Thomas Edward Zerbarini v. State ( 2021 )

FIRST DIVISION
BARNES, P. J.,
GOBEIL and PIPKIN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 10, 2021
In the Court of Appeals of Georgia
A20A1711. ZERBARINI v. THE STATE.
GOBEIL, Judge.
A jury convicted Thomas Edward Zerbarini of aggravated child molestation,
incest, two counts of child molestation, and enticing a child for indecent purposes,
related to Zerbarini’s conduct towards two child victims. He has appealed from his
judgment of conviction and the trial court’s denial of his motion for new trial, as
amended. On appeal, Zerbarini asserts: (1) (a) trial court error in failing to allow
counsel a full opportunity to respond to a note sent from the jury during deliberations
and (b) in failing to correctly instruct the jury in response to the note; (2) trial court
error in failing to give a curative instruction to the jury after a witness bolstered the
testimony of another witness; (3) ineffective assistance of trial counsel; (4) trial court
error in sentencing by failing to merge two counts; and (5) conflict of interest of the
trial judge. For the reasons set forth below, we affirm the trial court’s order.
On appeal from a criminal conviction, the evidence must be
viewed in the light most favorable to support the verdict, and the
defendant no longer enjoys the presumption of innocence; moreover, an
appellate court determines evidence sufficiency and does not weigh the
evidence or determine witness credibility.
Williams v. State, 333 Ga. App. 879, 879 (777 SE2d 711) (2015) (citation and
punctuation omitted).
Thus viewed in the light most favorable to the verdict, the record shows that
M. B., who was 13 years old at the time of trial in December 2017, was Zerbarini’s
neighbor. Zerbarini molested M. B. on two separate occasions in 2013 and 2014 by
touching her private parts. T. Z., who was eight years old at the time of trial, is
Zerbarini’s daughter. Zerbarini molested T. Z. on multiple occasions sometime
between October 2012 and July 2014 by licking her private parts. Both girls testified
to the molestations at trial.
Based on this conduct, Zerbarini was charged with aggravated child
molestation (Count 1) and incest (Count 2) based on acts of sodomy toward T. Z., and
was charged with two counts of child molestation (Counts 3 and 4) and one count of
2
enticing a child for indecent purposes (Count 5) based on acts of touching M. B.
Zerbarini proceeded to trial, represented by counsel. His trial took place over several
days from December 4, 2017, through December 15, 2017.
Although Zerbarini was charged only in connection with two victims, other
witnesses testified that Zerbarini molested them while they were children, including
Zerbarini’s other daughter, A. Z., who was twelve years old at the time of trial, and
Zerbarini’s niece, Z. S., who was nine years old at the time of trial. Two older
witnesses, both relatives of Zerbarini’s, testified that he molested them years ago
when they were children. Specifically, L. B. testified that Zerbarini molested her by
putting his hand down her shorts and “moving his hand around [her] vagina” in 2006,
when she seven years old. J. S. testified that Zerbarini molested her twice by putting
his hand inside her underwear when she was four years old. One of Zerbarini’s sons
testified that he witnessed Zerbarini sucking his sister A. Z.’s breasts in the basement
of their home.
Zerbarini put forward several defense witnesses, including multiple people who
testified that he was known by them to be appropriate with children. Zerbarini
testified in his own defense, fully denying the allegations against him. Zerbarini
explained that his wife, Lynne Zerbarini, was molested as a child and was extremely
3
suspicious that her own children were being molested by him, accusing him on
multiple occasions. In May 2014, Zerbarini was exchanging flirtatious text messages
with another woman, and Lynne saw the messages. Lynne told Zerbarini that she
intended to file for divorce and move with the children to New York. Zerbarini told
her he intended to fight for custody of the children. Shortly thereafter, Zerbarini heard
from his children that their mother had again begun to question them about whether
Zerbarini had been inappropriate with them.
To support Zerbarini’s theory that Lynne influenced the children into making
the allegations of molestation, Zerbarini called as a witness Dr. Maggie Bruck, a
psychologist who specializes in the strength and distortion of children’s memories.
Dr. Bruck was admitted as an expert witness in the area of child sexual abuse
disclosures. Dr. Bruck testified that Lynne’s repeated questioning of the children
regarding whether Zerbarini molested them, combined with Lynne’s obvious anger
towards Zerbarini, could have resulted in the children inventing false allegations
against their father. She further opined that the outcries from Zerbarini’s daughters
and his younger niece, Z. S., to their respective mothers could have been improperly
influenced by their mothers’ disdain towards Zerbarini and belief that Zerbarini had
been inappropriate with the girls. Additionally, M. B.’s outcry could have been
4
influenced by the same suggestive environment because her parents also repeatedly
questioned her if Zerbarini had molested her and did not take precautions to ensure
that M. B. was not influenced by their behavior. According to Dr. Bruck, the older
victims’ accounts of molestation from many years ago could either have been
influenced by the recent allegations, or could have been false memories. Zerbarini
rested his case after Dr. Bruck’s testimony.
After deliberating for several hours over two days, the jury returned a guilty
verdict on all counts. The trial court imposed a life plus 35 year total sentence. After
retaining appellate counsel, Zerbarini filed a motion for new trial, as amended. After
two days of hearings, at which multiple witnesses testified, the trial court denied
Zerbarini’s motion. This appeal followed.
