FIFTH DIVISION
MCFADDEN, P. J.,
RAY 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
October 3, 2018
In the Court of Appeals of Georgia
A18A1256. CHAMBERLAIN v. THE STATE.
RICKMAN, Judge.
John Chamberlain was tried by a jury and convicted on two counts of child
molestation. On appeal, Chamberlain contends that the evidence was insufficient to
support his convictions, the trial court violated his right to a public trial, his counsel
rendered ineffective assistance in several respects, and the trial court erred by
allowing improper testimony. For the following reasons, we affirm.
On appeal from a criminal conviction, we view the evidence in the light
most favorable to support the jury’s verdict, and the defendant no longer
enjoys a presumption of innocence. We do not weigh the evidence or
judge the credibility of the witnesses, but determine only whether the
evidence authorized the jury to find the defendant guilty of the crimes
beyond a reasonable doubt in accordance with the standard set forth in
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
(Citation and punctuation omitted.) Hall v. State, 335 Ga. App. 895 (783 SE2d 400)
(2016).
So viewed, the evidence showed that Chamberlain was the paternal uncle of
the victim and her brother. Chamberlain and his brother, the victim’s father, lived
together, and the children stayed with them a few weekends a month. In October
2012, the then ten-year-old victim revealed to her cheerleading coach that she did not
want to go to her father’s house for the upcoming weekend. While upset and crying,
the victim told her coach that she was not allowed to lock any doors at her father’s
house and that she disliked the lack of privacy while bathing. The coach told the
victim’s mother about the conversation.
The following morning, the victim’s mother emailed the victim’s school
counselor expressing concerns about some unusual behaviors the victim exhibited at
home, and asking her to speak with the victim. The victim told the school counselor
that she was afraid to go to her father’s house over the upcoming weekend. The
school counselor testified that the victim tearfully informed her that Chamberlain hit
her, locked her in her bedroom, looked at her in a “creepy” manner, “peek[ed]” at her
while she was in the shower, and grabbed her breast and vaginal areas.
2
A corporal with the Forsyth County Sheriff’s Office arranged for the victim to
go to a child advocacy center for a recorded forensic interview. The forensic
interviewer testified that the victim disclosed that Chamberlain touched her on her
vagina, bottom, and breasts. The victim also described Chamberlain placing his penis
on her neck area and “down her front part.” Chamberlain called her names and said
many demeaning things to her, including calling her “fatty” when he touched her. The
recording of the forensic interview was published to the jury.
The corporal testified that he executed a search warrant at the home of the
victim’s uncle and father, and found a bag packed in the uncle’s room that contained
his passport and clothing. Interestingly, the corporal explained that approximately a
year prior to executing this search warrant, he had executed another search warrant
at the same residence during a child pornography investigation. The child
pornography investigation involved the victim’s father. Graphic videos were
recovered from the victim’s father’s computer depicting female teenagers and very
young children engaged in sexual acts.
Another corporal with the Forsyth Sheriff’s Office who had investigated the
child pornography case against the victim’s father testified that the victim’s father
admitted that he had viewed and downloaded child pornography depicting pre-teens
3
approximately the same age as the victim. The victim’s father used a variety of search
terms to locate pornographic images, including “teenagers,” “young teens,”
“underage,” “incest,” “pre-teen,” and “bestiality,” he entered chat rooms pertaining
to dad and daughter sex, and he communicated with people who identified themselves
as minors. Additionally, the victim’s father engaged in a sexual online relationship
with a minor child in which he presented himself as an 18-year-old.
