Gregoire v. State , 309 Ga. App. 309 ( 2011 )

BARNES, Presiding Judge.

Antonio Gregoire was charged with one count of aggravated sexual battery, two counts of aggravated child molestation, and three counts of child molestation, involving boys who were then two and three years old. The jury found him not guilty of aggravated sexual battery or either count of aggravated child molestation, and guilty of all three child molestation counts. On appeal, Gregoire contends that the trial court erred in allowing witnesses to testify that they believed the victims, and that his trial counsel was ineffective for raising or not objecting to this line of testimony. For the reasons that follow, we affirm the convictions.

Viewing the evidence on appeal in the light most favorable to the verdict on the child molestation counts, Brown v. State, 293 Ga. App. 633 (667 SE2d 899) (2008), the evidence at trial established that the victims in this case were two and three when the offenses occurred. Gregoire, who is the boys’ uncle, was 17 at the time. The father of the younger boy reported to DFCS that the children had made an outcry, and this investigation ensued. The father testified that he had asked the older boy why he was being mean to his brother, and the boy responded by moving his hips and saying “This is what [Gregoire] does to me.” The younger boy then said Gregoire had put lotion in his “boo-boo” (a word he used for his buttocks) and put his “winkie” (a word he used for penis) in his “boo-boo,” and that it had hurt. At trial, the boys’ mother testified that the older boy spontaneously told her that Gregoire had put lotion on his buttocks and then lay on top of him. In particular, the mother recounted:

The words ... he used was Antonio told him to pull his pants down. He said, no. He said, if you don’t pull them down, I’m going to pull them down. And so Antonio pulled his pants down, and he put lotion on him, and he said he laid on top of him. . . . And then he wiped it off of him. He wiped him off afterwards.

The mother testified that when she asked the older boy to show her what Gregoire had done, “[h]e just laid on the ground and did the humping motion.” The younger boy, who was also in the room, told his mother that Gregoire “did me, too.”

An expert in forensic interviews with children testified that the older boy did not want to talk to her, but the younger boy did, and that interview was played for the jury. The boy identified his names for parts of the body and then said that Gregoire put lotion on him, pointing to his buttocks, and that it hurt. The expert testified that, during the conversation, the child corrected her when she said something wrong, which demonstrated that he was trying to be truthful, and had exhibited none of the signs of coaching she described.

Finally, a police investigator specially trained to interview children talked to both boys at their day care center. The older boy, who was then four, stood up, pointed to his genital area, began making “hunching motions” with his hips, and related that he was demonstrating what Gregoire had done to him after he told the boy to pull down his pants. The younger boy, then three, stated that Gregoire had “put lotion in” him, pointing to his buttocks and stating, “in here my bootie.” Then asked, “What did he do with a winkie?,” the child pointed to his genital area and answered, “He did that on me.” Audio recordings of both interviews were played for the jury.

1. Gregoire argues that the trial court committed reversible error “when it allowed the State to elicit testimony on the ultimate issue in this case on four occasions and when it allowed other testimony on the ultimate issue.” Because his trial counsel did not object to this line of questioning at trial, however, Gregoire has waived his right to argue the issue on appeal. See Machado v. State, 300 Ga. App. 459, 461 (3) (685 SE2d 428) (2009).

2. Gregoire also contends that his trial counsel was ineffective for failing to object to questions about whether witnesses believed the children or not. To prevail on an ineffectiveness claim, a defendant must establish that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003). “[T]he question of ineffectiveness, including both the performance and prejudice prongs, is a mixed question of law and fact. . . subject to independent review by the appellate court.” Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000). We will affirm a trial court’s factual findings and credibility determinations unless they are clearly erroneous. Id. at 88 (4).

To prove deficient performance, a defendant must rebut the strong presumption that trial counsel’s conduct fell within the broad range of reasonable professional conduct. Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003). “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.” (Punctuation and footnote omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008).

Here, trial counsel explained at the motion for new trial hearing that she and her client could never find a reason for these children to present an intentional, malicious lie about their cousin’s actions. Because the defense uncovered no plausible explanation for why the children would be angry at the defendant, the defense was built around the theme that very young children were susceptible to telling stories and misconstruing the facts. From voir dire, when counsel asked if the potential jurors had any experience with toddlers, to closing argument when counsel gave the example of a child who says her mother left her when the mother was actually just late picking her up, counsel’s trial strategy was to present a theme that the children in this case were lying unintentionally.

