FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
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
February 23, 2016
In the Court of Appeals of Georgia
A15A2315. PACK v. THE STATE.
PHIPPS, Presiding Judge.
A jury found Ronnie Dale Pack guilty of molesting his ten-year-old step-
granddaughter, N. F. Pack appeals, asserting that the trial court erred in holding a
bench conference outside his presence, excluding admissible character evidence, and
denying his motion for mistrial. He also argues that he received ineffective assistance
of counsel at trial. Finding no basis for reversal, we affirm.
Viewed favorably to the verdict,1 the evidence shows that N. F. had a close
relationship with Pack, often spending weekends at his home. On September 25,
2011, N. F. told her mother after a weekend visit with Pack that he had “stuck his
1
See Goggins v. State, 330 Ga. App. 350 (767 SE2d 753) (2014).
finger” in her vagina. The mother asked whether Pack had touched the inside or
outside, and N. F. responded: “The inside.”
N. F.’s parents reported the outcry to the police and had her medically
examined. During the examination, N. F. told the nurse that Pack had entered her
room at night, pulled down her pants, and “put his finger in her tootsie.” Although the
examination did not reveal physical signs of abuse, the nurse testified that sexual
abuse victims often have no visible injuries. N. F. repeated her outcry in a forensic
interview, stating that Pack had “stuck his finger in her” and that it had hurt. She also
testified at trial that Pack had walked into the bedroom where she was sleeping,
pulled down her clothing, put his finger in her “no-no area,” and moved it around.
Pack testified at trial and denied the allegations. He also called several
character witnesses, who testified that he had a reputation in the community as a
truthful, moral, and upright person. The jury, however, found him guilty of child
molestation and aggravated sexual battery.
1. Pack argues that he is entitled to a new trial because the trial court held a
bench conference outside his presence during jury selection. The record shows that
after bringing prospective jurors into the courtroom, the trial court stated: “Before we
get started, ladies and gentlemen, I have a matter to attend to.” At that point, the court
2
held a brief bench conference with the prosecutor, defense counsel, and a jury panel
member who was on first offender probation for a felony committed several years
earlier. The trial court confirmed the juror’s status as a first offender, then excused
him for cause without further argument from counsel. Pack was in the courtroom, but
was not present at the bench conference.
According to Pack, the trial court should have ensured that he participated in
the bench conference. It is true that “[t]he Georgia Constitution guarantees criminal
defendants the right to be present, and see and hear, all the proceedings which are had
against him on the trial before the Court.”2 This includes “proceedings at which the
jury composition is selected or changed,”3 as well as proceedings where potential
jurors are stricken.4 The right to be present, however, “does not extend to situations
where the defendant’s presence would be useless, or the benefit but a shadow.”5 A
2
Zamora v. State, 291 Ga. 512, 517-518 (7) (b) (731 SE2d 658) (2012)
(citations and punctuation omitted). See also Ga. Const. of 1983, Art. I, Sec. I, Par.
XII.
3
Zamora, supra at 518 (7) (b) (citations and punctuation omitted).
4
Brooks v. State, 271 Ga. 456 (2) (519 SE2d 907) (1999).
5
Heywood v. State, 292 Ga. 771, 774 (3) (743 SE2d 12) (2013) (citation and
punctuation omitted).
3
defendant, therefore, need not participate in a bench conference consisting of
“essentially legal argument about which the defendant presumably has no
knowledge.”6
Although the bench conference here related to jury selection, it ultimately
involved a purely legal question: whether a first-offender felon is qualified to serve
on a jury. The record contains no evidence that Pack had any knowledge about this
technical issue or could have advanced the discussion. It also shows that the judge did
not exercise any discretion in the matter. Once the juror confirmed that he was on
first-offender probation, the trial court excused him for cause because the court
believed he could not legally serve on the jury.
The trial court was wrong in this regard. A person sentenced to a period of
probation or confinement under the First Offender Act7 may serve as a juror.8 At the
bench conference, however, the trial court resolved a purely legal question.
6
Id. (citation and punctuation omitted).
7
OCGA § 42-8-60 et seq.
8
Humphreys v. State, 287 Ga. 63, 71 (4) (694 SE2d 316) (2010).
