Hines v. State

• Decision Date: 27 January 2006
• Docket Number: No. A05A1800.,A05A1800.
• Citation: 277 Ga. App. 404,626 S.E.2d 601
• Parties: HINES v. The STATE.
• Court: Georgia Court of Appeals

277 Ga. App. 404

626 S.E.2d 601

HINES v. The STATE.

No. A05A1800.

Court of Appeals of Georgia.

January 27, 2006.

Maurice Brown, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

BERNES, Judge.

A Fulton County jury found Larry Hines guilty of aggravated child molestation. On appeal from the denial of his amended motion for new trial, Hines contends that he received ineffective assistance from his trial counsel. Hines claims that his trial counsel should have objected when the police detective who interviewed him purportedly commented on his decision to remain silent. Finding no prejudicial error, we affirm.

Viewed in the light most favorable to the verdict, the evidence adduced at trial shows that on July 16, 2002, Anita Mack and her eight-year-old son R.M. paid a social visit to Hines at his apartment. Mack and Hines began drinking alcohol. As they drank, Hines forced R.M. to sit in his lap. While Mack went outside to smoke a cigarette, Hines kissed R.M. in the mouth with his tongue. R.M. ran outside the apartment and told his mother what Hines had done to him. After hearing what had happened, Mack decided to go across the street and purchase more cigarettes and told R.M. to wait there.

After R.M. watched Mack enter the convenience store across the street, he went back inside Hines' apartment. Hines told R.M. to pull down his pants. When R.M. refused, Hines pulled them down himself. Hines then got on his knees, placed R.M.'s penis into his mouth, and began to "move[ ] back and forth." When Mack returned to the apartment, she found Hines kneeling in front of R.M., performing oral sex on him.

1. At trial, both R.M. and Mack testified on behalf of the State. Although Hines does not raise the general grounds, we conclude, after reviewing the evidence in the light most favorable to the jury's verdict, that any rational trier of fact could have found Hines guilty of aggravated child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Steele v. State, 248 Ga.App. 441, 443(3), 546 S.E.2d 547 (2001).

2. Hines contends that the trial court should have concluded that he received ineffective assistance from his trial counsel. His sole claim of ineffective assistance is that his trial counsel should have objected to certain comments made by a Fulton County police detective during cross-examination.

To prevail on a claim of ineffective assistance of counsel, a defendant must show two things: (1) that counsel's performance was deficient, and (2) that the deficiency prejudiced the defense. The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous.

(Footnotes omitted.) Rose v. State, 258 Ga. App. 232, 234-235(2), 573 S.E.2d 465 (2002). See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hines carries the burden of establishing his ineffective assistance claim. Buice v. State, 239 Ga.App. 52, 59(6), 520 S.E.2d 258 (1999).

With these principles in mind, we turn to the evidence of record relevant to Hines' ineffective assistance claim. During the course of its case-in-chief, the State called a Fulton County detective who participated in the custodial interview of Hines following his arrest. On direct examination, the detective testified that Hines had been given his Miranda warnings and had consented to speak to law enforcement officers without an attorney present. The detective further testified that during the course of the custodial interview certain inconsistencies became apparent in how Hines responded to the questions posed to him. For example, the detective testified that when the officers began the interview by asking Hines general questions about his past, "he had no trouble at all remembering things from 1965 and 1966 when he was in the military." In contrast, whenever the officers asked Hines critical questions about what had occurred with R.M. only a few hours earlier, Hines would have a "memory lapse" and would make comments such as "Why can't I remember[?] Why can't I remember?"

On cross-examination, the detective conceded that Hines had expressly denied committing the crime during the custodial interview. After making this concession, however, the detective then commented on how Hines responded at other points during the interview when the officers directly accused him of committing the offense. The colloquy between defense counsel and the detective was as follows:

[DEFENSE COUNSEL]: Now let's turn to the interview that you conducted with my client. Throughout that interview I think you all asked several times about whether or not this incident occurred. Did he, in fact, state that he had not committed this act?

