In Cobb v. Hart, the Supreme Court of Georgia affirmed the denial of habeas relief to the defendant based on ineffective assistance of counsel.
The defendant was convicted in 2005 of child molestation and other crimes involving his three daughters and was sentenced to life in prison plus 140 years. His conviction was upheld by the Court of Appeals in 2009. In 2010, the defendant filed for habeas relief on several grounds, including ineffective assistance of appellate counsel based on the admission at trial of a videotaped forensic interview of the defendant’s daughter, H.C., who was fourteen at the time of the interview, and sixteen at the time of trial. The habeas court denied relief. On appeal, the Georgia Supreme Court considered whether trial counsel properly preserved any issue related to the alleged improper admission of the video, and if so, whether the habeas court erred in concluding that appellate counsel was not ineffective.
The record showed that trial counsel filed a pretrial motion in limine to exclude videotaped forensic interviews of the defendant’s three daughters. The motion alleged that the interviews should be excluded because the videos included improper opinion testimony of the interviewers, inadmissible hearsay not subject to the child hearsay exception, and improper references to a previous conviction and incarceration which placed the defendant’s character into question. The trial court denied the motion. At trial, counsel renewed his objection before the interview of H.C. was played to the jury. The trial court denied the motion and the interview was played for the jury. H.C. testified at trial and was subject to cross-examination.
The Georgia Supreme Court held that regardless of whether the interview was admissible under the child hearsay statute, it was admissible as a prior consistent statement. The Court cited prior decisions that have held that prior consistent statements are admissible where the declarant’s veracity was at issue and the declarant testified at trial and was subject to cross-examination. The Court noted that H.C.’s veracity was placed at issue when defense counsel posed questions which implied that H.C. met with the defendant’s adult niece, whom he had molested when the niece was a child, and planned to make their trial testimonies consistent with each other. Because H.C.’s veracity was called into question and she was available at trial and subject to cross-examination, the Court held that the interview was admissible as a prior consistent statement.
Because the interview was admissible as a prior consistent statement, the Court concluded that the defendant was not harmed by appellate counsel’s failure to raise this issue on appeal. Thus, the Court held that appellate counsel was not constitutionally ineffective, and the denial of habeas relief was affirmed.
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