He described his process for viewing videos after entering his desired search
terms into a file sharing program: “I would just highlight everything that came up and
I would hit enter and it would download it. And after it was done downloading I
could look at the file and then if I liked it, I would rename it and save it. If I didn’t
like it, I would just delete it.” The victim’s father was never arrested or charged with
any crimes related to the child pornography investigation. The corporal testified that
the reason that the victim’s father was not charged with possessing the child
pornography was because the images were recovered from the unallocated space of
the computer, meaning they had been deleted.1
1
However, we note that a person may be prosecuted for possessing
pornography that has been deleted and is recovered from a computer’s unallocated
space. See New v. State, 327 Ga. App. 87, 93-94 (1) (755 SE2d 568) (2014) (“In the
context of prior possession of child pornography, a computer user knowingly
possesses the contraband when the user intentionally downloads child pornography
4
The victim’s mother testified that in the months prior to the revelation of the
sexual abuse, she noticed changes in the victim’s behavior including the victim acting
withdrawn, losing friendships, lacking care as to her appearance, suffering academic
problems, and noticeably gaining weight. The victim testified that Chamberlain “did
bad things to [her]” by touching her “on [her] bottom and in [her] bathing suit zones.”
The victim testified that she woke up to Chamberlain lying on top of her in her bed
and she could “sometimes” feel his penis. The victim answered affirmatively when
asked if Chamberlain would “peek” at her while she was in the shower.
to the computer but later deletes the file or when he or she performs some function
to reach out and select the image from the Internet. Indeed, a computer user who
intentionally accesses child pornography images on a website gains actual control
over the images, just as a person who intentionally browses child pornography in a
print magazine ‘knowingly possesses’ those images, even if he later puts the
magazine down. In this way, any backup or residual files become evidence of
possession at a prior point; the files need not represent the literal contraband. Instead,
the backed up or residual files are proof that a crime has occurred—that is, proof of
the corpus delicti. And while these files standing alone are not sufficient to establish
that a defendant knowingly possessed those images at a prior point, they can be used
in conjunction with other circumstantial evidence to prove such possession. The
totality of the evidence presented by the State, of course, must support an inference
that the act was wilful and not inadvertent.”) (citations, punctuation, and footnotes
omitted; emphasis in original).
5
The grand jury indicted Chamberlain on two counts of child molestation2 and
invasion of privacy.3 Following a jury trial, Chamberlain was convicted on the child
molestation counts; he was acquitted of invasion of privacy. Chamberlain timely filed
motions for new trial, which were denied. Chamberlain appeals from both his
convictions and the denial of his motions for new trial.
1. Chamberlain contends that the evidence was insufficient to support his
conviction on count one of the indictment.
“A person commits the offense of child molestation when such person . . .
[d]oes any immoral or indecent act to or in the presence of or with any child under the
age of 16 years with the intent to arouse or satisfy the sexual desires of either the
child or the person[.]” OCGA § 16-6-4 (a) (1). Count one of the indictment charged
Chamberlain with “commit[ing] an immoral and indecent act to [the victim], a child
under the age of 16 years, with the intent to arouse and satisfy the sexual desires of
himself by rubbing [his] penis on [the victim’s] body[.]”
“The testimony of a victim of child molestation . . . need not be corroborated.”
(Citation and punctuation omitted.) Smith v. State, 320 Ga. App. 408, 410 (1) (a) (740
2
OCGA § 16-6-4 (a) (1).
3
The alleged victim of the invasion of privacy charge was the victim’s brother.
6
SE2d 174) (2013). In this case, the victim testified that Chamberlain layed on top of
her and “sometimes” she could feel his penis, the forensic interviewer testified that
the victim disclosed to her that Chamberlain would place his penis on her neck area
and “down her front part,” and the victim’s recorded forensic interview was played
for the jury. This testimony was sufficient to sustain Chamberlain’s conviction on
count one of the indictment. See Smith, 320 Ga. App. at 411 (1) (a); see also Malone
v. State, 277 Ga. App. 694, 696 (1) (627 SE2d 378) (2006).
2. Chamberlain contends that the trial court violated his right to a public trial
when it closed the courtroom prior to the victim’s and her brother’s testimony.
In the trial of any criminal case, when any person under the age of 16 is
testifying concerning any sexual offense, the court shall clear the
courtroom of all persons except parties to the cause and their immediate
families or guardians, attorneys and their secretaries, officers of the
court, victim assistance coordinators, victims’ advocates, and such other
victim assistance personnel . . . , jurors, newspaper reporters or
broadcasters, and court reporters.