1. Zerbarini asserts that his constitutional right to counsel was violated when
trial counsel was not given an opportunity to respond fully to a note submitted by the
jury during deliberations. He also asserts that the court’s response to the jury’s note,
which included giving an incomplete and incorrect Allen1 charge, was coercive and
1
Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896). An
Allen charge is given by the trial court when the jury in a criminal trial indicates that
it is deadlocked, encouraging the jurors to reexamine their opinions in continued
deliberations and to attempt to reach a unanimous verdict. See id.; Drayton v. State,
297 Ga. 743, 746-747 (2) (a) (778 SE2d 179) (2015). “When a jury is unable to reach
5
contributed to the verdict. As these claims are closely related, we will consider them
together.
Zerbarini’s claims arise out of a question submitted by the jury to the court.
After approximately nine hours of deliberation over two days, the jury sent a note to
the court asking: “Can we be a hung jury on one or more counts and convict on the
others?” The trial court held a conference in chambers with the attorneys to discuss
the note. Because the note indicated the possible direction of the jurors’ votes, the
court did not show the note or read it verbatim to the attorneys. The court explained
the contents of the note as follows: “What they wanted to know was could they be
hung on one count and reach decisions on the other counts.” The court suggested
giving an Allen charge, and again stated that “it appears it’s just one matter that
they’re – have an incomplete decision on.” The court asked for input from the
attorneys.
Trial counsel stated his understanding of the note:
[COUNSEL]: There’s five counts in the indictment, so they’re saying
they have a verdict on four of the five counts. So, as far as I’m
a unanimous decision, an Allen charge might be appropriate.” See Wells v. State, 297
Ga. App. 153, 160 (2) (676 SE2d 821) (2009) (citations omitted).
6
concerned, you know, it’s not like they’re – you know, it’s not – That
seems to be sufficient for me, to let them just have a verdict[.]
THE COURT: But don’t you want an Allen charge?
...
[COUNSEL]: They have a verdict on four of the five counts, so I’m not
asking for an Allen charge.
THE COURT: Okay. If –
[COUNSEL]: If they were split on all of the counts then that would be
different. . . .
The State asked the court to give the Allen charge. The court believed that it
would be inconsistent to answer the jurors’ question that they were allowed to be a
hung jury on one count while also giving them an Allen charge. The court intended
to first ask the foreman if he believed it was possible for the jury to reach a
unanimous verdict on every count, and if the answer was no, the court would come
back and discuss additional possibilities with the attorneys. Otherwise, the court
would give an Allen charge. Trial counsel did not object to this plan.
7
Back in the courtroom, the trial court asked the jury foreman if he believed that
it was possible for the jury to reach a unanimous verdict on every count if given more
time. The foreman responded, “I would say so.” The court then instructed the jury as
follows:
Ladies and gentlemen, I don’t wish to know how anybody’s leaning on
anything. All I want to tell you is we’ve been here a long time; y’all
have been very attentive; you’ve been brought in and out; we’ve been
deliberating for quite awhile; however, since the foreman believes that
a decision could be made on each count as a unanimous verdict, I’m
going to ask you to please retire and continue to work.
If you reach a point, Mr. Foreman, of – that you think it is impossible I’d
like to know; and then I will look at the options at that time.
But it needs to be a unanimous verdict on each count, ladies and
gentleman, if you may reach it.
Approximately 50 minutes later, the jury returned with the verdict, which was
unanimous and guilty on all counts. The court polled the jury, asking each juror if the
verdict represented his/her decision. Each juror answered affirmatively. The jury was
then excused.
8
(a) Zerbarini contends that his right to counsel was violated because the court’s
incorrect and misleading explanation of the substance of the jury note kept counsel
from being able to form an informed and complete response on how to advise the
jury.
“Both the Supreme Court of Georgia and this Court have recognized that the
failure of the trial court to inform counsel of the contents of a jury note and to seek
comment or input in the formulation of the court’s response constitutes a violation of
a defendant’s right to counsel.” Dowda v. State, 341 Ga. App. 295, 299 (3) (799 SE2d
807) (2017) (citation and punctuation omitted). The Supreme Court requires a trial
court to, among other things, “afford counsel a full opportunity to suggest an
appropriate response” to a jury communication. Lowery v. State, 282 Ga. 68, 76 (4)
(b) (ii) (646 SE2d 67) (2007).
Here, we agree with Zerbarini that the trial court’s explanation of the contents
of the note was error. Not only did the court not inform trial counsel of the exact
contents of the note, it mischaracterized the message sent by the jury. While the note
itself suggested that the jury was potentially hung on “one or more counts,” the court
led trial counsel to believe that the jury had reached a unanimous verdict on all but
one count, specifically stating “it appears it’s just one matter that they’re – have an
9
incomplete decision on.” Indeed, trial counsel incorporated this interpretation into his
response during the chambers conference, stating that “they have a verdict on four of
the five counts.” Thus, trial counsel’s opportunity to respond to the jury’s note cannot
be said to have been full and fair, as it was tainted by the trial court’s
misrepresentation of the situation at hand. Compare Humphreys v. State, 287 Ga. 63,
77-78 (8) (a) (694 SE2d 316) (2010) (although trial court did not divulge the exact
contents of jury note, experienced defense counsel was able to infer the truth of the
situation at hand based on the summary provided by the court), overruled on other
grounds by Willis v. State, 304 Ga. 686, 706 n. 3 (9) (820 SE2d 640) (2018).
