Cherry v. State

642 S.E.2d 369, 283 Ga. App. 700
Court of Appeals of Georgia·Decided February 22, 2007·No. A06A2064·Published·Cited by 14 cases

Opinion

Adams, Judge.

Leo F. Cherry was convicted by a jury of seven counts of child molestation and one count of aggravated child molestation involving W. W. and S. W., his girlfriend’s two minor daughters. The trial court denied his motion for new trial and Cherry appeals. We affirm.

1. Cherry first asserts that he received ineffective assistance of counsel at his trial. He argues that his counsel’s performance was deficient because he failed to object or to reserve objection to the court’s jury charge on sodomy. In addition, he asserts that his trial attorney should have objected to portions of the prosecutor’s closing argument that Cherry argues were improper.

To prevail on this claim, [Cherry] must show that the attorney’s performance was deficient and that, but for the deficient performance, there is a reasonable probability the trial would have ended differently. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

Sanders v. State, 281 Ga. 36, 39 (3) (635 SE2d 772) (2006). Moreover, Cherry must overcome the strong presumption that trial counsel provided effective representation, and where a trial attorney’s strategy and trial tactics were reasonable at the time, counsel’s performance cannot be deemed ineffective. Welbon v. State, 278 Ga. 312, 313 (2) (602 SE2d 610) (2004). Thus he must “demonstrate that his counsel’s performance was not reasonable under the circumstances confronting his counsel at the time, without resorting to hindsight.” (Citation and punctuation omitted.) Nickerson v. State, 248 Ga. App. 829, 831 (2) (545 SE2d 587) (2001). Further, this Court accepts the trial court’s findings of fact with regard to a claim of ineffective assistance of counsel, unless they are clearly erroneous, but we review the trial court’s legal conclusions de novo. Wiggins v. State, 280 Ga. 627, 628-629 (2) (632 SE2d 80) (2006).

(a) Jury Charge

The sole charge of aggravated child molestation in Cherry’s indictment asserted that he had committed cunnilingus with W. W, “which act involved an act of sodomy, involving the mouth of the accused and the sex organ of another.” Cherry contends that his trial attorney should have objected to the portion of the trial court’s jury [701] charge defining sodomy “as performing or submitting to a sexual act involving the sex organs of one and the mouth or anus of another.” He argues that this charge was not properly adjusted to fit the facts alleged in the indictment as it encompasses acts not charged in the indictment. Cherry asserts that the charge was harmful because there was evidence at trial of other forms of sodomy, and the jury could have convicted him of aggravated child molestation in a manner not alleged in the indictment.

We note that a counsel’s decision whether to object to a particular jury charge is a matter of trial strategy and

[t]rial tactics, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel to have been ineffective so as to overturn a conviction. They provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.

(Citations and punctuation omitted.) Brantley v. State, 271 Ga. App. 733, 737 (1) (611 SE2d 71) (2005). At the hearing on the motion for new trial, Cherry’s trial attorney stated that he did not object to this charge because he did not see anything wrong with it at the time. And the charge at issue was a correct definition of “sodomy” under Georgia law. OCGA § 16-6-2 (a).

Moreover, “it is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Footnote omitted.) Navarro v. State, 279 Ga. App. 311, 316 (3) (630 SE2d 893) (2006). In addition to the sodomy charge, the trial judge instructed the jury that “no person shall be convicted of any crime unless and until each element of the crime as charged is proved”; that the State had the burden of proving each and every material allegation of the indictment; and further that the jury could enter a finding of guilty as to the charge of aggravated child molestation only upon a finding beyond a reasonable doubt that Cherry committed the crime upon W. W. as alleged in the indictment.

In addition, although Cherry asserts that the State presented evidence of other possible acts of sodomy, such evidence related to S. W, and not to W. W, who was the sole victim alleged on the aggravated child molestation charge. The only evidence of sodomy involving W. W. was testimony that corresponded to the facts alleged in the indictment.

Under these circumstances, we find that there was no danger that the trial court’s instructions might have misled the jury into convicting Cherry of aggravated child molestation based upon facts not charged in the indictment. See Anderson v. State, 282 Ga.App. 58, [702]*70261-62 (2) (637 SE2d 790) (2006); Howell v. State, 278 Ga. App. 634, 641-642 (5) (629 SE2d 398) (2006); Joiner v. State, 257 Ga. App. 375, 376 (2) (571 SE2d 430) (2002). Accordingly, Cherry cannot prove that his counsel was ineffective in failing to object or to reserve objections to this charge. “[T]he failure to make a meritless objection does not constitute ineffective assistance of counsel.” (Footnote omitted.) Mobley v. State, 277 Ga. App. 267, 273 (3) (a) (626 SE2d 248) (2006).

(b) Closing Argument

Cherry also contends that his trial counsel was ineffective in failing to object to what he characterizes as improper statements to the jury by the prosecutor during closing argument. He takes issue with the prosecutor’s statement on several different occasions during closing argument that W. W. and S. W. should not be “punished.” On one occasion, for example, the prosecutor stated, “There will come a day when a child will not be punished in a Court of law for what didn’t happen to them.” On another, she stated, “[S. W.] should not be punished because he didn’t do enough damage.” And there were three other similar references during the argument. Cherry asserts that this line of argument suggested to the jury that the children would be punished if he were not convicted and encouraged the jury to reach a verdict, not on the evidence, but in order to prevent such punishment.

At the hearing on the motion for new trial, Cherry’s trial attorney testified that he did not see anything improper in the prosecutor’s argument at the time; if he had, lie would have raised an objection. As he noted, “[sjometim.es when things are written or typed and they’re read later, they come across a bit different than how they come across when they’re actually spoken.”

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Cherry v. State, 642 S.E.2d 369, 283 Ga. App. 700 (Ga. Ct. App. 2007).

642 S.E.2d 369 (Cherry v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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