Mency v. State, A97A0981

• Decision Date: 01 October 1997
• Docket Number: No. A97A0981,A97A0981
• Citation: 228 Ga.App. 640,492 S.E.2d 692
• Parties: , 97 FCDR 3637 MENCY v. The STATE.
• Court: Georgia Court of Appeals

Page 692

492 S.E.2d 692

228 Ga.App. 640, 97 FCDR 3637

MENCY v. The STATE.

No. A97A0981.

Court of Appeals of Georgia.

Oct. 1, 1997.

Joseph J. Drolet, Atlanta, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Sheila A. Connors, Assistant District Attorneys, for appellee.

RUFFIN, Judge.

A DeKalb County grand jury returned an indictment charging Kelvin Mency with three counts of aggravated child molestation, eight counts of child molestation, one count of statutory rape, and one count of criminal attempt to commit child molestation. A jury returned guilty verdicts on seven counts of the indictment. The trial court declared a mistrial on an additional five counts because the jury deadlocked on those counts after two days of deliberation. In addition, the trial court directed a verdict on one count of the indictment. Mency's appellate counsel filed a motion for new trial and an amended motion for new trial. The trial court held an evidentiary hearing on the motion and thereafter filed an order denying it. For reasons which follow, we affirm.

Viewed in a light most favorable to support the jury's verdict, the evidence shows that Mency worked as a health and physical education teacher at Knollwood Elementary School from 1991 through the 1993-1994 academic year. The victims in this case were students in his physical education classes.

Victim S.H. testified to several incidents of alleged molestation. One incident occurred in a hallway in front of the school library. Mency kissed her and removed some chewing gum from her mouth as they kissed. On another occasion, Mency asked S.H. to go into a shed on the elementary school property and again kissed her. S.H. also testified that Mency had anal intercourse with her in the teachers' bathroom. On two additional occasions, Mency had anal intercourse with S.H. in an equipment room of the elementary school. S.H. further described incidents at the elementary school in which Mency kissed her breasts and caused S.H. to put her hands and mouth on his penis.

Victim S.O. testified that one evening she accompanied her mother to a PTA meeting at the elementary school. S.O. went to a classroom at Mency's request where they kissed. On a second occasion, Mency asked S.O. to go into an equipment room at the elementary school where they kissed and Mency ejaculated in front of S.O. During a third incident in the teachers' bathroom Mency touched S.O. on her breasts and buttocks and inserted his finger into her vagina.

Victim L.C. testified that Mency took her outside the elementary school building and put his hand under her skirt. Mency then moved L.C.'s tennis briefs to the side and touched her leg until she forced his hand away. Mency attempted to move his hand further up L.C.'s leg, but withdrew it when two other students came outside. L.C. stated that on another day, as she walked in front of Mency, she turned to ask him a question, and he reached for her buttocks.

1. In his first enumeration of error, Mency challenges two pre-evidentiary instructions given to the jury by the trial court. In the pre-evidentiary instructions, the trial court told the jury that evidence consisted of the sworn testimony of persons subpoenaed by the State and exhibits admitted into evidence. At the conclusion of evidence, the trial court properly charged the jury on the meaning of evidence. Mency argues on appeal that the trial court's description of evidence either "implied, or directly stated that the jurors could only consider evidence from witnesses called by the State."

Because Mency did not preserve this enumeration for appellate review, we do not reach the issue of whether on this record the trial court corrected the pre-evidentiary instructions by giving correct principles of law in the main charge. See Malone v. State, 219 Ga.App. 728, 730(2), 466 S.E.2d 645 (1995); Duggan v. State, 225 Ga.App. 291, 294(2), 483 S.E.2d 373 (1997). Mency objected neither as the trial court gave the two pre-evidentiary instructions, nor when the trial court concluded giving the pre-evidentiary instructions. At the conclusion of evidence, the judge read the main charges to the jury. Mency's trial counsel reserved all of his objections to the main charges until the time of his motion for new trial or appeal.

