Williams v. State
| Decision Date | 05 January 2021 |
| Docket Number | A18A0279 |
| Citation | 853 S.E.2d 383,358 Ga.App. 152 |
| Parties | WILLIAMS v. The STATE. |
| Court | Georgia Court of Appeals |
Bernard Stephen Brody, Atlanta, for Appellant.
Cliff Head, Shannon Glover Wallace, Zachary Holman Smith, for Appellee.
Kenneth Howard Williams was convicted of two counts of child molestation and one count of aggravated sexual battery. Williams v. State , 347 Ga. App. 6, 815 S.E.2d 590 (2018). On appeal, we affirmed the child molestation convictions, but reversed the conviction for aggravated sexual battery on the ground that the trial court's jury instruction under then-existing law relieved the State of its burden to prove lack of consent. Williams , 347 Ga. App. at 9-11 (2), 815 S.E.2d 590. The Supreme Court of Georgia granted certiorari and reversed our decision, holding that the trial court did not plainly err in giving the complained-of jury instruction. State v. Williams , 308 Ga. 228, 232-233 (2), 838 S.E.2d 764 (2020).
We now adopt the Supreme Court of Georgia's decision as our own and conclude that the trial court did not plainly err in giving the jury instruction. And because nothing in the Supreme Court's opinion affected our rulings on the merits in the other divisions, we need not revisit them. Wilder v. State , 313 Ga. App. 448, 721 S.E.2d 661 (2011). However, Williams raised two ineffective assistance of counsel claims that we did not address in the earlier opinion in light of our reversal of the aggravated sexual battery conviction. Because the Supreme Court's opinion and remand to this Court puts those arguments before us, we now consider those claims.
We begin by briefly setting out the facts relevant to Williams's claims.1 In 2013, then-four-year-old E. H. made an outcry to her mother that her grandfather, Williams, had been touching her private parts. Williams had his wife compose and send an e-mail to the victim's mother, in which Williams admitted touching the victim, but claimed that the victim initiated the contact by taking his finger and placing it on her vagina.
In a forensic interview, which was recorded and played for the jury, E. H. stated that he touched both the inside and outside of her vagina. At trial, E. H. stated that Williams touched her "in" her privates, but also testified that he only touched the outside of her vagina.
Trial counsel requested that the jury be charged as to the lesser included offense of sexual battery for the child molestation count.2 During the jury charge conference, the trial court expressed confusion over this request, wondering why the lesser included applied to the molestation count but not the aggravated sexual battery count. Trial counsel discussed the language in the indictment and confirmed that he was requesting the charge as to the molestation count. The jury convicted Williams on all counts, rejecting the lesser included offense of sexual battery.
Williams filed a motion for new trial, arguing that he received ineffective assistance of counsel due to counsel's failure to (1) call an expert to rebut the forensic interview, and (2) request a jury charge on the lesser included offense for aggravated sexual battery. At the motion for new trial hearing, appellate counsel called a forensic psychologist, who had been retained prior to trial but was not called as a witness, to testify as to the manner of the forensic interview. The psychologist stated that the interview was "one of the better interviews [he'd] seen." He explained that the interview was not overly suggestive, but he opined that it was better not to ask forced-choice questions that offered only two choices as possible answers. Nevertheless, he admitted that, when given a forced-choice question about whether Williams had touched her inside or outside of her vagina, the victim answered "both," thus not selecting either choice the interviewer suggested. The psychologist acknowledged that, at the time he reviewed the interview, he was unaware that there was an issue about whether penetration had actually occurred for purposes of the aggravated sexual battery count. But he stated that there were many possible explanations for the discrepancy between the victim's statement in the interview and her trial testimony.
Trial counsel then testified that he had spoken with the psychologist before trial and decided not to call him as a witness because there were no glaring problems with the forensic interview. He could not remember if they had discussed the issue of penetration, but he stated that he would have if he had known that the victim would testify at trial that there had been no penetration. Counsel further testified that he asked for the lesser included offense of sexual battery for the molestation charge instead of aggravated sexual battery, even though he believed there was reasonable doubt as to whether penetration occurred.
The trial court denied the motion for new trial, finding that counsel made a reasonable strategic decision not to call the forensic psychologist. As to the request for a jury instruction on the lesser included offense of sexual battery, the trial court found it was reasonable strategy not to request the charge because the defense was that it never happened, and there was no prejudice because it was merely speculative that the outcome of the trial could have been different. The trial court noted that the jury rejected the lesser included offense on the molestation count. Williams appeals from that order, raising the same two claims of ineffective assistance of counsel.
To succeed on a claim that counsel was constitutionally ineffective, [Williams] must show both that his attorney's performance was deficient, and that he was prejudiced as a result. Under the first prong of this test, counsel's performance will be found deficient only if it was objectively unreasonable under the circumstances and in light of prevailing professional norms. And under the second prong, prejudice is demonstrated only where there is a reasonable probability that, absent counsel's errors, the result of the trial would have been different. A "reasonable probability" is defined as a probability sufficient to undermine confidence in the outcome. Failure to satisfy either prong of the ... test is sufficient to defeat a claim of ineffective assistance, and it is not incumbent upon this Court to examine the other prong. And although both the performance and prejudice components of an ineffectiveness inquiry involve mixed questions of law and fact, a trial court's factual findings made in the course of deciding an ineffective assistance of counsel claim will be affirmed by the reviewing court unless clearly erroneous.
(Citation and punctuation omitted.) Green v. State , 302 Ga. 816, 817-818 (2), 809 S.E.2d 738 (2018). Williams has not met his burden.
Williams first contends that trial counsel's performance was deficient in failing to call the forensic psychologist to challenge the suggestive questions in the forensic interview, and that he was prejudiced by this failure because the forensic interview was the only evidence that there was penetration for purposes of the aggravated sexual battery charge.
(Citations and punctuation omitted.) Carmichael v. State , 353 Ga. App. 64, 71-72 (3), 836 S.E.2d 184 (2019).
Here, counsel made the strategic decision not to call the psychologist because his testimony would not have been helpful in challenging the forensic interview. As the psychologist explained at the motion for new trial hearing, the interview was one of the better ones he had seen; it was not overly suggestive; and even though the interviewer used forced-choice questions about whether Williams touched inside or outside her vagina, the victim selected her own answer. Thus, the psychologist's testimony would not have discredited the interview, and trial counsel's decision not to call this witness was reasonable. See Gawlak v....
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