Nihart v. State

• Decision Date: 11 July 1997
• Docket Number: No. A97A0388,A97A0388
• Citation: 227 Ga.App. 272,488 S.E.2d 740
• Parties: , 97 FCDR 2673, 97 FCDR 3109 NIHART v. The STATE.
• Court: Georgia Court of Appeals

Page 740

488 S.E.2d 740

227 Ga.App. 272, 97 FCDR 2673, 97 FCDR 3109

NIHART v. The STATE.

No. A97A0388.

Court of Appeals of Georgia.

July 11, 1997.

Dennis C. O'Brien, Marietta, Michael D. Reynolds, Columbus, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Rose L. Wing, Assistant District Attorneys, for appellee.

RUFFIN, Judge.

John Nihart appeals from his conviction for aggravated sodomy and cruelty to children. For reasons which follow, we affirm in part and reverse in part.

The evidence shows that in August 1991, Patricia Covello and her 13-year-old daughter, J.M., visited Nihart at his home in Smyrna, Cobb County, Georgia. At the time, Covello lived in Connecticut with her two sons and J.M.

Covello testified that during the first night of their visit, she and Nihart entered J.M.'s bedroom. At Nihart's request, Covello held J.M.'s wrists while he removed J.M.'s underwear and placed his tongue on her vagina. J.M. similarly testified that she awoke that night to find her mother holding her wrists and Nihart touching her vagina with his mouth. According to Covello, Nihart also "performed oral sex on [J.M.]" one evening when Covello was not in the room. In addition, Covello and J.M. testified about a third incident, during which Nihart placed his mouth on J.M.'s vagina while Covello placed her mouth on Nihart's penis.

J.M. further testified that before she left Georgia, Nihart told her if she reported the incidents, "he would go to jail along with [her] mom. And he told [her] that [her] brothers would go to foster homes. And he said when he got out he'd kill [her] and [her] mom and [her] brothers." J.M. could not recall where Nihart made this statement, but believes it occurred on the day she and her mother returned to Connecticut.

J.M. ultimately reported the incidents to Connecticut authorities, who commenced an investigation. Georgia authorities obtained the results of Connecticut's investigation and subsequently arrested Nihart, who was indicted on one count of aggravated sodomy and one count of cruelty to children. A jury found Nihart guilty on both counts, and the trial court sentenced him to life in prison for aggravated sodomy and 20 years on probation for cruelty to children. Nihart now appeals his conviction and sentence.

1. In his first enumeration of error, Nihart argues through new appellate counsel that his two trial attorneys provided him ineffective assistance at trial. After an evidentiary hearing at which both of Nihart's trial counsel testified, the trial court denied Nihart's motion for new trial and implicitly concluded that trial counsel were effective. We find no basis on which to reverse the trial court's determination in this regard.

"To establish a claim of ineffective assistance of counsel, [Nihart] 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). [Nihart] 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). "A conviction will not be reversed on the basis of ineffective assistance of counsel unless 'counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' ... [Cits.]" Cunningham v. State, 222 Ga.App. 740, 743-744(2), 475 S.E.2d 924 (1996).

Nihart cannot meet his burden simply by questioning trial tactics. " 'Trial strategy and tactics do not equate with ineffective assistance of counsel.... [T]he fact that [Nihart] and his present counsel disagree with the decisions made by trial counsel does not require a finding that [Nihart's] original representation was inadequate.' " (Citations omitted.) White v. State, 193 Ga.App. 428, 430(2), 387 S.E.2d 921 (1989). Trial counsel's decisions regarding "which witnesses to call, whether and how to conduct cross-examinations, ... and all other strategies and tactical decisions are the exclusive province of the lawyer[s] after consultation with the client." (Citation and punctuation omitted.) Hudson v. State, 218 Ga.App. 671, 672(1), 462 S.E.2d 775 (1995). To succeed in his claim, Nihart "must overcome the strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct." (Citations and punctuation omitted.) White, supra. Absent clear error, we will affirm the trial court's finding that Nihart received effective assistance of trial counsel. Johnson, supra.

(a) Nihart argues that his trial counsel were ineffective because they asked Detective Mary Katherine Wrozier, the investigating officer in Georgia, to comment on J.M.'s truthfulness.

