Blackmon v. the State

THIRD DIVISION
ELLINGTON, P. J.,
MCFADDEN and RICKMAN, 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
March 24, 2016
In the Court of Appeals of Georgia
A15A1834. BLACKMON v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Willie Blackmon was convicted of two counts of rape, two
counts of aggravated child molestation, and two counts of child molestation against
minor child S. L. Blackmon appeals, asserting that his trial counsel was ineffective
in failing to object to inadmissible hearsay that bolstered S. L.’s credibility, in failing
to object to improper bolstering of S. L.’s credibility by witnesses opining as to her
truthfulness, and in failing to object to an improper jury charge on prior consistent
statements. We agree that trial counsel’s performance was both deficient and
prejudicial. Accordingly, we reverse the convictions, but find that Blackmon may be
retried on the charges since there was sufficient evidence to support the convictions.
See Williams v. State, 268 Ga. 488, 489 (491 SE2d 377) (1997) (retrial is not
prohibited where reversal is due to trial error rather than the sufficiency of the
evidence).
1. Sufficiency of the evidence.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation
omitted). We neither weigh the evidence nor judge the credibility of witnesses, but
determine only whether a rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Owens v. State, 334 Ga. App. 203 (778 SE2d
830) (2015).
So viewed, the evidence shows that Blackmon was the boyfriend of the mother
of S. L. He began living with the mother and her three children, including S. L., in
2003 or 2004. In February 2008, when S. L. was 14 years old, she called her mother
from school because she had stomach pains. The mother called Blackmon and asked
him to pick her up from school. Blackmon picked up S. L. from school and took her
to the doctor. S. L. was diagnosed with and given medications for a stomach ulcer and
a yeast infection.
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When they arrived home, Blackmon told the mother that the doctor had said
that S. L. was sexually active. The mother then questioned S. L., who said that she
was having sex with a boy from the neighborhood. Approximately an hour later, after
the mother had said that she would have to talk to the boy’s parents, S. L. told her
mother that she had lied about the boy. The mother sent S. L. to her room and told her
that they would talk about it later.
Several days later, S. L.’s aunt questioned S. L. about the yeast infection
medication, and S. L. then told her aunt that Blackmon had been having vaginal and
oral sex with her since she was approximately 12 years old. The aunt called S. L.’s
mother and told her what S. L. had said. S. L. subsequently told her mother that
Blackmon had sexually abused her. S. L. described discoloration on Blackmon’s
thighs that the mother testified was only visible when he was naked; and S. L. said
she had once bitten Blackmon’s penis, which was consistent with a mark the mother
had seen on his penis. The police were contacted, and officers came to the mother’s
house, where they interviewed both S. L. and Blackmon, who denied any sexual
abuse. The police seized a bedspread from S. L.’s bed for DNA testing, but the crime
laboratory test results were negative for the presence of DNA. A doctor’s physical
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examination of S. L. conducted approximately three weeks after the last alleged
incident of abuse did not reveal any injuries or other physical evidence.
Having reviewed the evidence in the light most favorable to the verdict, we
conclude that S. L.’s “testimony standing alone, [describing the alleged sexual abuse
by Blackmon, ] was sufficient to support the verdict, and issues of consistency and
credibility were for the jury to decide.” Jackson v. State, 334 Ga. App. 469, 473 (2)
(779 SE2d 700) (2015) (citations omitted). See also Ruffin v. State, 333 Ga. App. 793(1) (777 SE2d 262) (2015) (“victim’s testimony, standing alone, would have been
sufficient to authorize a verdict of guilty”).
2. Ineffective assistance of counsel.
Blackmon contends that his trial counsel was ineffective in failing to object to
inadmissible hearsay testimony from multiple witnesses recounting out-of-court
statements made by S. L., and in failing to object to the trial court’s jury charge on
prior consistent statements. To prevail on these claims, Blackmon must show both
that his counsel’s performance was deficient and that the deficient performance so
prejudiced him that, but for the deficiency, there is a reasonable probability that the
outcome of the trial would have been different. See McDuffie v. State, 298 Ga. 112,
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115 (2) (779 SE2d 620) (2015); Long v. State, 287 Ga. 886, 891 (4) (700 SE2d 399)
(2010).Blackmon has made both of these showings.
a. Failure to object to inadmissible hearsay.
