Polk v. State, A97A0375

• Citation: 483 S.E.2d 687,225 Ga.App. 257
• Decision Date: 06 March 1997
• Docket Number: No. A97A0375,A97A0375
• Parties: , 97 FCDR 1304, 98 FCDR 519 POLK v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 687

483 S.E.2d 687

225 Ga.App. 257, 97 FCDR 1304, 98 FCDR 519

POLK v. The STATE.

No. A97A0375.

Court of Appeals of Georgia.

March 6, 1997.

Certiorari Denied June 6, 1997.

Ruth P. Marks, Rome, for appellant.

Thomas J. Charron, District Attorney, Frank R. Cox, Debra H. Bernes, Nancy I Jordan, Shannon L. Goessling, Assistant District Attorneys, for appellee.

JOHNSON, Judge.

A jury found Brooks Douglas Polk guilty of aggravated child molestation after hearing evidence that he performed oral sex on an 11-year-old girl. He appeals the judgment entered on the jury's verdict and the denial of his motion for new trial.

Viewing the evidence in the light most favorable to upholding the jury's verdict, the testimony at trial is as follows. The victim testified that a man she knew as Butch, but identified as Polk at trial, asked her if he could perform oral sex on her. When she refused, he persisted and offered her money. He then pulled her panties down and put his mouth on her vagina. The victim's 18-year-old cousin, who was in the apartment when the incident occurred, testified that he saw Polk on his knees and the victim lying on the edge of a bed. Although the cousin testified that he did not actually see physical contact, Polk's head was approximately three inches away from the victim's genitalia.

1. Polk argues that he was denied effective assistance of counsel at trial. In support of his argument, Polk points to 32 specific instances of purported ineffectiveness. For purposes of this opinion, we have grouped these allegations into four categories: (1) Defense counsel's references to Polk's prior convictions and lifestyle; (2) failure of counsel to object at various points during the trial; (3) inadequate preparation for trial; and (4) prejudicial procedural errors at trial. "To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional deficiencies." (Citations and punctuation omitted.) Sebastian v. State, 195 Ga.App. 346, 347(2), 393 S.E.2d 492 (1990).

(a) In explaining his defense strategy, trial counsel testified at the motion for new trial hearing that in light of the nature of the case and the evidence, he believed Polk should testify in his own defense and deny the charges. He and Polk discussed the risk of his criminal history being introduced into evidence and made the tactical decision to preempt and defuse the possibility of such disclosure by arguing that while Polk may be a criminal and a thief, he does not victimize children. At trial, counsel asked Polk if he had ever sold drugs to children. Appellate counsel suggests this question is illustrative of ineffective assistance, but we find it consistent with counsel's defense strategy. While Polk's present counsel takes exception to this strategy, "[a] decision on whether or not to place a defendant's character in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel." Lowery v. State, 212 Ga.App. 870, 872, 443 S.E.2d 304 (1994). This Court has often reiterated the principle that "[e]ffectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant's original representation was inadequate." (Citations and punctuation omitted.) Sutton v. State, 210 Ga.App. 247, 248(2), 435 S.E.2d 748 (1993).

In light of an order from the trial court authorizing a correction in the trial transcript, there is no merit to Polk's argument that trial counsel was ineffective because he admitted he was guilty of this offense during his closing argument.

(b) Defense counsel did not object during the state's closing statement when, while arguing the burden of proof, the prosecutor stated: "so beyond a reasonable doubt, as you will be charged, is that the state does not have to prove guilt beyond a reasonable doubt, all doubt or to a mathematical certainty." The court instructed the jury in its initial charge that the state must prove the defendant guilty beyond a reasonable doubt, that closing argument was not evidence, and that the law to be applied to the facts of the case would come to them from the court. The court also instructed the jury repeatedly on the correct burden of proof after the state's closing argument and again reminded the jury that closing arguments are not evidence. The prosecutor's remark, though unfortunate, was no more than a slip of the tongue. In Rodriguez v. State, 211 Ga.App. 256, 439 S.E.2d 510 (1993), the judge made a misstatement while recharging the jury. In reviewing the effect of that misstatement, we held that "[a] mere verbal inaccuracy in a charge, resulting from a palpable slip of the tongue, which clearly did not mislead or confuse the jury is not cause for a new trial." (Citations and punctuation omitted.) Id. at 258(3), 439 S.E.2d 510. Here, we find it unlikely that the jury was misled or confused by the prosecutor's mistake, particularly since the jury was instructed to apply the law as correctly, and repeatedly, given by the court. Counsel's failure to object to the remark was not prejudicial to Polk's case. With benefit of hindsight, Polk asserts that counsel was ineffective for failing to object during the state's opening statement to references to evidence which ultimately was not introduced at trial. Clearly there was no basis at the time for such an objection, and counsel was not ineffective in failing to raise it. Likewise, we have reviewed the remaining instances...