Accordingly, under any standard,2 we find that the trial court erred by failing to
accurately communicate the substance of the note to counsel and failing to allow
counsel a full opportunity to respond. See Dowda, 341 Ga. App. at 299 (3); Lowery,
282 Ga. at 75 (4) (b) (ii).
However, “even error of a constitutional magnitude, such as an abridgment of
the Sixth Amendment right to counsel, can be deemed harmless.” Lowery, 282 Ga.
2In previous cases assessing this type of error, this Court has applied harmless
error review, Lowery, 282 Ga. at 75-76 (4) (b) (ii); Dowda, 341 Ga. App. at 299 (3),
and plain error review, Murphy v. State, 354 Ga. App. 560, 562 (2) (841 SE2d 153)
(2020) (assuming without deciding that plain error applied).
10
at 75 (4) (b) (ii) (citation and punctuation omitted). “Whether a constitutional
violation constitutes harmless error depends on whether the State can prove beyond
a reasonable doubt that the error did not contribute to the verdict.” Id. (citation and
punctuation omitted). In this case, the State argues that the court’s error did not affect
the verdict, and we agree.
To reach this conclusion, we examine how we previously have handled this
type of error. In some cases, where the trial court failed to disclose the full contents
of a jury note to counsel and failed to seek any input from counsel in formulating the
court’s response to the jury, we have found harm and reversed convictions. See, e.g.,
Dowda, 341 Ga. App. at 298-299 (3) (jury note indicated that all six jurors had voted
to acquit, but believed they were not unanimous because four jurors had voted not
guilty and two jurors had voted innocent; judge instructed jurors to continue
deliberating without input from the parties; we reversed for violation of defendant’s
right to counsel); Wells v. State, 297 Ga. App. 153, 158-160 (2) (676 SE2d 821)
(2009) (jury sent note indicating that it was unanimous on some counts and not
unanimous on others; trial court, without informing parties of the note or seeking any
input, instructed the jury to continue deliberating; we reversed for violation of
defendant’s right to be present at a critical stage of the trial). In another case, where
11
the trial court failed to inform counsel of the contents of a jury note and seek input
before responding to the jury, we deemed any such error to be harmless where it did
not contribute to the verdict. Lowery, 282 Ga. at 72-73, 75-76 (4) (b) (ii) (jury note
indicated that some jurors would not change their minds; trial court gave an Allen
charge before discussing the note with counsel; because trial court had the discretion
to give the Allen charge, the failure to consult with counsel did not affect the verdict).
Part of the harmless error analysis we have employed in prior cases includes
an inquiry into what trial counsel would have done differently had the trial court not
erred by failing to accurately disclose the contents of the jury note. See Humphreys,
287 Ga. at 77-78 (8) (a) (any error was harmless because defendant did not show
“what different or further action he would have taken had the trial court read the
[jury] note verbatim”). Here, trial counsel testified at the motion for new trial hearing
that his response to the trial court’s discussion of the jury note was based on his
understanding that the jury had reached a unanimous verdict on four of the five
counts. Counsel testified that, had he known the actual contents of the jury note, he
would have suggested that the court respond “yes” to the jury’s question as to
whether they could be hung on one or more counts and vote guilty on others. Thus,
12
Zerbarini has shown that counsel would have acted differently had the trial court not
failed to accurately convey the contents of the jury note.
However, given the record in this case, we conclude that counsel’s proposed
course of action would not have changed how the trial court instructed the jury and
thus would not have changed the outcome of Zerbarini’s trial. As the transcript
shows, even while misunderstanding the contents of the jury note, trial counsel
opposed giving the jury an Allen charge during the conference with the trial court.
The State disagreed, and asked the court to give the Allen charge. The court ruled that
it would first inquire with the foreman and proceed with the Allen charge if the
foreman indicated that the jury was likely to be able to reach a unanimous verdict
given more time. When questioned, the jury foreman without hesitation answered that
he believed it was possible, so the court moved forward as intended, and gave the
instructions to continue deliberating.
Further supporting our conclusion is that the trial court considered and rejected
counsel’s proposed response to the jury note. At the motion for new trial hearing,
counsel stated that he would have encouraged the court to answer the jury’s
question—can we be a hung jury on one or more counts and convict on others—with
a “yes.” However, the court already considered doing this upon receipt of the note
13
and rejected the idea, because it would be inconsistent or confusing to both tell the
jury that they could be a hung jury on some counts while also instructing them to
continue deliberating in an attempt to reach a unanimous verdict on all counts.
Therefore, it is clear that the court would have instructed the jury in the way that it
did regardless of its error in failing to accurately communicate the contents of the
jury’s note to the parties. Indeed, under these circumstances, the trial court had the
discretion to give the Allen charge, even if trial counsel had vigorously objected
during the conference. See Thornton v. State, 145 Ga. App. 793, 794 (245 SE2d 22)
(1978) (“The decision of whether to give a jury in disagreement the ‘Allen’ charge
is generally left in the discretion of the trial judge.”); Honester v. State, 336 Ga. App.