At the trial, the state presented six witnesses who testified about out-of-court
statements made by S. L. when she was 14 years old describing the alleged sexual
abuse by Blackmon. The first two witnesses presented by the state were S. L.’s aunt
and mother, both of whom testified, among other things, about statements that S. L.
had made alleging that Blackmon had sexually abused her by inserting his penis into
her mouth and vagina. S. L. herself then testified, after which the state introduced
testimony from four witnesses involved in the investigation who recounted statements
that S. L. had made to them describing the alleged acts of sexual abuse by Blackmon.
A police sergeant who interviewed S. L. testified about S. L.’s statements that
Blackmon had forced her to perform oral sex and had engaged in sexual intercourse
with her. A doctor testified that S. L. said Blackmon had forced her to have sex, and
the doctor recited other statements made by S. L. describing the alleged abuse. A
forensic interviewer testified about S. L.’s statements alleging sexual abuse by
Blackmon. And the director of forensic services for the district attorney’s office also
gave testimony recounting out-of-court statements made to her by S. L.
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“Hearsay is testimony in court . . . of a statement made out of court, the
statement being offered as an assertion to show the truth of the matters asserted
therein, and thus resting for its value upon the credibility of the out-of-court asserter.”
Bates v. State, 322 Ga. App. 319, 327 (5) (744 SE2d 841) (2013) (citation,
punctuation, and footnote omitted). Here, Blackmon’s trial counsel failed to raise
hearsay objections to any of the six witnesses’ testimony about the out-of-court
statements made by S. L. At the motion for new trial hearing, trial counsel admitted
that there was no strategic reason why she failed to raise hearsay objections to such
testimony. Instead, she acknowledged her mistakes, attributing her failure to object
to her being “a bonehead,” “worn out,” and “overwhelmed.”
We note that in denying Blackmon’s ineffective assistance claim on this
ground, the trial court did not find that the out-of-court statements by S. L. were
admissible under the Child Hearsay Statute. Presumably, the court made no such
finding because, as Blackmon points out in his appellate brief, without any refutation
by the state, the Child Hearsay Statute in effect at the time of his 2011 trial, former
OCGA § 24-3-16, provided an exception to hearsay for a “statement made by a child
under the age of 14 years describing any act of sexual contact or physical abuse
performed with or on the child[.]” (Emphasis supplied.) See Cobb v. Hart, 295 Ga.
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89 n. 1 (757 SE2d 840) (2014) (noting that “[e]ffective January 2, 2013, the law
governing child hearsay is now codified at OCGA § 24-8-820.”). “The clear wording
of the statute indicates that the age of the child at the time the statements were made
is determinative of their admissibility under the statute. [Cit.]” Darden v. State, 206
Ga. App. 400, 401 (1) (425 SE2d 409) (1992) (physical precedent). Thus, because
S. L. was not under 14 years old at the time she made the statements, they were not
admissible under the Child Hearsay Statute. See Currington v. State, 270 Ga. App.
381, 387 (4) (606 SE2d 619) (2004) (victim “was not a child under the age of 14
when she made the statement at issue, so the Child Hearsay Statute was
inapplicable.”). See also Cobb, supra at 90-91 (2).
However, the trial court found, and the state argues on appeal, that Blackmon’s
counsel was not ineffective in failing to object to the testimony about S. L.’s out-of-
court statements because such testimony was admissible as prior consistent
statements. Indeed,
[s]ince 1985, Georgia law has allowed certain prior consistent
statements of a witness to be admitted as substantive evidence. See
Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). In 1998, [the
Georgia Supreme] Court clarified that a witness’s prior consistent
statement is ‘admissible only where (1) the veracity of a witness’s trial
testimony has been placed in issue at trial; (2) the witness is present at
trial; and (3) the witness is available for cross-examination.’ Woodard
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v. State, 269 Ga. 317, 320 (496 SE2d 896) (1998), overruled on other
grounds by Bunn v. State, 291 Ga. 183 (728 SE2d 569) (2012).
