FIFTH DIVISION MCFADDEN, P. J., HODGES and PIPKIN, 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. https://www.gaappeals.us/rules
April 30, 2025
In the Court of Appeals of Georgia A25A0481. HARRELL v. THE STATE.
MCFADDEN, Presiding Judge.
After a jury trial, LeCharles Harrell was convicted of aggravated child
molestation and child molestation. He appeals the denial of his motion for new trial.
He argues that trial counsel was ineffective and that the court plainly erred in failing
to exclude the testimony of one of the alleged victims. We hold that Harrell has failed
to establish both deficient performance and prejudice for any of his claims of
ineffective assistance of counsel. And he has failed to meet the high burden of
establishing plain error. So we affirm.
1. Trial “Because this case involves questions of harmless error and prejudice under
Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), we set
out the evidence in detail, rather than recounting it in the light most favorable to the
jury’s verdicts.” Hayes v. State, 320 Ga. 505, 506 (1), n.3 (910 SE2d 198) (2024). So
viewed, the record shows that Harrell was charged with committing acts against two
victims, D. B. and A. W.
D. B. is Harrell’s cousin. D. B. and her younger brother live with their aunt, and
Harrell stayed with them occasionally. D. B. reported to the aunt that Harrell had
touched her, had made her stroke his penis, and had put his penis in her mouth. She
also reported the abuse to her younger brother.
The aunt was called to testify at Harrell’s trial, but she repeatedly responded
to the prosecutor’s questions that she did not remember: she did not remember when
Harrell stayed with her or how long he stayed at any given time; she remembered
calling the police, but she did not remember why she called them or what she said to
the officers; she did not remember D. B. making an outcry; and she did not remember
telling the police that Harrell made D. B. stroke his penis and that he had placed his
2 penis in D. B.’s mouth. The aunt attempted to “plead the Fifth,” and the trial court
eventually allowed the prosecutor to treat her as a hostile witness.
D. B.’s younger brother was called to testify and said he did not remember his
sister telling him about the abuse. He also testified that he did not remember giving
a forensic interview, but a recording of the interview was played for the jury.
When D. B. was called to testify at trial, she said she did not want to talk about
the abuse. But in a forensic interview that was recorded and played for the jury, D. B.
reported that on multiple occasions, Harrell rubbed her chest and vaginal area, made
her stroke his penis, and put his penis in her mouth.
The state called the other alleged victim, A. W., another cousin, to testify at
trial. She answered the state’s general background questions. But when the prosecutor
began asking specific questions about Harrell’s alleged abuse of her, A. W. responded
only that she did not “want to talk about it.” Shortly after she began testifying and
while she was still seated in the witness stand, A. W. had a seizure. She was removed
from the courtroom, and she remained unavailable when the state completed its case
the next day, so she did not testify again and she was never subjected to cross-
examination.
3 The trial court directed a verdict on the count naming A. W. as the victim. The
jury returned guilty verdicts on the two remaining counts, which named D. B. as the
victim. The trial court denied Harrell’s motion for new trial, and this appeal followed.
2. Effective assistance of counsel
Harrell argues that he received constitutionally ineffective assistance of counsel
in several respects and that the cumulative effect of trial counsel’s deficiencies
prejudiced him. To prevail on his ineffective assistance of counsel claims, Harrell
“generally must show that counsel’s performance was deficient, and that the deficient
performance resulted in prejudice to [him].” Jones v. State, 319 Ga. 758, 763 (3) (906
SE2d 699) (2024) (citations and punctuation omitted). We hold that he has not
carried “the substantial burden required of him under Strickland . . . for establishing”
his ineffective assistance of counsel claims. Jones, 319 Ga. at 763 (3).
(a) A. W.’s testimony
Harrell argues that trial counsel performed deficiently by failing to raise a
confrontation clause objection to the testimony of A. W. and by failing to move for a
mistrial after she testified. We hold that he has not shown deficient performance.
To establish that trial counsel performed deficiently, Harrell
4 was required to show that trial counsel performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. Establishing deficient performance is no easy showing, as the law recognizes a strong presumption that counsel performed reasonably, and [Harrell] bore the burden of overcoming this presumption.
