Mann v. State, A01A1333.

• Decision Date: 17 October 2001
• Docket Number: No. A01A1333.,A01A1333.
• Citation: 252 Ga. App. 70,555 S.E.2d 527
• Parties: MANN v. The STATE.
• Court: Georgia Court of Appeals

555 S.E.2d 527

252 Ga. App. 70

MANN v. The STATE.

No. A01A1333.

Court of Appeals of Georgia.

October 17, 2001.

Mau & Kondritzer, Kenneth D. Kondritzer, J., for appellant.

Michael H. Crawford, Dist. Atty., E. Jay McCollum, Asst. Dist. Atty., for appellee.

SMITH, Presiding Judge.

Edward Scott Mann was convicted by a jury of two counts of aggravated sodomy. The trial court granted in part and denied in part his motion for new trial as amended, finding that as to one count, the indictment did not properly allege the offense for which Mann was convicted. The court denied the motion with respect to the remaining charge. Mann appeals. Because we agree with Mann that his trial counsel was ineffective under the standard of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in failing to object to improper opinion testimony that the victim was telling the truth, we reverse and remand this case for a new trial.

The only evidence concerning the allegations against Mann came through the testimony of the victim and witnesses to whom the victim made statements. The victim's stepmother testified that her six-year-old daughter told her that the victim, who was the same age as her daughter, "pulled his pants down and made me suck his pee-pee." The stepmother asked the victim what happened. He first replied, "Nothing," but he then began crying. She told him not to lie to her and asked who showed him how to behave in this manner. He answered, "My Uncle Scott." The stepmother testified that "Uncle Scott" was her brother, Scott Mann, who babysat the two children from time to time. According to the stepmother, the victim told her that Mann had tried to place his penis into the victim's bottom and that "it hurt bad." She testified that she did not seek medical attention because no penetration had been made; she stated that she asked the victim "if he put it inside, and he said no, ma'am but it hurt real bad."

Much of the victim's testimony was non-responsive. Although he often nodded his head affirmatively or shook his head negatively when asked questions by the prosecutor, many times he refused to respond to the prosecutor's questions, particularly those involving the incidents alleged against Mann. When asked to describe what had happened, he refused to respond. He did, however, shake his head negatively when asked if he was happy being around Uncle Scott and nodded his head when asked if Uncle Scott had done anything that he did not like and whether Uncle Scott had touched him on his body. On more than one occasion, he would not respond when the prosecutor asked him to state or point to the part of his body that Mann had touched, but he once nodded affirmatively when asked if Mann touched his mouth with his penis. When asked who showed him how to do what he did to his sister, he answered, "Scott."

Mann complains about the testimony of the remaining two State's witnesses. The first witness called by the State was Laurie Love, who investigated child abuse cases for the local sheriff's department. She interviewed the victim, who told her that Mann had licked his penis and his bottom several times. The prosecutor asked this witness whether, during her investigation, she found a reason to "investigate further." The witness answered, "I believed him." No objection was made to this testimony.

The State's second witness was Holly Shepherd, a professional counselor who worked with the victim because of the charges brought against Mann and because the victim had been "acting out." He told her that Mann had touched his penis with Mann's hands and mouth and that he had touched Mann's penis with his hands and mouth. The victim could not remember when, or how many times, these events occurred. The prosecutor asked Shepherd if she found "any evidence whatsoever that he is not telling the truth when he told you these things?" Shepherd answered, "The answer to that question is no. I believe he's telling the truth."

The trial court then called a bench conference and stated to the prosecutor that it was not proper for the State "to test another witness's credibility by this witness." Defense counsel objected to this line of questioning on the ground that witnesses cannot testify to the ultimate issue of molestation, and the trial court added that "one witness can't tell whether another witness is telling the truth." The prosecutor stated that he would not "go there again." and the trial court stated that it would sustain the objection. Although the trial court sustained the objection, the jury nevertheless heard the testimony; no instruction was given to the jury to disregard the testimony, and no other type of curative instruction was asked for or given. Mann testified, denying the allegations and denying ever acting as a babysitter for his sister's children.

1. Among other contentions, Mann argues that his trial counsel's failure to object to this testimony concerning the victim's credibility constituted ineffective assistance of counsel. Under the standard of Strickland, supra, 466 U.S. at 687, 104 S.Ct. 2052, to prevail on an ineffectiveness claim, a defendant must show both that trial counsel's performance was deficient and that, but for this deficiency, a reasonable probability exists that the outcome of the trial would have been different. See, e.g., Head v. Carr, 273 Ga. 613, 615-616(4), 544 S.E.2d 409 (2001). We have repeatedly held 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. OCGA § 24-9-80." (Citations and punctuation omitted.) Price v. State, 220 Ga.App. 176, 177(2)(b), 469 S.E.2d 333 (1996). See also Lagana v. State, 219 Ga.App. 220, 221(1) 464 S.E.2d 625 (1995); Roberson v. State, 214 Ga.App. 208, 210(4), 447 S.E.2d 640 (1994). Given this well-settled law, trial counsel's failure to object to this clearly objectionable testimony when it first occurred constituted deficient performance. In addition, although it appears that trial counsel lodged an objection after the second witness testified concerning the victim's credibility, as noted above, the evidence was nevertheless admitted and heard by the jury. The jury was not instructed to disregard it. Under this circumstance, we further conclude...