Harvard v. State

365 Ga.App. 209

877 S.E.2d 869

HARVARD

v.The STATE.

A22A1142

Court of Appeals of Georgia.

August 30, 2022

Mickey Eugene Waller, for Appellant.

Catherine M. Smith, Assistant District Attorney, Bradfield M. Shealy, District Attorney, Valdosta, for Appellee.

McFadden, Presiding Judge.

Jefferson Harvard was convicted in a bench trial of child molestation, rape, and incest. He appeals from the denial of his motion for new trial. Harvard argues that trial counsel was ineffective, but he has not shown both deficient performance and prejudice. Harvard argues that he did not knowingly and intelligently waive his right to a jury trial, but the trial court did not clearly err in finding that he did so. Harvard argues that the trial court erred by denying his post-trial motion for the victims’ medical and school records, but he has not met his burden for showing entitlement to the records. So we affirm.

1. Evidence at trial.

Viewed in the light most favorable to the verdicts, see Butler v. State , 313 Ga. 675, 678 (2), 872 S.E.2d 722 (2022), the evidence showed that the victims were Harvard's stepdaughters, M. W. and J. W. M. W., who was 20 years old at the time of trial, testified that, for two years, starting when she was 14, Harvard touched her breasts and her pubic area and digitally penetrated her. J. W., who was 17 years old at the time of trial, testified that Harvard frequently raped her from the time she was nine years old until she turned 13, when the victims, their mother, and their half-brother moved from the family home. Both victims testified that Harvard threatened to harm their family if they disclosed the abuse.

2. Ineffective assistance of counsel.

Harvard argues that trial counsel was ineffective in four ways: she failed to present any expert witnesses on his behalf; she failed to object to hearsay; she failed to introduce evidence of the victims’ behavior; and she failed to obtain and introduce the victims’ school and medical records. He has not shown both deficient performance and prejudice. So his claims of ineffective assistance of counsel fail.

To succeed on a claim that counsel was constitutionally ineffective, [Harvard] must show both that his attorney's performance was deficient, and that he was prejudiced as a result. Strickland v. Washington , 466 U. S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 1984. Under the first prong of this test, counsel's performance will be found deficient only if it was objectively unreasonable under the circumstances and in light of prevailing professional norms. Id. at 688-690 (III) (A) . And under the second prong, prejudice is demonstrated only where there is a reasonable probability that, absent counsel's errors, the result of the trial would have been different. A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id. at 694 (III) (B) . Failure to satisfy either prong of the Strickland test is sufficient to defeat a claim of ineffective assistance, and it is not incumbent upon this Court to examine the other prong. And although both the performance and prejudice components of an ineffectiveness inquiry involve mixed questions of law and fact, a trial court's factual findings made in the course of deciding an ineffective assistance of counsel claim will be affirmed by the reviewing court unless clearly erroneous.

Green v. State , 302 Ga. 816, 817-818 (2), 809 S.E.2d 738 (2018) (citations and punctuation omitted).

(a) Failure to present expert witnesses.

Harvard argues that trial counsel should have presented an expert witness to testify about the victims’ forensic interviews. Harvard called an expert in forensic interviews to testify at the motion for new trial hearing. She testified that the person who conducted the forensic interviews of the victims failed to explore whether third-party communications influenced the victims; failed to explore whether there was an alternative explanation for the conduct they described, such as family dysfunction or a history of physical violence; and failed to explore the victims’ potential motivation for making the allegations. The expert also testified that the interviewer could have done a better job of asking follow-up questions and getting more detail. She testified that although she did not believe the interviewer led the victims to make their statements, the interviewer did ask two leading questions. According to the expert, the interviewer's errors, apart from two leading questions, were errors of omission, failures to pursue certain lines of inquiry. Consequently,

although [Harvard] proffered [this expert] testimony ... on interviewing techniques at the hearing on the motion for new trial, he failed to demonstrate a reasonable possibility that this testimony would have resulted in a different outcome at his trial. To establish the prejudicial effect of trial counsel's failure to present certain evidence, an appellant is required to make an affirmative showing that specifically demonstrates how counsel's failure would have affected the outcome of the case.

