Al-Attawy v. State , 289 Ga. App. 570 ( 2008 )

657 S.E.2d 552 (2008)

AL-ATTAWY
v.
The STATE.

No. A07A2032.

Court of Appeals of Georgia.

January 25, 2008. Reconsideration denied February 12, 2008.

Cecil Benjamin Guile III and Christopher J. McFadden, Decatur, for Appellant.

Gwendolyn Keyes Fleming, Dist. Atty. and Leonora Grant, Asst. Dist. Atty., for Appellee.

PHIPPS, Judge.

Hakeem Al-Attawy was convicted of aggravated sodomy, aggravated child molestation, enticing a child for indecent purposes, and two counts of child molestation. The trial court denied his motion for new trial. On appeal, Al-Attawy claims that he received ineffective assistance of counsel because trial counsel did not object when an expert witness testified that she found a videotaped statement by the victim to be "credible." Alternatively, he seeks a remand for an evidentiary hearing on whether his current appellate counsel provided ineffective assistance at the hearing on his motion for new trial. For the reasons set forth below, we affirm the judgment and deny his motion to remand.

The case against Al-Attawy involved a claim by R.A., then ten or eleven years old, that on November 2, 2002, Al-Attawy, a family friend, gave him a "massage," took him into a bedroom, removed some of his clothes and attempted anal intercourse with him. Shortly after the incident, R.A. made a videotaped statement to an interviewer at the Georgia Center for Children describing what had occurred. At trial, the state showed the videotaped statement to the jury. The state elicited testimony from R.A., who was 14 years old at the time of trial. The state also elicited testimony from R.A.'s mother and brother concerning R.A.'s outcry about the incident. In addition, the state elicited testimony from a clinical psychologist who was qualified as an expert in the forensic interviewing of children. The psychologist had not met R.A. but had viewed his videotaped statement.

During direct examination, the psychologist discussed the procedures for interviewing a child who has disclosed an incident of sexual abuse. The state asked: "Now, how are you able to determine whether you think the disclosure is credible? What do you take into consideration?" The psychologist responded with a general discussion about indicia of credibility, including the age and developmental level of the child, motivation on the part of the child or the child's family to lie, and the type of language used by the child to describe the abuse. Al-Attawy's trial counsel explored these topics on cross-examination. On redirect examination, the following exchange occurred between the state and the psychologist:

Q. . . . You mentioned all the things you use to determine whether or not a disclosure is credible. Did you find this disclosure to be credible and why?

A. Yes. I found this disclosure to be credible. He [R.A.] told immediately. He came in and he was able to tell [the interviewer] in detail what happened. He provided contextual details. He didn't seem to elaborate or exaggerate in any way. He used age appropriate language. His demeanor seemed very typical for a child and his disclosure was very consistent with other disclosures of sexual abuse.

Al-Attawy's trial counsel did not object to this testimony. Instead, she addressed the testimony on recross-examination:

Q. When you say that you found him to be credible, does that mean that you found what he said to be the absolute truth?

A. Well, I mean, I wasn't there and I actually have never met this child, so I wouldn't testify to that. I would testify that his disclosure seemed credible and consistent.

In his motion for new trial, Al-Attawy contended that the psychologist's testimony impermissibly bolstered R.A.'s videotaped statement and invaded the province of the jury. He argued, among other things, that his trial counsel's failure to object to this testimony constituted ineffective assistance of counsel. At his new trial hearing, Al-Attawy did not introduce testimony from trial counsel as to why she did not object. Instead, he argued that counsel's failure to object, alone, demonstrated ineffective assistance of counsel. The trial court denied the motion for new trial because it was "not convinced the questions as phrased were objectionable" and because trial counsel may have had a legitimate strategic reason for not objecting to the testimony.

1. To show ineffective assistance of counsel under Strickland v. Washington,^[1] Al-Attawy must demonstrate that his counsel's performance was deficient and that there is a reasonable likelihood that, but for counsel's errors, the outcome of his trial would have been different.^[2] When reviewing a trial court's determination on these issues, "we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts."^[3] Al-Attawy has shown neither the deficient performance of his trial counsel nor prejudice resulting from counsel's failure to object to the psychologist's testimony.

"Improper bolstering occurs when an expert witness is allowed to give his or her opinion as to whether the complaining witness is telling the truth, because that is an ultimate issue of fact and the inference to be drawn is not beyond the ken of the average juror."^[4] Al-Attawy argues that the psychologist impermissibly bolstered R.A.'s statement when she testified that she found his videotaped statement "credible." We agree. A witness may opine that a statement meets indicia of credibility "based on factors beyond the ken of the average juror."^[5] Thus, testimony that a child's statement or behavior is consistent with a history of sexual abuse is permissible,^[6] but "our courts have consistently held that expert witnesses may not testify regarding truthfulness or credibility."^[7] Here, the psychologist's testimony went beyond expressing whether R.A.'s statement showed indicia of credibility. The psychologist testified, "I found [the child's] disclosure to be credible."

