SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 11, 2013
In the Court of Appeals of Georgia A12A1762. GOODWIN v. THE STATE.
BARNES, Presiding Judge.
A jury convicted Larry Gerald Goodwin of two counts of child molestation and
one count of misdemeanor marijuana possession, and sentenced him to serve 20 years
in confinement followed by 20 years on probation. The trial court denied Goodwin’s
motion for new trial, finding that his trial counsel had not been ineffective. On appeal,
Goodwin contends that the trial court erred in not allowing him to present hearsay
evidence about the victim’s first interview with authorities, and that his trial counsel
was ineffective in several respects relating to that interview. He also contends that his
trial counsel was ineffective for failing to put him on the stand to testify, and that the
trial court erred in limiting his ability to question the State’s trial counsel under oath during the hearing on his motion for new trial. For the reasons that follow, we find
no error and affirm.
Goodwin was indicted for two counts of child molestation.1 The indictment
charged him with committing the offenses between January 1, 2009 and April 27,
2010 against the same victim who was younger than 16. In Count 1 he was accused
of having the victim place her hands on his penis and rub, with the intent to arouse
and satisfy his sexual desires, and in Count 2 he was accused of placing his hands on
the child’s vagina, with the same intent. The State called three witnesses to prosecute
the molestation charges: an investigator with the Spalding County Sheriff’s
Department, the victim, who was eight years old at the time of trial, and the victim’s
mother as a rebuttal witness.2
Viewing the evidence presented at trial in the light most favorable to the
prosecution, the Spalding County investigator testified that after she received a
referral about the case from a Cobb County detective, she set up a forensic interview
with the seven-year-old victim and her mother. During the interview, the child said
1 Goodwin was also indicted for and convicted of misdemeanor marijuana possession, but raises no arguments on appeal related to that conviction. 2 Three witnesses also testified about finding, storing, and testing marijuana found in Goodwin’s residence upon execution of a search warrant.
2 that Goodwin, who was married to the victim’s grandmother, “had done some things
to her that . . . she described as being nasty.” The child said Goodwin “would make
her rub his wee-wee, referring to his penis, with lotion and . . . she would have to hold
on to it. And at the time she said she got tired, and she couldn’t let go until he tells
her to let go.” The child also said he had “touched her private. He also had her to suck
it. And there was an occasion where he placed his penis on her backside.” The child
was “very descriptive” in her statement and in drawings she made.
A week later, the investigator conducted a follow-up interview, during which
the child said the last time she had been to the defendant’s house she stayed for a
week during spring break, which was a month before the interview. When asked if
anything happened while she was there with her grandparents, she said it did, that
Goodwin “made her rub his wee-wee with lotion.” The victim specified that Goodwin
“would put the lotion in her hands and would tell her to rub it,” and that when she
rubbed it, “it would spit... a white substance with bad germs.” She said these events
took place in Goodwin’s bedroom and near a large tool box in the barn, and that the
lotion had no smell, was white, and was in a brown bottle he kept in drawers in the
barn and bedroom.
3 The investigator obtained and helped execute a search warrant for Goodwin’s
house, where searchers found a brown bottle on the bedroom floor, a container of
lotion on the floor beside the night stand in Goodwin’s bedroom, and another
container of lotion in a desk drawer inside the barn, which also contained a large tool
box. Multiple bottles of lotion were found inside the closet in another bedroom.
Throughout the trial, Goodwin attempted to introduce evidence about
interviews with the victim and her mother by a Cobb County detective a few weeks
before the case was transferred to Spalding County, but the trial court sustained the
State’s hearsay objections because the detective was not present at trial.
The excluded evidence included recorded interviews with the victim and her
mother after the victim told a counselor at school that her legs were bruised because
her brother left them when he “kissed her private.” In the interview, the victim said
most of her bruises were caused by her older brother punching and kicking her. The
victim’s body had no suspicious marks, and the only reference to sexual abuse during
this interview was her disclosure that several years before her brother’s friend asked
her to “suck his wee wee.” In an interview without the child present, her mother said
the victim had previously said her brother punches her, but the brother denied it, and
the mother was not sure if the victim was telling the truth or not as she “has been
4 known to lie.” The detective concluded that there was no evidence of child
molestation and turned the matter over to DFCS.
