LEWIS v. the STATE. , 831 S.E.2d 837 ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, 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.
http://www.gaappeals.us/rules
August 5, 2019
In the Court of Appeals of Georgia
A19A1023. LEWIS v. THE STATE.
BROWN, Judge.
Following a jury trial, Kenneth Charles Lewis was convicted of child
molestation, rape, and two counts of aggravated sodomy in connection with the
repeated sexual abuse of his then fourteen-year-old step-daughter. On appeal, Lewis
argues that the trial court erred in denying his amended motion for new trial because
(1) the verdict was contrary to law, justice, equity, and the evidence and without
evidence to support it and (2) trial counsel provided ineffective assistance for a
number of reasons. Lewis also appeals the denial of his motion for testing of
evidence. For the reasons that follow, we find no error and affirm.
1. “On appeal from a criminal conviction, a defendant no longer enjoys the
presumption of innocence, and the evidence is viewed in the light most favorable to
the guilty verdict.” (Citation and punctuation omitted.) Anderson v. State, 348 Ga.
App. 322 (822 SE2d 684) (2018). So viewed, the evidence adduced at trial shows that
Lewis served 25 years in prison after being sentenced to two life sentences for murder
and armed robbery. After being paroled and released, Lewis met the victim’s mother
online, and he moved into the home where the victim lived with her mother. Lewis
and the victim’s mother married in 2010. Sometime during the summer of 2011,
Lewis exposed himself to the victim, then began touching her over her clothing, and
eventually, under her clothing. The touching escalated to vaginal, anal, and oral
penetration. The victim testified that she was frightened of Lewis because he told her
he had decapitated a man. In addition, if the victim refused Lewis’ advances, he
would slam doors and “kick the animals.”
The victim first disclosed the abuse to a friend. Subsequently, the victim and
the friend were alone at Lewis’ workplace when Lewis inappropriately touched the
friend in front of the victim. Lewis stopped when the friend began to cry and the
victim yelled at him. Lewis’ abuse continued regularly until 2014, when Lewis started
drinking himself to sleep every night and the victim’s mother divorced him.
After Lewis and the victim’s mother divorced in 2014, the victim revealed to
her mother that Lewis had sexually abused her. The mother contacted police, and an
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investigator spoke with the victim at her home with her mother present. During two
forensic interviews, the victim disclosed and described Lewis’ regular and repeated
sexual abuse. The victim also underwent a physical examination, which did not yield
any injuries or unusual findings. However, the examining physician testified that it
was not surprising for the victim to have a normal exam six months after any trauma
occurred. Lewis testified at trial and denied all of the allegations. Although Lewis
does not dispute the sufficiency of the evidence, we conclude that it was sufficient to
authorize a rational jury to find beyond a reasonable doubt that Lewis was guilty of
the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319
(III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. In several enumerations of error, Lewis argues that the trial court erred in
denying his amended motion for new trial because the verdict was “contrary to law,
justice, and equity,” and “contrary to the evidence and without evidence to support
it.” See OCGA § 5-5-20. However, the power to grant a new trial on the general
grounds lies with the trial court alone. See Celestin v. State, 296 Ga. App. 727 (1)
(675 SE2d 480) (2009).
Trial courts have discretion to grant a new trial on these grounds —
commonly known as the “general grounds”— but appellate courts do
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not. Our review is limited to the legal sufficiency of the evidence.
Indeed, even when asked to review a trial court’s refusal to grant a new
trial on the general grounds, this Court must review the case under the
standard set forth in Jackson v. Virginia. . . .
(Citations and punctuation omitted.) Plez v. State, 300 Ga. 505, 507 (1), n.2 (796
SE2d 704) (2017). As we explained in Division 1, supra, the evidence in this case
meets the standard for legal sufficiency.1
3. Lewis next argues that his trial counsel provided ineffective assistance for
a number of reasons.
To prevail on a claim of ineffective assistance of counsel, [Lewis] must
show that trial counsel’s performance was so deficient that it fell below
an objective standard of reasonableness, and that counsel’s deficient
performance prejudiced the defense such that a reasonable probability
exists that the trial results would have been different but for counsel’s
performance. Strickland v. Washington, 466 U. S. 668 (II) (104 SCt
2052, 80 LE2d 674) (1984).