Al-Attawy has not shown that his trial counsel's failure to object to the bolstering testimony was deficient, however. We will not find deficient performance if counsel's trial strategy and tactics were reasonable,^[8] and Al-Attawy must establish that trial counsel's action fell outside the wide range of reasonable professional assistance.^[9] Not objecting to testimony but instead subjecting it to cross-examination may be part of a reasonable trial strategy,^[10] and the record reveals that Al-Attawy's trial counsel's cross-examination led the psychologist to qualify her prior bolstering testimony. Al-Attawy has not offered any evidence to show that this performance was not part of a conscious and deliberate strategy or that such strategy was unreasonable.^[11]

Moreover, Al-Attawy has not shown that his trial counsel's failure to object to this testimony affected the outcome of his trial. The trial court was not required to grant a new trial based on the bolstering testimony.^[12] And we review the bolstering testimony within its context to determine whether it affected the trial's outcome.^[13] The challenged testimony was a single comment within the psychologist's otherwise appropriate discussion of the various indicia by which a disclosure of abuse may be assessed.^[14] The record shows that, in response to questioning from Al-Attawy's counsel, the psychologist retreated from the bolstering testimony, thus diminishing its impact. Moreover, the jury had other evidence from which it could assess the credibility of R.A.'s videotaped statement, including R.A.'s trial testimony, during which he was subjected to cross-examination, and the testimony of outcry witnesses.^[15] Under these circumstances, we find that the challenged testimony did not usurp the authority of the jury on the issue of R.A.'s credibility.^[16] Al-Attawy has not shown a likelihood that an objection would have led to a different trial outcome.

2. Al-Attawy moves this court to remand his case to the trial court for a hearing on whether his appellate counsel was ineffective in failing to call trial counsel at the new trial hearing.^[17] This motion challenges the effectiveness of counsel still representing Al-Attawy in this appeal. We need not address the procedural propriety of this motion, however, because "[r]emand is not mandated . . . if we can determine from the record that [the appellant] cannot satisfy the two-prong test set forth in Strickland v. Washington."^[18] We have found in Division 1 that Al-Attawy was not prejudiced by any alleged deficiencies in his trial counsel's performance, and thus Al-Attawy cannot show that the failure to call trial counsel at his new trial hearing prejudiced his post-conviction efforts.^[19] Accordingly, the record shows that Al-Attawy cannot satisfy the Strickland test and we deny his motion to remand.

Judgment affirmed.

JOHNSON, P.J., and MIKELL, J., concur.

NOTES

[1] 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

[2] Williams v. State, 273 Ga.App. 321, 322, 615 S.E.2d 160 (2005).

[3] Suggs v. State, 272 Ga. 85, 88(4), 526 S.E.2d 347 (2000) (footnote omitted).

[4] Maddox v. State, 275 Ga.App. 869, 871(2), 622 S.E.2d 80 (2005) (footnote omitted); see Buice v. State, 239 Ga.App. 52, 55(2), 520 S.E.2d 258 (1999).

[5] Odom v. State, 243 Ga.App. 227, 229(1)(b), 531 S.E.2d 207 (2000).

[6] Id.

[7] Buice, supra at 55, 520 S.E.2d 258 (citations omitted); see Orr v. State, 262 Ga.App. 125, 128-129(2), 584 S.E.2d 720 (2003); Mann v. State, 252 Ga.App. 70, 72(1), 555 S.E.2d 527 (2001).

[8] Bharadia v. State, 282 Ga.App. 556, 559(6)(a), 639 S.E.2d 545 (2006).

[9] Morgan v. State, 276 Ga. 72, 77(9), 575 S.E.2d 468 (2003); Rivers v. State, 271 Ga. 115, 118(2)(b), 516 S.E.2d 525 (1999).

[10] See Evans v. State, 288 Ga.App. 103, 109(3)(c), 653 S.E.2d 520 (2007); Griffin v. State, 281 Ga.App. 249, 251(3), 635 S.E.2d 853 (2006); Williams v. State, 261 Ga.App. 176, 180(3), 582 S.E.2d 141 (2003).

[11] See Baker v. State, 251 Ga.App. 377, 379(2), 554 S.E.2d 324 (2001). Compare Orr, supra at 129(3), 584 S.E.2d 720 (failure to object to bolstering testimony constituted ineffective assistance of counsel where trial counsel testified that he misunderstood the objectionable and harmful nature of the testimony); Mann, supra at 73, 555 S.E.2d 527 (same, where trial counsel testified that this failure was not part of her trial strategy but rather was due to her lack of trial experience).

[12] See Hunt v. State, 268 Ga.App. 568, 572(2), 602 S.E.2d 312 (2004) (grant or denial of mistrial lies in trial court's discretion unless manifestly abused).

[13] See Branesky v. State, 262 Ga.App. 33, 36(3)(a), 584 S.E.2d 669 (2003).

[14] See Moss v. State, 216 Ga.App. 711, 714(5), 455 S.E.2d 411 (1995) (holding it appropriate for qualified expert witness to testify that person's behavior was characteristic of abuse victim).

[15] See Frazier v. State, 278 Ga.App. 685, 691(3)(a), 629 S.E.2d 568 (2006), overruled in part on other grounds, Schofield v. Holsey, 281 Ga. 809, 812, n. 1, 642 S.E.2d 56 (2007); Branesky, supra at 36, 584 S.E.2d 669. Compare Orr, supra at 127-129, 584 S.E.2d 720 (only evidence on one element of crime was testimony of victim, who contradicted her earlier statement); Hilliard v. State, 226 Ga.App. 478, 482(1), 487 S.E.2d 81 (1997) (no other testimony was presented at trial that could allow jury to reach independent conclusion about victim's credibility); Lagana v. State, 219 Ga.App. 220, 221(1), 464 S.E.2d 625 (1995) (bolstering testimony was not accompanied by other testimony that could enable jury to "determine for itself the truthfulness and credibility" of victim and to "accept or reject the [expert's] opinion on this matter").

[16] See Moss, supra at 714, 455 S.E.2d 411.

[17] Al-Attawy conditions this motion on this court finding against him in this appeal.

[18] Freeman v. State, 282 Ga.App. 185, 189(3), 638 S.E.2d 358 (2006) (citation and punctuation omitted).

[19] See id.