Eleven days later, the mother called the detective to report that during a
discussion about making good choices, the victim began crying and revealed that
Goodwin “makes her rub lotion on his ‘wee wee’ and told her to keep it a secret.” The
detective then referred the case to Spalding County for further action because that is
where the victim said the incidents with Goodwin had taken place.
Trial counsel testified at the motion for new trial hearing that he wanted the
jury to hear evidence that the victim initially alleged that her brother had been
punching her in her private area, but the “key part” he wanted from the recorded
interviews was that the mother said the victim lied all the time and did not know
whether to believe her or not. Counsel described his unsuccessful efforts to serve the
Cobb County detective with a subpoena to appear at trial, but he ultimately
announced ready for trial because he thought the State had subpoenaed the detective
as they had when the case was previously called for trial.
1. Goodwin contends first that the trial court erred in not allowing into
evidence hearsay testimony related to the interviews, arguing that the evidence was
admissible as an exception to hearsay because the Cobb County detective was
5 “unavailable.” In Goodwin’s statement of facts in his brief, he discusses some of his
unsuccessful attempts throughout trial to introduce evidence regarding the Cobb
County detective’s interviews and report. In his argument on this first enumeration,
however, he does not describe the specific rulings he contends are error. Instead, he
argues that, despite Goodwin’s proffers to support his claim that the detective was
unavailable and therefore the evidence was admissible as an exception to hearsay,
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SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 11, 2013
In the Court of Appeals of Georgia A12A1762. GOODWIN v. THE STATE.
BARNES, Presiding Judge.
A jury convicted Larry Gerald Goodwin of two counts of child molestation and
one count of misdemeanor marijuana possession, and sentenced him to serve 20 years
in confinement followed by 20 years on probation. The trial court denied Goodwin’s
motion for new trial, finding that his trial counsel had not been ineffective. On appeal,
Goodwin contends that the trial court erred in not allowing him to present hearsay
evidence about the victim’s first interview with authorities, and that his trial counsel
was ineffective in several respects relating to that interview. He also contends that his
trial counsel was ineffective for failing to put him on the stand to testify, and that the
trial court erred in limiting his ability to question the State’s trial counsel under oath during the hearing on his motion for new trial. For the reasons that follow, we find
no error and affirm.
Goodwin was indicted for two counts of child molestation.1 The indictment
charged him with committing the offenses between January 1, 2009 and April 27,
2010 against the same victim who was younger than 16. In Count 1 he was accused
of having the victim place her hands on his penis and rub, with the intent to arouse
and satisfy his sexual desires, and in Count 2 he was accused of placing his hands on
the child’s vagina, with the same intent. The State called three witnesses to prosecute
the molestation charges: an investigator with the Spalding County Sheriff’s
Department, the victim, who was eight years old at the time of trial, and the victim’s
mother as a rebuttal witness.2
Viewing the evidence presented at trial in the light most favorable to the
prosecution, the Spalding County investigator testified that after she received a
referral about the case from a Cobb County detective, she set up a forensic interview
with the seven-year-old victim and her mother. During the interview, the child said
1 Goodwin was also indicted for and convicted of misdemeanor marijuana possession, but raises no arguments on appeal related to that conviction. 2 Three witnesses also testified about finding, storing, and testing marijuana found in Goodwin’s residence upon execution of a search warrant.
2 that Goodwin, who was married to the victim’s grandmother, “had done some things
to her that . . . she described as being nasty.” The child said Goodwin “would make
her rub his wee-wee, referring to his penis, with lotion and . . . she would have to hold
on to it. And at the time she said she got tired, and she couldn’t let go until he tells
her to let go.” The child also said he had “touched her private. He also had her to suck
it. And there was an occasion where he placed his penis on her backside.” The child
was “very descriptive” in her statement and in drawings she made.
A week later, the investigator conducted a follow-up interview, during which
the child said the last time she had been to the defendant’s house she stayed for a
week during spring break, which was a month before the interview. When asked if
anything happened while she was there with her grandparents, she said it did, that
Goodwin “made her rub his wee-wee with lotion.” The victim specified that Goodwin
“would put the lotion in her hands and would tell her to rub it,” and that when she
rubbed it, “it would spit... a white substance with bad germs.” She said these events
took place in Goodwin’s bedroom and near a large tool box in the barn, and that the
lotion had no smell, was white, and was in a brown bottle he kept in drawers in the
barn and bedroom.