4
Regardless of whether it did so correctly, Pack had no constitutional right to be
present.9 Accordingly, this claim of error lacks merit.
2. Pack also argues that he is entitled to a new trial because the trial court
erroneously excluded character testimony. We disagree.
Prior to trial, the State moved to exclude evidence that Pack was sexually
appropriate and moral towards children. The trial court granted the motion as to his
reputation for appropriate or moral sexual conduct. But it permitted testimony
regarding his general reputation as a truthful, moral person. The record shows that
Pack offered such character evidence at trial. Four witnesses testified that he had a
reputation in the community for being truthful, moral, and upright. These witnesses
further testified that Pack was loved by everyone in his church, got along with
everybody, had a “heart of gold,” and was a “real good man.”
9
See Parks v. State, 275 Ga. 320, 325 (3) (565 SE2d 447) (2002) (no error in
excluding defendant from bench conferences that “discussed legal matters about
which [defendant] would have known very little or nothing”). Compare Heywood,
supra (defendant had right to be present when trial court and attorneys discussed
whether new jurors should be empaneled following an allegedly prejudicial remark
made by juror during voir dire); Gillespie v. State, 333 Ga. App. 565, 569 (1) (a) (774
SE2d 255) (2015) (defendant had right to be present at bench conference during
which trial court “made the discretionary decision to excuse [a juror] from service for
hardship reasons”) (emphasis in original) (physical precedent only).
5
The character witnesses were not allowed to specifically state that Pack had a
reputation for being sexually appropriate or moral with children. But they testified
about his general morality, as well as his overall standing as a good man. Even
assuming – without deciding – that more specific reputation evidence was admissible,
the significant character evidence presented at trial by various members of Pack’s
community sufficiently covered the subject. Any error in excluding the additional
character evidence was harmless, and Pack is not entitled to a new trial on this
ground.10
3. Pack claims that the trial court erred in denying his motion for mistrial after
one of the State’s witnesses bolstered N. F.’s credibility. A trial court exercises its
sound discretion in ruling on such motion, and we will not disturb the court’s ruling
10
See Goggins, supra at 357 (3) (no reversible error in limiting defendant’s
character evidence where additional testimony regarding defendant’s morality and
trustworthiness would be cumulative); Cole v. State, 261 Ga. App. 809, 810 (1) (584
SE2d 37) (2003) (“Given the ample evidence of the victim’s reputation for violence,
any error in excluding the cumulative testimony of one witness was harmless.”); Beck
v. State, 250 Ga. App. 654, 659-660 (4) (551 SE2d 68) (2001) (error in excluding
testimony harmless where, in light of other trial evidence, “there is a high probability
that the exclusion of evidence, if any, did not contribute to the verdict”) (citation
omitted).
6
“unless a mistrial [was] essential to preserve the defendant’s right to a fair trial.”11 No
mistrial was necessary here.
At trial, the prosecutor asked the investigating detective whether anything in
N. F.’s forensic interview “made [him] concerned about coaching.” The detective
responded: “I didn’t see anything in there that showed me any kind of coaching
because the victim’s interview to me was very genuine.” Defense counsel
immediately objected and moved for a mistrial, arguing that the detective improperly
bolstered N. F.’s credibility by asserting that her statements were genuine.
Although the trial court sustained Pack’s objection to the testimony, it denied
his motion for mistrial. The court acknowledged that the officer had used a “poor
choice of words.” But it concluded that “what [the officer’s response] was going to
was the fact that the interview was genuine to the extent that he did not see any
coaching going on.” The court then gave a general curative instruction:
Ladies and gentlemen, I would like to explain to you that . . . you are the
sole judges of the witness’s – all of the witnesses’ credibility. That is
their believability. It is your decision and your decision alone which
witnesses to believe, and which witnesses not to believe, if there are
11
Gooden v. State, 316 Ga. App. 12, 15 (1) (728 SE2d 693) (2012)
(punctuation and footnote omitted).
7
some whom you do not believe. And . . . that’s the ultimate issue
reserved for you, the jury. No other – no witness who was called to
testify can . . . or should be permitted to comment on the veracity or
truthfulness of any other witness. And if – if such has happened – I’m
not going to comment on whether such has happened or not. But if such
has happened at any point in the trial, then you would be required to
disregard that testimony in its entirety. And in – and in your
deliberations and in arriving at your verdict. Again, no witness is ever
permitted to comment on the veracity or truthfulness of any other
witness in the case.