166, 171-172 (784 SE2d 30) (2016) (trial court has a duty to determine whether there
is little or no possibility of the jury reaching a unanimous verdict before giving an
Allen charge). We can thus be confident that the error did not contribute to
Zerbarini’s verdict in any meaningful way, and it was harmless beyond a reasonable
doubt. See Lowery, 282 Ga. at 75-76 (4) (b) (ii).
(b) Zerbarini also asserts that the Allen charge given by the trial court in
response to the jury note was incorrect and coercive. He argues that the instruction
given omitted key language from a proper Allen charge that a unanimous verdict must
14
be based on the free and voluntary agreement of all of the jurors, and the trial court’s
brief mention of the impossibility of a unanimous verdict was insufficient “to cure the
taint of the overall directive that a unanimous verdict must be reached on all counts
if deliberations were to continue.”
The State argues that we should review this claim for plain error because trial
counsel did not object to the trial court’s instruction, and we agree. Zerbarini argues
that counsel did not have the requisite information to mount an objection to the
instruction because he was misled by the court about the contents of the jury note.
However, counsel clearly heard the court’s instruction to the jurors, and admitted at
the motion for new trial hearing that he believed it was not a “proper” instruction, yet
he did not object. Where a party fails to object to a jury instruction, including an
allegedly defective Allen instruction, we review for plain error. Scott v. State, 290 Ga.
883, 888 (6) (725 SE2d 305) (2012). Thus, we assess whether the Allen charge “was
obviously erroneous, and if so, whether such error likely affected the outcome of the
proceedings.” Id. Satisfying the plain error standard “is difficult, as it should be.”
State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (citation and punctuation
omitted).
15
As described above, a trial court is permitted to give an Allen charge when a
jury indicates that it is unable to reach a unanimous decision. Wells, 297 Ga. App. at
160 (2). “The central inquiry in reviewing an Allen charge is whether the instruction
is coercive so as to cause a juror to abandon an honest conviction for reasons other
than those based upon the trial or the arguments of other jurors.” Scott, 290 Ga. at 888(6) (citation and punctuation omitted).
Zerbarini is correct that the trial court’s instruction to the jury in his trial was
not a complete or correct Allen charge under Georgia law. Here, the trial court
instructed the jury that it should “continue to work” and “it needs to be a unanimous
verdict on each count.” This instruction deviates significantly from the suggested
pattern jury instruction for a hung jury, which provides carefully crafted language
informing the jurors of their obligations to deliberate but to keep in mind the evidence
and the arguments of the other jurors. See Suggested Pattern Jury Instructions, Vol.
II: Criminal Cases (2018), § 1.70.70 (Hung Jury) (including specific language that the
“verdict must be the conclusion of each juror and not a mere acquiescence of the
jurors in order to reach an agreement”). However, any coercive effect of the court’s
instruction that the verdict needed to be unanimous was offset because the court
explicitly left open the possibility of continued disagreement from the jurors, stating
16
that “[i]f you reach a point . . . that you think it is impossible,” to then inform the
court, which would explore “the options at that time.” Therefore, any error in the
court’s instruction was not obvious. See Dukes v. State, 290 Ga. 486, 489 (5) (722
SE2d 701) (2012) (finding no error, much less plain error, where charge regarding the
unanimity of the verdict viewed as a whole was proper).
Additionally, we agree with the State that the jury’s note, asking whether it
could be a hung jury on one or more counts, was not an announcement that the jury
was deadlocked, especially when considered in conjunction with the foreman’s
response to brief questioning by the trial court that he believed that the jury could
reach a unanimous verdict on every count if given more time. See Hampton v. State,
302 Ga. 166, 167-169 (2) (805 SE2d 902) (2017) (jury’s note asking whether it
“needed to vote unanimous on guilty or not guilty on a specific charge” was not an
announcement that the jury was deadlocked) (punctuation omitted). And, as our
Supreme Court has recognized, “a jury that is not deadlocked is less susceptible to
coercion than a deadlocked jury.” Id. at 168 (2). Thus, Zerbarini has also not carried
his burden to show that any error probably did affect the outcome below. See id. at
169 (2) (concluding that, because the jury was not deadlocked, the court’s instruction
concerning the unanimity of the verdict did not probably affect the outcome).
17
Here, where the evidence against Zerbarini was strong, including the testimony
of the two victims named in the indictment, as well as testimony from three additional
victims and an eye witness to act of child molestation by Zerbarini, and where the
record does not reliably suggest that the jury was deadlocked, we find that Zerbarini
fails to meet “the burden of persuasion with respect to prejudice” or affirmatively
show “that the error probably did affect the outcome below.” Hampton, 302 Ga. at
169 (2) (citation and punctuation omitted).
(c) Alternatively, Zerbarini contends that counsel was ineffective for failing to
object to the incorrect and coercive Allen charge. However, for the reasons stated
above, we find that the jury instruction did not amount to error and thus it “cannot
form the basis of a claim of ineffective assistance of counsel.” Scott, 290 Ga. at 890
(7) (d); see also Hampton, 302 Ga. at 168-169 (2) (equating prejudice prong of plain
error analysis to prejudice prong of ineffective assistance of counsel analysis).
2. Zerbarini next asserts that the trial court erred by failing to give a curative
instruction to the jury after a witness improperly bolstered the credibility of another
witness. Specifically, Zerbarini is referring to testimony from P. B., the father of the
victim, M. B.