Jones, 319 Ga. at 763-764 (3) (citations and punctuation omitted).
At the motion for new trial hearing, trial counsel testified that after A. W. was
removed from the courtroom, he and the prosecutor met with the judge in chambers
and discussed how to proceed, including whether the trial court should give a curative
instruction. Trial counsel “was of the mind that no attention should be brought on her
testimony.” He did not want the court to give a curative instruction, because he
thought that could do more harm than good, since it was uncertain whether A. W.
would return to testify at that point. He testified that he did not believe the situation
rose to the level of a requiring a mistrial, because the trial court directed a verdict on
the count involving A. W. the next day, once it was clear that A. W. would not return
to complete her testimony.
Given that A. W.’s testimony was extremely brief , did not relate to the charges
involving D. B., and, indeed, did not implicate Harrell in any wrongdoing whatsoever,
5 Harrell “has failed to show that [trial counsel’s failure to object and move for a
mistrial] was an unreasonable strategic decision that constituted deficient
performance.” Hughes v. State, 312 Ga. 149, 156 (2) (b) (861 SE2d 94) (2021).
(b) Closing argument
Harrell argues that trial counsel performed deficiently by failing to object to
several aspects of the state’s closing argument.
First, he asserts that trial counsel performed deficiently by failing to object
when the prosecutor improperly referred to Harrell’s future dangerousness by stating,
“[T]he children in this family are not going to get protection from this man, unless
I’m successful in presenting this case to you.” We hold that the statement was not
improper, so counsel did not perform deficiently by failing to object.
“Remarks that the victims are seeking justice, safety, or protection are not
improper comments upon the defendant’s punishment or future dangerousness.”
Murray v. State, 297 Ga. App. 571, 572-573 (1) (677 SE2d 745) (2009) (citations
omitted).
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FIFTH DIVISION MCFADDEN, P. J., HODGES and PIPKIN, 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. https://www.gaappeals.us/rules
April 30, 2025
In the Court of Appeals of Georgia A25A0481. HARRELL v. THE STATE.
MCFADDEN, Presiding Judge.
After a jury trial, LeCharles Harrell was convicted of aggravated child
molestation and child molestation. He appeals the denial of his motion for new trial.
He argues that trial counsel was ineffective and that the court plainly erred in failing
to exclude the testimony of one of the alleged victims. We hold that Harrell has failed
to establish both deficient performance and prejudice for any of his claims of
ineffective assistance of counsel. And he has failed to meet the high burden of
establishing plain error. So we affirm.
1. Trial “Because this case involves questions of harmless error and prejudice under
Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), we set
out the evidence in detail, rather than recounting it in the light most favorable to the
jury’s verdicts.” Hayes v. State, 320 Ga. 505, 506 (1), n.3 (910 SE2d 198) (2024). So
viewed, the record shows that Harrell was charged with committing acts against two
victims, D. B. and A. W.
D. B. is Harrell’s cousin. D. B. and her younger brother live with their aunt, and
Harrell stayed with them occasionally. D. B. reported to the aunt that Harrell had
touched her, had made her stroke his penis, and had put his penis in her mouth. She
also reported the abuse to her younger brother.
The aunt was called to testify at Harrell’s trial, but she repeatedly responded
to the prosecutor’s questions that she did not remember: she did not remember when
Harrell stayed with her or how long he stayed at any given time; she remembered
calling the police, but she did not remember why she called them or what she said to
the officers; she did not remember D. B. making an outcry; and she did not remember
telling the police that Harrell made D. B. stroke his penis and that he had placed his
2 penis in D. B.’s mouth. The aunt attempted to “plead the Fifth,” and the trial court
eventually allowed the prosecutor to treat her as a hostile witness.
D. B.’s younger brother was called to testify and said he did not remember his
sister telling him about the abuse. He also testified that he did not remember giving
a forensic interview, but a recording of the interview was played for the jury.
When D. B. was called to testify at trial, she said she did not want to talk about
the abuse. But in a forensic interview that was recorded and played for the jury, D. B.
reported that on multiple occasions, Harrell rubbed her chest and vaginal area, made
her stroke his penis, and put his penis in her mouth.