“A witness’s credibility is exclusively a matter for the jury, and in no
circumstance may a witness’s credibility be bolstered by the opinion of another, even
an expert, as to whether the witness is telling the truth.”12 Pack contends that the
detective improperly commented on N. F.’s credibility. The trial court, however,
found no bolstering. It concluded that the testimony, taken in context, related to
whether the victim’s interview involved real or “genuine” – rather than coached –
responses. The trial court did not abuse its discretion by interpreting the detective’s
testimony in this way.13
12
Id. (punctuation and footnotes omitted).
13
See Stillwell v. State, 294 Ga. App. 805, 807 (2) (a) (670 SE2d 452) (2008)
(testimony that witness saw no evidence that child molestation victim had been
“coached” does not impermissibly bolster child’s credibility); see also Brownlow v.
8
Despite its interpretation, the trial court recognized that the detective’s poor
word choice might have led to some confusion. It thus gave a lengthy curative
instruction. Pack complains that the trial court should have explicitly characterized
the detective’s testimony as improper and advised jurors to disregard it. But the court
reasonably concluded that the testimony was not, in fact, improper. And although it
refused to identify any testimony as bolstering, the court fully apprised the jury of the
bolstering prohibition in case jurors interpreted the detective’s testimony differently.
Under these circumstances, we find no error in the curative instruction or the denial
of Pack’s motion for mistrial.14
4. Finally, Pack alleges that he received ineffective assistance of counsel at
trial. To prevail on this claim, Pack must show that trial counsel’s performance was
deficient and that, but for the deficiency, there is a reasonable probability that the
outcome of the trial would have been different.15 This showing requires Pack to
State, 248 Ga. App. 366, 369 (2) (b) (544 SE2d 472) (2001) (taken in context, expert
testimony did not comment on victim’s veracity or give opinion on ultimate issue).
14
See Gooden, supra (trial court did not abuse discretion in denying motion for
mistrial where curative instruction relating to bolstering given); Cook v. State, 276
Ga. App. 803, 806 (3) (625 SE2d 83) (2005) (same).
15
Hall v. State, 292 Ga. App. 544, 551 (6) (664 SE2d 882) (2008).
9
overcome the strong presumption that counsel’s performance fell within the wide
range of reasonable professional conduct.16
(a) As discussed in Division 1, the trial court wrongly dismissed a first-
offender probationer from the jury pool. Trial counsel did not object to the dismissal
because, like the trial judge, he mistakenly believed the juror was ineligible to serve.
Pack now argues that counsel’s failure to object constituted ineffective assistance of
counsel.
We find no merit in this claim. Pretermitting whether trial counsel performed
deficiently, Pack has not shown any probability that an objection would have altered
the trial result. He offered no evidence that this juror, who was number 86 in the
panel, would have made it to the jury or changed the trial outcome if not stricken for
cause. Furthermore, “the erroneous allowing of a challenge for cause affords no
ground of complaint if a competent and unbiased jury is finally selected.”17 Pack has
not pointed to any evidence that the jurors who ultimately decided his case were
incompetent or biased.
16
Id.
17
Humphreys, supra (citations and punctuation omitted).
10
On appeal, Pack argues that he would have been constitutionally entitled to
participate in the bench conference had counsel objected to the juror’s dismissal. He
contends, therefore, that his absence from the bench conference would require us to
reverse his conviction, changing the ultimate outcome of the case. As we explained
above, however, Pack did not have a constitutional right to attend the bench
conference, which involved a purely legal question. An objection by defense counsel
would not have altered the legal nature of the conference or necessitated Pack’s
presence. Pack, therefore, has not demonstrated prejudice.
(b) Pack argues that trial counsel was ineffective to the extent he failed to
preserve the errors discussed in Divisions 2 and 3. In resolving these claims of error,
we did not find waiver or any failure to preserve the error. Accordingly, Pack has not
shown that counsel was ineffective in this regard.
Judgment affirmed. Doyle, C. J., and Boggs, J., concur.
11