18
P. B. was the first witness called at trial. During direct examination, P. B.
testified about the positive relationship he had with his neighbors, the Zerbarinis.
Both families had children who would play together. On August 2, 2014, Zerbarini’s
wife, Lynne, informed P. B. that Zerbarini was under investigation for child
molestation, and encouraged P. B. to have M. B. “[c]hecked out.” P. B. told his wife,
and the two decided to ask their daughters if Zerbarini had hurt them. Their younger
daughter had no reaction, but M. B.’s face began to “well up,” and she told her
parents Zerbarini had touched her under her pants. From there, P. B. reported the
outcry to the police and cooperated with the investigation.
On cross-examination, Zerbarini’s trial counsel asked P. B. several questions
about whether he was influenced by Lynne’s report that Zerbarini was under
investigation for child molestation against the Zerbarini daughters and possibly other
children in the neighborhood. Trial counsel asked whether P. B. had already made up
his mind that Zerbarini molested M. B. before he and his wife questioned M. B. P. B.
described that, after the outcry, M. B. became fearful of being alone and more
nervous. Trial counsel questioned him about sending an e-mail to the detective asking
for an update, and P. B. responded that he was worried for his daughter because
Zerbarini was not in custody and he feared that she was being affected by seeing him
19
around the neighborhood. Specifically, during this exchange, P. B. stated: “You
know, from what I gathered, what my daughter told me was true; I had no other
reason to believe that she was wrong – lying to me when she disclosed that
[Zerbarini] did those things to [her].” P. B then stated that he was trying to protect his
daughter, and the cross-examination ended.
After the cross-examination, an unreported bench conference was held. Later
that day, Zerbarini’s trial counsel explained the substance of the bench conference as
follows: “I asked the [c]ourt for a curative instruction to the jury because one witness
cannot testify, in Georgia, that they believe another person was telling the truth.
That’s improper bolstering.” Counsel asked that the record reflect that the court
denied his request. Zerbarini now raises this denial as trial court error. He argues that
the trial court’s failure to give a curative instruction to the jury harmed him because
the credibility of the victim, M. B., was central to his convictions given the lack of
other corroborating evidence.
“A witness’[s] credibility may not be bolstered by the opinion of another, even
an expert, as to whether the witness is telling the truth. Credibility of a witness is a
matter solely within the province of the jury.” Blackmon v. State, 336 Ga. App. 387,
394 (2) (b) (785 SE2d 59) (2016) (citation and punctuation omitted). However, trial
20
counsel’s failure to contemporaneously object to P. B.’s alleged bolstering testimony
prevents us from addressing the merits of the issue on appeal.3 See Bridges v. State,
279 Ga. 351, 356 (9) (613 SE2d 621) (2005) (failure to contemporaneously object to
testimony waived the issue on appeal); Torres v. City of Jonesboro, 354 Ga. App.
874, 876 (2) (842 SE2d 75) (2020) (reiterating the “contemporaneous objection rule”
under Georgia’s updated evidence code). Thus, we find no reversible error based on
the court’s denial of Zerbarini’s request for a curative instruction.
3. Zerbarini asserts that trial counsel was ineffective for three reasons: (a)
failing to preserve the bolstering objection to P. B.’s testimony discussed in Division
2; (b) failing to subpoena Lynne Zerbarini as a witness; and (c) failing to lay a proper
foundation to admit the forensic interviews of three of the testifying victims. He
argues that the evidence against him was not overwhelming, so he was prejudiced by
these failures of counsel.
To prevail on any of these claims, Zerbarini must prove both that his lawyer’s
performance was deficient and that he suffered prejudice as a result of this deficient
performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80
3
Zerbarini argues in the alternative that trial counsel was ineffective for failing
to make a timely objection to P. B.’s testimony at trial. Zerbarini’s ineffectiveness
claims are discussed in Division 3.
21
LE2d 674) (1984). “If [Zerbarini] cannot meet his burden of proving either prong of
the Strickland test, then we need not examine the other prong.” Causey v. State, 319
Ga. App. 841, 842 (738 SE2d 672) (2013). “The trial court’s determination that an
accused has not been denied effective assistance of counsel will be affirmed on
appeal unless that determination is clearly erroneous.” Johnson v. State, 214 Ga. App.
77, 78 (1) (447 SE2d 74) (1994) (citations and punctuation omitted).
With respect to the first prong of the Strickland test, deficient performance,
Zerbarini must show that his attorney performed his duties at trial in an objectively
unreasonable way, considering all the circumstances, and in light of prevailing
professional norms. Strickland, 466 U. S. at 687-688 (III) (A).With respect to the
second prong of Strickland, to demonstrate that he suffered prejudice as a result of
trial counsel’s performance, Zerbarini must prove “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694 (III) (B). “This burden, though not impossible to carry, is
a heavy one.” Arnold v. State, 292 Ga. 268, 270 (2) (737 SE2d 98) (2013), citing
Kimmelman v. Morrison, 477 U. S. 365, 382 (II) (C) (106 SCt 2574, 91 LE2d 305)
(1986).
22
(a) Zerbarini argues that counsel was ineffective for failing to make a timely
objection to P. B.’s testimony allegedly bolstering M. B.’s credibility, arguing that he
was prejudiced because the victim’s credibility was central to the issue of his guilt
due to the lack of corroborating evidence. We disagree.