OCGA § 17-8-54. “This Code section is based upon a legislative determination that
there is a compelling state interest in protecting children while they are testifying
concerning a sex offense.” (Citation and punctuation omitted). Tolbert v. State, 321
Ga. App. 637 (1) (742 SE2d 152) (2013). “The partial closure of the courtroom
7
permitted under this Code section does not violate a defendant’s constitutional right
to a public trial.” Id.
Prior to the victim’s and her brother’s testimony, the State asked the trial court
to clear the courtroom of all non-essential personnel. The defense objected4 and the
trial court referenced an exception for victims of child molestation and said that he
would “follow the statute.” The State responded that, “[t]he statute says . . . when any
person under the age of 16 is testifying of any sexual offense, the [c]ourt shall clear
the courtroom of all persons except parties to the case, their immediate family
members or guardians, attorney, their secretaries, officers of the court, victim
assistant coordinator’s, advocates, and other such victim assistant personnel.” An
exchange took place between the trial court and counsel regarding the victim’s
mother remaining in the courtroom. The trial court then stated, “I don’t [know] who
else is present, but if the individuals do not fall under any of those categories, they
need to stand outside until the child concludes testimony.”
Chamberlain argues that the courtroom was completely closed because his aunt
was excluded from the courtroom and that, in its recitation of the statue, the State
4
We are pretermitting the issue of whether Chamberlain’s objection was proper
and thus, not addressing Chamberlain’s alternative ineffective assistance of counsel
claim on this issue.
8
failed to mention that the press was excepted from the statute. The trial court held that
Chamberlain’s aunt did not fall under the category of “immediate family” and did not
err in so holding. Black’s Law Dictionary defines “immediate family” as “[a] person’s
parents, spouse, children, and siblings.” Black’s Law Dictionary (10th ed. 2014).
Chamberlain also cannot show from the record that any member of the press was
excluded. Accordingly, Clark has not identified from the record any person or
category of persons who was wrongfully excluded under OCGA § 17-8-54.
The trial court partially closed the courtroom under OCGA § 17-8-54. This
partial closure of the courtroom pursuant to that statute did not violate Chamberlain’s
Sixth Amendment right to a public trial. Accordingly, Chamberlain has not shown
that the trial court erred. See Tolbert v. State, 321 Ga. App. at 637-638; see also Clark
v. State, 309 Ga. App. 749, 751 (2) (711 SE2d 339) (2011); Goldstein v. State, 283
Ga. App. 1, 3 (2) (640 SE2d 599) (2006).
3. Chamberlain contends that his trial counsel rendered ineffective assistance
by failing to call his own expert witness in forensic interviewing and by failing to
object to testimony that he alleged went to the ultimate issue and improperly bolstered
the victim’s credibility.
9
To prevail on an ineffective assistance of counsel claim, Chamberlain must
prove both that his trial counsel’s performance was deficient and that he was
prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668,
687 (III) (104 SCt 2052, 80 LE2d 674) (1984). “In reviewing a lower court’s
determination of a claim of ineffective assistance of counsel, we give deference to the
trial court’s factual findings, which are upheld on appeal unless clearly erroneous;
however, we review the lower court’s legal conclusions de novo.” (Citation omitted.)
Washington v. State, 276 Ga. 655, 658 (3) (581 SE2d 518) (2003).
“If an appellant fails to meet his burden of proving either prong of the
Strickland test, the reviewing court does not have to examine the other prong.”
(Citation and punctuation omitted.) Ward v. State, 292 Ga. 637, 639 (2) (740 SE2d
112). “There is a strong presumption that the performance of trial counsel falls within
the wide range of reasonable professional assistance. The reasonableness of the
conduct is viewed at the time of trial and under the circumstances of the case.”
(Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (569 SE2d
597) (2004).
(a) Chamberlain argues that he received ineffective assistance of counsel
because his counsel failed to call his own expert witness in forensic interviewing.
10
The decision of how to deal with the presentation of an expert witness
by the opposing side, including whether to present counter expert
testimony, to rely upon cross-examination, to forego cross-examination
and/or to forego development of certain expert opinion, is a matter of
trial strategy which, if reasonable, cannot be the basis of a successful
ineffective assistance of counsel claim.
