Matiatos v. State

688 S.E.2d 385, 301 Ga. App. 573, 2009 Fulton County D. Rep. 4116, 2009 Ga. App. LEXIS 1413
CourtCourt of Appeals of Georgia
DecidedDecember 11, 2009
DocketA09A1671
StatusPublished
Cited by7 cases

This text of 688 S.E.2d 385 (Matiatos 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
Matiatos v. State, 688 S.E.2d 385, 301 Ga. App. 573, 2009 Fulton County D. Rep. 4116, 2009 Ga. App. LEXIS 1413 (Ga. Ct. App. 2009).

Opinion

Miller, Chief Judge.

A jury convicted James Gerald Matiatos of 27 counts of sexual exploitation of a child (OCGA § 16-12-100) by intentionally possessing computer photographic files depicting minor boys engaged in sexually explicit conduct. Matiatos appeals, challenging the trial court’s denial of his motion for a mistrial and the effectiveness of his trial counsel. Finding that any error as to the denial of Matiatos’ motion for a mistrial was waived upon trial counsel’s failure to renew the motion at trial and that new counsel on appeal has failed to establish ineffectiveness of trial counsel, we affirm.

The denial of a motion for mistrial is reviewed for abuse of discretion. Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995). A trial court’s ruling on a claim of ineffective assistance of trial counsel is “a mixed question [of law and fact] subject to independent review by the appellate court[s].” (Footnote omitted.) Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000). Upon review of such a claim, we accept the trial court’s factual findings and determinations of credibility unless clearly erroneous and review de novo a trial court’s legal conclusions. Id. at 88 (4).

The record shows that on February 1, 2005, Special Agent Steve Blackwell of the Georgia Bureau of Investigation was contacted by Investigator John Cuda of the White County Sheriffs Office and was asked to assist in an investigation involving Internet child pornography. Blackwell met with Cuda who provided Blackwell a police report concerning Matiatos which he had received from Detective James McLaughlin of the Keene, New Hampshire, Police Department. Matiatos agreed to be interviewed by Blackwell, and after being read and agreeing to waive his Miranda rights in Cuda’s office, Matiatos admitted that he had e-mailed McLaughlin certain images depicting minor boys engaged in sexually explicit conduct as well as an image of himself simulating an erection.

After the interview, Blackwell obtained a warrant to search Matiatos’ home, including, in particular, any computer located [574]*574therein. The parties stipulated that the search warrant was validly issued and executed. Blackwell’s search of a Compaq computer found at the residence revealed a series of images showing male children in the performance of various sex acts. Matiatos’ arrest followed.

Prior to trial, trial counsel interposed a confrontation objection to the recording made of Matiatos’ statement to Blackwell as to any hearsay arising out of questions asked by Blackwell which made reference to what McLaughlin had reported to him. The trial court granted the motion, limiting the State’s use of McLaughlin’s out-of-court statements to those which Matiatos acknowledged as correct. At trial, counsel moved for a mistrial when the recording was played for the jury, arguing that the recording violated the trial court’s ruling on his confrontation objection. The trial court denied the motion but gave curative instructions at that time and, a day later, directed the jury to disregard any statement alluded to in the recording which Matiatos did not adopt as his own.1

In his defense, Matiatos presented the testimony of Charles Aust. Aust testified that Matiatos had asked him for help in deleting the pornographic images in his computer and opined that the computer could have been infected by such images without Matiatos’ knowledge because he had discovered a Trojan horse and viruses in the computer’s hard drive.

1. Matiatos appeals, contending that the trial court erred in denying his motion for a mistrial. We disagree.

The record shows that rather than renewing his motion for a mistrial, trial counsel, without objection, accepted the trial court’s curative instructions thereon. Consequently, the instant claim of error is waived on appeal. Spear v. State, 270 Ga. 628, 631 (5) (513 SE2d 489) (1999) (defendant’s failure to renew motion for mistrial after curative instruction waives right to appeal the issue further).

2. Matiatos also contends that he was denied effective assistance of counsel, arguing that trial counsel (i) failed to request a pretrial suppression hearing to challenge the admissibility of his admissions to Blackwell and Cuda, (ii) failed to move to recuse four jurors, who, during voir dire, indicated that they would have difficulty viewing sexually graphic photographs of children, (iii) failed to renew his motion for a mistrial upon the admission of hearsay evidence, and [575]*575(iv) failed to consult with a computer forensics expert. Matiatos does not support the first of the foregoing claims by citation to the record or reasoned argument. Accordingly, we proceed to his remaining claims of error in turn. See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

For Matiatos to prevail on his claim of ineffective assistance of counsel, he must establish both (1) deficient performance of trial counsel, and (2) that the deficiency was prejudicial to his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Fults v. State, 274 Ga. 82, 83-84 (2) (548 SE2d 315) (2001). The trial court ruled that Matiatos failed to establish that his counsel’s performance was deficient, and this Court will not disturb a trial judge’s findings as to deficient performance unless clearly erroneous. Kilpatrick v. State, 252 Ga. App. 900, 902 (1) (557 SE2d 460) (2001).

(a) Citing Smith v. Phillips, 455 U. S. 209 (102 SC 940, 71 LE2d 78) (1982), Matiatos characterizes as ineffective assistance of counsel trial counsel’s failure to move to strike four jurors as biased because they expressed discomfort at viewing sexually graphic photographs of children during voir dire. We disagree.

The United States Supreme Court has “long held that the remedy for allegations of juror partiality is a hearing in which the defendant has an opportunity to prove actual bias.” Phillips, supra, 455 U. S. at 215 (II). While it is undisputed that the jurors at issue indicated concern at the prospect of having to view the sexually explicit photographs, upon being further queried, no such juror expressed an inability to decide the case based on the evidence alone. The record is otherwise devoid of any suggestion that the jurors were not impartial.

[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. . . . Due process means a jury capable and willing to decide the case solely ón the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.

Id. at 217 (II). Inasmuch as Matiatos “[did] not show that had a motion to strike been made, it would have been granted[,]” (Adams v. State, 283 Ga. 298, 300 (3) (a) (658 SE2d 627) (2008)) the failure to move to strike the complained of jurors was not deficient performance of counsel. Phillips, supra, 455 U. S. at 217 (II). The failure to make a fruitless objection does not constitute ineffective assistance [576]*576of counsel.

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Cite This Page — Counsel Stack

Bluebook (online)
688 S.E.2d 385, 301 Ga. App. 573, 2009 Fulton County D. Rep. 4116, 2009 Ga. App. LEXIS 1413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matiatos-v-state-gactapp-2009.