First of all, we do not find that the complained-of testimony was highly
prejudicial to Zerbarini, even if in error. See Thomas v. State, 318 Ga. App. 849, 854
(4) (a) (734 SE2d 823) (2012) (effect of bolstering should be viewed in context of all
the evidence to determine if it had an effect on the outcome on the trial). The jurors
were able to hear from M. B. and judge her credibility for themselves, not only
through her trial testimony, but also through the recording of her forensic interview
which they viewed more than once. Thus, “the State presented other evidence from
which the jury could assess [M. B.’s] credibility,” minimizing any prejudicial effect
of P. B.’s alleged bolstering. Dority v. State, 335 Ga. App. 83, 93 (2) (780 SE2d 129)
(2015). The jury also heard Dr. Bruck’s opinion on the credibility of M. B.’s account,
when Dr. Bruck called the child’s narrative “bizarre” and stated that she could not
understand how the molestation could have happened as M. B. reported it.
Additionally, the fact that a father believes that his daughter is telling the truth is
neither surprising nor damning to the defendant. See Rozier v. Caldwell, 300 Ga. 30,
23
34 (4) (793 SE2d 73) (2016) (bolstering testimony unlikely to be harmful because it
is not surprising that law enforcement would believe the victim’s account, “and any
rational juror could have surmised as much without being told explicitly”) (citation
and punctuation omitted). Finally, there was other significant evidence of Zerbarini’s
guilt, including the testimony of other victims and witnesses. See Gaston v. State, 317
Ga. App. 645, 647-649 (1) (731 SE2d 79) (2012) (strength of other evidence against
defendant is critical to our examination of the harm of bolstering testimony). Thus,
we conclude that it was unlikely that the bolstering testimony had much, if any, effect
on the verdict.
Further, P. B.’s testimony that he believed that M. B. was telling him the truth
not only was elicited by trial counsel, but strengthened the defense’s theory at trial.
Trial counsel had spent the cross-examination of P. B. building the theory that P. B.,
influenced by Lynne, had already made up his mind that Zerbarini had molested his
daughters. Thus, P. B. might have influenced M. B. to make a false allegation during
his questioning of her.
Indeed, that P. B. believed that Zerbarini was guilty before questioning M. B.
was also central to a line of questions later asked by trial counsel to Dr. Bruck,
Zerbarini’s expert witness. Trial counsel asked Dr. Bruck whether it was significant
24
that M. B.’s outcry was elicited by her father. Dr. Bruck explained that P. B. “doesn’t
seem to give [ ] a possibility that it didn’t happen; [P. B.] already seems to think that
it happened.” She went on to explain why P. B.’s mindset of prejudged guilt would
have influenced how he questioned his daughter, and how such questioning could
have elicited false allegations from the child.
Based on the circumstances in which P. B. provided his testimony, and based
on the testimony elicited during the trial as a whole, we cannot find that trial
counsel’s failure to object and preserve the bolstering issue for appeal amounts to
ineffective assistance. Where trial counsel has chosen a defense theory advancing the
idea that one witness pre-judged the defendant to be guilty, the fact that such witness
testified that he believes the victim does not prejudice the defendant. See Davis v.
State, 306 Ga. 140, 148 (3) (g) (829 SE2d 321) (2019) (no deficient performance
where trial counsel used witness’s bolstering of victim’s credibility to the defendant’s
advantage); Heard v. State, 204 Ga. App. 757, 759 (4) (420 SE2d 639) (1992) (“A
party will not be heard to complain of error induced by his own conduct.”) (citation
and punctuation omitted). Even if the trial court had issued a curative instruction after
P. B.’s testimony, as Zerbarini desired, Dr. Bruck’s testimony would have again put
the same issue before the jury, diminishing the effect of any prior instruction. See
25
Bridges, 279 Ga. at 356 (8) (no harm where complained of testimony was cumulative
of separate and admissible testimony). Thus, for all of these reasons, Zerbarini has
failed to show prejudice for this claim of ineffective assistance of counsel.
(b) Zerbarini asserts that counsel was ineffective for failing to subpoena Lynne
as a defense witness during trial. He states that Lynne was available and would have
been a critical witness for the defense, in that her testimony would have supported the
defense theory that, through her intense suspicion and anger toward Zerbarini, she
influenced all of the other victims into fabricating allegations against Zerbarini.
Lynne testified at the motion for new trial hearing. The only specific testimony
that Zerbarini points to in support of his claim that Lynne could have affected the
outcome of the trial concerns Lynne’s account of her initial report to the police. In her
testimony and written statement to police, Lynne reported that her daughter T. Z.
made a specific outcry of abuse in March or April of 2014. She did not initially report
this outcry to anyone because she was “scared that [her] whole life would be
destroyed.”
However, in July 2014, after hearing from her brother that her niece, Z. S., had
accused Zerbarini of molesting her, Lynne questioned T. Z. directly about whether
Zerbarini had molested her. T. Z. stated that “Daddy licked my toilet spot,” and
26
mimicked what her father did to her. Lynne testified that she reported this specific
outcry to police. However, Officer Christopher Judy testified at the motion for new
trial hearing that Lynne never reported any specific outcry from T. Z.; Lynne reported
merely that she was suspicious of Zerbarini and “gave no evidence why [Zerbarini]
is a suspect other than him watching after their children and that [Zerbarini] ‘creeps
[Lynne] out.’” Zerbarini argues that this evidence would have “impeached” T. Z.’s
testimony, yet was not presented to the jury due to counsel’s failure to subpoena
Lynne and Officer Judy as witnesses. At the motion for new trial hearing, trial
counsel testified that he did not subpoena Lynne or Officer Judy because he believed
that the State would call them as witnesses.