(Citation and punctuation omitted.) Gawlak v. State, 310 Ga. App. 757, 759 (2) (a)
(714 SE2d 354) (2011).
At the motion for new trial hearing, Chamberlain’s trial counsel testified that
she had not “had very much success with expert witnesses in child molestation cases
as to [challenging] the interviewing procedures unless there were . . . leading
questions, not using open questions.” Chamberlain’s trial counsel testified that she
reviewed the recording of the forensic interview and felt that an expert would not be
beneficial in this case, and that her plan for attacking the forensic interviewer’s
testimony was through cross-examination.
“Here, trial counsel’s decision to forego presentation of counter expert
testimony and to rely instead on cross-examination to address the interviewing
techniques of the state’s witnesses was a matter of trial strategy, and [Chamberlain]
did not establish that this tactical decision was unreasonable.” Gawlak , 310 Ga. App.
11
at 759 (2) (a). “Although [Chamberlain’s] appellate counsel might have made a
different tactical decision, effectiveness of trial counsel is not evaluated by hindsight
or by what present counsel would have done.” Id. Accordingly, Chamberlain’s trial
counsel’s decision to not call an expert does not support a claim for ineffective
assistance of counsel. See id.; see also Towry v. State, 304 Ga. App. 139, 147 (2) (f)
(695 SE2d 683) (2010).
(b) Chamberlain contends that he received ineffective assistance because his
trial counsel failed to object to the corporal’s testimony that went to the ultimate issue
and improperly bolstered the victim’s credibility.
It is true that in Georgia, the credibility of a witness is to be determined
by the jury, and the credibility of a victim may not be bolstered by the
testimony of another witness. Thus, a witness may not give an opinion
as to whether the victim is telling the truth. Furthermore, Georgia law
generally precludes a witness from testifying as to his or her opinion
regarding an ultimate issue in the case because to do so would invade
the province of the jury.
(Citation and punctuation omitted.) Canty v. State, 318 Ga. App. 13, 16 (2) (733 SE2d
64) (2012).
However,
12
there is absolutely nothing wrong with expert opinion testimony that
bolsters the credibility of the indicted allegations of sexual abuse, e.g.,
the victim’s physical examination showed injury consistent with sexual
abuse, or the victim’s psychological evaluation was consistent with
sexual abuse. Establishing the credibility of the indicted acts of sexual
abuse is what the State’s case is all about and is the purpose for such
expert testimony in the first place; the fact that such testimony may also
indirectly, though necessarily, involve the child’s credibility does not
render it inadmissible.
(Citations and punctuation omitted.) Thompson v. State, 321 Ga. App. 756, 758-759
(743 SE2d 446) (2013).
Chamberlain argues that his trial counsel should have objected to testimony
from the corporal that several of the victim’s behaviors were consistent with sexual
abuse which, when combined, “certainly lead you to believe that there might be
something going on.” He further challenges counsel’s failure to object to the
corporal’s testimony regarding the percentage of sexual abuse victims who recant and
reaffirm, the lack of evidence that the victim’s father was the perpetrator, and her
statement that she would not expect a ten-year-old to misidentify the perpetrators.
The corporal was qualified as an expert in the areas of child sexual abuse,
forensic interviewing, and the dynamics of disclosure. The corporal’s testimony that
13
the victim’s behavior was consistent with sexual abuse was not improper because it
did not directly address the credibility of the victim or express a direct opinion that
the victim was sexual abused. See Reinhard v. State, 331 Ga. App. 235, 239 (2) (770
SE2d 314) (2015); see also Odom v. State, 243 Ga. App. 227, 229 (1) (b) (531 SE2d
207) (2000). The general testimony regarding recantation and reaffirmation statistics
and about whether a ten-year-old would generally be likely to misidentify her
perpetrator were not improper for the same reasons. See Harris v. State, 340 Ga. App.