3 The investigator obtained and helped execute a search warrant for Goodwin’s
house, where searchers found a brown bottle on the bedroom floor, a container of
lotion on the floor beside the night stand in Goodwin’s bedroom, and another
container of lotion in a desk drawer inside the barn, which also contained a large tool
box. Multiple bottles of lotion were found inside the closet in another bedroom.
Throughout the trial, Goodwin attempted to introduce evidence about
interviews with the victim and her mother by a Cobb County detective a few weeks
before the case was transferred to Spalding County, but the trial court sustained the
State’s hearsay objections because the detective was not present at trial.
The excluded evidence included recorded interviews with the victim and her
mother after the victim told a counselor at school that her legs were bruised because
her brother left them when he “kissed her private.” In the interview, the victim said
most of her bruises were caused by her older brother punching and kicking her. The
victim’s body had no suspicious marks, and the only reference to sexual abuse during
this interview was her disclosure that several years before her brother’s friend asked
her to “suck his wee wee.” In an interview without the child present, her mother said
the victim had previously said her brother punches her, but the brother denied it, and
the mother was not sure if the victim was telling the truth or not as she “has been
4 known to lie.” The detective concluded that there was no evidence of child
molestation and turned the matter over to DFCS.
Eleven days later, the mother called the detective to report that during a
discussion about making good choices, the victim began crying and revealed that
Goodwin “makes her rub lotion on his ‘wee wee’ and told her to keep it a secret.” The
detective then referred the case to Spalding County for further action because that is
where the victim said the incidents with Goodwin had taken place.
Trial counsel testified at the motion for new trial hearing that he wanted the
jury to hear evidence that the victim initially alleged that her brother had been
punching her in her private area, but the “key part” he wanted from the recorded
interviews was that the mother said the victim lied all the time and did not know
whether to believe her or not. Counsel described his unsuccessful efforts to serve the
Cobb County detective with a subpoena to appear at trial, but he ultimately
announced ready for trial because he thought the State had subpoenaed the detective
as they had when the case was previously called for trial.
1. Goodwin contends first that the trial court erred in not allowing into
evidence hearsay testimony related to the interviews, arguing that the evidence was
admissible as an exception to hearsay because the Cobb County detective was
5 “unavailable.” In Goodwin’s statement of facts in his brief, he discusses some of his
unsuccessful attempts throughout trial to introduce evidence regarding the Cobb
County detective’s interviews and report. In his argument on this first enumeration,
however, he does not describe the specific rulings he contends are error. Instead, he
argues that, despite Goodwin’s proffers to support his claim that the detective was
unavailable and therefore the evidence was admissible as an exception to hearsay,
“the court sustained numerous objections to trial counsel’s use of [the] Cobb County
Detective[‘s] report and opinions.” Then Goodwin avers that the trial court “finally
recognized the strength of those arguments and then apparently relied upon the state’s
statement that [the detective] would be available.”
Goodwin’s general summary of the “numerous” rulings related to this issue
establishes no error. Goodwin seems to be relying on the general necessity exception
under former OCGA § 24-3-1,3 which has an “unavailability component,” rather than
on former OCGA § 24-3-10, because under the latter statute, testimony given by an
“inaccessible” witness must have been made under oath in a former proceeding on the
3 Goodwin’s trial commenced before January 1, 2013, so Georgia’s new Evidence Code does not apply. See Ga. L. 2011, pp. 99, 214, § 101.
6 same issue between the same parties to be admissible, and the testimony Goodwin
sought to admit was not given under oath in a former proceeding.
Under former OCGA § 24-3-1 (b), hearsay evidence was admissible in
“specified cases from necessity” if the declarant was “inaccessible” and other
requirements were met, but establishing that a witness was inaccessible required
“proof of sustained efforts by parties to locate the witness in question before allowing
the admission of such testimony .” Hill v. State, 291 Ga. 160, 163 (3) (728 SE2d 225)
(2012). We review a trial court’s decision about whether a witness was inaccessible
or not for abuse of discretion, but in this case, Goodwin failed to obtain a ruling on
the witness’s inaccessibility. Accordingly, we find no error.
