Joseph Lee Tumlin v. State

• Court: Court of Appeals of Georgia
• Decided: September 10, 2020
• Docket: A20A0947
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., RICKMAN and BROWN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

August 24, 2020

In the Court of Appeals of Georgia A20A0947. TUMLIN v. THE STATE.

RICKMAN, Judge.

Joseph Lee Tumlin was tried by a jury and convicted of aggravated child

molestation and child molestation. On appeal, Tumlin contends, inter alia, that he

received ineffective assistance of counsel because his trial counsel failed to subpoena

favorable evidence and that the trial court erred in excluding evidence that he passed

a polygraph examination. For the following reasons, we reverse.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). (Citation and punctuation omitted.) Johnson v. State, 340 Ga. App. 429, 430 (797

SE2d 666) (2017).

So viewed, the evidence showed that Tumlin resided with his wife and their

two young daughters, the victim and A. T. One day when the victim was four, she was

using the restroom and told her mother that she had something to tell her. While

crying, the victim told her mother that “daddy made me suck his bottom,” referring

to his penis. The victim’s mother testified that the victim elaborated and stated that

when she sucked her daddy’s bottom, white stuff came out.

The victim’s mother called the victim’s maternal grandmother, and the

grandmother came to their house and they begin to pack up their belongings. Also,

at some point that day, the victim’s mother withdrew $12,000 from her joint checking

account with Tumlin. The grandmother, the victim’s mother, the victim, and A. T. all

went back to the grandmother’s home. The victim’s mother and grandmother called

law enforcement and a detective arrived.

After the detective talked to the victim’s mother, the victim wanted to talk to

the detective. The detective testified that the victim was “very aggressive” about

2 wanting to speak with her, the victim told the detective that Tumlin made her suck his

private and that white stuff came out.

Tumlin and the victim’s step-grandfather were at work on the date and time the

victim made her allegations. When they arrived back at the grandmother’s house after

work, the victim’s mother confronted Tumlin about the allegations. The victim’s

mother and her grandmother testified that Tumlin stated “[i]f I did, it, I don’t

remember doing it.”

A forensic interviewer conducted a recorded forensic interview of the victim

that was published to the jury. The forensic interviewer testified that the victim

revealed to her that Tumlin touched her with his bottom, referring to Tumlin’s penis.

The victim also repeated to her the same allegation that she made to her mother and

grandmother about sucking Tumlin’s bottom. The victim’s therapist testified that the

victim repeated the same allegations to her and that the victim suffered from

nightmares as result of the abuse.

At trial, the victim testified that she was five years old and that she did not

remember who her dad was, she did not remember why she stopped seeing Tumlin,

and she did not remember ever talking to anyone about anything Tumlin might have

done.

3 A grand jury returned an indictment charging Tumlin with aggravated child

molestation and child molestation. Tumlin was convicted of both charges. Tumlin

filed a timely motion for new trial, which the trial court denied. This appeal follows.

1. Tumlin contends that he received ineffective assistance of counsel because

of his trial counsel’s failure to subpoena favorable evidence.

To prevail on an ineffective assistance of counsel claim, Tumlin must prove

both that his trial counsel’s performance was deficient and that he was prejudiced by

this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104

SCt 2052, 80 LE2d 674) (1984). To establish prejudice, Tumlin must show that “but

for such deficient performance there is a reasonable probability that the result of the

trial would have been different.” Sherman v. State, 295 Ga. 339, 342 (2) (759 SE2d

832) (2014). “In reviewing a lower court’s determination of a claim of ineffective

assistance of counsel, we give deference to the trial court’s factual findings, which

are upheld on appeal unless clearly erroneous; however, we review the lower court’s

legal conclusions de novo.” (Citation omitted.) Washington v. State, 276 Ga. 655, 658

(3) (581 SE2d 518) (2003).

Tumlin testified that shortly before the victim made the allegations he came

home from work and noticed the victim’s mother and the victim watching a television

4 talk show called “Dr. Phil,” hosted by a psychologist. The episode was titled,

“Forgiving the Unforgivable” and the subject matter was child molestation. Tumlin

asked the victim’s mother if she realized the victim was sitting with her watching this

show and she replied negatively. The victim’s mother asked the victim to leave the

room and Tumlin testified that he told her that he could not believe she was allowing

the victim to watch the show due to its graphic nature. The following colloquy

occurred between Tumlin and his trial counsel on direct examination:

Trial Counsel: Mr. Tumlin, it’s awfully convenient it seems, somebody could argue, that you . . . and [the victim’s mother] had a misunderstanding or a disagreement about [the victim] seeing a show about child molestation. You realize that you’re under oath right now?

Tumlin: Yes, sir.

Trial Counsel: You realize that testimony under oath that is false is perjury and it’s a felony?

Trial Counsel: And you’re trying to tell this jury that you were concerned enough about child molestation to . . . worry about [the victim’s] viewing habits before these accusations arose?

5 Tumlin: Yes, sir.

Trial Counsel: What happened with [the victim’s mother] as a result of you finding [the victim] watching Dr. Phil about child molestation?

Tumlin: She seemed like she got a little upset because she always watches Dr. Phil every day.

Trial Counsel: You say she seemed like she got upset. What did she do?