865, 874 (4) (798 SE2d 498) (2017) (holding that an expert in forensic interviewing
of children’s testimony about recantation was not improper because it “did not
directly address the victim’s credibility or express an opinion as to whether the child
had actually been sexually abused”); see also Pearce v. State, 300 Ga. App. 777, 785
(6) (686 SE2d 392) (2009); Odom, 243 Ga. App. at 228 (1).
Finally, the corporal’s testimony that there was no evidence that pointing to the
victim’s father as the perpetrator did not improperly bolster the victim’s credibility
or comment on the ultimate issue because it was not a comment on the victim’s
credibility or on the ultimate issue of whether the victim had been sexually abused.
See generally Odom, 243 Ga. App. at 228-229 (1) (a).
14
Improper bolstering or ultimate issue objections to the challenged testimony
would have been meritless, and failure to make a meritless objection cannot be
evidence of ineffective assistance of counsel, the trial court did not err in denying
Chamberlain’s motion for new trial on this ground. See generally Hardin v. State, 344
Ga. App. 378, 386 (1) (e) (810 SE2d 602) (2018).
(c) Chamberlain contends that he received ineffective assistance because his
trial counsel failed to object to the forensic interviewer’s testimony that went to the
ultimate issue and improperly bolstered the victim’s credibility.
Chamberlain challenges testimony from the forensic interviewer in which she
testified that the victim’s demeanor was consistent with a victim of sexual abuse, and
that there was nothing in the statement that was inconsistent with sexual abuse, that
in her experience only a small amount of children have made false allegations, and
that a child who has been coached generally cannot explain what her body felt like
during the touch. Chamberlain also challenges the forensic interviewer’s affirmative
response when the State asked if was unusual that the victim was not crying when she
was describing her abuse.
The forensic interviewer was qualified as an expert in the areas of child sexual
abuse, the dynamics of disclosure, and child forensic interviewing. As discussed in
15
Division 4 (b), the forensic interviewer’s testimony regarding the victim’s demeanor
and whether it was consistent with sexual abuse was not improper. See Reinhard, 331
Ga. App. at 239 (2). The forensic interviewer’s general testimony about false
allegations was not a direct comment on the credibility of the victim or a direct
opinion that she was abused. See generally Harris, 340 Ga. App. at 874 (4); Odom,
243 Ga. App. at 228-229 (1) (a). Likewise, the testimony regarding details in the
victim’s disclosure that were inconsistent with being coached “did not impermissibly
address the ultimate issue before the jury or bolster the child’s credibility.” Osborne
v. State, 291 Ga. App. 711, 714 (3) (662 SE2d 792) (2008). It was also not
inappropriate for the forensic interviewer to testify about the victim’s behavior during
the interview. The forensic interviewer was not testifying that the victim was abused,
but rather was explaining the child’s demeanor during her description of the events.
See generally Odom, 243 Ga. at 229 (1) (a).
Since none of the challenged testimony was improper, any objection would
have been meritless, and thus would not support a claim for ineffective assistance of
counsel. See generally Hardin, 344 Ga. App. at 386 (1) (e).
16
(d) Chamberlain contends that he received ineffective assistance of counsel
because his trial counsel failed to object to the school counselor’s testimony which
improperly bolstered the victim’s credibility.
When asked what the victim’s demeanor was like when the school counselor
spoke with her, she testified that “[the victim was] remarkably strong for a nine- or
ten-year-old little girl, but frightened. And really asking for someone to help her. And
very vulnerable, I mean laying it all on the line. You know, indicating where she’d
been touched and how – what had been said to her and her fears. You know, she
wanted help and she wasn’t going. And she didn’t know who could help her.”
“[T]estimony concerning the victim’s demeanor was relevant and did not
constitute improper bolstering.” Bridges v. State, 293 Ga. App. 783, 785 (2) (668
SE2d 293) (2008). Accordingly, any objection to this testimony would have been
meritless and could not support a claim for ineffective assistance of counsel. See
Hardin, 344 Ga. App. at 386 (1) (e).
4. Chamberlain contends that the trial court erred by allowing improper
testimony which went to the ultimate issue and bolstered the victim’s credibility.
