Pepe-Frazier v. State

• Citation: 770 S.E.2d 654,331 Ga.App. 263
• Decision Date: 18 March 2015
• Docket Number: No. A14A2215.,A14A2215.
• Parties: PEPE–FRAZIER v. The STATE.
• Court: United States Court of Appeals (Georgia)

331 Ga.App. 263

770 S.E.2d 654

PEPE–FRAZIER

v.The STATE.

No. A14A2215.

Court of Appeals of Georgia.

March 18, 2015.

Certiorari Denied June 1, 2015.

The Pate Law Firm, Page Anthony Pate, Atlanta, Jess Brandel Johnson, for Appellant.

Paul L. Howard Jr., Dist. Atty., Arthur Conley Walton, Sheila Elizabeth Gallow, Asst. Dist. Attys., for Appellee.

Opinion

DILLARD, Judge.

Following a trial by jury, David Pepe–Frazier was convicted of trafficking of persons for sexual servitude, pimping, aggravated child molestation, enticing a child for indecent purposes, and contributing to the delinquency of a minor. On appeal from these convictions, Pepe–Frazier argues that (1) the trial court erred by admitting prior consistent statements of the victim, (2) the trial court erred by qualifying two expert witnesses, and (3) he received ineffective assistance in various regards. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's guilty verdict,¹ the record reflects that on April 18, 2009, the then 14–year–old victim encountered Pepe–Frazier when he offered her a ride. The victim was initially hesitant to accept Pepe–Frazier's offer, but upon noticing that his vehicle was occupied with another male and two young females, she agreed to do so. Pepe–Frazier then drove the group to a house, where the victim spoke at length with the other male, who she came to know as “Swatt” (and who was later identified as Harvey White), before engaging in sexual intercourse with him.

During this time, Pepe–Frazier left the house with the two other females, but upon their return, the victim noticed that one of the females carried a substantial amount of cash and wore “very short shorts.” Pepe–Frazier then informed the victim that he knew she had engaged in sexual intercourse with White and advised her that she “might as well get paid for it” (rather than having sex with men for free). The victim remained at the house for several days and eventually agreed to work as a prostitute for Pepe–Frazier.

Thereafter, over the course of several weeks, either Pepe–Frazier or the home's female owner would drive the victim and other females, including Pepe–Frazier's girlfriend (who assisted him in training new prostitutes), to areas where she and the other prostitutes would seek out multiple men with whom to engage in sexual intercourse in exchange for money. And while Pepe–Frazier initially allowed the victim to keep half of what she earned, within days he began taking all of the money she made as a prostitute.

On one occasion, while the victim lived in the house with Pepe–Frazier and the other prostitutes, Pepe–Frazier made the victim perform oral sex on him while he was simultaneously engaged in sexual intercourse with his girlfriend. And although the victim soon decided that she no longer wished to be a prostitute, she was afraid of Pepe–Frazier after he slapped her when she tried to remove his hand from her mouth and, in another incident, choked and slapped her after a man called her cell phone. Additionally, approximately one week after the victim's arrival, she witnessed Pepe–Frazier pull a gun on another prostitute who attempted to leave the house. The victim also witnessed Pepe– Frazier punch the woman who owned the house in the stomach and saw him engage in several physical altercations with his girlfriend.

Nevertheless, despite her fear of Pepe–Frazier, the victim eventually made contact with her sister and informed her that she was scared and wished to come home. And shortly thereafter, as the victim was being driven to an area where she regularly prostituted, she text-messaged her family with various landmarks as she passed them, and she then waited in the restroom of a fast-food restaurant while her family notified law enforcement of her location. The vehicle she was driven in was pulled over a short distance down the road based on the victim's description, and she later positively identified Pepe–Frazier in a photographic lineup.

At Pepe–Frazier's trial, in addition to the victim's testimony and that of another former prostitute who worked alongside her, the State also presented testimony from White that, inter alia, he was with Pepe–Frazier when the victim was picked up; Pepe–Frazier convinced the victim to work as a prostitute; Pepe–Frazier's prostitute girlfriend assisted in training new recruits; he saw the victim summoned to Pepe–Frazier's room while Pepe–Frazier was engaged in sexual intercourse with his girlfriend; and he saw Pepe–Frazier slap the victim “real hard” when she used her cell phone. Pepe–Frazier was convicted of all the offenses enumerated supra, and this appeal follows.