Cowart v. State, 294 Ga. 333, 339 (4) (a) (751 SE2d 399) (2013).
In denying Blackmon’s motion for a new trial, the trial court cited this standard
and found that the veracity of S. L.’s testimony had been placed in issue during her
cross-examination, thereby rendering her prior consistent statements admissible as
substantive evidence. The trial court found: “The statements were introduced after S.
L.’s credibility was placed into question and as such were not inadmissible hearsay.
. . . In response, the [s]tate was allowed to introduce evidence of her prior consistent
statements.” (Emphasis supplied.) But the rule is not so broad.
[T]he [trial court] overlook[ed] what [the Georgia Supreme] Court
said in Woodard, and has repeated many times since, about how a
witness’s veracity must be challenged to allow the introduction of his
prior consistent statement: A witness’s veracity is placed in issue so as
to permit the introduction of a prior consistent statement only if
affirmative charges of recent fabrication, improper influence, or
improper motive are raised during cross-examination. As stated by a
well-respected commentator: “Thus, to rebut a charge that a witness is
motivated or has been influenced to testify falsely or that his testimony
is a recent fabrication, evidence is admissible that he told the same story
before the motive or influence came into existence or before the time of
the alleged recent fabrication. In those circumstances, the prior
consistent statement is defined as not hearsay and thus is admitted into
evidence.” Unless a witness’s veracity has affirmatively been placed in
issue, the witness’s prior consistent statement is pure hearsay evidence,
which cannot be admitted merely to corroborate the witness, or to
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bolster the witnesss credibility in the eyes of the jury. Woodard, 269 Ga.
at 320. . . . Put another way, to be admissible to refute the allegation of
recent fabrication, improper influence, or improper motive, the prior
statement must predate the alleged fabrication, influence, or motive. If
the statement was made later, proof of the statement does not assist the
jury to evaluate the witness’s testimony because the reliability of the
statement is subject to the same doubt as the trial testimony.
Cowart, supra at 339-340 (4) (a) (citations and punctuation omitted; emphasis in
original).
Here, the trial court erroneously found that all of the testimony about S. L.’s
out-of-court statements was introduced by the state after S. L.’s credibility had been
placed in issue. The trial court overlooked the fact that the state’s first two witnesses,
the aunt and mother, both testified about S. L.’s out-of-court statements before S. L.
herself was even called to testify. Thus, the testimony of the aunt and the mother
could not have been introduced by the state to rebut a charge of recent fabrication,
improper influence or improper motive raised during cross-examination of S. L.
Since prior consistent statements are admissible only to rebut a charge
that a witness is motivated or has been influenced to testify falsely or
that her testimony is a recent fabrication, and the veracity of [S. L. had
not yet been] affirmatively placed in issue, the [aunt and mother’s
testimony about her] prior consistent statements [was] pure hearsay and
inadmissible to corroborate [S. L.’s subsequent testimony] or bolster
[her] credibility before the jury.
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Baugh v. State, 276 Ga. 736, 739 (2) (585 SE2d 616) (2003) (citations and
punctuation omitted).
Moreover, contrary to the trial court’s finding, during the cross-examination
of S. L., trial counsel for Blackmon did not raise an affirmative charge of recent
fabrication, improper influence, or improper motive. See Cowart, supra; Baugh, supra
at 738 (2). Indeed, after the cross-examination ended, the state did not identify or
claim any affirmative charges of recent fabrication, improper influence, or improper
motive that it wanted to refute on re-direct examination of S. L. by introducing her
prior consistent statements. Rather, after S. L. left the witness stand, the state simply
elicited the improper hearsay testimony about S. L.’s prior out-of-court statements
from four other witnesses without any objection from Blackmon’s counsel. Compare
Cowart, supra at 339 (4) (when cross-examination of witness ended, state sought to
introduce his prior statement on re-direct, but defendants objected on ground that
proffer was not an admissible prior consistent statement).