Tumlin: She started fussing with me a little bit.

On cross-examination, Tumlin stated that the Dr. Phil episode aired on Tuesday

and Wednesday on the week the victim made the allegations. The State asked Tumlin,

“[d]o you have any explanation as to why that show didn’t even air in the Atlanta area

on Tuesday?” Tumlin replied, “To my knowledge, I remembered it being on two days

that week.” The State called the victim’s mother in rebuttal and she testified that she

did not remember ever watching a Dr. Phil show and in particular did not remember

a Dr. Phil show titled, “Forgiving the Unforgivable.” On cross-examination, the

victim’s mother changed her testimony, stating that she “may have s[een] four or five

episodes” of Dr. Phil.

6 At Tumlin’s motion for new trial hearing, Tumlin’s trial counsel testified that

the video would have been “great” to have, but she did not think she had the

“manpower” to be able to obtain it. Trial counsel testified that the video “was very

important to me and to my client.” Despite the video’s importance, however, trial

counsel testified that she never filed a subpoena duces tecum against the television

studio to obtain a copy of the video.

At the hearing, an investigator with the Paulding County public defender’s

office testified that he was able to subpoena a copy of the Dr. Phil episode titled

“Forgiving the Unforgivable” and a copy was introduced into evidence. We have

reviewed this episode and the subject matter is regarding two daughters who attempt

to get their mother to acknowledge her role in the sexual abuse they suffered at the

hands of her husband, the girls’ stepfather. One of the daughters made an outcry

about the abuse and the step-father was eventually jailed as a result. The parties agree

that it appears that the episode in question may have been aired on May 11, 2011, two

days prior to the victim’s outcry to her mother. The weather alerts aired during the

episode also indicate that the episode aired on Wednesday, March 11th.

Regardless of when the episode aired, however, trial counsel stated that an

argument could be made that the timing of his disagreement with his wife about

7 allowing the victim to watch the episode was “awfully convenient,” and counsel

disputed the existence of the episode when Tumlin was on direct examination. That

suggestion was capitalized on by the State in its cross-examination of Tumlin and the

rebuttal evidence presented through the victim’s mother.

“[This] case was a pure credibility contest between [the victim] and [Tumlin].

And in such cases, defense counsel’s failure to introduce available evidence that

corroborates a defendant’s testimony supports a finding that counsel’s performance

was deficient.” State v. Crapp, 317 Ga. App. 744, 748 (2) (732 SE2d 806) (2012). See

Gibson v. State, 280 Ga. App. 435, 437 (1) (634 SE2d 204) (2006) (holding that the

defendant’s trial attorneys rendered deficient performance when they failed to obtain

evidence that could have discredited the State’s witnesses).

“In close cases, where the evidence presented by the state is thin, mistakes

made by trial counsel take on greater significance.” (Citation and punctuation

omitted.) Crapp, 317 Ga. App. at 748 (2). At trial, the victim did not have any

recollection of who her father was, let alone the allegations which led to his arrest.

While the State did introduce the child’s forensic interview and testimony from her

therapist, it’s case rested in large part on the testimony of the victim’s mother, the

initial outcry witness. Even more concerning, by his inartful questioning, Tumlin’s

8 trial counsel essentially called into question the existence of the only evidence that

could have corroborated his explanation of events. A reasonable probability exists

that this evidence could have impeached the mother’s credibility and corroborated

Tumlin’s testimony and its introduction would have affected the result of the trial.

See State v. Walker, 327 Ga. App. 304, 308 (758 SE2d 836) (2014); Crapp, 317 Ga.

App. at 748 (2). Accordingly, the trial court erred by finding that Tumlin did not

receive ineffective assistance of counsel and we reverse Tumlin’s convictions.1

2. Tumlin contends that the trial court erred in excluding evidence that he

passed a polygraph.

We address this enumeration because it is likely to occur at retrial. Tumlin took

and passed an unstipulated polygraph and the trial court excluded the results because

of the lack of stipulation.

“It has been stated and reiterated that under the law as it now exists in this

State, results of polygraph tests are admissible only upon the express stipulation of

the parties.” (Citation and punctuation omitted; emphasis in original.) McGraw v.

1 We note that “because the evidence of [Tumlin’s] guilt was otherwise sufficient, the State is authorized to retry [him] without violating the constitutional bar against Double Jeopardy.” McMullen v. State, 316 Ga. App. 684, 684 (730 SE2d 151) (2012).

9 State, 199 Ga. App. 389, 393 (10) (405 SE2d 53) (1991). “Neither the legislature nor

the Supreme Court has provided for admission under the theory of a stipulation

implied by the circumstance of favorable evidence for the accused.” Id. Accordingly,

the trial court did not err by failing to admit the results of Tumlin’s polygraph. See

McIntyre v. State, 207 Ga. App. 129, 130 (2) (427 SE2d 99) (1993); McGraw, 199

Ga. App. at 393 (10).2

Judgment reversed. Dillard, P. J., and Brown, J., concur.

2 “[B]ecause [Tumlin’s] remaining enumerations of error relate to issues that are not likely to recur in the event of a retrial, we do not address them at this time.” Beck v. State, 305 Ga. 383, 388 (2) (825 SE2d 184) (2019).