Zerbarini v. State
| Decision Date | 10 March 2021 |
| Docket Number | A20A1711 |
| Citation | 359 Ga.App. 153,855 S.E.2d 87 |
| Court | Georgia Court of Appeals |
| Parties | ZERBARINI v. The STATE. |
Brian Steel, Atlanta, for Appellant.
Elizabeth A. Baker, Benjamin David Coker, Daniel A. Hiatt, Marie Greene Broder, Robert Wright Smith Jr., for Appellee.
A jury convicted Thomas Edward Zerbarini of aggravated child molestation, incest, two counts of child molestation, and enticing a child for indecent purposes, related to Zerbarini's conduct towards two child victims. He has appealed from his judgment of conviction and the trial court's denial of his motion for new trial, as amended. On appeal, Zerbarini asserts: (1) (a) trial court error in failing to allow counsel a full opportunity to respond to a note sent from the jury during deliberations and (b) in failing to correctly instruct the jury in response to the note; (2) trial court error in failing to give a curative instruction to the jury after a witness bolstered the testimony of another witness; (3) ineffective assistance of trial counsel; (4) trial court error in sentencing by failing to merge two counts; and (5) conflict of interest of the trial judge. For the reasons set forth below, we affirm the trial court's order.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.
Williams v. State , 333 Ga. App. 879, 879, 777 S.E.2d 711 (2015) (citation and punctuation omitted).
Thus viewed in the light most favorable to the verdict, the record shows that M. B., who was 13 years old at the time of trial in December 2017, was Zerbarini's neighbor. Zerbarini molested M. B. on two separate occasions in 2013 and 2014 by touching her private parts. T. Z., who was eight years old at the time of trial, is Zerbarini's daughter. Zerbarini molested T. Z. on multiple occasions sometime between October 2012 and July 2014 by licking her private parts. Both girls testified to the molestations at trial.
Based on this conduct, Zerbarini was charged with aggravated child molestation (Count 1) and incest (Count 2) based on acts of sodomy toward T. Z., and was charged with two counts of child molestation (Counts 3 and 4) and one count of enticing a child for indecent purposes (Count 5) based on acts of touching M. B. Zerbarini proceeded to trial, represented by counsel. His trial took place over several days from December 4, 2017, through December 15, 2017.
Although Zerbarini was charged only in connection with two victims, other witnesses testified that Zerbarini molested them while they were children, including Zerbarini's other daughter, A. Z., who was twelve years old at the time of trial, and Zerbarini's niece, Z. S., who was nine years old at the time of trial. Two older witnesses, both relatives of Zerbarini's, testified that he molested them years ago when they were children. Specifically, L. B. testified that Zerbarini molested her by putting his hand down her shorts and "moving his hand around [her] vagina" in 2006, when she seven years old. J. S. testified that Zerbarini molested her twice by putting his hand inside her underwear when she was four years old. One of Zerbarini's sons testified that he witnessed Zerbarini sucking his sister A. Z.’s breasts in the basement of their home.
Zerbarini put forward several defense witnesses, including multiple people who testified that he was known by them to be appropriate with children. Zerbarini testified in his own defense, fully denying the allegations against him. Zerbarini explained that his wife, Lynne Zerbarini, was molested as a child and was extremely suspicious that her own children were being molested by him, accusing him on multiple occasions. In May 2014, Zerbarini was exchanging flirtatious text messages with another woman, and Lynne saw the messages. Lynne told Zerbarini that she intended to file for divorce and move with the children to New York. Zerbarini told her he intended to fight for custody of the children. Shortly thereafter, Zerbarini heard from his children that their mother had again begun to question them about whether Zerbarini had been inappropriate with them.
To support Zerbarini's theory that Lynne influenced the children into making the allegations of molestation, Zerbarini called as a witness Dr. Maggie Bruck, a psychologist who specializes in the strength and distortion of children's memories. Dr. Bruck was admitted as an expert witness in the area of child sexual abuse disclosures. Dr. Bruck testified that Lynne's repeated questioning of the children regarding whether Zerbarini molested them, combined with Lynne's obvious anger towards Zerbarini, could have resulted in the children inventing false allegations against their father. She further opined that the outcries from Zerbarini's daughters and his younger niece, Z. S., to their respective mothers could have been improperly influenced by their mothers’ disdain towards Zerbarini and belief that Zerbarini had been inappropriate with the girls. Additionally, M. B.’s outcry could have been influenced by the same suggestive environment because her parents also repeatedly questioned her if Zerbarini had molested her and did not take precautions to ensure that M. B. was not influenced by their behavior. According to Dr. Bruck, the older victims’ accounts of molestation from many years ago could either have been influenced by the recent allegations, or could have been false memories. Zerbarini rested his case after Dr. Bruck's testimony.
After deliberating for several hours over two days, the jury returned a guilty verdict on all counts. The trial court imposed a life plus 35 year total sentence. After retaining appellate counsel, Zerbarini filed a motion for new trial, as amended. After two days of hearings, at which multiple witnesses testified, the trial court denied Zerbarini's motion. This appeal followed.
1. Zerbarini asserts that his constitutional right to counsel was violated when trial counsel was not given an opportunity to respond fully to a note submitted by the jury during deliberations. He also asserts that the court's response to the jury's note, which included giving an incomplete and incorrect Allen1 charge, was coercive and contributed to the verdict. As these claims are closely related, we will consider them together.
Zerbarini's claims arise out of a question submitted by the jury to the court. After approximately nine hours of deliberation over two days, the jury sent a note to the court asking: "Can we be a hung jury on one or more counts and convict on the others?" The trial court held a conference in chambers with the attorneys to discuss the note. Because the note indicated the possible direction of the jurors’ votes, the court did not show the note or read it verbatim to the attorneys. The court explained the contents of the note as follows: "What they wanted to know was could they be hung on one count and reach decisions on the other counts." The court suggested giving an Allen charge, and again stated that "it appears it's just one matter that they're – have an incomplete decision on." The court asked for input from the attorneys.
Trial counsel stated his understanding of the note:
The State asked the court to give the Allen charge. The court believed that it would be inconsistent to answer the jurors’ question that they were allowed to be a hung jury on one count while also giving them an Allen charge. The court intended to first ask the foreman if he believed it was possible for the jury to reach a unanimous verdict on every count, and if the answer was no, the court would come back and discuss additional possibilities with the attorneys. Otherwise, the court would give an Allen charge. Trial counsel did not object to this plan.
Back in the courtroom, the trial court asked the jury foreman if he believed that it was possible for the jury to reach a unanimous verdict on every count if given more time. The foreman responded, "I would say so." The court then instructed the jury as follows:
Approximately 50 minutes later, the jury returned with the verdict, which was unanimous and guilty on all counts. The court polled the jury, asking each juror if the verdict represented his/her decision. Each juror answered affirmatively. The jury was then excused.
(a) Zerbarini contends that his right to counsel was violated because the court's incorrect and misleading explanation of the substance of the jury note kept counsel from being able to form an informed and complete response on how to advise the jury.
"Both the Supreme Court of Georgia and this Court have recognized that the failure of ...
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