Robinson v. State

706 S.E.2d 577, 308 Ga. App. 45, 2011 Fulton County D. Rep. 488, 2011 Ga. App. LEXIS 110
CourtCourt of Appeals of Georgia
DecidedFebruary 22, 2011
DocketA11A0059
StatusPublished
Cited by9 cases

This text of 706 S.E.2d 577 (Robinson 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
Robinson v. State, 706 S.E.2d 577, 308 Ga. App. 45, 2011 Fulton County D. Rep. 488, 2011 Ga. App. LEXIS 110 (Ga. Ct. App. 2011).

Opinions

Andrews, Judge.

On appeal from his conviction for child molestation, Michael Robinson argues that trial and first appellate counsel were ineffective. We affirm because these contentions have no merit.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that after having been kissed by Robinson on previous occasions, the 11-year-old victim and her friend walked to Robinson’s house, where he offered them removable tattoos and then indicated that the victim should go into his bedroom. As Robinson kissed the victim in the bedroom, the friend entered and encouraged the two to continue, at which Robinson put his hand down the victim’s pants, touching her buttocks. As Robinson moved his hand toward the front of her body, the victim became scared, told him to stop, and pulled his hand away. When the girls [46]*46returned to the victim’s house, the friend told the victim’s mother what had happened, and police were called.

After a trial including Robinson’s testimony in his own defense, a jury found him guilty of one count of child molestation. He was convicted and sentenced to 20 years with 13 to serve. At the hearing on Robinson’s motion for new trial, first appellate counsel called six new witnesses: three neighbors, the victim’s mother’s employer, and two investigators. The trial court denied the motion for new trial.

On appeal, this Court twice remanded the case: so that new counsel could prepare the case, and for a second evidentiary hearing. As the parties agreed at the outset of the remand hearing, the only issue presented on remand was whether trial counsel was ineffective for failing to forward evidence to first appellate counsel. New counsel proffered statements from witnesses including Robinson’s mother, his sister, his brother, his uncle, and his grandmother. Of these witnesses, only the sister had not testified at trial. After the hearing, the trial court again denied Robinson’s motion for new trial.

1. The evidence outlined above was sufficient to sustain Robinson’s conviction. See OCGA § 16-6-4 (a) (defining child molestation); Jackson, supra.

2. Robinson asserts that trial counsel was ineffective in failing (a) to ask for a hearing on the admissibility of the victim’s videotaped statement; (b) to confront the victim at trial; (c) to question the qualifications and credibility of the expert who took the victim’s statement; and (d) to investigate and argue the credibility of other witnesses, including the eyewitness and the victim’s parents. Robinson also argues that (e) first appellate counsel failed to argue trial counsel’s ineffectiveness in failing to assert Robinson’s right to confront the victim.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Suggs v. State, 272 Ga. 85, 87-88 (4) (526 SE2d 347) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). More specifically, a defendant must show that trial counsel’s deficient performance created “a reasonable probability of a different outcome.” (Citation and punctuation omitted.) Cobb v. State, 283 Ga. 388, 391 (658 SE2d 750) (2008). The question of ineffectiveness is a mixed one of both law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs, 272 Ga. at 88 (4).

(a) OCGA § 24-3-16 provides:

A statement made by a child under the age of 14 years [47]*47describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

As this Court has held, “OCGA § 24-3-16 does not require a hearing to determine indicia of reliability be held prior to receiving the testimony.” (Punctuation omitted; emphasis supplied.) Xulu v. State, 256 Ga. App. 272, 275 (4) (568 SE2d 74) (2002). “Moreover, there is no requirement that the trial court make a specific finding of sufficient indicia of reliability in order for the out-of-court statements of child victims to be admissible.” (Punctuation omitted.) Id.

It should be obvious that trial counsel was under no obligation to invoke his client’s legal right to a hearing designed to protect that client’s interests if the invocation of that abstract right would, in his professional judgment of the circumstances presented by a specific case, do actual harm to those interests. Raymond v. State, 298 Ga. App. 549, 551 (680 SE2d 598) (2009) (an appellate court will not second-guess counsel’s strategic decisions “[a]bsent a strong showing that counsel’s actions were not reasonable”). Here, counsel testified that he chose not to request a hearing under OCGA § 24-3-16 because he had never seen a victim’s statement declared inadmissible and because he did not want the delay resulting from such a request to give the State additional time to prepare its case. The trial court did not clearly err when it rejected Robinson’s attack on this decision.

(b) Likewise, the mere existence of a defendant’s right to confront a witness at trial cannot be taken to mean that it is always in his interest to do so. A defendant’s confrontation rights are not violated by his own counsel’s failure to call a child molestation victim to the stand if that victim is available to testify at trial. Williams v. State, 290 Ga. App. 841, 842 (1) (660 SE2d 740) (2008). It is also clear that a decision as to whether a witness should testify is within ‘ ‘the realm of specific decisions regarding trial strategy” to which we afford “wide discretion.” Muller v. State, 284 Ga. 70, 72 (663 SE2d 206) (2008). Here, trial counsel testified that he did not call the victim to the stand because he thought that her testimony would “have done more damage than help.” The trial court did not clearly err when it accepted counsel’s strategic judgment in the matter.

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Robinson v. State
706 S.E.2d 577 (Court of Appeals of Georgia, 2011)

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Bluebook (online)
706 S.E.2d 577, 308 Ga. App. 45, 2011 Fulton County D. Rep. 488, 2011 Ga. App. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-state-gactapp-2011.