Stamey v. State

• Decision Date: 05 January 1990
• Docket Number: No. A89A1680,A89A1680
• Citation: 390 S.E.2d 409,194 Ga.App. 305
• Parties: STAMEY v. The STATE.
• Court: Georgia Court of Appeals

Page 409

390 S.E.2d 409

194 Ga.App. 305

STAMEY v. The STATE.

No. A89A1680.

Court of Appeals of Georgia.

Jan. 5, 1990.

Rehearing Denied Jan. 24, 1990.

Certiorari Denied Feb. 21, 1990.

Edwards & Krontz, Kenneth W. Krontz, Jennifer McLeod, Douglasville, for appellant.

Frank C. Winn, Dist. Atty., for appellee.

BIRDSONG, Judge.

Ray Harold Stamey was convicted of child molestation and aggravated sodomy, involving his eight-year-old stepdaughter. He enumerates eight alleged errors on appeal. Held:

1. Appellant contends, through new counsel retained after the conviction, that he was denied the effective assistance of counsel at trial. The issue was raised by amended motion for new trial, filed by appellate counsel (c.f., Thompson v. State, 257 Ga. 386(2), 359 S.E.2d 664) and was extensively argued below.

The trial court correctly concluded appellant did not meet the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 for determining this issue. See Baggett v. State, 257 Ga. 735, 363 S.E.2d 257; Brogdon v. State, 255 Ga. 64, 68, 335 S.E.2d 383. If there was any clear deficiency in trial counsel's duty towards appellant (and we do not concede that there was), appellant has nevertheless not shown "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional deficiencies." Baggett, supra; Brogdon, supra.

(a) Appellant complains specifically of trial counsel's failure to object to a social worker's testimony as to the credibility patterns of a pre-adolescent victim of sexual abuse, and particularly to the witness' statement that based on certain expert criteria, she believed the child was telling the truth. (The admissibility of this evidence is also made the subject of enumeration of error no. 2.) The witness' statement was offensive to our ruling in State v. Oliver, 188 Ga.App. 47, 372 S.E.2d 256 and to Smith v. State, 259 Ga. 135(2), 377 S.E.2d 158; nevertheless, it was not a significant addition to her main testimony, so as to displace the jury's minds on the issue and usurp their authority. The witness' main testimony emphasized the inability of an untruthful pre-adolescent to maintain a consistent version of events told to various persons. Having given these criteria to exhaustion, she then stated that pursuant thereto, she believed the child was telling the truth.

Based upon the witness' other testimony, the jury could accept or reject her opinion on this matter. If she had stated no standards or criteria for the jury to apply and attempted merely to substitute her opinion for what the jury had no means to measure, and if she had given the jury no means to measure her own opinion, it might be said she "usurped" the jury's power. But she exhaustively explained the basis for determining the child's credibility, and the jury was thus well armed to decide it for themselves. Under these circumstances, her own opinion was not "usurping," but superfluous. The witness gave the jury the foundation upon which to reject her own opinion. As for trial counsel's failure to object to any illegal testimony, it appears counsel determined instead to cross-examine her on the matter.

In view of the witness' other testimony, from which the jury was well able to make its own determination as to the child's credibility, it cannot be said to raise a reasonable probability that but for such error, the verdict would have been different. Baggett, supra; Brogdon, supra. This is particularly so in view of the fact that the record shows the child's statements were reasonably consistent, thus supporting the verdict found by the jury with or without this social worker's opinion.

(b) The trial court did not err in ruling in effect that trial counsel's failure to make any independent investigation of the facts, was not a clear deficiency but for which in reasonable probability the verdict would have been different. Strickland, supra; Baggett, supra. Appellant has failed to show any additional clearly exonerating fact or evidence trial counsel would have discovered if he had performed a full independent investigation. It is therefore impossible for appellant to show there is a reasonable probability the results of the proceedings would have been different. Baggett, supra.