Here, the State asked the corporal how many child sex abuse cases she had
investigated, and then asked her if “[i]n any of those cases has there ever been an
17
issue with a child misidentifying the perpetrator?” Chamberlain’s counsel objected
on the basis that the question called for a conclusion which the trial court overruled.
The State then asked a series of follow up questions which elicited testimony from
the corporal that in his experience, the cases involving the misidentification of a
perpetrator by a victim usually involved very young children, and the children
generally identified their perpetrators as monsters. The State then asked if the
corporal would expect this issue with a ten-year-old victim, and he responded
negatively. Chamberlain failed to object to any of the follow up questions.
“Due to the fact that [Chamberlain] did not object to [the corporal’s] testimony
at trial on the basis that he now asserts on appeal, our analysis of this issue is limited
to a review for plain error affecting substantial rights.” (Citation, punctuation and
footnote omitted.) Jones v. State, 299 Ga. 40, 42 (2) (785 SE2d 886) (2016); OCGA
§ 24-1-103 (d) (“Nothing in this Code section shall preclude a court from taking
notice of plain errors affecting substantial rights although such errors were not
brought to the attention of the court.”). The Georgia Supreme Court has adopted the
federal plain-error standard of review. See Gates v. State, 298 Ga. 324, 326 (3) (781
SE2d 772) (2016). Pursuant to this four-pronged test,
18
First, there must be an error or defect—some sort of deviation from a
legal rule—that has not been intentionally relinquished or abandoned,
i.e., affirmatively waived, by the appellant. Second, the legal error must
be clear or obvious, rather than subject to reasonable dispute. Third, the
error must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of
the trial court proceedings. Fourth and finally, if the above three prongs
are satisfied, the appellate court has the discretion to remedy the
error—discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.
(Citation and punctuation omitted.) Simmons v. State, 299 Ga. 370, 373 (2) (788 SE2d
494) (2016).
As discussed in Division 3 (b), the corporal’s testimony regarding whether a
ten-year-old would generally be likely to misidentify her perpetrator did not go to the
ultimate issue or improperly bolster the victim’s credibility. Chamberlain fails to
satisfy the first and second prongs of the plain-error test because he cannot show that
the trial court erred in admitting the evidence, let alone that the alleged error was
19
“clear or obvious.” See Simmons, 299 Ga. at 373-375 (2); see also Patch v. State, 337
Ga. App. 233, 242-243 (2) (786 SE2d 882) (2016).
Judgment affirmed. McFadden, P. J., concurs in Divisions 1, 2, 3(b), 3(c), 3(d)
and 4, and dissents in Division 3(a). Ray, J., concurs in Divisions 1, 2, 3(b), 3(c), 3(d)
and 4, and in the judgment only in Division 3(a).*
*DIVISION 3(a) OF THIS OPINION IS PHYSICAL PRECEDENT ONLY.
COURT OF APPEALS RULE 33.2(a).
In the Court of Appeals of Georgia
A18A1256. CHAMBERLAIN v. THE STATE.
MCFADDEN, Presiding Judge, concurring in part and dissenting in part.
Allegations of ineffective assistance raised in this court that are based on trial
counsel’s failure to introduce evidence often share a fatal defect. The omitted
evidence isn’t introduced at the new-trial hearing either. But in the case before us
today, the defense did call an expert witness at the new-trial hearing.
Attention must be paid to his testimony. His testimony demonstrated ways the
credibility of the outcry, the methodology of the forensic interview, and the opinions
of the state’s expert witnesses could haven been challenged. And it demonstrated a
2
reasonable likelihood that, had such testimony been elicited at trial, the outcome
would have been different.
I agree with the majority that the evidence was sufficient to support
Chamberlain’s convictions (Division 1), that the trial court did not violate his right
to a public trial (Division 2), that the failure of Chamberlain’s trial counsel to object
to allegedly bolstering testimony did not constitute ineffective assistance of counsel
(Divisions 3 (b), (c), and (d)), and that the trial court did not err in allowing allegedly
bolstering testimony (Division 4). I disagree, however, with the majority’s rejection
of Chamberlain’s argument that his trial counsel was ineffective in failing to call an
expert witness on forensic interviewing (Division 3 (a)). Because Chamberlain has
shown that trial counsel was deficient in that omission and that the deficiency
prejudiced him, I respectfully dissent in part.
