Stroud v. State

Citations: 644 S.E.2d 467; 284 Ga. App. 604; 2007 Fulton County D. Rep. 1130; 2007 Ga. App. LEXIS 374Docket: A06A1817

Court: Court of Appeals of Georgia; March 28, 2007; Georgia; State Appellate Court

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Darrell Stroud was convicted of multiple sexual offenses against his stepdaughters, C.S. and Q.S., occurring between November 1995 and March 2001. On appeal, Stroud claimed insufficient evidence and ineffective assistance from his trial counsel, but the Court of Appeals of Georgia affirmed the conviction, finding no reversible error.

Evidence presented included an incident in 1996 where Q.S. reported to her aunt that Stroud had been "messing with her private areas." However, after questioning, Q.S. attributed the issue to a schoolboy instead, leading to a police investigation that deemed the allegations against Stroud unfounded. In March 2001, C.S. wrote a letter to her principal expressing fear and detailing abuse, including statements that Stroud had raped her and threatened to kill her if she spoke out. 

The principal notified a social worker, who had previously been involved with C.S.'s family concerning allegations of sexual abuse. Initially, both C.S. and Q.S. denied any abuse, but after further communication, C.S. disclosed the abuse by Stroud. The investigation expanded, and while a police officer testified that Q.S. later corroborated the abuse, C.S. did not provide direct statements to the officer. Medical examinations conducted by Dr. Booker Poe found no physical signs of abuse, but he noted that lack of physical evidence does not preclude the occurrence of sexual abuse, depending on various factors.

In April 2001, psychotherapist Harriet Davis conducted interviews with two girls, C.S. and Q.S., regarding allegations of sexual abuse by Stroud. C.S., aged ten, preferred to write about the abuse, revealing that Stroud had frequently touched her inappropriately and had raped her multiple times. She defined "rape" as Stroud placing his penis into her vagina, describing the act in detail, including the presence of a thick, white substance that sometimes entered her body. C.S. also recounted instances of anal penetration, stating that Stroud used Vaseline and faced difficulties keeping his penis inside her. She indicated that Stroud had also forced her to perform oral sex and had touched her breasts. Fear of not being believed and threats from Stroud prevented her from disclosing the abuse to her mother until she eventually wrote a letter to her principal.

Q.S., who was nine at the time, described an incident at age four where Stroud forced anal intercourse on her, which she found painful despite her pleas for him to stop. She noted that while there were no further sexual assaults, Stroud had physically abused her by throwing objects and whipping her. At trial, Davis testified as an expert in forensic interviewing and child sexual abuse treatment, explaining that children's disclosures of abuse often occur in stages and may not be clear or linear. She emphasized that children frequently do not disclose abuse to their mothers, especially when the abuser is someone close to them. In May 2001, Dr. Randell Alexander assessed the girls. C.S. acknowledged the purpose of her visit related to sexual abuse allegations, while Q.S. disclosed that Stroud had touched her vaginal area during the summer of 2000, denying any oral sex.

Alexander conducted a physical examination of the girls, revealing no injuries or abnormalities. At trial, he testified as a pediatrics and child abuse expert, noting that approximately 80% of children suspected of sexual abuse show no physical signs, with only 20% displaying some form of injury. He explained that fondling typically does not leave scars and that superficial injuries heal quickly, often becoming unnoticeable. He elaborated that anal penetration is unlikely to leave permanent scars due to the anus's ability to heal rapidly.

The girls' mother recounted her ongoing inquiries about inappropriate touching by Stroud, to which the girls denied any wrongdoing. However, she expressed discomfort with instances of the girls lying in bed with Stroud. After charges were filed against Stroud, Q.S. disclosed to her mother that Stroud had sexually abused her. C.S., aged 13 at trial, testified that between ages four and ten, Stroud had sexually assaulted her, including threats to kill her if she revealed the abuse. The jury found Stroud guilty on multiple counts, including forcible rape and aggravated sexual battery against C.S.

Q.S., aged 12 at trial, also testified that Stroud had sexually abused her from ages four to nine, describing similar acts and mentioning that Stroud used baby lotion or Vaseline. The jury found Stroud guilty of forcible rape and aggravated child molestation regarding Q.S. Stroud argued that the state failed to prove the element of force necessary for the rape charge under OCGA § 16-6-1(a)(1). However, Q.S.'s testimony, including her feelings of discomfort and fear, along with her previous attempts to escape due to Stroud's actions, provided sufficient evidence to establish that the acts were committed forcibly.