The state called the other alleged victim, A. W., another cousin, to testify at
trial. She answered the state’s general background questions. But when the prosecutor
began asking specific questions about Harrell’s alleged abuse of her, A. W. responded
only that she did not “want to talk about it.” Shortly after she began testifying and
while she was still seated in the witness stand, A. W. had a seizure. She was removed
from the courtroom, and she remained unavailable when the state completed its case
the next day, so she did not testify again and she was never subjected to cross-
examination.
3 The trial court directed a verdict on the count naming A. W. as the victim. The
jury returned guilty verdicts on the two remaining counts, which named D. B. as the
victim. The trial court denied Harrell’s motion for new trial, and this appeal followed.
2. Effective assistance of counsel
Harrell argues that he received constitutionally ineffective assistance of counsel
in several respects and that the cumulative effect of trial counsel’s deficiencies
prejudiced him. To prevail on his ineffective assistance of counsel claims, Harrell
“generally must show that counsel’s performance was deficient, and that the deficient
performance resulted in prejudice to [him].” Jones v. State, 319 Ga. 758, 763 (3) (906
SE2d 699) (2024) (citations and punctuation omitted). We hold that he has not
carried “the substantial burden required of him under Strickland . . . for establishing”
his ineffective assistance of counsel claims. Jones, 319 Ga. at 763 (3).
(a) A. W.’s testimony
Harrell argues that trial counsel performed deficiently by failing to raise a
confrontation clause objection to the testimony of A. W. and by failing to move for a
mistrial after she testified. We hold that he has not shown deficient performance.
To establish that trial counsel performed deficiently, Harrell
4 was required to show that trial counsel performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. Establishing deficient performance is no easy showing, as the law recognizes a strong presumption that counsel performed reasonably, and [Harrell] bore the burden of overcoming this presumption.
Jones, 319 Ga. at 763-764 (3) (citations and punctuation omitted).
At the motion for new trial hearing, trial counsel testified that after A. W. was
removed from the courtroom, he and the prosecutor met with the judge in chambers
and discussed how to proceed, including whether the trial court should give a curative
instruction. Trial counsel “was of the mind that no attention should be brought on her
testimony.” He did not want the court to give a curative instruction, because he
thought that could do more harm than good, since it was uncertain whether A. W.
would return to testify at that point. He testified that he did not believe the situation
rose to the level of a requiring a mistrial, because the trial court directed a verdict on
the count involving A. W. the next day, once it was clear that A. W. would not return
to complete her testimony.
Given that A. W.’s testimony was extremely brief , did not relate to the charges
involving D. B., and, indeed, did not implicate Harrell in any wrongdoing whatsoever,
5 Harrell “has failed to show that [trial counsel’s failure to object and move for a
mistrial] was an unreasonable strategic decision that constituted deficient
performance.” Hughes v. State, 312 Ga. 149, 156 (2) (b) (861 SE2d 94) (2021).
(b) Closing argument
Harrell argues that trial counsel performed deficiently by failing to object to
several aspects of the state’s closing argument.
First, he asserts that trial counsel performed deficiently by failing to object
when the prosecutor improperly referred to Harrell’s future dangerousness by stating,
“[T]he children in this family are not going to get protection from this man, unless
I’m successful in presenting this case to you.” We hold that the statement was not
improper, so counsel did not perform deficiently by failing to object.
“Remarks that the victims are seeking justice, safety, or protection are not
improper comments upon the defendant’s punishment or future dangerousness.”
Murray v. State, 297 Ga. App. 571, 572-573 (1) (677 SE2d 745) (2009) (citations
omitted). Moreover, “[c]losing arguments are judged in the context in which they are
made. A prosecutor is granted wide latitude in the conduct of closing argument, the
bounds of which are in the trial court’s discretion. Within that wide latitude, a
6 prosecutor may comment upon and draw deductions from the evidence presented to
the jury.” West v. State, 369 Ga. App. 291, 293 (a) (893 SE2d 179) (2023) (citations
and punctuation omitted).
