Bruce v. State

603 S.E.2d 33, 268 Ga. App. 677, 2004 Fulton County D. Rep. 2464, 2004 Ga. App. LEXIS 930
CourtCourt of Appeals of Georgia
DecidedJuly 9, 2004
DocketA04A0017
StatusPublished
Cited by21 cases

This text of 603 S.E.2d 33 (Bruce 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
Bruce v. State, 603 S.E.2d 33, 268 Ga. App. 677, 2004 Fulton County D. Rep. 2464, 2004 Ga. App. LEXIS 930 (Ga. Ct. App. 2004).

Opinion

603 S.E.2d 33 (2004)
268 Ga. App. 677

BRUCE
v.
The STATE.

No. A04A0017.

Court of Appeals of Georgia.

July 9, 2004.
Reconsideration denied July 23, 2004.
Certiorari Denied October 25, 2004.

*35 Robert Lenzer, Thomas Lenzer, Lenzer & Lenzer, Norcross, for Appellant.

Daniel Porter, District Attorney, James Miskell, Assistant District Attorney, for Appellee.

PHIPPS, Judge.

After a jury trial, Kenneth Lee Bruce was convicted of child molestation for touching the vagina of K.M., who was nine years old at the time of the incident. On appeal, Bruce contends that he was deprived of effective assistance of counsel. Because Bruce has shown no reversible error, we affirm.

The state presented the testimony of K.M., 11 years old at the time of trial, who recounted a weekend she had spent with Bruce. On Friday night, the two ate pizza and watched television, after which K.M. went upstairs to sleep in Bruce's roommate's bedroom. The roommate, Ted Lee, was spending that weekend with K.M.'s mother and her fiance, Tom Manor. K.M. testified that after she went to bed, "[Bruce] touched me in my tutu... [b]etween my legs." She stated, "[h]e started doing it and he stopped and I started waking up." She remembered crying and asking to call her mother, but Bruce asked whether she could wait until morning. No call was made. Instead, she and Bruce went downstairs and watched television until they fell asleep. K.M. was on the sofa, and Bruce was on the floor. The next day, K.M. went next door and played with two girls. She testified, "And I spent the night with them because I didn't want to go back over [to Bruce's house] because I didn't know if he was going to do it again." Sunday, K.M. went to church with the girls and their parents. Afterward, she waited at Bruce's home until her mother picked her up.

K.M.'s mother testified that the incident occurred about a week before Halloween 1997. K.M. was living with her mother, Manor, and her two brothers. Her mother had met Bruce through Manor and Lee and considered Lee and Bruce her friends. K.M.'s mother recalled that on that Saturday, she spoke with K.M. and Bruce by telephone several times. Bruce mentioned that K.M. had experienced a nightmare. K.M.'s mother testified that K.M. did not mention any nightmare or say anything to her that seemed out of the ordinary. On Sunday, K.M.'s mother picked up K.M. and dropped off Lee. K.M.'s mother testified that K.M. did not appear upset during the drive home, that K.M. expressed no anger or dislike toward Bruce, and that she did not say anything odd.

Manor, who had been sharing a home with K.M.'s mother and her children since 1992, recalled the weekend that K.M. spent with Bruce and testified that there was nothing unusual about K.M.'s behavior after she returned home.

K.M. did not immediately tell anyone about the incident. But about four weeks later, having pizza for dinner one evening with her mother and one of her brothers reminded her of her weekend with Bruce. She related to her mother, her brother, and later to Manor that Bruce had touched her genital area. Within a week, K.M.'s mother contacted a therapist who had counseled one of her sons. After talking with K.M., the therapist reported the matter to police on November 19, 1997. K.M. was not taken to a physician.

The detective assigned to the case talked to the therapist, and later in November, he interviewed K.M. for 27 minutes. The interview was videotaped and later played for the jury. K.M. told the detective during the interview that Bruce had touched her "tutu," that she had cried and asked to call her mother, and that Bruce had refused and instead led her downstairs to watch television.

The detective testified that after his numerous unsuccessful attempts to contact Bruce during the next two months, the case lay "basically unworked" from November 1997 to April 1998 due to his caseload. In May 1988, the detective resumed his investigation, conducting a six-minute interview with K.M.'s mother, a one-minute interview with K.M.'s brother, and a two-minute interview with Manor — each concerning only *36 K.M.'s outcry. The detective also interviewed Lee. Later that month, the detective obtained a warrant for Bruce's arrest.

Bruce was the sole defense witness. He denied molesting K.M., giving a different account of what happened that Friday night. According to Bruce, after K.M. went to bed, he fell asleep on the sofa downstairs watching television. Later, K.M. came downstairs crying because she had experienced a nightmare. Because she was too afraid to sleep alone upstairs, Bruce let her sleep on the sofa, and he slept on the floor.

Lead defense counsel argued in closing that the state had left "a lot of gaps in the evidence." She argued that K.M.'s allegations were unfounded, pointing out that K.M. had stated that she had been asleep when Bruce allegedly touched her and that K.M. had made no outcry for a month. Further, lead counsel argued that the detective's less than one hour investigation had been insufficient. She pointed out that the detective had failed to corroborate K.M.'s allegations with physical or medical evidence, failed to investigate the case during a pertinent time period, failed to delve into K.M.'s family's dynamics, and failed to interview the parents of the two girls next door to Bruce's home. Lead counsel asserted that the gaps in the state's evidence amounted to reasonable doubt that Bruce had molested K.M.

On appeal, Bruce claims that the trial court erred in denying his motion for new trial, contending that he received ineffective assistance of counsel. To prevail on this claim, Bruce must establish, pursuant to Strickland v. Washington,[1] that counsel's performance was deficient and that the deficient performance was prejudicial to his defense.[2] Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.[3] In reviewing a trial court's determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court's factual findings unless they are clearly erroneous; we review a trial court's legal conclusions de novo.[4]

1. Bruce argues that his trial counsel's performance was deficient because counsel failed to fill the evidentiary gaps with testimony of certain witnesses to establish that K.M. was either mistaken or lying. At the motion for new trial hearing, lead defense counsel, who had worked either as a prosecutor or as a defense lawyer since 1989, explained that based upon her investigation of the case and trial preparation, she determined that the benefit of preserving final closing argument outweighed any benefit of calling additional witnesses. Deciding which defense witnesses to call is a matter of trial strategy and tactics.[5] Further, declining to present evidence to preserve the final word in closing argument is a well-recognized trial tactic.[6] As a general rule, matters of strategy and tactics, "whether wise or unwise, [do] not amount to ineffective assistance of counsel."[7] Trial counsel is afforded tremendous deference over matters of trial strategy; however, the strategy that is selected must be supported by adequate investigation.[8]

Lead defense counsel outlined at the motion for new trial hearing her investigation of the case and the development of the defense strategy and tactics. She had reviewed the state's discovery responses and had attempted to interview K.M.'s family members, but K.M.'s mother would not agree to that.

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Bluebook (online)
603 S.E.2d 33, 268 Ga. App. 677, 2004 Fulton County D. Rep. 2464, 2004 Ga. App. LEXIS 930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruce-v-state-gactapp-2004.