Stroud claims the state did not prove venue, which must be established in the county where the crime occurred as a jurisdictional fact. Venue is a crucial element that the prosecution must prove beyond a reasonable doubt using direct or circumstantial evidence. Witnesses C.S. and Q.S. testified that Stroud committed acts at their homes, first at the Oakland City Apartments on Oakland Lane and later at 465 Holly Street. An investigating officer confirmed both locations are in Fulton County. Since Stroud provided no counter-evidence, the court concluded that the state sufficiently proved venue in Fulton County.

Additionally, Stroud argues the trial court erred in rejecting his claim of ineffective assistance of counsel. To succeed, he must demonstrate that his counsel's performance was deficient and that this deficiency likely affected the trial's outcome. The review process involves upholding the trial court's factual findings unless clearly erroneous while assessing legal conclusions de novo. Stroud contends his counsel was ineffective for not moving to quash the indictment, which he claims was vague due to its use of a date range rather than specific dates. While an indictment can be challenged for lack of specificity, it may be acceptable when the evidence does not permit a precise date. Stroud claims this ambiguity could potentially invoke the Statute of Limitations. However, Georgia law (OCGA § 17-3-1) provides a four-year limitation for certain felonies but excludes crimes against minors and life-punishable offenses like rape, both of which applied to Stroud's case, allowing for at least a seven-year limitation. The indictment, filed on September 6, 2002, was timely as it referenced acts occurring after November 9, 1995.

Evidence indicated that the offenses occurred within the statute of limitations. Stroud did not demonstrate that the absence of specific dates in the indictment hindered his defense or warranted a quash. The court found no reasonable likelihood that Stroud's trial outcome would differ had his counsel moved to quash. 

Stroud contended ineffective assistance due to defense counsel's failure to object when the trial court incorrectly instructed the venire jury to presume guilt. Although the judge later clarified that defendants are presumed innocent until proven guilty, he acknowledged a potential error in his earlier statement. The court concluded that even if the judge's misstatement occurred, the correct final jury instruction negated any reasonable probability of a different trial outcome.

Stroud also argued ineffective assistance related to the use of peremptory strikes against two jurors instead of seeking their dismissal for cause. The first juror acknowledged forming an opinion from media coverage but asserted she could set aside her biases and evaluate evidence impartially. The second juror admitted a family connection to a conviction for child molestation but also expressed her commitment to base her decision solely on trial evidence. The court found no basis for claiming ineffective assistance in these decisions.

A juror acknowledged that her knowledge of her cousin's crime would partially influence her impartiality but affirmed her ability to remain fair. A juror can only be disqualified for cause if their opinion is so entrenched that they cannot set it aside to decide the case solely on evidence and the court's instructions. The trial court has discretion in this matter, as it can observe jurors' demeanor. Precedents from the Supreme Court of Georgia illustrate that a trial court is not required to dismiss a juror merely because they express concerns about their impartiality. In the cases of Johnson v. State and Hollis v. State, jurors with personal connections to violent crimes expressed doubts but were ultimately deemed capable of impartiality, with courts upholding the trial court's discretion. 

Stroud argued ineffective assistance of counsel, claiming he wanted to testify but was prohibited by his attorney. He stated he would have declared his innocence and provided evidence of his character had he testified. However, his attorney contended that Stroud did not wish to testify and believed his defense would be stronger without his testimony. The trial court concluded that Stroud made an informed decision not to testify. Stroud failed to demonstrate prejudice, as he did not provide specifics to support his innocence or evidence of good character. The jury was properly instructed that Stroud denied the charges, leading to the conclusion that his testimony would likely not have changed the trial's outcome.

Stroud contends that his defense counsel provided ineffective assistance by failing to object to the trial court's omission of a definition for "foreign object" in relation to the aggravated sexual battery charge. Under OCGA § 16-6-22.2, aggravated sexual battery involves the intentional penetration of another person with a foreign object, defined as any item other than a sexual organ. The jury was instructed to convict Stroud only if they found he committed the crime as outlined in the indictment, which specified that he penetrated C.S.'s sexual organ "with a foreign object, to wit: his fingers." The court found no reasonable probability that a separate definition of "foreign object" would have changed the trial's outcome.

