Adams v. State

659 S.E.2d 711, 2008 Fulton County D. Rep. 1059, 290 Ga. App. 299, 2008 Ga. App. LEXIS 305
CourtCourt of Appeals of Georgia
DecidedMarch 14, 2008
DocketA07A1758
StatusPublished
Cited by4 cases

This text of 659 S.E.2d 711 (Adams v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. State, 659 S.E.2d 711, 2008 Fulton County D. Rep. 1059, 290 Ga. App. 299, 2008 Ga. App. LEXIS 305 (Ga. Ct. App. 2008).

Opinion

659 S.E.2d 711 (2008)

ADAMS
v.
The STATE.

No. A07A1758.

Court of Appeals of Georgia.

March 14, 2008.

*713 Christopher A. Frazier, Atlanta, for Appellant.

Peter J. Skandalakis, Dist. Atty., La Grange and Robert Nicholas Peterkin, Asst. Dist. Atty., for Appellee.

BARNES, Chief Judge.

A jury found Donald Adams guilty of child molestation and aggravated child molestation. Adams appeals, alleging that he received ineffective assistance of counsel. He further argues that newly discovered evidence requires a new trial and that the trial court erred in failing to grant his motion to recuse. For reasons that follow, we affirm.

Viewed favorably to the verdict, see Redd v. State, 281 Ga.App. 272, 635 S.E.2d 870 (2006), the evidence shows that Adams had custody of his six-year-old son, D.L.A., and the mother had visitation rights. During a visit in September 2001, the mother heard D.L.A. telling his brother about intimate female body parts. When she asked D.L.A. where he had learned about these parts, he responded that his father allowed him to watch "nasty movies . . . that they do bumping on." Two weeks later, the mother again heard D.L.A. talking about the movies. The mother asked D.L.A. whether anyone had touched him inappropriately, and he stated: "daddy . . . made me suck his penis" and "pee peed in [my] mouth."

In two interviews with police, D.L.A. consistently made the same allegations regarding Adams. D.L.A. also told a pediatrician that he had touched his father's private parts, and a psychological evaluation revealed that D.L.A. suffered from emotional and behavioral problems suggesting that he had been sexually abused or at least exposed to inappropriate sexual stimuli. The investigating officer subsequently interviewed Adams, who denied the allegations and asserted that D.L.A.'s mother had fabricated the claims because she was angry with him. Adams, however, also admitted that he owned numerous pornographic videos, which he turned over to police.

D.L.A. repeated his allegations at trial. He testified that Adams showed him "nasty" movies with naked people having sex. He further testified that his father made him put his mouth on his father's penis and that his father "peed in [his] mouth." According to D.L.A., Adams instructed him not to tell anyone about the incident or he would "get a whooping."

1. Adams claims that he received ineffective assistance of counsel at trial. To succeed in this claim, Adams must demonstrate that trial counsel's performance was deficient and that the deficiency prejudiced his defense. Redman v. State, 281 Ga.App. 605, 606(3), 636 S.E.2d 680 (2006). The necessary showing requires Adams to overcome the strong presumption that counsel's conduct fell within the broad range of reasonable professional performance. Crawford v. State, 252 Ga.App. 722, 725(3), 556 S.E.2d 888 (2001). As we have found, "tactical decisions, even if they misfire, do not generally equate with ineffectiveness." Id.

(a) Adams alleges that his attorney was ineffective in failing to object or move for a mistrial in response to testimony that Adams had previously been accused of physically abusing D.L.A. The record shows that this testimony was first presented during trial counsel's cross-examination of D.L.A.'s mother, who mentioned the allegation. Although the mother's testimony was not particularly responsive to counsel's question, *714 counsel did not object, move to strike it, or request other curative action.

"`[W]hen and how to raise objections is generally a matter of trial strategy.'" (Citation omitted.) Mattis v. State, 282 Ga.App. 49, 51(4)(a), 637 S.E.2d 787 (2006). And the record shows that Adams failed to call trial counsel as a witness at the hearing on his motion for new trial. Absent counsel's testimony, Adams cannot easily rebut the presumption that the decision not to object constituted reasonable trial strategy. Mealor v. State, 266 Ga.App. 274, 276, 596 S.E.2d 632 (2004).

Moreover, through further questions, counsel established that the mother initially accused Adams of this physical abuse, but that authorities later dismissed the resulting criminal charges and Adams was awarded custody of D.L.A. Counsel thus turned the nonresponsive answer into support for his primary defense at trial: that the mother fabricated the molestation allegations and convinced her young son to accuse his father because she was angry at Adams and wanted custody of D.L.A. Under these circumstances, we must presume that counsel's failure to object was a reasonable trial strategy and not deficient performance. See Evans v. State, 288 Ga.App. 103, 108(3)(b), 653 S.E.2d 520 (2007); Mealor, 266 Ga.App. at 277(a), 596 S.E.2d 632.

(b) Adams claims that trial counsel erred in allowing the investigating officer to testify on cross-examination that she "believed[d] the child." The record shows, however, that counsel elicited this testimony while attacking the police investigation, suggesting that the investigator took a young child's allegations as "gospel" and investigated no further. Given Adams' failure to call trial counsel as a witness at the new trial hearing, we presume that counsel's questions were part of a reasonable, strategic effort to undermine the State's case. See Green v. State, 281 Ga. 322, 323-324(2), 638 S.E.2d 288 (2006) (no deficient performance where counsel sought to undermine a witness's credibility "by mocking the detective's belief in a witness whose statements were so inconsistent").

(c) Adams also complains about another exchange between trial counsel and the investigating officer. After establishing that some abused children "act out" what happened to them, counsel asked: "You didn't interview any of the teachers. [D.L.A.] didn't act it out at school to your knowledge?" The officer responded: "He committed an act of sodomy on his brother." At that point, trial counsel objected on foundation grounds, stating: "I asked her if she interviewed any teachers and she came up with some crazy wild allegation that we've never heard of." The trial court overruled the objection after finding that counsel had "opened the door" to the testimony.

Adams argues that by eliciting this testimony, trial counsel presented evidence supporting D.L.A.'s claim of abuse. Again, however, Adams failed to call counsel as a witness at the new trial hearing, leaving us with no insight into counsel's decisions regarding this line of questioning. Perhaps counsel had been informed that D.L.A. had not acted out sexually and, using that information, attempted to raise questions about the abuse claim. Moreover, although the trial court found that counsel had opened the door to the investigator's testimony, the testimony was not directly responsive to counsel's question.

It appears that counsel's cross-examination tactics may have backfired. But as noted above, a reasonable tactic that backfires does not constitute deficient performance. See Crawford, 252 Ga.App.

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Bluebook (online)
659 S.E.2d 711, 2008 Fulton County D. Rep. 1059, 290 Ga. App. 299, 2008 Ga. App. LEXIS 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-state-gactapp-2008.