Trial counsel also testified that the victims’ mother did not want to prosecute the defendant, who was her sister’s son, and that counsel expected the mother “to the best of her ability, to try to be helpful to Mr. Gregoire.” The mother testified she did not call the police when the children first made an outcry because Gregoire was her nephew and she was concerned about him going to jail. She continued, “[I]t’s a disease and he needs help for it, if it happened.” It was at this point that the State asked whether the mother believed anything had happened to her older son, and she replied, “I have to; I’m his mother.” Then subsequently asked why she did not believe her younger son, given that she was his mother as well, the mother responded that she thought the younger son was just saying “me too” at first, and was then coerced by his father into continuing his story.

On cross-examination, trial counsel asked the mother if she remembered telling DFCS that she was not sure anything happened, and she said, yes, regarding her younger son. As to her older son, she testified again that she had to believe him because she was his mother, and thought a child that age could not have made up his story. Counsel then asked if she would agree that a child could misconstrue a situation, not intentionally lying but interpreting the facts incorrectly. While she responded that she could not agree in this situation, the question continued the theme of the defense, that small children sometimes make up stories.

At the new trial hearing, trial counsel recalled that the mother was “very sympathetic” to Gregoire, that she testified as counsel had anticipated she would, and that counsel successfully established evidence as to her doubts about her younger child’s story. Counsel asked the forensic interviewer and the investigating police officer about the dangers of suggestive questioning in abuse cases involving children, and the recorded interviews of the children at the day care center were replete with such questions. Further, the strategy must have been at least partially successful, because the jury acquitted Gregoire of the more serious charges of aggravated sexual battery and aggravated child molestation, and only convicted on the three child molestation counts.

The trial court made a factual finding at the hearing that counsel’s decision not to object when a witness testified about believing a child’s statement was not an unreasonable trial strategy, and noted that the jury acquitted Gregoire of the most serious charges. We must affirm that factual finding unless it is clearly erroneous, Suggs, 272 Ga. at 88 (4), and we cannot conclude that trial counsel’s strategy in this case was patently unreasonable.

This court has reversed convictions in cases where trial counsel failed to object to bolstering testimony,¹ but not when counsel testified reasonably and consistently about the strategic basis for not objecting.² In short, these cases are very fact-intensive, which is why we do not substitute our judgment for the trial court’s unless the court’s decision has no objective support in the record.

In this case, applying the “clearly erroneous” standard to our review, the trial court did not err in concluding that trial counsel’s performance was not ineffective. Accordingly, we affirm the convictions.

Judgment affirmed.

Smith, P. J., Blackwell and Dillard, JJ., concur. Miller, P. J., and Phipps, P. J., concur and concur specially. McFadden, J., dissents.

1 See, e.g., Word v. State, 308 Ga. App. 639 (708 SE2d 623) (2011) (stated trial strategy did not explain failure to object); Ward v. State, 304 Ga. App. 517, 527 (5) (a) (696 SE2d 471) (2010) (failure to object inconsistent with stated trial strategy); Pointer v. State, 299 Ga. App. 249, 252 (1) (682 SE2d 362) (2009) (no discussion of trial strategy); Orr v. State, 262 Ga. App. 125, 129 (3) (584 SE2d 720) (2003) (failure to object due to erroneous interpretation of the law); Mann v. State, 252 Ga. App. 70, 72-73 (1) (555 SE2d 527) (2001) (failure to object due to inexperience).

2 See, e.g., Ellison v. State, 296 Ga. App. 752, 755 (2) (a) (675 SE2d 613) (2009) (not objecting to show officer thought he had more evidence than existed is reasonable trial strategy); Al-Attawy v. State, 289 Ga. App. 570, 573 (1) (657 SE2d 552) (2008) (not objecting and waiting to impeach on cross-examination is reasonable trial strategy); Hargrove v. State, 289 Ga. App. 363, 367-368 (4) (a) (657 SE2d 282) (2008) (failure to object to bolstering by social worker was trial strategy, where counsel thought victim rather than social worker was the “key witness,” and believed it probable he could impeach the victim); Lindo v. State, 278 Ga. App. 228, 236-237 (4) (b) (628 SE2d 665) (2006) (not objecting and waiting to impeach on cross is effective strategy); Powell v. State, 272 Ga. App. 628, 631-632 (2) (c) (612 SE2d 916) (2005) (failure to object to bolstering trial strategy; defense was mistaken identity).