Weeks v. State , 270 Ga. App. 889, 894-895 (3) (a), 608 S.E.2d 259 (2004) (citation and punctuation omitted; emphasis supplied), overruled in part on other grounds in State v. Lane , 308 Ga. 10, 838 S.E.2d 808 (2020). In other words, Harvard "was required to offer more than mere speculation that the ... expert testimony would have bolstered his defense at trial." Mangrum v. State , 291 Ga. 529, 531, 731 S.E.2d 761 (2012) (punctuation omitted).

Here, the expert's criticism of the interviewer's errors and omissions does not "specifically demonstrate[ ] how counsel's failure would have affected the outcome of the case." Weeks , 270 Ga. App. at 895 (3) (a), 608 S.E.2d 259 (citation and punctuation omitted). So arguments founded on the expert's testimony "amount[ ] to no more than speculation about the evidence, which is not sufficient to show that there is a reasonable probability that the outcome of the trial would have been different."

Hood v. State , 308 Ga. 784, 790 (2), 843 S.E.2d 555 (2020). This is particularly true since the trial court judge — who sat as the factfinder in this bench trial — stated in his order denying the motion for new trial that he never watched the recordings of the forensic interviews because the "victims testified during the trial and were both subject to a thorough and sifting cross[-]examination by trial counsel."

The cases cited by Harvard do not require a different result. He cites Darst v. State , 323 Ga. App. 614, 623 (2) (a) (ii),, 746 S.E.2d 865 (2013), which is physical precedent only and is factually distinguishable. In Darst , trial counsel had not made a conscious strategic decision about whether to use an expert so his performance was deficient. Id. Here, Harvard's trial counsel testified at the motion for new trial hearing that she discussed the possibility of hiring an expert with Harvard and that he wanted an expert to testify that the victims were lying. But see Barlow v. State , 270 Ga. 54, 55, 507 S.E.2d 416 (1998) ("an expert witness for the defense cannot give an opinion that the victim made false allegations of molestation, because such testimony directly addresses the credibility of the victim"). Counsel testified that "you're not going to get an expert to say that." She testified that she could challenge the victims’ credibility through cross-examination to establish multiple inconsistencies in their statements and testimony as well as to show that they did not like Harvard's heavyhanded discipline so that they "made up the story to get him out of the house." So unlike the trial counsel in Darst , here trial counsel made a conscious, informed decision not to call an expert.

Contrary to Harvard's characterization in his brief, Barlow , 270 Ga. at 54, 507 S.E.2d 416, involved alleged trial court error, not a claim of ineffective assistance of counsel. In Barlow , our Supreme Court held that the trial court erred by refusing to permit the defendant to introduce expert testimony about forensic interviewing techniques because

such testimony involves an area of expertise beyond the ken of the average layman[. So] the defendant in a child molestation case is entitled to introduce expert testimony for the limited purpose of providing the jury with information about proper techniques for interviewing children and whether the interviewing techniques actually utilized were proper.

Id. (Of course, Harvard was tried in a bench trial, not a jury trial.)

Similarly, Hall v. State , 201 Ga. App. 626, 626-627 (2), 411 S.E.2d 777 (1991), involved alleged trial court error, not a claim of ineffective assistance of counsel. There, we held that the trial court erred in refusing to allow the defendant to question expert witnesses, who had personally observed the victim, about whether the victim exhibited behavior which, in the opinions of the witnesses, was typically displayed by a sexually abused child.

In Goldstein v. State , 283 Ga. App. 1, 6-9 (3) (b), 640 S.E.2d 599 (2006), we held that trial counsel provided ineffective assistance by failing to present expert testimony to challenge opinions of the state's expert witnesses in a child molestation case. In support of his ineffective assistance claim, the defendant in Goldstein presented deposition testimony from an expert witness rebutting medical opinions to which the state's experts testified at trial. See id. at 7-8 (3) (b), 640 S.E.2d 599. Here, the forensic interviewer did not testify, so she had not presented an opinion that Harvard needed to rebut.

Because Harvard's argument is based on speculation (and the trial court never considered the forensic interviews), Harvard has not demonstrated that there is a reasonable probability that, had trial counsel obtained an expert to testify about flaws in the forensic interviews, the result of the trial would have been different. In other words, "[p]retermitting whether trial counsel's failure to...