NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 16, 2023
S23A0224. SMITH, WARDEN v. CHANDLER.
BOGGS, Chief Justice.
At a jury trial in 2017, Erasmus Chandler was found guilty of
aggravated child molestation and two counts of child molestation. In
2019, the Court of Appeals affirmed his convictions in an
unpublished opinion. Chandler later filed a pro se petition for
habeas corpus, which the habeas court granted in 2022 on the
ground that Chandler’s appellate counsel provided ineffective
assistance at the motion for new trial stage and on appeal, including
by failing to raise and prove claims of ineffective assistance of trial
counsel. Warden Aimee Smith appeals, arguing that the habeas
court erred in admitting an exhibit at the habeas hearing and in
determining that Chandler’s appellate counsel provided ineffective
assistance.1
At the habeas hearing, the warden did not object to the
admission of the challenged exhibit for the limited purpose for which
it was admitted, and now on appeal the warden has not shown plain
error in its admission. Moreover, the habeas court properly
determined that Chandler’s appellate counsel provided ineffective
assistance at the motion for new trial stage and on appeal by failing
to raise and prove a claim of ineffective assistance of trial counsel
for failing to impeach the alleged victim’s testimony at trial with
evidence that she had made prior inconsistent statements about the
alleged abuse. We affirm the habeas court’s grant of relief on this
basis.
1. The record shows as follows. In September 2014,
Chandler and his live-in girlfriend, Christina Williams, moved with
1 The warden also argues that the habeas court erred in granting relief
on three claims of ineffective assistance of trial counsel that she contends were
not properly raised in the habeas proceeding and were procedurally defaulted.
In light of our conclusion that the habeas court properly granted relief on
another basis, we need not address the warden’s argument in this regard.
2
Williams’ three daughters and Chandler and Williams’ two younger
children from Montgomery, Alabama, to Augusta, Georgia, where
Williams worked at a cell phone store and Chandler cared for the
children. In February 2015, Chandler and Williams drove with the
children to Montgomery to visit family and to celebrate the
fourteenth birthday of Williams’ oldest daughter, N.C. During the
trip, when Williams was telling N.C. and another daughter that they
needed to do a better job with their chores, N.C. told Williams that
Chandler had been “touching on” N.C. for years and that N.C.
thought that she might be pregnant by Chandler. After Williams
confronted Chandler, Williams, Chandler, and N.C. got into the
family van, where Williams had N.C. repeat the allegations to
Chandler. Chandler angrily denied the accusations and demanded
that they take N.C. to a hospital immediately.
The next morning, Williams drove back to Augusta with the
children and took N.C. to Doctors Hospital of Augusta, where the
medical staff contacted law enforcement and determined that N.C.
was not pregnant. Several days later, Denise Field conducted a
3
forensic interview of N.C., which was played for the jury at
Chandler’s trial. During the interview, N.C. told Field that she was
in special education classes and that Chandler had licked her vagina
and breasts and put something inside of her vagina while he was on
top of her.
On August 4, 2015, a Richmond County grand jury indicted
Chandler for aggravated child molestation by placing his mouth on
N.C.’s vagina and two counts of child molestation by placing an
unknown object in N.C.’s vagina and by placing his mouth on N.C.’s
breast. Chandler was subsequently arrested.
At Chandler’s trial in 2017, Williams testified that N.C. had a
learning disability, was in special needs classes, read below her
grade level, and developed behavioral issues, including extreme
anger and suicidal thoughts, around the age of nine or ten, the
timeframe when N.C. said that Chandler began abusing her.
Williams acknowledged that N.C. sometimes lied about “petty
things” and that N.C. wrote in her diary about how much she hated
Chandler, did not want Williams to marry him, and wanted a new
4
family but did not write anything about the alleged inappropriate
behavior by Chandler aside from an entry that N.C. “scribbled real
quick” after the allegations arose but dated to a time before the
birthday trip to Montgomery. Williams also acknowledged that she
at one point had doubts about N.C.’s allegations due to the hastily
scribbled diary entry but later came to believe the allegations
because N.C.’s statements had been “very consistent” over time.
Williams testified that Chandler admitted that he helped N.C. apply
cream to a bump on N.C.’s vagina when N.C. was 13 and Williams
was at work. Williams further testified that N.C. had complained in
the past about Chandler coming into her bedroom and looking at her
when she was seven or eight years old. N.C. testified that Chandler
had licked her vagina and breasts and put something inside her
vagina when he was on top of her, and Field testified about N.C.’s
forensic interview and the disclosure process for children who have
been sexually abused.