"A pre-evidentiary statement is not the equivalent of a jury charge. Reservation of objections to the main charge does not encompass objections to the pre-evidentiary statement." (Citations and punctuation omitted.) Malone, supra at 729, 466 S.E.2d 645. To preserve review of any error in the trial court's pre-evidentiary instructions, Mency should have objected contemporaneously to the pre-evidentiary instructions. See id. He did not do this; therefore, this Court has nothing to review on appeal.

2. In his second enumeration of error, Mency argues through new appellate counsel that the trial court erred in denying his motion for new trial because he was denied the effective assistance of trial counsel.

"To establish a claim of ineffective assistance of counsel, [Mency] must show both that his trial counsel's performance was deficient and that counsel's deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [Mency] must establish both the performance and the prejudice components of the Strickland test." Johnson v. State, 222 Ga.App. 722, 728(9), 475 S.E.2d 918 (1996).

To succeed in his claim, Mency "must overcome the strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct." (Citation and punctuation omitted.) White v. State, 193 Ga.App. 428, 430(2), 387 S.E.2d 921 (1989). We will not reverse on the basis of ineffective assistance of counsel unless trial counsel's conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result. Cunningham v. State, 222 Ga.App. 740, 743(2), 475 S.E.2d 924 (1996). Mency must show that the trial court clearly erred and that such error was harmful in deciding whether his trial counsel was ineffective. Absent clear error and harm, we will affirm the trial court's finding that Mency did not receive ineffective assistance of counsel. See id.

(a) Mency argues that his trial counsel was ineffective because he failed to object to the court's pre-evidentiary instructions regarding evidence. Mency's trial counsel testified at the hearing on the motion for new trial that he was reviewing the jury list and preparing his opening statement during the trial court's pre-evidentiary instructions. He did not recall what the trial court said, but had he listened attentively, he would have objected to the trial court's pre-evidentiary instructions as given. Mency's appellate counsel argues that the silence of Mency's trial counsel was not a tactical decision, and that trial counsel was attending to other matters rather than listening to the pre-evidentiary charge.

Based on the record, the trial court did not err in finding that Mency received effective assistance of counsel. For purposes of this analysis, we will assume, as Mency's appellate counsel asserts, that Mency's trial counsel should have objected to the pre-evidentiary instructions. Therefore, we must determine if the trial court was clearly erroneous in deciding that the conduct of Mency's trial counsel in failing to object was so deficient as to prejudice his trial. See Strickland, supra; Cunningham, supra.

Under the Strickland standard, error does not equal deficiency. Thus, "[i]n determining the effectiveness of counsel, the court looks to the totality of the representation provided by counsel. A defendant's right to effective assistance of counsel does not guarantee errorless counsel or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance." (Citation and punctuation omitted.) Watkins v. State, 206 Ga.App. 575, 576(2), 426 S.E.2d 26 (1992). "The test for reasonable attorney performance has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether [a] reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial[.] ... [W]e are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately." (Citation and punctuation omitted.) Jefferson v. Zant, 263 Ga. 316, 318(3)(a), 431 S.E.2d 110 (1993). Moreover, the burden of proof is on the defendant to establish that the trial court's finding was clearly erroneous as to his claims of ineffective assistance of counsel. Reddin v. State, 223 Ga.App. 148, 152(3)(g), 476 S.E.2d 882 (1996).

Under the circumstances presented in this case, we do not find that the trial court was clearly erroneous in finding trial counsel rendered effective assistance. Rather, the evidence shows that Mency's trial counsel did not act differently than a "reasonable lawyer at trial could have acted." See Jefferson, supra. Trial lawyers, unfortunately, are often faced with the predicament of simultaneously performing two or more tasks during a trial. In this case, Mency's trial counsel was reviewing his jury list and opening statement while the trial court gave preliminary instructions. Although "perfect" counsel might have been able to devote full attention to both matters simultaneously, the record shows that Mency's trial counsel was working diligently on his client's behalf during the pre-evidentiary instructions. The fact that Mency's trial counsel, on hindsight, would have conducted himself differently during these particular pre-evidentiary charges does not mean his trial counsel was deficient. The law requires only that the...