We conclude that Lynne’s testimony would not have affected the outcome of
the trial. Contrary to Zerbarini’s claim, the defense theory that Lynne potentially
influenced the victims or their parents into inventing allegations against Zerbarini
was presented throughout the trial, including in cross-examinations of the victims, in
Zerbarini’s testimony, and especially in Dr. Bruck’s testimony. In fact, the defense
theory was likely strengthened by the fact that the jury never heard from Lynne, as
27
it is unlikely that she would have admitted to encouraging any false allegations.4
Further, although Lynne’s credibility may have been affected by inconsistent
testimony,5 it is unclear how Lynne’s inconsistent testimony would have impeached
T. Z., who testified at trial that her father molested her on multiple occasions and that
no one had ever encouraged her to give a false account of what happened to her. In
any event, when and how Lynne reported the incident to the police is not central to
the issue of Zerbarini’s guilt. See Meadows v. State, 264 Ga. App. 160, 165 (4) (c)
(590 SE2d 173) (2003) (to show ineffective assistance of counsel for failure to
subpoena a witness, defendant must show that the uncalled witness would have
benefitted the defendant’s case); Lynch v. State, 293 Ga. App. 858, 862 (2) (668 SE2d
4
To the contrary, Lynne’s testimony at the motion for new trial hearing was
full of details that would have been damaging to Zerbarini’s defense, which is likely
why trial counsel “did not imagine that the State wasn’t going to call her to testify.”
Specifically concerning whether she influenced T. Z. into accusing her father, Lynne
testified that T. Z.’s very first accusation against Zerbarini occurred in March 2014,
and was “out of the blue” and not in response to her questioning the girl. Lynne also
testified that, after hearing additional allegations from family members, she called a
sexual abuse hotline for advice on how to talk to her children about potential abuse
from their father before proceeding.
5
Further, it is not even clear that Lynne’s testimony was inconsistent with her
written statement and Officer Judy’s report in the way that Zerbarini claims. Although
Lynne stated that she reported T. Z.’s outcry to police, she also stated that she did not
report everything to the police on the first day, and admitted that she did not report
specifics for fear that she would look like a bad mother.
28
264) (2008) (no prejudice where facts that would have been testified to by uncalled
witnesses were not central to the State’s case). Under these circumstances, Zerbarini
has not shown prejudice for counsel’s failure to call Lynne as a witness.
(c) Zerbarini asserts that trial counsel was ineffective for failing to secure
witnesses that could lay the foundation for admission of the videos of forensic
interviews with three of the testifying victims. Although M. B.’s forensic interview
was shown to the jury, the interviews with other victims, T. Z. (Zerbarini’s daughter),
A. Z. (Zerbarini’s other daughter), and Z. S. (Zerbarini’s niece), were not. At trial,
Zerbarini’s counsel explained that he wished to admit these forensic interviews, as
he believed they were critical to the defense’s case. The interviews were conducted
in New York state, however, and trial counsel had not subpoenaed the interviewers
to ensure their presence. The trial court excluded the interviews for failure to present
a witness to lay a proper foundation, as well as for failure to provide notice to the
State for use of the Child Hearsay Statute. At the motion for new trial hearing, trial
counsel explained that he did not subpoena the forensic interviewers to lay a
foundation for the videos because he believed the State would call them as witnesses
and he would have an opportunity to cross-examine them.
29
Zerbarini states that these videos “were critical to [Zerbarini’s] defense because
they documented how T. Z. as well as the other act witnesses would have been
impeached,” without providing any specific information from the videos that
contradicts anything in the witnesses’ testimonies. And, although Zerbarini cites to
portions of the motion for new trial hearings where trial counsel explained how he
thought he could have used the videos to Zerbarini’s advantage, he makes no citations
to any specific time stamps in the videos themselves,6 or to any trial testimony from
any of the witnesses to support his argument that the videos could have been used to
impeach the victims. We find that this claim therefore fails as conclusory and
unsupported by citations to the record. See Brittain v. State, 329 Ga. App. 689, 704
(4) (a) (766 SE2d 106) (2014) (argument deemed abandoned which includes “mere
conclusory statements”) (citation and punctuation omitted); Court of Appeals Rule
25 (c) (2) (i) (enumerated errors must be supported in the brief by specific reference
6
In any event, although a thumb drive containing the three forensic interviews
and transcripts of the interviews were provisionally admitted at the motion for new
trial hearing as defendant’s Exhibits ## 1-4, no such thumb drive or transcripts appear
in the appellate record. To the extent that the record is somehow incomplete,
Zerbarini as the appellant bears the burden of ensuring an accurate and complete
record on appeal. See Crawford v. State, 288 Ga. 425, 427 (2) (a) (704 SE2d 772)
(2011).
30
to the record; in the absence of such citations, “the Court will not search for and may
not consider that enumeration”).
4. Zerbarini asserts that the trial court erred in failing to merge the sentences
for Counts 1 (aggravated child molestation) and 2 (incest), involving T. Z., for
sentencing purposes. We disagree.