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Lewis does not argue that the trial court failed to properly exercise its
discretion to consider a new trial on the general grounds. Nevertheless, we find that
the trial court has in the exercise of its discretion approved the verdict. See Murdock
v. State, 299 Ga. 177, 178 (2) (787 SE2d 184) (2016); Butts v. State, 297 Ga. 766,
771-772 (3) (778 SE2d 205) (2015).
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Bragg v. State, 295 Ga. 676, 678 (4) (763 SE2d 476) (2014). “Trial tactics and
strategy, no matter how mistaken in hindsight, are almost never adequate grounds for
finding trial counsel ineffective unless they are so patently unreasonable that no
competent attorney would have chosen them.” (Citation and punctuation omitted.)
Brown v. State, 321 Ga. App. 765, 767 (1) (743 SE2d 452) (2013).
(a) Lewis argues trial counsel was ineffective by not pursuing avenues of
potentially exculpatory evidence. Shortly before trial began, a defense investigator
gave trial counsel a report noting that Lewis claimed he had scarring on his testicles
from surgery and that his ejaculate contained blood. Neither the State nor the defense
brought up this information at trial. According to Lewis, trial counsel should have
“explored whether [these] claims were true, and if so, whether any of the State’s
witnesses[, including the victim,] were capable of verifying [this].” We first note that
the investigator’s report to which Lewis refers is not included in the record before this
Court. Nevertheless, assuming the report states what Lewis claims, we find no merit
in his argument.
When questioned about the report during the motion for new trial hearing, trial
counsel testified that even if Lewis’ claims could have been verified and he had
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questioned the victim about the scarring and bloody ejaculate, any answer she gave
would not have helped the defense:
She could have confirmed [the scarring and bloody ejaculation], yes. Or
she could have simply said she never saw that. Either way would not
have helped us, I don’t think.
Trial counsel also agreed that had the victim confirmed the information in some way,
it certainly would have harmed Lewis. “Although another lawyer may have conducted
the defense in a different manner and taken another course of action, the fact that
[Lewis] and his present counsel disagree with the decisions made by trial counsel
does not require a finding that [Lewis’] original representation was inadequate.”
(Citation and punctuation omitted.) Smith v. State, 304 Ga. App. 846, 848 (698 SE2d
355) (2010). Trial counsel’s decision not to verify or utilize this information at trial
was “a strategic or tactical decision by trial counsel and therefore does not constitute
ineffective assistance of counsel absent a contrary showing.” (Citation and
punctuation omitted.) Pippins v. State, 263 Ga. App. 453, 458 (4) (a) (588 SE2d 278)
(2003).
(b) Lewis argues trial counsel was ineffective for failing to voir dire the State’s
two expert witnesses. However, apart from stating that trial counsel did not voir dire
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Dr. Tamika Bryant, who was offered and admitted as an expert in child abuse
pediatrics, Lewis fails to provide citation to authority or any meaningful argument as
to Dr. Bryant. Other than this single sentence, the remainder of Lewis’ two-page-plus
argument is devoted to the State’s other expert witness. Under the particular facts and
circumstances of this case, Lewis’ argument in regard to Dr. Bryant has been
abandoned. See Brittain v. State, 329 Ga. App. 689, 691, n.4 (766 SE2d 106) (2014).
The State’s other expert witness, Anique Whitmore, did not examine the
victim, but testified generally about sexual abuse, its effects, and the process of
forensic interviewing. Whitmore testified that she is a psychotherapist licensed to
practice in Georgia and had operated her own private practice for seven years at the
time of trial. She testified that prior to being in private practice she was the director
of forensic services for the Fulton County District Attorney’s office. Contrary to
Lewis’ assertions that “the jury [was] never told what [the title] actually means,”
Whitmore testified extensively as to what she did in that capacity. Prior to holding
that position, Whitmore testified, she was the clinical and executive director of
Harbor House, a child advocacy center where child victims of sex crimes were
forensically interviewed. Whitmore testified that she has an undergraduate degree in
education and social policy and a master’s degree in counseling psychology, both
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from Northwestern University. Finally, Whitmore explained that she had been
appointed by the governor of Georgia to a committee responsible for education on
child forensic interview protocol.
Lewis asserts that trial counsel should have asked Whitmore for definitions of
“psychotherapy” and “constant psychology,” Whitmore’s undergraduate minor.
Additionally, Lewis asserts that trial counsel should have ascertained the professional
accreditations of the professional bodies Whitmore had worked for and whether
Whitmore had done any research or authored any papers on child abuse. Further,
according to Lewis, trial counsel should have “inquired into Ms. Whitmore’s
transcripts in college and graduate school, whether she was a straight ‘A’ student or
had graduated at the bottom of her class.”
