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, 

 (

) (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, 

 (

) (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, 

 (

) (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.



                                          2
      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



                                          3
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, 

 (2)

(

) (2015) (citations omitted). See also Ruffin v. State, 

(1) (

) (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, 

,



                                           4
115 (2) (

) (2015); Long v. State, 

 (4) (

)

(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.

                                          5
       “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, 

 (5) (

) (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, 

                                           6
89 n. 1 (

) (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, 

 (1) (

) (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, 

 (4) (

) (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 

 (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, 

 (

) (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

                                          7
      v. State, 

 (

) (1998), overruled on other
      grounds by Bunn v. State, 

 (

) (2012).

Cowart v. State, 

 (4) (a) (

) (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

                                           8
      bolster the witnesss credibility in the eyes of the jury. Woodard, 

. . . . 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.

 (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.



                                            9
Baugh v. State, 

 (2) (

) (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 

 (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

 (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

                                           10
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.

 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].” 

 (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

                                           11
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.” 

 (4) (a) (footnote omitted).

Compare Cobb v. 

 (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, 

 (5) (

) (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

                                           12
the trial would have been different. Mann v. State, 

 (1) (

) (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.]” 

 Consequently, “[t]he

[s]tate’s case depended on [S. L.’s] credibility.” 

 (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.]” 

 Accordingly, the judgment of conviction must be reversed and

Blackmon is entitled to a new trial. See Walker v. State, 

 (1)

(b) (

) (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, 

 (3) (

) (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).

                                           13
       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, 

 (3) (d) (

) (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.” 

 (citations omitted).



                                            14
      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.” 

 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

                                            15
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, 

 (

) (1985). See also Stephens

v. State, 

 (1) (a) (

) (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

                                           16
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, 

 (2) (

)

(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, 

 (2) (

) (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.

                                          17
 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


                                           2
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, 

 (

) (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, 

, 62 n.23 (

) (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, 

. This particular case does not involve trial counsel


                                           3
opining as to her own effectiveness, and rightfully so. See Hartsfield v. State, 

 (

) (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.




                                           4