While it did not do so at trial, on appeal the state identifies one charge of
fabrication purportedly raised by Blackmon’s counsel; the state claims that during her
opening statement, Blackmon’s counsel argued that S. L. had “fabricated the entire
molestation to cover up a consensual sexual relationship she was having with
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someone else.” However, the state’s claim disregards the legal requirement that to
authorize admission of a prior consistent statement, an affirmative charge of recent
fabrication must be raised during cross-examination, not during opening statements.
Cowart, supra. Furthermore, the state has not cited any part of the transcript at which
this argument was purportedly made by Blackmon’s counsel, and our review of trial
counsel’s entire opening statement has not revealed any such argument. Although
trial counsel did refer to S. L.’s initial statement to her mother that she was having sex
with a boy in the neighborhood and S. L.’s subsequent retraction of that statement,
counsel never made any affirmative claim that S. L. had recently fabricated the
allegations of abuse by Blackmon to cover up another sexual relationship.
Moreover, even if we assume for the sake of argument that Blackmon’s counsel
had in fact raised such a charge of fabrication, it was not a recent fabrication. The
purported “motive to fabricate that [the state] allege[s S. L. had] when [s]he testified
at trial - [to cover up a another sexual relationship] - arose no later than the time
[S. L.] made [her initial outcries to her aunt and mother].” Cowart, supra at 341 (4)
(a) (emphasis supplied). In fact, such a purported motive to fabricate likely arose prior
to those initial outcries when the mother announced to S. L. that she would speak to
the parents of the boy whom S. L. had initially identified as the person with whom she
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was having a sexual relationship, which preceded S. L.’s outcry against Blackmon.
Indeed, the testimony given by S. L. at trial is the same story that she told her aunt
and mother during her initial outcry, and thus it did not predate the alleged improper
motive to cover up a sexual relationship with another person. Because S. L. did not
tell the same story before the alleged motive came into existence, “the trial court erred
in admitting [testimony of her out-of-court] statement[s], which did not qualify as .
. . prior consistent statement[s] and [were] instead [pure hearsay] improperly used to
bolster the witness’s credibility.” Cowart, supra at 406 (4) (a) (footnote omitted).
Compare Cobb v. Hart, supra at 91-92 (2) (prior consistent statement admissible after
veracity of witness challenged on cross-examination by defense counsel questioning
whether just before trial the witness had met and colluded with another witness to
make their trial testimonies consistent with each other).
As there was no strategic reason not to object, it follows that trial counsel’s
failure to object to any of the improper hearsay testimony constituted deficient
performance. See Laye v. State, 312 Ga. App. 862, 872 (5) (720 SE2d 233) (2011)
(lack of objection to hearsay was deficient performance). But our inquiry does not
end there because we must also determine if Blackmon was prejudiced such that there
is a reasonable probability that, but for counsel’s deficient performance, the result of
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the trial would have been different. Mann v. State, 252 Ga. App. 70, 73 (1) (555 SE2d
527) (2001). The evidence against Blackmon was not overwhelming - there was no
physical evidence and “[t]he only evidence linking [Blackmon] to the crimes alleged
against him arose out of the statements made by [S. L.]” Id. Consequently, “[t]he
[s]tate’s case depended on [S. L.’s] credibility.” Id. at 74 (1). And as explained above,
that credibility was improperly bolstered by the erroneous admission of hearsay
testimony from multiple witnesses repeating S. L.’s prior statements about the alleged
abuse. “[W]e cannot conclude that defense counsel’s failure to properly object and
have this testimony removed from the jury’s consideration had no effect on the
verdict. [Cit.]” Id. Accordingly, the judgment of conviction must be reversed and
Blackmon is entitled to a new trial. See Walker v. State, 296 Ga. App. 531, 535 (1)
(b) (675 SE2d 270) (2009) (child molestation conviction reversed where there was
no evidence of crime other than victim’s testimony and trial counsel failed to object
to testimony improperly bolstering victim’s credibility); Orr v. State, 262 Ga. App.
125, 129 (3) (584 SE2d 720) (2003) (ineffective assistance of counsel mandated a
new trial where there was no physical evidence, victim’s testimony was the only
evidence against defendant, and counsel failed to object to testimony bolstering
victim’s credibility).