2. Goodwin argues his trial counsel was ineffective in several respects: in
announcing ready for trial when he had not perfected service of his subpoena on the
Cobb County detective; in failing to move for a mistrial when the State did not call
the detective as a witness despite the State’s assurance he would be available to
testify; in failing to pursue and proffer taped evidence of the victim’s prior
inconsistent statements to the Cobb detective; in failing to move for a continuance or
mistrial after the trial court’s adverse rulings about the admissibility of the Cobb
7 detective’s report; in failing to put Goodwin on the stand to testify, and in failing to
call “each and every defense witness.”
To prevail on a claim of ineffective assistance of counsel, Goodwin must show
both that trial counsel’s performance was deficient and that the deficient performance
was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687 (III) (104
SCt 2052, 80 LEd2d 674) (1984); Aaron v. State, 275 Ga. App. 269, 271 (4) (620
SE2d 499) (2005).
The performance of counsel test requires counsel to perform reasonably under prevailing professional norms. We do not evaluate this prong of the test because the issue turns on the second prong. If there was no prejudice to the defense, it does not matter whether the performance of counsel was adequate. Therefore, we turn to the second prong of the test.
Wadley v. State, 258 Ga. 465, 466-467 (3) (369 SE2d 734) (1988). To establish
prejudice, “the defendant must show that, but for inadequate performance of counsel,
there is a reasonable probability the result would have been different.” Id. at 467 (4).
a. As Goodwin himself notes, objections and discussions and rulings about the
admissibility of the Cobb detective’s report and interview permeated the trial, and his
first four claims of ineffective assistance are related to counsel’s failure to place that
evidence before the jury. But trial counsel testified in the motion for new trial hearing
8 that the critical part of that evidence was that the victim initially blamed her brother
for her bruises and that her mother said that the victim was a liar. Trial counsel
successfully introduced evidence about those issues, and therefore Goodwin cannot
show that he was prejudiced by his trial counsel’s performance.
For example, during his cross-examination of the Spalding County detective,
Goodwin attempted to ask about the Cobb detective’s report, and the State objected
to it as inadmissible hearsay. The trial court sustained the State’s objection, but the
detective subsequently testified that the victim had told the Cobb detective that “her
brother had tried to touch her pee-pee,” and that the Cobb detective terminated that
investigation because he concluded that the evidence did not support the molestation
allegation in that county. Further, the victim testified that she and her brother “play
rough” and she “always [got] bruises on [her] legs,” that some of her bruises came
from her brother and some from herself, and that when she told her mother that some
of the bruises came from her brother, her mother told him not to be so rough with her.
The victim’s mother testified that the Cobb detective asked if she had
questioned the brother about causing the bruises, and she told the detective that she
had spoken to the brother about the matter. While the State objected when Goodwin
asked the mother if she told the Cobb detective she was not sure whether the victim
9 was telling the truth or not, and that “half the time she’s been known to lie,” the trial
court overruled the objection and mother responded, “Yes.”
Assuming for the sake of argument that trial counsel’s failure to serve the Cobb
detective with a subpoena and subsequent inability to admit evidence of the
detective’s report and interviews fell below “prevailing professional norms,” no
reasonable probability exists that the jury would have returned a verdict of not guilty
if that evidence had been admitted. Based on our review of the trial, and considering
the admission of evidence that the victim had previously accused her brother of
bruising her and touching her private area and that her mother had previously
questioned the victim’s truthfulness, the trial court did not err in finding that
Goodwin’s trial counsel was not ineffective based on this issue.
b. Goodwin claims his trial counsel was ineffective for failing to call him to the
stand to testify on his own behalf, because presenting only two witnesses –
Goodwin’s wife and a paid expert – was “weak by definition.” He continues, “Trial
counsel should have urged the Defendant to testify even if he was a convicted felon,
armed robbery being a crime entirely different in nature from child molestation,”
because the victim’s testimony “was far too damning to have been permitted to stand
unrefuted” by the Defendant.