(c) Trial counsel's decision not to call as a defense witness the child's mother, on grounds she might have contradicted some of the child's testimony that she had told the mother of the molestation incidents, cannot be said to be a deficiency in professional performance, nor in any case is there a reasonable probability that if the mother had been called to testify, the verdict of guilty would not have been found. Brogdon, supra. The record shows that at other proceedings the mother had shown herself to be hostile towards appellant, and had petitioned to divorce him. She had indicated she was resentful and was intimidated by his repeated returns for six months to her home to get his possessions, which her divorce lawyer (appellant's first counsel) told her he had the right to do, until she had changed the locks, whereupon he had returned and cut her telephone wires.

Her testimony in other proceedings showed she was sympathetic towards the child's fear of appellant, and removed the child from the home as long as she thought appellant might return to the house. Although she testified at the hearing on motion for new trial that the child did not tell her Stamey had molested her until after he had been arrested, it cannot possibly be said with any assurance that even if the jury had given credence to the mother on this point, the mother would have otherwise testified favorably to appellant, and that counsel was deficient in failing to call her to contradict her child's testimony. Her testimony at the motion for new trial hearing was set resolutely against Stamey, in general. It cannot be said she would have done appellant more good rather than less, and therefore certainly it cannot be said that even if she had testified favorably to his defense (i.e., by allowing an attack of the child's credibility on the debated point of whether she told her mother) this would have created "a reasonable probability" the defendant would have been found not guilty. Strickland v. Washington, supra; Baggett, supra.

2. Appellant contends the trial court erred in admitting in evidence copies of sexually oriented magazines ("Forum" and "Gallery") on grounds they placed his character in issue, in violation of OCGA § 24-9-20(b), and were not relevant to this case.

Appellant argues the magazines were old (dating from 1981 and before) and were found stored in appellant's basement; that there is no evidence he had ever shown them to the victim or used them to further his crimes against her; and that moreover they contained no sexual material relating to children or pre-adolescents, so that in fact the material does not tend to prove identity, malice, intent, motive, plan, scheme, course of conduct or bent of mind towards the particular acts and crimes charged against him in this case. See Millwood v. State, 164 Ga.App. 699, 296 S.E.2d 239.

The evidence objected to was clearly admissible, not merely to show the intent to commit the crimes charged here, but to show his motive generally and his state of mind and lustful disposition. See Felker v. State, 144 Ga.App. 458, 459(2), 241 S.E.2d 576. "Possession of such ... item[s] does have a tendency to show bent of mind toward sexual conduct. [Cits.]" Grant v. State, 160 Ga.App. 837, 839, 287 S.E.2d 681 (see Vereen v. State, 162 Ga.App. 1, 289 S.E.2d 766), particularly where the evidence shows he was in possession of the material when these crimes were committed. Id., 160 Ga.App. 839, 287 S.E.2d 681; see Wilcoxen v. State, 162 Ga.App. 800(1), 292 S.E.2d 905. It would be illogical to say that such sexually depictive and explicit material has no relevance to the lustful disposition of the defendant in these kinds of cases, or that they say nothing about his state of mind, as to inclination towards and preoccupation with such matters. If there is any question about it, " '[i]t is ... a well established rule of law that ... the rules of evidence require that the evidence be admitted and its weight and effect left to the jury.' " Brantley v. State, 177 Ga.App. 13, 15, 338 S.E.2d 694.

The jury was in the position to review this particular sexually depictive material and determine if any of it tended to prove a disposition or bent of mind towards the acts charged here, whether the material involved children or adults. In fact, the State recalled at the hearing on motion for new trial that some of the magazine material did involve children. The parties' dispute on this factual point shows the futility of any attempt by the appellate court to gauge the content and relevance of this material. We will not substitute our judgment on the matter for that of the jury; but we will presume they were capable of judging its materiality. Therefore, at least as to this kind of sexually depictive evidence, it is not for us to say it was more prejudicial against the defendant's character than relevant, and that it impermissibly blackened his character while, comparatively, shedding no light upon the question of his guilt. We therefore find no merit in this enumeration.

3. Appellant contends the district attorney committed misconduct in improperly interfering with the relationship between appellant and his counsel of choice, in violation of the Sixth and Fourteenth Amendments, by making statements to appellant's father concerning appellant's first counsel, which statements caused appellant to terminate that counsel immediately before trial, and hastily retain the trial counsel. To the factual contrary, the State contends in brief that the criticized statements were made after trial and thus could not have been the cause of first counsel's termination.

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