During the hearing on Lewis’ motion for new trial, trial counsel testified that
he did not voir dire Whitmore because she discussed herself and her qualifications at
length on direct examination and that voir diring her “would have continued to
emphasize her qualifications” to the jury. Trial counsel chose to move on because he
“wanted to get her to stop talking about herself.”
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“The scope of cross-examination is grounded in trial tactics and strategy, and
will rarely constitute ineffective assistance of counsel.” (Citation and punctuation
omitted.) Smith, 304 Ga. App. at 848. Moreover,
how to deal with the presentation of an expert witness by the opposing
side, including whether to present counter expert testimony, to rely upon
cross-examination, to forego cross-examination and/or to forego
development of certain expert opinion, is a matter of trial strategy
which, if reasonable, cannot be the basis for a successful ineffective
assistance of counsel claim.
(Citation and punctuation omitted.) Brown v. State, 292 Ga. 454, 456-457 (2) (738
SE2d 591) (2013).
We conclude that trial counsel’s strategic decision not to continue questioning
Whitmore about her qualifications was not unreasonable and did not constitute
deficient performance. The record shows that trial counsel instead chose to
thoroughly cross-examine Whitmore, and elicit testimony that she was paid by the
prosecution for her trial testimony and that the majority of the times she had
previously testified as an expert, it was for the prosecution. Accordingly, Lewis’
ineffective assistance of counsel claim on this ground cannot be sustained. See
Phillips v. State, 285 Ga. 213, 222-223 (5) (i) (675 SE2d 1) (2009). See also Brown,
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292 Ga. at 456-457 (2) (trial counsel’s strategic decision to challenge State’s expert
on cross-examination rather than calling a defense expert was not deficient
performance).
(c) Lewis also argues that trial counsel was ineffective for failing to object to
the State’s leading questions during the testimony of the victim, the victim’s mother,
the friend to whom the victim disclosed the abuse, and the police officer who
responded when the mother contacted the police. In support of his argument, Lewis
cites several instances of such questioning, arguing that the leading questions caused
harm because they “touched crucial issues directly or indirectly affecting [his] guilt
or innocence . . . as well as coloring the circumstances . . . so as to inflame the jury
against him.” Again, we disagree.
At the motion for new trial hearing, trial counsel testified that whether he
objects to leading questions depends on the situation:
if it appears to me the jury is getting bored, or they don’t like the person,
or it’s something that I want to bring up to make a point later, I would
let it continue. If it were something that I thought that would damage —
that was damaging to the client, I would object, but I don’t have a bright
line [rule]. Sometimes I do let it go because I think it’s helping us.
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The record reflects that trial counsel did object to some leading questions posed by
the prosecutor.
“[D]ecisions regarding when and how to raise objections are generally matters
of trial strategy, and such strategic decisions do not constitute deficient performance
unless they are so patently unreasonable that no competent attorney would have
chosen them.” (Citations and punctuation omitted.) Sowell v. State, 327 Ga. App. 532,
540 (4) (a) (759 SE2d 602) (2014). “Indeed, the decision not to object to leading
questions is often the result of reasonable trial strategy. And given that [Lewis] has
not made a contrary showing in this regard, he has failed to demonstrate that his trial
counsel performed deficiently.” (Citation and punctuation omitted.) Howard v. State,
340 Ga. App. 133, 142 (3) (c) (796 SE2d 757) (2017). See also Jones v. State, 302
Ga. 488, 492 (2) (a) (807 SE2d 344) (2017). Thus, Lewis’ argument in this regard is
without merit, and the trial court did not err in denying his amended motion for new
trial.
4. Lastly, Lewis argues that the trial court erred in denying his request to test
a washcloth recovered from the victim’s underwear drawer for DNA. The victim
testified that Lewis usually ejaculated onto a washcloth and that he used a washcloth
“to wash off before [he] started, and a dry [washcloth] for when he finished.” After
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the victim disclosed the abuse to her mother and the police, the mother informed
police that she had found a purple washcloth in the back of the victim’s underwear
drawer. A detective retrieved the washcloth from the victim’s dresser drawer, noting
that it was “folded up or kind of wadded up in the very back corner of the drawer.”