The record shows that on cross-examination, defense counsel tendered Detective Wrozier as an expert in the area of validating child sexual abuse complaints, and the prosecution raised no objection. Counsel then inquired about Detective Wrozier's efforts to validate J.M.'s complaint. Specifically, counsel highlighted her reliance on the Connecticut investigation and failure to interview J.M. before arresting and charging Nihart. Trial counsel further questioned Detective Wrozier about certain indicia of truthfulness Nihart claimed were missing in this case. Counsel then asked: "How do you know which side is the truth now in this case? Can you really tell just by having interviewed this witness one time two days ago?" Detective Wrozier responded: "I feel that she told the truth then. She's telling the truth now."

Nihart argues that trial counsel's decision to elicit testimony regarding J.M.'s credibility was unreasonable. While J.M.'s credibility rested exclusively within the jury's province and should not have been bolstered by Detective Wrozier, Guest v. State, 201 Ga.App. 506, 507-508(1), 411 S.E.2d 364 (1991), trial counsel made a conscious, tactical decision to explore this area of testimony and raise questions regarding Detective Wrozier's decision to pursue this case.

As established at the hearing on Nihart's motion for new trial, one goal of defense counsel's cross-examination was to attack the credibility of the State's witnesses and "to show that ... there was a rush [to] judgment made, with very little--with, in fact, no investigation ... of these witnesses from Connecticut." Trial counsel urged this defense to the jury in closing argument, arguing that Detective Wrozier ignored her "duty to distinguish between valid and invalid complaints of child abuse" and simply relied on the investigation conducted by Connecticut authorities.

At the new trial hearing, both defense counsel testified that they discussed their trial strategy with Nihart, who agreed with their ultimate tactics. We refuse to second-guess such a strategic decision, which falls within the lawyers' exclusive province after consultation with the client. Hudson, supra. Accordingly, the trial court did not err in denying Nihart's new trial motion on this ground.

(b) Nihart further challenges defense counsel's decision to introduce a sexually explicit card that Covello sent Nihart. Nihart complains that the card corroborated testimony from J.M. and Covello that he asked for and received nude pictures of J.M. The trial transcript reveals, however, that counsel introduced this evidence to impeach Covello, who testified that she did not send any mail to Nihart.

"The fact that [appellate counsel argues] that this tactic hindered rather than aided [Nihart's] defense has no bearing on the reasonableness of trial counsel's tactics. [Cit.]" Hammond v. State, 264 Ga. 879, 882(3)(a), 452 S.E.2d 745 (1995). The trial court did not err in denying Nihart's motion for new trial on this ground.

(c) Nihart also questions trial counsel's decision to present good character testimony, which the State impeached with evidence of Nihart's two prior drug convictions. Nihart argues that counsel's tactic enabled prosecutors to highlight his drug convictions.

Both of Nihart's trial counsel testified at the new trial hearing that they elected to risk revealing the prior offenses in order to introduce the good character evidence. As described by one defense counsel: "[W]e were aware that [Nihart] had what amounted to a misdemeanor drug conviction. It was so old, so remote in time and it was so minor in nature.... These allegations on this charge were so serious that we felt that we had to let the jury know that. He had no record other than that one little incident back when essentially he was a kid and that essentially he was of good character. We wanted that character charge." Co-defense counsel similarly testified that after consultation with Nihart, they decided to introduce character evidence, despite the prior convictions.

The decision to introduce the character evidence, and potentially open the door for impeachment, was clearly one of tactics and strategy. One trial counsel testified that "we thought that [the good character evidence] was more important to the defense than the damage that would come if the jury found out that he had some old minor drug offense." Again, we refuse to second-guess counsel's strategic decision. Furthermore, in light of the other evidence of guilt, Nihart has shown no prejudice from introduction of these drug convictions. See Hayes v. State, 263 Ga. 15, 16(1), 426 S.E.2d 557 (1993). The trial court properly rejected this argument as a ground for ineffective assistance of counsel.

(d) Nihart also argues that trial counsel could have guarded against this impeachment evidence by objecting to the introduction of his misdemeanor drug conviction as an offense not involving moral turpitude. Even if such evidence is objectionable, we find no ineffective assistance of counsel.

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