIN v. The STATE.

No. A06A1280.

Court of Appeals of Georgia.

November 1, 2006.

Reconsideration Denied December 15, 2006.

Garland, Samuel & Loeb, Donald F. Samuel, Peters, Roberts, Borsuk & Rubin, Douglas N. Peters, Decatur, Brian Steel, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Anne E. Green, Bettianne C. Hart, Assistant District Attorneys, for appellee.

SMITH, Presiding Judge.

A jury found Gary Goldstein guilty of child molestation and aggravated sexual battery.¹ His amended motion for new trial was denied, and he now appeals, raising several enumerations of error.² In addition to raising the general grounds, Goldstein contends that the trial court erred by clearing the courtroom for the victim's testimony and that his trial counsel provided ineffective assistance. Upon review, we find that the evidence presented at trial was sufficient to authorize the jury to find Goldstein guilty and that the trial court did not err in temporarily closing the courtroom during the young victim's testimony. For several reasons, however, we conclude that although Goldstein's trial counsel was experienced and generally able, his assistance in this trial was ineffective, particularly because he inexplicably failed to present evidence known to him that bears on several important issues and could have changed the outcome of the trial. We therefore reverse the trial court's denial of Goldstein's motion for a new trial.

1. We first address Goldstein's contention that the evidence presented at trial was insufficient to support his convictions. Viewed to support the jury's verdict, the evidence showed that the incident upon which the charges against Goldstein were based occurred at a family dinner at Goldstein's home on April 11, 2003. A number of other family members were present, including Goldstein's wife Joanne and their two young children, Joanne's sister Esther, Esther's seven-year-old daughter (the victim), Esther's four-year-old daughter, Joanne's parents, and Goldstein's parents. The chronology of some events is disputed, but it is clear that at some point the children left the dinner table and went upstairs to play. At some point, Goldstein went upstairs for a short time to help one of his sons with a broken toy, and he returned shortly thereafter. At one time during the evening, the victim sat on Goldstein's lap at the dinner table. Also at some point, the victim wet her pants and told her mother. Her mother testified that it was unusual for the victim to wet her pants. The victim then changed into sweat pants belonging to one of her cousins, and she and her family left shortly thereafter.

At home, while in the bathtub the victim told her mother that Goldstein "stuck his finger in my vagina tonight," demonstrating with her mother's finger. Her mother quickly withdrew her finger, and the victim told her that Goldstein's finger had gone "much further than that." When the victim's father came home from work later in the evening, the victim told him as well. To her father, she added that Goldstein's act "felt kind of good." Her mother testified that since that time, the victim's behavior had changed. She wets her pants often and has nightmares.

A Fulton County police officer testified that Esther reported the incident ten days later, on April 21, 2003, telling him that she learned of the incident when she discovered her daughter in an upstairs bathroom at home upset and crying. A videotaped interview with the victim was played for the jury.

A pediatrician testified that she saw the victim on April 22, 2003 and found no signs of trauma. According to the pediatrician, neither the absence of indications of trauma nor the victim's professed lack of pain was surprising, and these results did not indicate that the victim had not been digitally penetrated. Nancy Aldridge, a forensic interviewer, testified that she spoke with the victim's parents before interviewing the victim because it was important to know what the parents told the victim when the victim made her disclosure. The victim also testified, and before her testimony began, the trial court closed the courtroom over Goldstein's objection. The victim identified Goldstein as the person who placed his finger in her vagina. She testified that after he did so she went back to playing with the other children and forgot about the penetration. She went downstairs and rejoined the adults, at some point sitting on Goldstein's lap.

Other family members testified that Goldstein was never out of their sight that evening until after the victim wet her pants. Goldstein took the stand in his own defense, testifying that he was at the dinner table all evening before the victim wet herself. According to Goldstein, the first time he saw the victim in the upstairs bedroom of one of his sons, she had already changed into his other son's sweat pants. Goldstein stated that this occurred after he went upstairs to repair a toy for one of the boys, who told him that his other son was in his room. He testified that when he opened the bedroom door to check on his son, he saw the victim with the sweat pants slightly lowered, standing only a few inches from his son and with the other girl in the room. After he opened the door, she turned around and said, "Hey, you can't see my vagina." When he reprimanded her in front of the other children, she became embarrassed. He denied touching the victim inappropriately.

The evidence was in conflict, and the jury obviously believed the testimony of the child victim and not that of Goldstein. The victim's testimony alone was sufficient to authorize the jury to find Goldstein guilty under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Pate v. State, 269 Ga.App. 684, 687(2), 605 S.E.2d 90 (2004).

2. Goldstein maintains that the trial court committed reversible error in clearing and closing the courtroom before the victim testified. We do not agree. The State requested that the courtroom be cleared, and Goldstein objected on the ground that he had a right to a public trial and that the victim, although a child, had told her story before, in interviews and in therapy. The trial court granted the State's request, noting that on those occasions only a few individuals from her family were present. Those interviews were unlike the courtroom situation, in which many strangers would be present, comprising a 12-person jury and a courtroom full of other people. The trial court allowed experts from the State and the defense to remain in the courtroom during the child's testimony, and the courtroom was reopened immediately following the child's testimony.

Contrary to Goldstein's argument, such limited closure did not violate his Sixth Amendment right to a public trial. Moore v. State, 151 Ga. 648, 653, 108 S.E. 47 (1921). Although a strong presumption exists in favor of openness, reasonable limitations may be imposed for good reason. Waller v. Georgia, 467 U.S. 39, 45(II)(A), 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

( Citation and punctuation omitted.) Id. "[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." Id. at 48(II)(B), 104 S.Ct. 2210.

It is clear that under the proper circumstances, a courtroom may be closed. Indeed, Georgia has a statute that provides specifically for partial closure of the courtroom when a person under the age of 16 testifies about a sex offense. OCGA § 17-8-54. The statute was "based upon a legislative determination that there is a compelling state interest in protecting children while they are testifying concerning a sex offense." (Citation and footnote omitted.) Hunt v. State, 268 Ga.App. 568, 571(1), 602 S.E.2d 312 (2004). This court has held that the partial closure under Georgia's statute does not violate a defendant's Sixth Amendment right to a public trial. Id. at 569-571(1), 602 S.E.2d 312. Here, as in Hunt, we conclude that the trial court's temporary partial closure, effected to protect the young victim, was justified. Id. at 571(1), 602 S.E.2d 312.

3. Goldstein's remaining arguments focus on his assertion that his trial counsel provided ineffective assistance. To prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that the deficiency so prejudiced him that a reasonable likelihood exists that but for counsel's deficiency the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A strong presumption exists that counsel's conduct falls within the broad range of reasonable professional conduct. Harris v. State, 279 Ga. 304, 306(3), 612 S.E.2d 789 (2005). As a reviewing court, we must uphold the trial court's findings of fact unless they are clearly erroneous. Morris v. State, 280 Ga. 184, 185(2), 625 S.E.2d 391 (2006). We review the trial court's legal conclusions de novo. Id. Goldstein cites a number of instances of alleged ineffectiveness.

(a) Goldstein maintains that his trial counsel was ineffective in failing to cross-examine the victim's mother regarding her many prior allegations of child molestation. At the hearing on the motion for new trial, a number of witnesses testified that these allegations were false. The victim's mother first...