Lawson v. State

365 Ga.App. 87

877 S.E.2d 616

LAWSON

v.The STATE.

A22A1100

Court of Appeals of Georgia.

August 19, 2022

Jennifer Joyce Cross, for Appellant.

Joshua Bradley Smith, Assistant District Attorney, Jared Tolton Williams, District Attorney, Augusta, for Appellee.

Dillard, Presiding Judge.

Following trial, a jury convicted Michael Lawson on one count of aggravated child molestation. On appeal, Lawson contends the trial court erred in (1) admitting his prior convictions for impeachment purposes; (2) denying his right to be present at critical stages of his trial by excluding him from bench conferences; and (3) denying his claim that his trial counsel rendered ineffective assistance by failing to object to improper questioning by the State. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that on January 11, 2011, then eleven-year-old K. L. was at her grandmother's house taking a nap when she awoke to find Lawson—who previously dated her mother and was presumed to be her father—in the bedroom with her. Lawson pinned K. L. to the bed, removed her underwear, and put his penis in her vagina. After ejaculating, Lawson dressed and left the bedroom, warning K. L. not to tell anyone about what happened. But the day after the assault, K. L.’s mother noticed that she was walking oddly and seemed to be in pain. And when asked by her mother what was wrong with her, K. L. admitted her vagina was swollen and that it was painful to urinate. Her mother then asked if anyone had sexually assaulted her, and K. L. initially accused her teenaged cousin of doing so.

Immediately, K. L.’s mother took her to a hospital, and a physician conducted a sexual assault examination, during which he observed that her vagina was swollen, bruised, and contained a whitish discharge believed to be semen. Additionally, as part of the examination, the physician collected samples for DNA analysis. Shortly thereafter, an investigator from the sheriff's office collected DNA samples from K. L.’s cousin for analysis. And when forensic testing of those samples did not match the samples provided by her cousin, K. L. admitted she lied in implicating him and divulged that it was actually Lawson who sexually assaulted her. Further forensic analysis indicated that the DNA from the semen collected from K. L.’s sexual assault examination matched a DNA sample the investigator obtained from Lawson.

Subsequently, the State charged Lawson, via indictment, with one count of aggravated child molestation and one count of incest.² The case then proceeded to trial, during which the State presented the aforementioned evidence. After the State rested, Lawson informed the trial court that he wanted to testify. And at this point, the court heard argument as to whether the State could admit two of Lawson's prior convictions for impeachment purposes, ultimately ruling that the evidence was admissible. Lawson nonetheless testified and, in addition to denying any wrongdoing, provided an explanation as to how his DNA was found in K. L.’s vagina. Specifically, he claimed that the morning of the alleged incident, he and his girlfriend had intercourse at K. L.’s grandmother's house, and afterward, he put on a pair of pajama pants while not wearing any underwear. Later, after he changed clothes, he saw K. L. wearing those same pajama pants. Then, before the State began its cross-examination of Lawson, the trial court instructed the jury that Lawson's prior convictions were only being admitted for impeachment purposes. Afterward, the State cross-examined Lawson, and he acknowledged that he had previously been convicted of aggravated assault and possession of cocaine with intent to distribute.

At the conclusion of the trial, the jury found Lawson guilty on the charge of aggravated child molestation. Thereafter, Lawson obtained new counsel and filed a motion for new trial, in which he argued, inter alia , that his trial counsel rendered ineffective assistance. But after conducting a hearing, in which Lawson's trial counsel testified, the trial court denied Lawson's motion. This appeal follows.

1. Lawson first contends the trial court erred in admitting his prior convictions into evidence for impeachment purposes. We disagree.

OCGA § 24-6-609 (a) (1) provides, in part, that evidence an accused (who testifies) has been convicted of a crime punishable by death or imprisonment in excess of one year "shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused." Furthermore, the introduction of evidence of a prior felony conviction is "intended to afford the jury a basis to infer that the witness's character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony."³ Simply put, the introduction of evidence of a prior crime is "a general attack on the credibility of the witness."⁴ Moreover, under our prior Evidence Code,⁵ Georgia trial courts undertaking the balancing test to determine if a prior conviction was admissible for impeachment purposes were to consider factors including:

(1) the kind of felony involved and its impeachment value; (2) the time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime (lest evidence of a similar crime create an unacceptable risk of prejudice); (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue.⁶

And while our current evidence code does not require trial courts to engage in this test, these factors continue to be a useful guide in making such a determination because federal courts have employed them under a prior version of the federal evidence rule that is substantively similar to our new evidentiary rule.⁷ In any event, a trial court's decision to "admit a defendant's prior conviction under OCGA § 24-6-609 (a) (1) is reviewed for an abuse of discretion."⁸

In this matter, after hearing argument from the parties, the trial court determined the probative value of Lawson's two prior convictions outweighed any prejudicial effect. In doing so, the court noted that the prior convictions—aggravated assault and possession of cocaine with intent to distribute—were not crimes of dishonesty but they were also not similar in nature to the offense for which Lawson was being tried.⁹ Additionally, while not specifically noted by the trial court, Lawson's credibility versus that of K. L. was certainly important, especially given K. L.’s initial accusation against her cousin and Lawson's attempt to explain how his semen was found inside K. L.’s vagina. Furthermore, before the State cross-examined Lawson, the trial court instructed the jury that his prior convictions were only being admitted for impeachment purposes; and during its jury charge, the court further instructed that credibility and whether a witness was impeached was solely for the jury to decide. Accordingly, the trial court did not abuse its discretion in admitting Lawson's prior convictions into evidence for the purpose of generally attacking his credibility.¹⁰

2. Lawson also contends the trial court erred in denying his right to be present at

critical stages of his trial by excluding him from several bench conferences. Again, we disagree.

It is well settled that "[e]mbodied within the constitutional right to the courts is a criminal defendant's right to be present and see and hear[ ] all the proceedings which are had against him on the trial before the Court."¹¹ In fact, the right to be present is "a fundamental right and a foundational aspect of due process of law."¹² This fundamental right "attaches at any stage of a criminal proceeding that is critical to its outcome if the defendant's presence would contribute to the fairness of the procedure."¹³ And Georgia's appellate courts have "determined that a critical stage in a criminal prosecution is one in which a defendant's rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way."¹⁴ But when counsel participates in a bench conference involving purely legal issues, "the right to be present is not implicated."¹⁵

In this case, Lawson argues he was impermissibly excluded from numerous bench conferences and was, therefore, denied his right to be present at critical stages of trial. But none of the bench conferences were transcribed, and during his motion for new trial, Lawson's trial counsel only offered guesses as to what they entailed, leaving Lawson with nothing more than speculation as to what the conferences might have concerned. And importantly, mere speculation as to what may have been discussed at a conference "cannot serve as the basis for the grant of a new trial."¹⁶ Nevertheless, a review of the details of the subject conferences—to the extent anything can be gleaned in the absence of transcription—belies Lawson's contention.

The first bench conference occurred after voir dire but before the parties began selecting the jury. Specifically, upon stating the proceedings were back on the record, the trial court requested that counsel approach, and a very brief conference ensued, after which the court explained on the record that it would give the preliminary charge while counsel were reviewing their notes taken during voir dire. Later, after jury selection concluded and the trial court explained to the prospective jurors that the parties would finish with their selections and then many pool members would be excused, the court conducted a second bench conference before the names of the selected jurors were called. During the hearing on Lawson's motion for new trial, his trial counsel testified that she could not recall if she discussed bench conferences with Lawson or what the first conference involved. Counsel was not asked about the second conference.

The...