Whether two offenses merge is a question of law, which we review de novo.
Womac v. State, 302 Ga. 681, 684 (3) (808 SE2d 709) (2017). In order to determine
whether two crimes involving different statutory provisions merge, “we apply the
‘required evidence’ test to assess whether each offense requires proof of a fact which
the other does not.” Hall v. State, 313 Ga. App. 66, 68 (720 SE2d 181) (2011)
(citation and punctuation omitted).
We have held that the offenses of aggravated child molestation and incest do
not merge because they have different elements. Jones v. State, 333 Ga. App. 796,
802 (4) (777 SE2d 480) (2015). “Child molestation requires proof that the victim was
younger than 16; incest requires proof of consanguinity, and these required elements
do not overlap.” Id. Here, Count 1 required evidence that Zerbarini acted with the
intent to arouse and satisfy his sexual desires by licking the genitals of T. Z., and
Count 2 alleged that Zerbarini was related to the victim by blood. Because these
31
required elements do not overlap, the two offenses were not subject to merger. See
id. at 801 (3) (offenses of statutory rape and incest also did not merge under required
evidence test).
Additionally, T. Z. testified that Zerbarini licked her genitals on more than one
occasion. Specifically, T. Z. was asked: “Did it happen just one time?” and she
responded” No, [m]ore than one.” Thus, even if the elements of Counts 1 and 2
overlapped, they could have been based on separate incidents and were not subject
to merger. See Wilder v. State, 304 Ga. App. 891, 895 (4) (698 SE2d 374) (2010),
reversed on other grounds by Wilder v. State, 290 Ga. 13, 16-17 (2) (717 SE2d 457)
(2011) (where defendant had sexual intercourse with victim on multiple occasions,
it could not be said that convictions for child molestation and statutory rape were
based on the same conduct).
5. Finally, Zerbarini asserts that a conflict of interest or the appearance of
impropriety on the part of the trial judge requires reversal of his convictions. The
Prosecuting Attorneys’ Council of Georgia responded on behalf of the State on this
claim. We find no reversible error.
The Georgia Code of Judicial Conduct states that judges must avoid all
impropriety and the appearance of impropriety. Commentary to Canon 2 of the Code
32
of Judicial Conduct. “The test for the appearance of impropriety is whether the
situation would create in reasonable minds a perception that the judge’s ability to
carry out judicial responsibilities with integrity, impartiality and competence is
impaired.” In the Matter of: Inquiry Concerning a Judge No. 97-61, 269 Ga. 425, 425
(499 SE2d 319) (1998) (citation omitted). Additionally, judges are required to
disqualify themselves in any proceeding in which their “impartiality might reasonably
be questioned.” Canon 3 (E) of the Code of Judicial Conduct; State v. Wakefield, 324
Ga. App. 587, 593 (2) (b) (751 SE2d 199) (2013).
The Honorable Judge Robert “Mack” Crawford presided over Zerbarini’s trial.
Zerbarini’s trial took place from December 4, 2017, through December 15, 2017. On
December 11, 2017, at Judge Crawford’s request, the Pike County Clerk of Superior
Court, Carolyn Williams, issued a check payable to Judge Crawford out of the Pike
County registry funds. At the motion for new trial hearing, Judge Crawford stated that
he did not receive the check until December 14, and the record shows that Crawford
deposited the check on December 15. This check would later become the subject of
a criminal indictment against Judge Crawford for charges of theft by taking and
violation of oath by a public officer.
33
Zerbarini claims that Judge Crawford knew he had acted criminally, and “did
not want to do anything to cause the prosecutors to become upset with him.”
However, at the motion for new trial hearing, Judge Crawford denied any
wrongdoing. Further, Judge Crawford testified that he was not biased in favor of the
State, made no rulings in order to curry favor with the State, and had no fear of
prosecution during Zerbarini’s trial. As evidence of the judge’s conflict of interest,
Zerbarini points to his counsel’s belief that Judge Crawford “felt pressured to rule in
the prosecution’s favor on certain issues,” and “there was something going on” during
trial that counsel was not privy to between Judge Crawford and the prosecution.
However, trial counsel also admitted that he did not believe that Judge Crawford was
biased against Zerbarini during the trial, which is why he never sought recusal.
Given these circumstances, where the trial judge denies wrongdoing and any
bias, trial counsel admitted he did not believe the trial judge was biased and did not
seek recusal, and there is no evidence of actual impropriety, we cannot conclude that
reasonable minds would find that Judge Crawford suffered from an appearance of
impropriety such that he could not carry out his judicial responsibilities during
Zerbarini’s trial. See Wilson v. McNeely, 295 Ga. App. 41, 42 (1) (670 SE2d 846)
(2008) (stating test for appearance of impropriety). We therefore find no reversible
34
error. See Hargrove v. State, 299 Ga. App. 27, 31-32 (2) (681 SE2d 707) (2009) (“A
trial judge’s failure to sua sponte recuse himself will warrant reversal only where the
conduct or remark of the judge constitutes an egregious violation of a specific ethical
standard, and it must support the inescapable conclusion that a reasonable person
would consider the judge to harbor a bias that affects his ability to be impartial.”)
(citation and punctuation omitted).
Judgment affirmed. Barnes, P. J., and Pipkin, J., concur.
35