At the outset, we note that on appeal from a criminal conviction, the defendant is “no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict.”² With this guiding principle in mind, we turn now to Pepe–Frazier's enumerations of error.

1. First, Pepe–Frazier contends that the trial court erred by admitting a prior consistent statement by the victim that was pure hearsay and bolstered her credibility. Specifically, Pepe–Frazier argues that the trial court erred by overruling an objection to testimony by a law-enforcement officer that the victim said Pepe–Frazier slapped her after she removed his hand from her mouth. We agree that the trial court's admission of this testimony was erroneous; however, this error was harmless.

First, we note that a witness's prior consistent statement is admissible when “(1) the veracity of a witness's trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.”³ And a witness's veracity is placed in issue so as to permit the introduction of a prior consistent statement if “affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.”⁴ Additionally, to be admissible to refute an allegation of fabrication, “the prior statement must predate the alleged fabrication, influence, or motive.”⁵

In the case sub judice, there was no affirmative charge of recent fabrication, and the State elicited the specific testimony on direct examination of the law-enforcement officer. Thus, the trial court erred in admitting the officer's testimony regarding the victim's prior consistent statement.⁶

Nevertheless, the admission of the aforementioned testimony does not require reversal, which, in this context, happens only “if it appears likely that the hearsay contributed to the guilty verdict.”⁷ Here, that is not the case. First, the complained-of hearsay related to a charge of battery for which Pepe–Frazier was acquitted.⁸ And second, the testimony was cumulative of other admissible evidence that the victim was slapped by Pepe–Frazier. Indeed, another former prostitute testified to having personal knowledge that Pepe–Frazier slapped the victim. Accordingly, it is unlikely that the erroneously admitted hearsay contributed to the verdict.⁹

2. Next, Pepe–Frazier contends that the trial court erred by qualifying expert witnesses in the areas of commercial sexual exploitation of children and in pimping culture. Again, we disagree.

The State presented the testimony of two witnesses who the trial court qualified, over Pepe–Frazier's objections, as experts in the areas of commercial sexual exploitation of children and in pimping culture, terminology, and relationship dynamics between pimps and prostitutes, respectively. Pepe–Frazier contends that the court's qualification of both experts was in error.

In order to qualify as an expert in a criminal proceeding in Georgia, generally all that was required under the former Evidence Code¹⁰ was that “a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a prerequisite for expert status.”¹¹ And a decision as to whether a witness possesses such learning or experience to qualify as an expert witness “lies within the sound discretion of the trial court and will not be disturbed unless manifestly abused.”¹²

Here, the witness qualified as an expert in commercial sexual exploitation of children testified that she was the director of forensic services at the Georgia Center for Child Advocacy; had conducted over 1,000 forensic interviews; had been qualified as a forensic-interview expert approximately 46 times; had served on a statewide task-force that addressed concerns regarding commercial sexual exploitation in Georgia; had served on focus groups for the National Center for Missing and Exploited Children to enable national forensic interview protocols for children; had undergone training for mental-health providers in the area of commercial sexual exploitation of children and become a facilitator to train others on the topic; and had attended symposiums and seminars with instruction from the Federal Bureau of Investigation on how to work with sexually exploited children.

As for the witness qualified as an expert in pimping culture, terminology, and relationship dynamics between pimps and prostitutes, she testified that she was the director of forensic services for Fulton County and had previously served as the executive clinical director for a child-advocacy center; had previously worked as the program manager at the Georgia Center for Children, where she dealt with many victims of child-sexual exploitation; had performed more than 2,000 clinical interviews, many with victims of teenage prostitution; worked with various law-enforcement agencies in Georgia to train them in understanding cycles of abuse regarding sexual exploitation; had trained with the National Center for Missing and Exploited Children to study the effects of sexual exploitation, exploring the dynamics between and demeanor of pimps and exploited teenagers; and had studied pimping and prostitution by...