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b. Failure to object to testimony opining as to S. L.’s truthfulness.
Blackmon claims that his trial counsel was also ineffective in failing to object
to testimony from two witnesses, S. L.’s mother and the director of forensic services
for the district attorney’s office, opining that S. L. was telling the truth. We agree with
Blackmon in regard to the mother’s testimony, but not as to the testimony of the
director of forensic services.
A witness’ 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.
It is not improper bolstering, however, for a witness to express an
opinion as to whether objective evidence in the case is consistent with
the victim’s story.
Roberts v. State, 322 Ga. App. 659, 665 (3) (d) (745 SE2d 850) (2013) (citation
omitted).
Here, the director of forensic services did not give an opinion as to the
truthfulness of S. L.’s allegations, but instead merely testified that objective evidence
in the case was consistent with S. L.’s story. Thus, the lack of an objection to such
testimony was not deficient performance since “it is not ineffective assistance for trial
counsel to fail to make a meritless objection.” Id. (citations omitted).
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However, S. L.’s mother went beyond merely testifying about consistency
between the objective evidence and S. L.’s story, and offered opinions as to S. L.’s
truthfulness. In explaining why she questioned S. L. about the appearance of
Blackmon’s “private area,” the mother testified: “Because I wanted to see . . . was she
telling the truth. And from what she described, she was telling the truth.” The mother
also testified that initially she did not know whether to believe S. L.’s allegations, but
“[i]n my heart now, I truly believe her.”
Counsel’s failure to object to the mother’s improper bolstering testimony
opining as to S. L.’s truthfulness constituted deficient performance, and given the
lack of evidence against Blackmon beyond that arising out of S. L’s statements, “we
cannot conclude that but for counsel’s deficient performance, the outcome of this trial
. . . would not have been different.” Walker, supra. Furthermore, “[w]hen considering
the prejudice prong for multiple claims of ineffective assistance of counsel, we look
to whether the cumulative effect of counsel’s alleged errors leads to a reasonable
probability that the outcome of the trial would have been different.” Dority v. State,
___ Ga. App. ___ (4) (i) (Case No. A15A1192, decided November 20, 2015) (citation
and punctuation omitted). In this case, Blackmon was prejudiced by the cumulative
effect of counsel’s errors in failing to object to the mother’s improper opining as to
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S. L.’s credibility and, as discussed above, in failing to object to multiple instances
of hearsay that also improperly bolstered the credibility of S. L.
c. Failure to object to jury charge on prior consistent statements.
The trial court charged the jurors on prior consistent statements, instructing
them that they were authorized to consider such statements “as substantive evidence.”
As explained above, there were no properly admitted prior consistent statements in
this case. Consequently, there was no basis for the trial court to instruct the jurors on
prior consistent statements since a jury charge should be “adjusted to the evidence.
[Cit.]” State v. Braddy, 254 Ga. 366, 368 (330 SE2d 338) (1985). See also Stephens
v. State, 289 Ga. 758, 759 (1) (a) (716 SE2d 154) (2011) (instruction on prior
consistent statements should only be given where the circumstances of an unusual
case suggest that the jury may have the mistaken impression that it cannot consider
a prior consistent statement as substantive evidence).
Trial counsel’s failure to object to the unwarranted prior consistent statements
jury charge was deficient performance, and the cumulative effect of this error,
combined with counsel’s errors in failing to object to the hearsay testimony about
S. L.’s prior statements, clearly prejudiced Blackmon since the charge authorized the
jury to consider the improperly admitted hearsay testimony as substantive evidence
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against him. Under these circumstances, there is a reasonable probability that, but for
counsel’s errors, the outcome of the trial would have been different, and thus “the
trial court erred by denying [Blackmon’s] motion . . . for new trial based upon the
ineffectiveness of his defense counsel for failing to object to the charge on [prior
consistent statements].” Dodd v. State, 324 Ga. App. 827, 835 (2) (752 SE2d 29)
(2013).
3. Jury charge on prior consistent statements.
In a separate enumeration, Blackmon contends that the trial court erred by
giving the jury charge on prior consistent statements. As noted above, trial counsel
failed to object to the charge even though there were no admissible prior consistent
statements to support it. Because this issue was not preserved for appellate review by
an objection at trial, it is subject to review for plain error. Thomas v. State, 297 Ga.