1. Deficiency.
As detailed below, this case involves trial counsel’s decision not to call an
expert witness on forensic interviewing based on trial counsel’s preconceived — and
erroneous — belief about what such an expert could offer the defense, which she
based on her past experience with expert witnesses in other cases rather than on an
investigation into the possible benefits of expert testimony to the defense of this
3
particular case. While decisions about how to respond to the opposing side’s expert
witnesses generally are a matter of trial strategy, see Gawlak v. State, 310 Ga. App.
757, 759 (2) (a) (714 SE2d 354) (2011), “strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation. In other words,
counsel has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Strickland v. Washington, 466 U.
S. 668, 690-691 (III) (A) (104 SCt 2052, 80 LE2d 674) (1984).
“In assessing the reasonableness of an attorney’s investigation, a court must
consider not only the quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney to investigate further.”
Chatman v. Walker, 297 Ga. 191, 193 (II) (B) (1) (773 SE2d 192) (2015) (citation and
punctuation omitted). And while an appellate court is “not limited in [its] assessment
of the objective reasonableness of lawyer performance to the subjective reasons
offered by trial counsel for [her] conduct,” Shaw v. State, 292 Ga. 871, 875 (3) (a) n.
7 (742 SE2d 707) (2013), a court “may not indulge ‘post hoc rationalization’ for
counsel’s decisionmaking that contradicts the available evidence of counsel’s
4
actions[.]” Harrington v. Richter, 562 U. S. 86, 109 (IV) (A) (1) (131 SCt 770, 178
LE2d 624) (2011) (citation omitted).
Here, the quantum of evidence known to trial counsel showed that the
credibility of B. C.’s outcry was central to the state’s case against Chamberlain. There
was no physical evidence of molestation and there was no other witness to the alleged
molestation. Moreover, there was evidence that might lead a jury to question the
outcry, discussed in detail in Division 2, below. Trial counsel’s defense centered on
challenging both B. C.’s claim that she was molested and B. C.’s claim that
Chamberlain was the perpetrator.
Without investigating the benefits of expert testimony regarding B. C.’s
forensic interview, however, Chamberlain’s trial counsel determined that such
evidence “[w]ouldn’t add one thing” to the defense. Explaining this assessment, she
stated:
Quite frankly, I haven’t had very much success with expert witnesses in
child molestation cases as to the interviewing procedures unless there
were questions about leading questions, not using open questions. But
I reviewed the videotape [of the forensic interview] and felt very
confident that — based on my prior experience, that [the interviewer]
had followed the common what I had seen over and over and over again,
the interviewing process with the anatomical dolls. Objected to that in
5
previous cases. It had been allowed in. With using the anatomical
drawings, it had been allowed in. In mean, it’s just — the attacks on
those things at the time are not — were not going to change the fact that
that was coming in, having lost those arguments in previous cases.
Trial counsel’s description of her past experiences, in which forensic interview
evidence had been “allowed in” despite her objection, suggests that she primarily
considered the use of expert testimony to challenge the admissibility of forensic
interview evidence, rather that its use to challenge the credibility of the outcry that
occurred in the forensic interview. Concluding from these past experiences that the
expert testimony would be of no use in keeping out the forensic interview, she did not
explore what credibility challenges an expert could make to B. C.’s outcry.
Chamberlain demonstrated that his trial counsel’s preconceived beliefs about
the benefits of expert evidence on forensic interviewing were wrong. At the hearing
on his motion for new trial, he presented expert testimony demonstrating the ways
that such evidence could have challenged the credibility of B. C.’s outcry. This expert
testimony raised several significant challenges to the methodology of B. C.’s forensic
interview, the statements elicited from the girl during that interview, and the opinions
of the state’s expert witnesses regarding that interview.