The detective testified that the mother informed him that the washcloth had been
washed and that the Georgia Bureau of Investigation’s crime lab informed him that
“it would hold no evidentiary value because of the fact that, any evidence would have
long been gone at that point.” The washcloth was collected roughly six months after
the last incident of abuse.
After the trial, Lewis filed a motion for testing of evidence, asking the trial
court to order police to turn over the washcloth to the Georgia Bureau of
Investigation for DNA testing. Along with the motion, Lewis filed an article from a
scientific journal titled “Persistence of DNA from laundered semen stains:
Implications for child sex trafficking cases.” Following a hearing on Lewis’ motion,
the trial court entered an order for preservation of the washcloth. In its order denying
Lewis’ amended motion for new trial, the trial court found that Lewis had “failed to
make a showing to support the testing of evidence in this case,” and also denied
Lewis’ motion for testing of evidence.
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On appeal, Lewis argues that the trial court erred in denying his request for
testing of the washcloth. OCGA § 5-5-41 (c), the statute that controls motions for
post-conviction DNA testing, states, in part, that
(1) . . . a person convicted of a felony may file a written motion before
the trial court that entered the judgment of conviction in his or her case
for the performance of forensic deoxyribonucleic acid (DNA) testing.
...
(3) The motion shall be verified by the petitioner and shall show or
provide the following:
(A) Evidence that potentially contains deoxyribonucleic acid
(DNA) was obtained in relation to the crime and subsequent indictment,
which resulted in his or her conviction;
(B) The evidence was not subjected to the requested DNA testing
because the existence of the evidence was unknown to the
petitioner or to the petitioner’s trial attorney prior to trial or
because the technology for the testing was not available at the
time of trial;
(C) The identity of the perpetrator was, or should have been, a
significant issue in the case;
(D) The requested DNA testing would raise a reasonable
probability that the petitioner would have been acquitted if the
results of DNA testing had been available at the time of
conviction, in light of all the evidence in the case[.]
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Id. Lewis “may be entitled to post-conviction DNA testing if he meets all of the
statutory requirements listed in OCGA § 5-5-41 (c) (3), (4), and (7). See OCGA § 5-
5-41 [(c)] (6) (A) and (7)[.]” (Citations and footnote omitted.) De La Cruz v. State,
303 Ga. 24, 32 (7) (810 SE2d 84) (2018).
Here, Lewis cannot demonstrate that any of the statutory requirements were
met. First, it is undisputed that Lewis and his trial counsel knew about the washcloth
prior to trial. See OCGA § 5-5-41 (c) (3) (B). And while Lewis submitted an article
which purportedly shows that DNA profiles can be obtained from laundered semen
stains, Lewis has not shown that the actual technology for the testing of the washcloth
was not available at the time of trial. Id.
Next, the identity of the perpetrator of the abuse was not a significant issue at
trial. See OCGA § 5-5-41 (c) (3) (C). Instead, the pivotal issue in the case was
whether the sexual abuse alleged by the victim occurred at all. Lewis asserts that if
another person’s DNA were to be recovered from the washcloth, it would constitute
potentially exculpatory evidence. But nothing in the record supports the possibility
that another male perpetrated the acts; and no other male lived in the home. Under
these particular facts and circumstances, Lewis has not “show[n] the relevance of
[this] hypothetical result.” (Punctuation omitted.) Crawford v. State, 278 Ga. 95, 97
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(2) (a) (597 SE2d 403) (2004). See also Williams v. State, 289 Ga. App. 856, 858
(658 SE2d 446) (2008).
Finally, Lewis’ motion for testing of the washcloth failed to meet OCGA § 5-5-
41 (c) (3) (D). At trial, the jury was informed that the washcloth had been washed.
Further, the victim testified that the recovered washcloth was “unused.” Thus, even
if the washcloth had been tested — assuming it had any evidentiary value — and
Lewis’ DNA was not recovered from the washcloth, it would only show an absence
of Lewis’ DNA from a laundered and/or unused washcloth. In light of this as well as
all of the evidence presented at trial, Lewis failed to show a reasonable probability
that he would have been acquitted had the DNA results been available at the time of
trial. See OCGA § 5-5-41 (c) (3) (D). See also De La Cruz, 303 Ga. at 33 (7);
Williams, 289 Ga. App. at 858. Accordingly, the trial court did not err in denying
Lewis’ post-conviction motion for DNA testing of the washcloth.
Judgment affirmed. Barnes, P. J., and Mercier, J., concur.
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