Given the family members’ reluctance to testify about Harrell’s abuse of D. B.
and about her outcry, the prosecutor’s statement was a permissible deduction from
the evidence. “Because the prosecutor’s comment[ was] not improper, defense
counsel did not render deficient performance by failing to object to [it].” Id. at 294
(a). See also Sosebee v. State, 190 Ga. App. 746, 747 (1) (380 SE2d 464) (1989) (asking
jury not to “put the victim back into this trap” was not improper) (punctuation
omitted).
Next Harrell points to trial counsel’s failure to object to the prosecutor’s
comments in closing that “Pedophiles don’t change. They’ll do it again. They can
only be stopped when we bring them to justice.” He argues that this amounted to an
impermissible comment on future dangerousness.
Trial counsel was not asked at the motion for new trial hearing about his failure
to object to these particular statements. But he testified that he listens to the closing
argument in context and as a whole; he watches the jurors to see how they react; and
7 he weighs these factors when deciding whether or not to object. “[I]n the absence of
testimony to the contrary, counsel’s actions are presumed strategic. And decisions
regarding trial tactics and strategy may form the basis for an ineffectiveness claim only
if they were so patently unreasonable that no competent attorney would have followed
such a course.” Pierce v. State, 319 Ga. 846, 865-866 (11) (a) (907 SE2d 281) (2024).
“Particularly since the [s]tate’s comments arguably [were not impermissible, see
Hamlette v. State, 353 Ga. App. 640, 645-646 (2) (839 SE2d 161) (2020) (citations and
punctuation omitted); Anderson v. State, 350 Ga. App. 369, 384-385 (4) (c) (iv) (829
SE2d 453) (2019) (citations and punctuation omitted)], we cannot say that [Harrell]
has overcome the presumption that counsel’s actions were strategic.” Parks v. State,
281 Ga. App. 679, 683 (6) (637 SE2d 46) (2006). He has not shown that counsel’s
failure to object was “so patently unreasonable that no competent attorney would have
followed such a course.” Pierce, 319 Ga. at 865-866 (11) (a).
Finally, Harrell argues that trial counsel performed deficiently by failing to
object to the prosecutor’s references in closing argument to multiple victims, even
though there was only one victim since the trial court had granted a directed verdict
8 on the count concerning A. W. We hold that pretermitting whether this failure to
object amounted to deficient performance, Harrell has not shown prejudice.
“To show that he was prejudiced by counsel’s deficient performance, a
defendant must show that, but for the deficiency, there was a reasonable probability
that the result of the trial would have been different.” Anderson v. State, 319 Ga. 56,
64 (5) (b) (901 SE2d 543) (2024) (punctuation omitted). As detailed above, the trial
court granted a directed verdict on the count of the indictment naming A. W. as the
victim. The court instructed the jurors that they were not to consider that count, and
the court redacted that count from the indictment before sending it out with jury. The
court instructed the jury at the beginning of the trial and after the closing arguments
that the parties’ closing arguments are not evidence. Given these circumstances,
Harrell has not shown that but for counsel’s failure to object to the references to
multiple victims, “there was a reasonable probability that the result of the trial would
have been different.” Id. (punctuation omitted).
(c) Hearsay
Harrell argues that trial counsel was ineffective for failing to object to hearsay
testimony. Specifically, he points to the responding law enforcement officer’s
9 testimony about what the aunt and the younger brother told him about D. B.’s outcry.
He also points to the admission of the brother’s recorded forensic interview. As
detailed below, we hold that the officer’s testimony and the forensic interview were
admissible, given the aunt’s and the brother’s testimony that they did not remember
what they had told the officer as well as the brother’s testimony that he did not
remember giving the interview. So trial counsel did not perform deficiently by failing
to object.
Because the officer’s testimony recounted what the aunt and the brother told
him about what D. B. had reported to them, “each part of the combined statements
[must] conform[ ] with an exception to the hearsay rule.” OCGA § 24-8-805.
D. B.’s statements to her aunt and brother were admissible under OCGA § 24-
8-820. That Code section provides:
A statement made by a child younger than 16 years of age describing any act of sexual contact . . . performed with or on such child by another . . . shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at the trial, . . . and, at the time of the testimony regarding the out-of-court statements, the person to whom the child
10 made such statement is subject to cross-examination regarding the out-of-court statements.