Stroud also argues ineffective assistance due to his defense attorney's failure to object when he was allegedly absent during a critical trial stage. During deliberations, the jury inquired whether uncorroborated child testimony applied to the charges against Stroud, and the judge responded affirmatively without confirming Stroud's presence. Defense counsel could not recall the specifics of the event, while Stroud claimed he was unaware of the communication until preparing for a new trial motion. The court noted that the right to be present at critical stages does not extend to charge conferences, which do not automatically require the defendant's presence. Furthermore, even if there was improper jury communication, such errors could be deemed harmless, and Stroud failed to demonstrate any actual prejudice affecting his trial's outcome.

Additionally, Stroud asserts ineffective assistance due to counsel not objecting to the court's instruction that jurors should not infer negatively from his choice not to testify. Although Stroud had requested a specific charge that mirrored the Suggested Pattern Jury Instructions, the court's instruction sufficiently covered the principle, indicating that he was not entitled to the exact language requested.

The trial court instructed the jury that a defendant in a criminal case is not obligated to present evidence of innocence or testify, and that if the defendant chooses not to testify, this decision should not negatively influence the jury's deliberations. While acknowledging errors in the instruction, the court noted that it correctly communicated Stroud's lack of duty to testify and that his choice not to do so could not be used against him. Consequently, there was no reasonable probability that the trial's outcome would have changed due to this instructional deficiency.

Stroud also contended that his trial counsel was ineffective for failing to object to the prosecutor's improper closing remarks, which suggested that a not guilty verdict would imply that the witnesses were liars and could lead jurors to disregard the court's instructions. The court reiterated that such remarks are inappropriate as they distract jurors from their duty to base their verdict solely on the law and evidence, and that disparaging the criminal justice system is unacceptable. The prosecutor's comments were condemned, and the absence of an objection or curative instruction was deemed a deficiency in counsel's performance.

However, for Stroud to prove ineffective assistance of counsel, he must demonstrate that this deficiency was prejudicial and that it likely affected the trial's outcome. The court found that Stroud failed to meet this burden due to the overwhelming evidence against him, including consistent testimony from the victim, C.S., and corroborating observations by her mother regarding Stroud's behavior. Additionally, evidence indicated that Stroud had committed similar acts against another victim, Q.S.

Pretrial inconsistencies in a witness's statements were noted, but expert testimony indicated that children may disclose sexual abuse to different people and that such disclosures can occur in stages. Evidence confirmed that Stroud was abusing C.S. in their home over several years, despite medical examinations showing no physical abnormalities. Expert medical testimony further supported that sexual abuse often lacks permanent physical manifestations. Given this context, it was determined there was no reasonable probability that Stroud's trial outcome would have changed if his counsel had objected to improper remarks. The judgment affirming Stroud's conviction was upheld, with the concurrence of judges Smith and Ruffin. References to relevant cases and legal standards were included, underscoring the principles of ineffective assistance of counsel and the evaluation of jury charges.

The trial court did not abuse its discretion in determining the qualifications of a juror who believed that 99.9% of criminal defendants were guilty but claimed he could be fair. Similarly, in a child molestation case, the court did not err in refusing to excuse a juror who expressed potential bias due to personal circumstances but later indicated she would strive to remain impartial and base her decision solely on the evidence. The document references several precedents, including Wilson, Garland, and others, emphasizing the duty of counsel to investigate and advise, while the defendant ultimately decides whether to testify. It clarifies that a finger qualifies as a "foreign object" in aggravated sexual battery cases. Additionally, it outlines conditions under which courts may presume prejudice regarding ineffective assistance of counsel claims. The instructions state that if a defendant does not testify, no adverse inference should be drawn against them. The excerpt mentions the potential for transcription errors and the process for rectifying such discrepancies under Georgia law, noting that the state did not provide evidence of corrections in this case.

Jurors are reminded they have the right to question the law presented by the trial court, specifically regarding the credibility of the victims in the case against Stroud. The prosecutor's comments suggest that a not guilty verdict implies the victims fabricated their allegations, prompting concerns about the implications of such a decision. Stroud's brief highlights the prosecutor's assertion that if jurors found him not guilty, it would mean they believed the victims lied to various authorities, which could undermine the integrity of the legal process. The prosecutor expresses discontent with the legal system's treatment of victims, implying a bias that protects abusers. Judicial precedents suggest that the prosecutor's remarks exceeded acceptable bounds and warranted corrective action from the court, even in the absence of an objection. The statute OCGA 17-8-75 mandates the court to intervene against prejudicial statements made before the jury and to take necessary steps to mitigate their impact.