Grier v. State, A16A0236

• Citation: 339 Ga.App. 778,792 S.E.2d 737
• Decision Date: 09 November 2016
• Docket Number: A16A0236
• Parties: GRIER v. The STATE.
• Court: United States Court of Appeals (Georgia)

339 Ga.App. 778

792 S.E.2d 737

GRIER

v.The STATE.

A16A0236

Court of Appeals of Georgia.

November 9, 2016

Reconsideration Denied December 8, 2016

Larry David Wolfe, for Appellant.

Robert D. James Jr., Dist. Atty., Deborah D. Wellborn, Elizabeth D. Racine, Lee Y. Williams, Asst. Dist. Attys., for Appellee.

Barnes, Presiding Judge.

Following the denial of his motion for new trial, Rafer Grier appeals his convictions on four counts of aggravated child molestation and statutory rape. On appeal, Grier raises several errors related to his access to the victim's records with the Department of Family and Children Services ("DFACS"), arguing that he was entitled to the records pursuant to OCGA § 17–16–1, and that the trial court erred in finding that there was no exculpatory evidence in them. He also contends that his trial counsel was ineffective, that the trial court erred in admitting other acts evidence, and that his rights under the Equal Protection clause were violated. Following our review, we affirm.

Viewed in the light most favorable to the verdict, Davis v. State , 275 Ga.App. 714, 715 (1), 621 S.E.2d 818 (2005), the evidence demonstrates that Grier was a Spanish teacher at Stephenson Middle School when he initiated a sexual relationship with the fourteen-year-old victim, who was in foster care under DFACS custody. The sexual encounters included sodomy and intercourse occurred multiple times in Grier's classroom, and, on at least one occasion, outside of school, from January 2008 until the victim reported the sexual relationship in April 2008.

1. In two related enumerations, Grier contends that he was entitled to the victim's DFACS records pursuant to OCGA § 17–16–1 et seq., and that the trial court erred in ruling that there was no exculpatory evidence in them.

(a) Grier maintains that the enactment of the reciprocal discovery act expanded discovery to include DFACS records. However, contrary to his assertion, the act does not provide an independent statutory basis for the discovery of DFACS files. Horne v. State , 192 Ga.App. 528, 531 (4) (a), 385 S.E.2d 704 (1989). See Ellis v. State , 289 Ga.App. 452, 456 (2), 657 S.E.2d 562 (2008) ("contrary to [appellant's] contentions, the reciprocal discovery act does not provide an independent statutory basis for the discovery of [the therapist's] files.") Thus, access to the DFACS files "is prohibited except as [otherwise] provided by statute." Davidson v. State , 183 Ga.App. 557, 559 (4) (b), 359 S.E.2d 372 (1987).

To that end, OCGA § 49–5–40 (b) provides that "[e]ach and every record concerning reports of child abuse ... which is in the custody of the [Department of Human Services], or other state or local agency, or child advocacy center is declared to be confidential, and access thereto is prohibited except as provided in Code Sections 49–5–41 and 49–5–41.1."

OCGA § 49–5–41 (a) [ (11) ] grants access to such records to (a) court, by subpoena, upon its finding that access to such records may be necessary for determination of an issue before such court; provided, however, that the court shall examine such record in camera, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then before it and the record is otherwise admissible under the rules of evidence.¹

Dodd v. State , 293 Ga.App. 816, 821 (4), 668 S.E.2d 311 (2008).

In this case, Grier's trial counsel twice subpoenaed the victim's DFACS records, but in each instance, rather than request an in camera inspection by the trial court as mandated by statute, the subpoena directed that the files be sent to the attorney's office. DFACS filed a motion to quash, to which Grier's trial counsel did not respond, and ultimately trial counsel never reviewed the victim's DFACS records. Accordingly, because Grier's trial counsel did not follow the statutorily prescribed procedure for obtaining the DFACS files, and given that OCGA § 17–16–1 et seq. does not expand discovery of DFACS records independent of the procedure provided for in OCGA § 49–5–40 (b), this enumeration fails.

(b) The trial court conducted an in camera inspection of the DFACS records after trial and before the hearing on Grier's motion for new trial. In its order denying the motion for new trial, the trial court found that "there is no exculpatory information contained [in the victim's DFACS file], [and] that any information in the DFACS records was either irrelevant or cumulative of other evidence in the case." Grier contends that the trial court erred in finding that there was no exculpatory information in the file. We do not agree.