750, 752 (2) (778 SE2d 168) (2015). See also OCGA § 17-8-58 (b). But because of
our holdings above reversing the convictions due to ineffective assistance of counsel,
we need not address this issue.
Judgment reversed. Rickman, J., concurs specially in Divisions 1 and 2(a) and
in the judgment only in Divisions 2(b), 2(c) and 3; Ellington, P. J., concurs in the
judgment only.
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A15A1834. BLACKMON v. THE STATE
RICKMAN, Judge, concurring specially.
I have reviewed the record in this matter, and concur that reversal is required
for the reasons set forth in Division 2 (a) of the majority opinion. I write separately
to express a deep and genuine concern that has echoed repeatedly through this
Court’s criminal jurisprudence.
To be sure, prosecutors and criminal defense attorneys have difficult jobs. The
lives of victims and their families, as well as the lives of defendants and their
families, hang in the balance with each and every serious criminal case. The stakes
in a criminal courtroom are as high as can be found anywhere in our justice system.
It is completely understandable, given the time and emotional expenditure associated
with the arduous task of taking another human being’s liberty in one’s hands, that
deficiencies in performance due to exhaustion and burn-out can result.
Nevertheless, there are three obligations that continue to be ignored by some
practicing members of the Georgia bar. First, there is an obligation for the lawyer who
feels burned out and ineffective to recognize it and either withdraw from a case or
seek other assistance until the lawyer is prepared to perform competently. See
Georgia Rules of Professional Conduct, Rule 1.1 (“A lawyer shall provide competent
representation to a client. Competent representation . . . means that a lawyer shall not
handle a matter which the lawyer knows or should know to be beyond the lawyer’s
level of competence without associating another lawyer who the original lawyer
reasonably believes to be competent to handle the matter in question.”). Second, there
is an obligation on the part of any lawyer who may be responsible for supervising a
struggling lawyer to recognize when that lawyer needs assistance and/or to be
replaced. See Georgia Rules of Professional Conduct, Rule 5.1 (b) (“A lawyer having
direct supervisory authority over another lawyer shall make reasonable efforts to
ensure that the other lawyer conforms to the Georgia Rules of Professional
Conduct.”). Third, there is an obligation on our profession to keep an ineffective
attorney out of the courtroom until he or she is fully prepared to provide competent
representation. See Georgia Rules of Professional Conduct, Preamble (11) (“Every
lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer
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should also aid in securing their observance by other lawyers. Neglect of these
responsibilities compromises the independence of the profession and the public
interest which it serves.”).
In a number of cases that have come before this Court, none of the foregoing
obligations appeared to have been taken as seriously as they should have been. See,
e.g., Nejad v. State, 296 Ga. App. 163, 170 (674 SE2d 60) (2009) (Smith, J.,
concurring specially) (commenting that “[t]he developing trend of emphatically and
even eagerly testifying to one’s own incompetence or misconduct is dangerous to the
administration of justice, particularly if it is allowed to continue without any
consequences for the testifying trial counsel”); see also Carrie v. State, 298 Ga. App.
55, 62 n.23 (679 SE2d 30) (2009) (recognizing that “[w]hether counsel’s assessment
of his performance was an honest admission of incompetency or a disingenuous
attempt to secure a new trial for his former client is not for our determination,” but
noting that it is a perversion of justice to allow such instances to continue without any
consequences to trial counsel).
In 2009, we noted that instances of trial counsel claiming his or her own
ineffectiveness without consequence was a “worrisome trend” for this Court. See
Nejad, 296 Ga. App. at 169. This particular case does not involve trial counsel
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opining as to her own effectiveness, and rightfully so. See Hartsfield v. State, 294 Ga.
883, 888 (757 SE2d 90) (2014). However, we continue to witness admissions that
point to ineffectiveness and the resulting findings, with apparently no response or
consequence. A consequence need not even be a punitive consequence; but rather
some meaningful attempt to keep ineffective attorneys out of the criminal courtroom.
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