10 “The decision whether or not to testify is a tactical one made by the defendant
himself after consultation with counsel. The choice of whether to testify is ultimately
a defendant’s.” (Footnotes omitted.) Chambers v. State, 266 Ga. 39, 42 (3) (463 SE2d
887) (1995). Here, the trial court specifically reminded Goodwin at trial of his
absolute right to testify or not, and that the decision was his and not his lawyer’s.
Goodwin confirmed that the decision not to testify was his personal decision, and the
trial court found that Goodwin made his decision not to testify with a complete
understanding of his rights. Trial counsel testified at the motion for new trial hearing
that, while Goodwin initially wanted to testify, as their trial strategy developed, the
“game plan” did not include having him testify, particularly in light of Goodwin’s
prior convictions. Goodwin has not shown that his trial counsel failed to perform up
to prevailing professional norms by not calling him to testify.
c. Finally, Goodwin’s enumerates as ineffective his trial counsel’s failure “to
have available and to be able to call each and every defense witness,” including
witnesses to the initial investigation in Cobb County. His argument, however, does
not describe the testimony of any particular missing witnesses or explain why their
testimony would have been important. His argument is instead a general discussion
of defense counsel’s duty to investigate and intervene with the prosecution early in
11 the criminal process. Goodwin has thus not established any deficiency on his trial
counsel’s part related to calling witnesses, much less that a deficiency caused him
prejudice.
3. Goodwin’s last argument is that the trial court erred in the new trial hearing
by sustaining the State’s objection to questioning under oath the assistant district
attorney who tried the case. At the hearing, after the ADA was sworn, Goodwin asked
her whether she had had the Cobb County detective under subpoena for the trial.
Counsel for the State objected and sought a proffer as to the relevance of the
questions, absent an accusation of prosecutorial misconduct, because the clerk’s file
would provide evidence as to whether the detective had been subpoenaed, as could
the detective himself. The trial court noted that the question was “somewhat
offensive” because defense counsel was implying that the State hid the witness from
the court. The court was also concerned about the ramifications of asking the
prosecutor questions related to issues of trial tactics, in the event that the case were
to be tried again. The trial court concluded that Goodwin could obtain the information
he sought by calling the Cobb County detective as witness, and he continued the
hearing until the detective could testify under oath whether he was present during the
trial or not.
12 The motion for new trial hearing was reconvened with the Cobb County
detective present. The detective testified that he was subpoenaed by the State when
the case was first placed on a trial calendar, and was present at the courthouse then,
but the case was continued. The State told him that he would be called if he was
needed as a witness, and he was never called, although he remained under subpoena
until the case was resolved. He also testified that he had not avoided service of the
subpoena previously, and that when Goodwin’s counsel called about coming to the
hearing, he agreed to do so.
The trial court did not err in sustaining the State’s objection to Goodwin calling
the trial prosecutor as a witness at the motion for new trial hearing.
“The practice of trial attorneys testifying is not approved by the courts except
where made necessary by the circumstances of the case.” Timberlake v. State, 246 Ga.
488, 500 (7) (271 SE2d 792) (1980). “[T]he advocate as a witness poses innumerable
threats to the integrity and reliability of the judicial process.” Castell v. Kemp, 254
Ga. 556, 557 (331 SE2d 528) (1985). “[C]ourts have properly refused to permit a
prosecutor to be called as a defense witness unless there is a compelling need.”
(Citations and punctuation omitted.) Roberson v. United States, 897 F.2d 1092, 1098
(IV) (F) (11th Cir. 1990). “Trial courts are generally held to have discretion on
13 whether to allow a party to call opposing counsel as a witness, on the view that
attempting to call opposing counsel to establish some fact that can be readily proved
in a different manner should be discouraged.” Louisiana v. Tuesno, 408 So. 2d 1269,
1272 (La. 1982), quoting Pirsig & Kirwin, Professional Responsibility, pp. 378-379
(3rd ed. 1976).
Here, the circumstances of the case did not make it necessary for the
prosecuting attorney to testify on the defendant’s behalf during the hearing on the
motion for new trial. The evidence sought was available through other means and
eventually obtained by Goodwin. Accordingly, we find no error.
Judgment affirmed. McFadden and McMillian, JJ., concur.