"A defendant who is denied access to certain information after the court performs an in camera inspection has the burden on appeal of showing both the materiality and the favorable nature of the evidence sought." (Footnote omitted.) Stephens v. State , 305 Ga.App. 339, 343 (3), 699 S.E.2d 558 (2010). Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome." (Citation and punctuation omitted.) Young v. State , 290 Ga. 441, 443 (2), 721 S.E.2d 839 (2012). This Grier has not done. His core contention appears to be that the victim lacked credibility and that the DFACS records chronicled her prior misconduct, and were thus exculpatory. But, as noted by the trial court, this information was merely cumulative of testimony about the victim's misconduct presented at trial. Further, Grier has not met his burden on appeal of demonstrating what excluded information in the DFACS records, which are included in the record on appeal, would have been so material that there is a reasonable opportunity that the outcome of his case would have been different if the records had been disclosed at trial.

Morever, Grier's contention that due process per Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires that he have access to any exculpatory information regardless of its duplicative nature is also meritless. This court has found that the trial court's in camera inspection of evidence satisfies the requirements of Brady because this procedure balances the public's interest in protecting the confidentiality of those records and the defendant's right to due process. Davidson , 183 Ga.App. 557, 359 S.E.2d 372 (1987). As previously noted, on appeal Grier has the burden of showing both the materiality and the favorable nature of the evidence sought. Young , 290 Ga. at 443 (2), 721 S.E.2d 839. "Evidence is constitutionally material when its exculpatory value is ... of such a nature that a defendant would be unable to obtain other comparable evidence by other reasonably available means." (Citation omitted.) State v. Mussman , 289 Ga. 586, 590 (2), 713 S.E.2d 822 (2011). Grier has not demonstrated that the evidence he contends was contained in the DFACS file meets this standard, and thus this arguments fails.

2. Grier contends that his trial counsel was ineffective in several regards relating to the DFACS records. He maintains that his trial counsel was ineffective by failing to obtain them, failing to argue that portions of the record were discoverable under OCGA § 17–16–1 et seq., and failing to object and request the DFACS records when the State's expert testified that he had viewed portions of the records.

To prevail on a claim of ineffective assistance, Grier

must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. A strong presumption exists that counsel's conduct falls within the broad range of professional conduct.

(Citation and punctuation omitted.) Pruitt v. State , 282 Ga. 30, 34 (4), 644 S.E.2d 837 (2007). If he fails to meet his burden on one prong of the two-prong test, then the appellate court need not review the other prong. Wright v. State , 291 Ga. 869, 870 (2), 734 S.E.2d 876 (2012). "We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." (Citation and punctuation omitted.) Robinson v. State , 277 Ga. 75, 76, 586 S.E.2d 313 (2003).

(a) Grier contends that his trial counsel was ineffective for failing to subpoena the records to the trial court's chambers instead of to counsel's office, following the procedure established in Davidson , 183 Ga.App. at 559(4)(b), 359 S.E.2d 372. However, he did not assert this claim of ineffectiveness in his motion for new trial, nor did the trial court rule on it. Thus, "this aspect of his ineffective assistance claim was waived because it was not raised at the hearing on the motion for new trial." Thompkins v. State , 272 Ga. 835, 836 (2) (c), 536 S.E.2d 747 (2000).

Moreover, even if this claim were not waived, Grier has failed to show how this deficiency prejudiced him "to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different." (Citations omitted). Pruitt , 282 Ga. at 34 (4), 644 S.E.2d 837. The trial court reviewed the records before ruling on the motion for new trial and held that there was "no exculpatory evidence contained therein." Thus, Grier has not shown that the trial court would have reached a different conclusion if it had viewed the records before trial.

(b) Grier also contends that his trial counsel was ineffective for failing to argue that portions of the record were discoverable under OCGA § 17–16–1 et seq., the reciprocal discovery act. However, as noted previously, the act does not provide an independent statutory basis for the discovery of DFACS files. Horne v. State , 192 Ga.App. at 531 (4) (a), 385 S.E.2d 704 (1989). A meritless argument...