Thomas v. State

• Decision Date: 01 April 2020
• Docket Number: A20A0686
• Court: Georgia Court of Appeals
• Parties: THOMAS v. The STATE.

354 Ga.App. 815

841 S.E.2d 458

THOMAS

v.The STATE.

A20A0686

Court of Appeals of Georgia.

April 1, 2020

Certiorari Denied December 21, 2020

Benjamin David Goldberg, for Appellant.

John Richard Edwards, Lindsay Beth Gardner, John Stuart Melvin, for Appellee.

Barnes, Presiding Judge.

After his first trial ended in a mistrial due to a hung jury, Rasheed Thomas was tried and convicted of rape and two counts of aggravated child molestation, and the trial court denied his motion for new trial. Thomas elected to testify in his first trial but not in his second trial. During the second trial, the State introduced into evidence Thomas's testimony from the first trial, including the colloquy between Thomas and the trial judge in which Thomas elected to testify. On appeal, Thomas contends that the trial court erred in admitting into evidence at the second trial the colloquy from his first trial. Thomas argues that by introducing into evidence the colloquy from his first trial, the State impermissibly highlighted his decision not to testify in his second trial, thereby prejudicing him before the jury. Thomas also contends that his trial counsel rendered ineffective assistance in several respects. For the reasons discussed below, we affirm.

Thomas was indicted on the charged offenses based on allegations that he sexually abused his stepdaughter. Viewed in the light most favorable to the verdict,¹ the evidence presented at trial showed that the stepdaughter was eight years old when her mother married Thomas. During the marriage, Thomas would hit the mother and leave bruises on her, but she did not report the abuse to the police because Thomas threatened her. The mother told another relative that Thomas hit her and that she could not leave him. The stepdaughter saw Thomas physically abuse her mother.

Thomas would discipline the stepdaughter by beating her with his fists and striking her with a belt or other objects, leaving bruises that at times were so severe that she had to stay home from school. As discipline, Thomas also would force the stepdaughter to do calisthenics, eat baby food, or drink alcohol until she vomited.

The family moved frequently because Thomas was in the military. When the stepdaughter was ten years old and the family lived in Washington State, Thomas began forcing her to have sexual intercourse with him. After the first incident, the stepdaughter told her mother what Thomas had done to her. The mother pulled down the stepdaughter's clothes "to check" her vaginal area, said that she did not see any redness, and accused the stepdaughter of lying. Thomas thereafter forced his stepdaughter to have sexual intercourse with him multiple times a week at the house in Washington.

The family moved to Georgia, where the sexual abuse continued. When the family lived in Cobb County, Thomas forced the stepdaughter to have vaginal and anal intercourse with him. The intercourse was painful and caused the stepdaughter to bleed. The sexual abuse usually occurred on the stepdaughter's bed at night or in the living room. The mother would either be asleep in the parents’ bedroom or away from home running errands. The last incident of sexual abuse occurred about a week before Thanksgiving in November of 2010, when the stepdaughter was eleven years old. Around that time, the stepdaughter again told her mother that Thomas was sexually abusing her, but her mother said that she did not believe her and told her to stop lying.

Shortly after the last incident of sexual abuse, the stepdaughter visited the home of her aunt and cousin for the Thanksgiving holiday. A few days before her twelfth birthday, on the evening of November 26, 2010, the stepdaughter and her cousin were at the kitchen table coloring. While doing so, the stepdaughter wrote a note in crayon and gave it to her cousin. The note read, "He had sex with me." The cousin asked if the note was true, and the stepdaughter said that it was true and had been occurring since she was ten years old. She identified Thomas as the man who had sex with her. The stepdaughter asked her cousin not to tell the aunt about the note. However, the aunt took the note and read it, and the stepdaughter told her that it was true. The stepdaughter appeared to be scared and threatened to commit suicide if she had to return home.

While coloring with her cousin, the stepdaughter also had written a note to her mother that she crumpled up and attempted to throw away but missed the trash can. That note read, "Dear Mom, Rasheed had sex with me and I didn't want to tell you about it and I'm staying at [my aunt's] house until you divorce him." The aunt later found the note behind the trash can.