OCGA § 24-8-820 (a). All the conditions required by this Code section were met
here. At the time of trial, D. B. was 15 years old, so she was younger than 16 years old
when she earlier had made the statements. The state notified Harrell of its intention
to use D. B.’s out-of-court statements. D. B. testified at trial. And the aunt and
brother were subject to cross-examination.
The aunt’s and brother’s statements to the law enforcement officer are not
hearsay. OCGA § 24-8-801 (d) (1) (A) provides that an out-of-court statement is not
hearsay “if the declarant testifies at the trial or hearing, is subject to cross-examination
concerning the statement, and the statement is admissible as a prior inconsistent
statement or a prior consistent statement under Code Section 24-6-613 . . . .” “A
witness’s failure to remember making a statement may provide the foundation for
offering extrinsic evidence to prove that the statement was made.” London v. State,
308 Ga. 63, 67 (3) (a) (838 SE2d 768) (2020) (citations and punctuation omitted). In
this case,”[t]he [s]tate laid the foundation for the admission of [the aunt’s and the
brother’s] prior statements by giving [them] an opportunity to explain or deny the
11 statements, which [they] contended [they] could not recall. The statements were not
inadmissible hearsay.” Id. at 67 (3) (a). See also Thompson v. State, 304 Ga. 146, 151
(6) (816 SE2d 646) (2018) (“Given [a witness’s] inconsistent testimony at trial and
her convenient memory lapses about the portions of her conversation with the police
that implicated Appellant, her earlier statements were not hearsay but rather were
properly admitted as prior inconsistent statements.”); Murdock v. State, 299 Ga. 177,
179-180 (4) (787 SE2d 184) (2016).
For the same reason, the brother’s forensic interview was admissible, contrary
to Harrell’s argument otherwise. Because hearsay objections to the officer’s testimony
and the admission of the recording of the brother’s forensic interview would have
lacked merit, trial counsel did not perform deficiently by failing to make them. Neloms
v. State, 313 Ga. 781, 789 (4) (b) (873 SE2d 125) (2022).
(d) Cumulative effect
Harrell argues that the cumulative effect of trial counsel’s deficiencies
prejudiced him. As detailed above, we hold that trial counsel did not perform
deficiently by failing to raise a confrontation clause objection to the testimony of A.
W. or by failing to move for a mistrial after she testified; by failing to object to what
12 Harrell characterizes as references to his future dangerousness; or by failing to object
to the responding law enforcement officer’s testimony about what the aunt and the
brother told him about D. B.’s outcry or to the admission of the brother’s recorded
forensic interview. So even assuming, for purposes of Harrell’s cumulative-effect
argument, that trial counsel performed deficiently by failing to object to the
prosecutor’s references in closing argument to multiple victims, he has not shown
cumulative prejudice entitling him to a new trial. The “cumulative prejudice analysis
does not apply when, as here, there are not multiple errors to consider
cumulatively.”Thomas v. State, 311 Ga. 573, 579 (6) (858 SE2d 504) (2021).
3. Plain error
Harrell argues that the trial court plainly erred by failing to exclude the
testimony of A. W. after he was deprived of the opportunity to cross-examine her.
“To succeed on a plain-error claim, [Harrell] must demonstrate an error that was not
affirmatively waived, that was clear and not open to reasonable dispute, that probably
affected the outcome of his trial, and that seriously affected the fairness, integrity or
public reputation of judicial proceedings.”Smith v. State, 313 Ga. 584, 587 (872 SE2d
262) (2022) (citation and punctuation omitted). “An appellant must establish all four
13 elements of the test in order to demonstrate plain error, so satisfying this test is
difficult, as it should be.” Sauder v. State, 318 Ga. 791, 802-803 (5) (901 SE2d 124)
(2024) (citation and punctuation omitted).
We hold that Harrell has not established that the failure to exclude A. W.’s
testimony probably affected the outcome of his trial. As detailed above, the trial court
granted a directed verdict on the count involving A. W., A. W.’s testimony did not
concern the charges relating to D. B., and her testimony did not implicate Harrell in
any wrongdoing whatsoever. Harrell has not established that the trial court plainly
erred in failing to exclude A. W.’s testimony.
Judgment affirmed. Hodges and Pipkin, JJ., concur.