CASH v. The STATE No. A08A1310 Court of Appeals of Georgia

Howard J. Weintraub

Practice Area:Child Abuse

Outcome:JUDGMENT REVERSED ON APPEAL

Description:CASH v.The STATE Howard J. Weintraub, Atlanta, GA for appellant. The State argues that any error was harmless because other legally admissible evidence of the statements was admitted at trial. See Hanson v. 735*735 State, 263 Ga.App. 45, 46-47(1), 587 S.E.2d 200 (2003). But as our Supreme Court clarified in Baugh v. State, 276 Ga. 736, 585 S.E.2d 616 (2003): The State argues that any error was harmless because other legally admissible evidence of the statements was admitted at trial. See Hanson v. 735*735 State, 263 Ga.App. 45, 46-47(1), 587 S.E.2d 200 (2003). But as our Supreme Court clarified in Baugh v. State, 276 Ga. 736, 585 S.E.2d 616 (2003): We have often said that the erroneous admission of hearsay is harmless error where legally admissible evidence of the same fact is introduced. See, e.g., Felder v. State, 270 Ga. 641(8), 514 S.E.2d 416 (1999). However, that rationale is inapplicable when the hearsay is the prior consistent statement of a testifying witness whose veracity has not been attacked. This is so because the very nature of a prior consistent statement is that it is repetitive of that to which the witness has already testified. Instead when the hearsay is a witness's prior consistent statement, the erroneous admission of the witness's hearsay statement is reversible error if it appears likely that the hearsay contributed to the guilty verdict.The State argues any error in the admission of the victim's prior consistent statements was harmless because Cash admitted an act of oral sodomy occurred to Camp and Nix and he admitted to Courtney that something occurred. But Cash testified at trial and denied that any acts of oral sodomy took place and offered an explanation for both his statement to police and to Courtney. Moreover, he never admitted that anything occurred the night before the Savannah track meet or in Iowa. He also offered the testimony of two witnesses who refuted the victim's account of the events that night, including when the members of the group, including the victim, fell asleep and when Cash went to bed. Inasmuch as there was no physical evidence to present to the jury, the jury was required to evaluate the credibility of the victim and Cash to determine if the crime took place. We agree with Cash that the improper bolstering of the victim's credibility added critical weight to her testimony and did contribute to the verdict. Phillips, 241 Ga.App. at 767-768, 527 S.E.2d 604; see also Warner v. State, 277 Ga.App. 421, 423(1), 626 S.E.2d 620 (2006). Although the State does not argue that Cash's failure to object at trial to the introduction of the videotaped statement of the victim about the incidents or to her father's testimony concerning what she told him about the Iowa incident necessitates that these statements be analyzed differently, we will also address Cash's separate claim that this failure denied him effective assistance of counsel at trial. Although the State argues "trial counsel made a strategic decision to present all of [the victim's] statements as an attempt to discredit her through her discrepancies," trial counsel testified at the motion for new trial hearing that his failure to object was not part of his trial strategy and that he "should have objected each time anybody relayed hearsay from that victim..." Because the statements were not legally admissible evidence and should have been excluded upon proper objection, the performance of trial counsel fell below an objective standard of reasonableness when he failed to object at trial. See Forde v. State, 289 Ga.App. 805, 808, 658 S.E.2d 410 (2008). It follows that this failure resulted in harm to Cash, thereby satisfying the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But see Forde, 289 Ga.App. at 809, 658 S.E.2d 410. Based on the foregoing, we find that Cash is entitled to a new trial. It is thus unnecessary for us to address his remaining enumerations of error.

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