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Chamberlain’s expert testified that, had he been asked to testify in this case, his
testimony would have included statements that:
• the protocol used in B. C.’s interview had weaknesses and was no longer used
in Georgia;
• the interview contained several red flags that caused the expert concerns about
its validity and raised the possibility of a “false positive” conclusion of sexual
abuse, but the interviewer did not appropriately follow up on or respond to
those red flags;
• the interviewer engaged in leading questions and techniques;
• the interviewer’s use of anatomical drawings and dolls in the interview was a
controversial practice, and the interviewer appeared to lead B. C. through her
use of the dolls; and
• there was a strong possibility that B. C. had fabricated some of the details in
the interview.
Chamberlain’s expert also testified that he disagreed with aspects of the opinion
testimony given by the state’s experts at trial, and he would have criticized their
conclusion that B. C.’s behavior was “consistent with” child sexual abuse, noting that
“everything is consistent with child sexual abuse in terms of behavior so there isn’t
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any set of diagnostic behaviors that tell us a child has been sexually abused. [An
abused] child might have PTSD or they might have no symptoms at all.” Notably,
Chamberlain’s expert disputed the opinion of one of the state’s experts that there was
no evidence to suggest that B. C.’s father, rather than her uncle, was the real
perpetrator. He opined that a person such as B. C.’s father, who had shown an interest
in child pornography, was at greater risk to molest a child, and he testified about the
possibility of “perpetrator substitution,” rejecting the opinion of the state’s expert that
a child of B. C.’s age would not misidentify a perpetrator.
“When considering a claim of ineffectiveness, a critical distinction exists
between inadequate preparation and unwise trial strategy.” Tezeno v. State, 343 Ga.
App. 623, 631 (2) (808 SE2d 64) (2017) (citation omitted). Trial counsel’s decision
not to call an expert was not the product of a tactical decision, see id., but stemmed
from her failure to investigate the possible benefits of that evidence, apparently due
in great part to a misapprehension of how the evidence could be used. See Williams
v. Taylor, 529 U. S. 362, 395-396 (IV) (120 SCt 1495, 146 LE2d 389) (2000) (failure
to conduct investigation due to misunderstanding of applicable law, rather than a
strategic calculation, supported claim of ineffective assistance of counsel). Even
applying a heavy measure of deference to trial counsel’s decision not to investigate
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using expert testimony to challenge the credibility of B. C.’s outcry, see Strickland,
466 U. S. at 691 (III) (A), I find that her failure to conduct that investigation fell
below an objective standard of reasonableness. I see no potential advantage in simply
forgoing this potential line of defense, cf. Jones v. State, 325 Ga. App. 895, 898 (2)
(d) (755 SE2d 815) (2014) (discussing counsel’s strategic decision to forgo cross-
examination of witness in favor of “another tactical method or goal”), and no reason
why any lawyer would choose, for strategic reasons, to limit his or her investigation
in that manner.
2. Prejudice.
To show prejudice, Chamberlain must show a “reasonable likelihood that, but
for counsel’s error, the outcome of the trial would have been different.” Hood v.
State, 303 Ga. 420, 427 (2) (b) (811 SE2d 392) (2018) (citations omitted). He has met
this burden.
As noted above, the credibility of B. C.’s outcry was central to the state’s case
against Chamberlain, because there was no physical evidence of molestation and
there was no other witness to the alleged molestation. And there was evidence that
might lead a jury to question the outcry. At one point B. C. recanted her outcry. Her
mother and father, who were divorced, had an acrimonious relationship. For years B.
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C. had complained about having to visit her father, who lived with Chamberlain, and
had accused her father of neglect and abusive behavior on those visits. B. C.’s father
admitted to having possessed child pornography and having posed as an 18-year-old
in an online relationship with a minor.
Given the importance of B. C.’s outcry to the case and the existence of
evidence from which a jury could doubt the outcry, trial counsel’s failure to challenge
the credibility of the outcry through expert testimony was a mistake that prejudiced
Chamberlain’s defense. There is a reasonable likelihood that, had trial counsel
presented at trial the type of expert opinion offered at the hearing on the motion for
new trial, the outcome of the trial would have been different.
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