After the police were contacted, a detective who had training in the forensic interviewing of child victims conducted a recorded forensic interview with the stepdaughter. During the interview, the stepdaughter described how Thomas sexually abused her.

Once the forensic interview was completed, the police obtained a search warrant for the Cobb County residence and executed the warrant in the early morning hours of November 28, 2010. During the search, the police seized the comforter on the stepdaughter's bed and other items. Testing of the comforter revealed seminal fluid, and DNA testing was performed on the stains. The results showed DNA from two individuals. The first DNA profile matched Thomas, and the second DNA profile matched the stepdaughter. A DNA sample was later obtained from the mother, and her DNA profile was not found on the comforter stains.

On the day that the search warrant was executed, officers also conducted recorded interviews with Thomas and the mother after they were advised of their Miranda rights.² Thomas denied sexually abusing his stepdaughter. The mother admitted that the stepdaughter had told her that Thomas had sexually abused her. The mother also was adamant that she and Thomas never had sexual intercourse on the stepdaughter's bed or comforter.

The stepdaughter underwent a forensic medical examination on December 10, 2010. The exam revealed no signs of injury, which the nurse examiner later testified was not unusual in sexual abuse cases, particularly where more than 72 hours had passed since the last sexual contact.

Following his arrest and indictment, Thomas was tried on the rape and aggravated child molestation charges in April 2015, but a mistrial was declared because of a hung jury. Thomas's second trial was conducted in August 2016.

During the second trial, the stepdaughter (who was then seventeen years old) testified to the physical and sexual abuse as summarized above. The State called several other witnesses, including the stepdaughter's mother,³ cousin, several aunts, a former foster parent, and the stepdaughter's counselor, who described the stepdaughter's disclosures to them about the abuse. The State also introduced into evidence, among other things, the two notes written by the stepdaughter at her aunt's house, her recorded forensic interview in which she described the abuse, Thomas's recorded police interview, and the DNA evidence relating to the comforter. Additionally, the State introduced into evidence Thomas's testimony from the first trial, including the colloquy between Thomas and the trial court regarding his election to testify in that trial.

The jury found Thomas guilty of the charged offenses. Thomas filed a motion for new trial, as amended, in which he contended, among other things, that his trial counsel rendered ineffective assistance. Following a hearing where trial counsel testified, the trial court denied Thomas's motion. This appeal followed.

1. Thomas contends that the trial court erred in allowing the State to introduce, as part of his trial testimony from the first trial, his colloquy with the trial court in which the court advised him of his right to testify or not testify and his election to do so in that trial. According to Thomas, the admission of the colloquy from the first trial highlighted to the jury his decision not to testify in the second trial. Thomas acknowledges that admission of the colloquy "was not a direct, explicit comment on [his] invocation of silence at the second trial," but he argues that its admission nevertheless violated his rights under the Fifth Amendment to the United States Constitution and Article I, Section I, Paragraph XVI of the Georgia Constitution because it enabled the jury to unfavorably contrast his election to testify at his first trial with his election not to do so at the second trial.

As an initial matter, Thomas did not raise this specific objection at trial. Before the second trial, the State filed a motion in limine seeking to introduce Thomas's testimony from the first trial, and the trial court conducted a hearing on the motion. At the hearing, the State noted that included with the prior testimony that it sought to introduce was the colloquy between the trial judge and Thomas in which Thomas was advised of his rights and elected to testify. In opposing the State's motion in limine, Thomas argued that his prior testimony could be introduced only for the limited purpose of impeachment and thus was inadmissible unless he chose to testify again in the second trial. Thomas made no specific objection that admission of the colloquy as part of the prior trial testimony would violate his constitutional rights. After hearing from the parties, the trial court ruled in favor of the State on its motion in limine. Later, at the trial, Thomas did not raise any additional objections when the colloquy and prior testimony were admitted into evidence.

To preserve an objection on a specific ground for ordinary appellate review, objection on that ground must be raised prior to admission of the challenged evidence at trial. See Harris v. State , 307 Ga. 657, 661–64 (2) (a), 837 S.E.2d 777 (2020) ; Sneed v. State , 337 Ga. App. 782, 785 (1) (b), 788 S.E.2d 892 (2016). Because Thomas did not make a specific objection to the admission...