Robbins v. State
| Decision Date | 20 February 2008 |
| Docket Number | No. A07A2348.,A07A2348. |
| Parties | ROBBINS v. The STATE. |
| Court | Georgia Court of Appeals |
Louis M. Turchiarelli, Marietta, for appellant.
Fred A. Lane Jr., District Attorney, Anthony Volkodav Jr., Assistant District Attorney, for appellee.
A Paulding County jury found Larry Alan Robbins guilty of two counts of child molestation and two counts of aggravated sodomy.1 On appeal, Robbins claims that the trial court erred (i) in denying his motion for a directed verdict, (ii) in denying his motion for a continuance, (iii) in denying his motion to suppress his custodial statement, and (iv) in denying his motion for new trial on grounds of ineffective assistance of trial counsel. For the reasons which follow, we disagree and affirm.
Viewed in a light most favorable to the jury's verdict, the evidence shows that Robbins was the stepfather of M.H., a seven-year-old girl. Robbins's wife testified that on May 4, 2006, M.H. complained to her mother of stomach pain which "started hurting when Alan got off of me." M.H. told her mother that Robbins had been on her and had "poked [her] with his private." After Robbins's wife suggested to M.H. that it had happened accidentally, M.H. responded that Robbins' "private" was "what I been feeling in the feeling game." M.H. explained that in the feeling game, which they played on several occasions, Robbins would blindfold her and put something in her hand and make her feel it. M.H. told her mother that what she felt had a hole in the end, that it was a little bit hard and a little bit soft, that it was a little bigger in the end, and that it was wet around the hole. The child also described the object as having one bump. According to Robbins's wife, Robbins's penis has a bump in the middle, which she characterized as a mole or a skin tag.
M.H. also told her mother that she played the "tasting" game with Robbins. In this game, Robbins blindfolded the child and told her he was going to put flavors on his thumb. However, the object that M.H. tasted was bigger than Robbins's thumb, had a hole in one end, and tasted like peanut butter, olive oil, and on one occasion like "pee."
Robbins's wife decided to talk to her husband before calling the police. She confronted Robbins when he came home and asked him about the feeling game. He admitted his involvement, initially maintaining that it was an accident and then blaming his wife because he had not been touched in a while. The following morning Robbins's wife told her husband that they could stay together if he would move in with his parents, but that he would have to tell his parents what he did to M.H. They went to Robbins's parents' home, where he told his parents that he let M.H. feel his "private." Robbins's wife insisted that Robbins also tell his parents about the tasting game in which he put peanut butter and olive oil on his penis. He admitted that this was true.
That afternoon Robbins's wife took M.H. to be interviewed by a forensic specialist outside the mother's presence. According to the interviewer, who testified at trial as an expert in the field of forensic interviews, M.H. did not appear to have been coached. A videotape of the interview with M.H. was introduced into evidence and played for the jury. The videotape shows that M.H. told the interviewer that she played the "feeling" game and the "taste" game with Robbins. According to M.H., during the feeling game, which they played more than one time, Robbins would take M.H. into her mother's bedroom and place her head under the covers. Robbins would place something in her hand and ask her to guess what it was. M.H. described the object as squishy and hard with a hole in the top. During the taste game, Robbins would blindfold the child. According to M.H., she licked peanut butter and "olive juice" on Robbins's "private."
At about the same time as M.H.'s forensic interview, an investigator interviewed Robbins at the offices of the Paulding County Sheriff. The investigator informed Robbins of his Miranda rights, and Robbins did not thereafter insist on his right to counsel. A videotape of the interview with Robbins was admitted into evidence and played for the jury. During the interview, Robbins told the officer that he and M.H. had played a "touchy-feely" game in which M.H. wanted to be blindfolded. He admitted that he and the child had wrestled around while he had on his briefs, and that at one point M.H. saw his penis. He also admitted that he and M.H. had been involved in a "taste test thing," and that she had licked his penis twice.
1. In light of the evidence, including Robbins's admissions to his wife, his parents, and to the police investigator, any rational trier of fact could have found him guilty beyond a reasonable doubt of the crimes of which he was found guilty and sentenced.2 It follows that the trial court did not err in denying his motion for a directed verdict of acquittal.3
2. Robbins claims that the trial court erred in denying his motions for a continuance. We disagree.
Defense counsel moved for continuance on the first day of trial, a Monday, representing that he had gotten most of the discovery in the case the weekend before the last weekend, and that it was only until the immediately preceding weekend that he had the chance to go through some of the discovery documents with Robbins. According to counsel, he was not ready to proceed "until I have an expert look at this stuff and tell me whether he is going to be able to help me." Counsel also maintained that he needed additional time to investigate four or five persons listed in the discovery material who had not previously come to his attention, although he could not identify the names of these persons when asked to do so by the trial court. Further discussion showed that "part of the problem ... is that I got this case and went on two weeks' vacation." The defense attorney had arranged for other counsel to handle the bond hearing, and some of the discovery was mailed to that counsel's old address, who did not file a change of address form because "he didn't think he was on the case." The trial court confirmed that trial counsel had received the discovery "the weekend before this last one," and then denied the motion for continuance.
The next morning, before resuming voir dire, defense counsel represented that he had located a psychological expert and asked for a three-day continuance, arguing that his expert needed time to interview Robbins and review the videotaped statements. The trial court denied the motion. During the trial, the defense presented the testimony of a psychologist who had interviewed Robbins, viewed the videotape of Robbins' police interview, and who opined that Robbins was susceptible to being manipulated into a false confession.
All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require. Further, trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons.4
The record shows that defense counsel had more than a week before trial to review the state's discovery, had reviewed the material with his client, and had also had time before trial to hire an expert. Under the circumstances, we cannot conclude that Robbins's grounds for continuance was compelling.5 Unlike Smith v. Greek,6 and Tucker v. State,7 relied on by Robbins, defense counsel in this case was not assigned or hired so close to trial that defense counsel could not prepare a defense. Robbins hired his defense counsel in May, several months before the August trial date. Further, it appears that the delay in counsel's receipt of the discovery material was attributable to defense counsel's failure to ensure the state had his correct mailing address. "In all cases, the party making an application for a continuance must show that he has used due diligence."8 Accordingly, we conclude that the trial court did not abuse its discretion in denying Robbins's motion for a continuance.
3. Robbins also claims that the trial court erred in denying his motion to suppress his statement to the police investigator because the statement was obtained "through hope of benefit and promise of reward through the actions of a law enforcement officer." 9
Evidence presented at the Jackson-Denno hearing showed that Robbins was interviewed by a Paulding County Sheriff's Office investigator. The state presented the investigator's testimony, and the videotape of the investigator's interview with Robbins was played for the trial court. According to the investigator, Robbins went to the interview voluntarily and was not placed under arrest until the conclusion of the interview. The investigator informed Robbins of his Miranda rights, Robbins signed a Miranda waiver form, and at no time during the interview did he ask for an attorney. The investigator testified that he offered no hope of a benefit in order to get Robbins's statement. According to the investigator, Robbins's wife was a POST-certified probation officer with the City of Douglasville. She disclosed to the investigator the information she had received from Robbins and that she had told Robbins that she would not leave him if he gave a statement to the investigator.
Although Robbins contends that his confession to the police investigator was not...
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