[DETECTIVE]: Yes, he did. If I can elaborate also. Near the end of his interview he did state that I did not do what I'm being accused of. However, throughout the interview — that was at the very end — throughout the interview there was probably eight to ten times, I'm guesstimating, that we directly accused him of either performing oral sex, molestation, and he had no response whatsoever. It was an indication to us as interviewers that if I accuse you of something that you feel you didn't do, then that's what your response would be, to say I did not do it. He never directly responded to I did not do it when we directly accused him of molestation.

[DEFENSE COUNSEL]: He told you at some point in that interview that he did not commit this act, correct?

[DETECTIVE]: Right, outside of direct accusations, in conversation he did.

Thereafter, in her closing argument, defense counsel argued that the detective's testimony showed that Hines had fully cooperated with law enforcement by agreeing to speak with them without an attorney present and that he had expressly denied committing the offense during his custodial interview. In contrast, in his closing argument, the assistant district attorney emphasized other portions of the detective's testimony:

But when one person experiences something, that person should be able to tell you without any inconsistencies in their story. Think about that. One man being asked questions by a police officer, yeah, he volunteered, he waived his right, he waived his rights, he agreed to talk to them, he cooperated up until the point when they started asking him about . . . what happened. Why can't I remember? Why can't I remember? Total inconsistencies in one person's story. . . . You should be able to remember a few hours before if someone is going to accuse you of child molestation; you should be able to tell them you cooperated. You should be able to tell them.

The assistant district attorney later reiterated: "[A]sk yourself[,] why couldn't [Hines] remember any of the events surrounding the allegations?"

On appeal, Hines argues that the detective's testimony on cross-examination violated Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) because it constituted an impermissible comment upon his decision to remain silent. He contends that, as a consequence, defense counsel's failure to object to the testimony was objectively unreasonable and constituted deficient performance. Hines further claims that defense counsel's failure to object was prejudicial because the assistant district attorney purportedly called attention to the detective's testimony during closing argument, and because the evidence of his guilt allegedly was not overwhelming.

We agree with Hines that the comments made by the detective on cross-examination were improper and that defense counsel's failure to object to the comments constituted deficient performance.

It is fundamentally unfair and a violation of due process of law for a State to permit cross-examination of a defendant as to post-arrest silence where the defendant has been informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or to permit comment thereon, since the giving of the Miranda warnings might induce silence by implicitly assuring a defendant that his silence will not be used against him. Doyle v. Ohio, 426 U.S. 610, [96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)]; Clark v. State, 237 Ga. 901, 230 S.E.2d 277 (1976). See also Bennett v. State, 254 Ga. 162(4), 326 S.E.2d 438 (1985).

Chapman v. State, 263 Ga. 393, 393-394(1), 435 S.E.2d 202 (1993). Furthermore, in Durden v. State, 250 Ga. 325, 327-328(3), 297 S.E.2d 237 (1982), the Court held that a police officer's testimony that the defendant answered certain questions asked of him by the police during a post-arrest interview, but gave no response to other critical questions, violated the rule set forth in Doyle.

In the present case, Hines had been Mirandized but chose to answer certain questions posed by the detective while declining to answer others. Like in Durden, the detective testified to the fact that at certain points during the custodial interview, Hines "had no response whatsoever" when asked critical questions about the alleged crime. The detective went further by giving his explicit opinion about the significance of Hines' failure to respond. And, while under certain circumstances a witness may be entitled to testify that a defendant remained silent when the defense "opens the door" to such testimony,¹ that was not the case here, where the detective volunteered additional information beyond the scope of the question posed by defense counsel. As such, the detective's comments clearly were inappropriate and inadmissible. See Durden, 250 Ga. at 327-328(3), 297 S.E.2d 237. Accordingly, defense counsel's failure to object to the detective's comments or to request that they be stricken constituted deficient...