Chandler testified at trial and adamantly denied all the
allegations against him, including Williams’ claim that he admitted
5
touching N.C.’s vagina to apply cream to a bump. Chandler also
called Officer Jacob Green of the Richmond County Sheriff’s Office,
who spoke to Williams and N.C. at the hospital. However, Officer
Green was not allowed to testify about what N.C. said, because the
trial court sustained the State’s hearsay objection on the ground
that Chandler’s counsel did not file a notice of intent to introduce
child hearsay. The jury found Chandler guilty of all charges, and he
was sentenced to serve a total of 50 years in prison followed by life
on probation.
Chandler filed a motion for new trial, which he amended with
new appellate counsel, claiming that the evidence was insufficient
to support his convictions and that the trial court erred in allowing
Williams to testify that, although she at one point had doubts about
N.C.’s allegations due to the diary entry that N.C. “scribbled real
quick” after the allegations arose, she later came to believe them
because N.C.’s statements had been “very consistent” over time.
After a hearing at which Chandler did not produce any evidence and
instead presented only argument, the trial court denied the motion.
6
Chandler, represented by the same counsel, appealed, again raising
the two claims that he raised in his amended motion for new trial.
On May 21, 2019, the Court of Appeals issued an unpublished
opinion rejecting Chandler’s sufficiency claim, finding no plain error
from improper bolstering, and affirming the trial court’s judgment.
On November 8, 2019, Chandler filed a pro se petition for
habeas corpus, which he later amended, raising several claims of
ineffective assistance of appellate counsel. The habeas court held an
evidentiary hearing over two days in early 2021 at which Chandler’s
appellate counsel, James Rogers, and his trial counsel, Sean
Gamble, both testified. Chandler introduced into evidence Habeas
Exhibit 10, a page from N.C.’s medical records that included a note
from Nurse Angela A. Haustad that said: “Pt. told officer that she
has only touched [sic] by step father no sexual penetration occurred,
told officer that they fight often.” Chandler also introduced Habeas
Exhibit 14, another page from N.C.’s medical records, which
included a note from Dr. Thomas L. Zickgraf that said that N.C. was
7
“unsure if she has been sexually penetrated by [Chandler’s] penis in
the past vaginally” and that she “denies any oral contact.”2
On July 28, 2022, the habeas court entered a lengthy Final
Order Granting Habeas Corpus Relief. The habeas court found that
both Gamble and Rogers failed to grasp the importance of these
notes in N.C.’s medical records. The habeas court determined that
Gamble was professionally deficient for, among other things, failing
to impeach N.C. by cross-examining her about her prior inconsistent
statements contained in Habeas Exhibit 10 and Habeas Exhibit 14
and, if she denied or claimed not to remember making them, failing
to introduce the exhibits. The habeas court also determined that this
deficient performance prejudiced Chandler, because “[t]he jury was
completely unaware of the alleged victim ever being inconsistent or
2 Dr. Zickgraf’s note said in full:
Pt. reports that since the age of 10 beginning in Alabama she has
been repeatedly sexually assaulted by her mother’s husband. She
reports last time was about the first week of February. She reports
that he looks at her private parts and touches her. She is unsure if
she has been sexually penetrated by his penis in the past vaginally
and denies any oral contact. She reports vaginal spotting over the
last week and nausea. She denies any physical trauma as a result
of her interactions with her mother’s husband.
8
denying the allegations that she made against” Chandler, and the
outcome of the case hinged on N.C.’s credibility. 3 The habeas court
further determined that Rogers was professionally deficient at the
motion for new trial stage and on appeal for, among other things,
failing to raise and prove this claim of ineffective assistance of trial
counsel in addition to the two weaker issues that Rogers decided to
raise. The habeas court also determined that, but for Rogers’
deficient performance, there is a reasonable probability that the
outcome of his appeal would have been different. The warden filed a
timely notice of appeal.
2. The warden contends that the habeas court erred when it
admitted Habeas Exhibit 10 over her hearsay objection, because
N.C.’s statements within the document were inadmissible hearsay.
However, at the habeas hearing, although the warden objected to
the admission of Habeas Exhibit 10 to prove the truth of the
statements therein, she said that she had “no objection” to the
3 As discussed below, the jury was aware of minor inconsistencies in the
details of N.C.’s allegations of abuse.
9
admission of the exhibit for “the limited purpose” of showing
whether Gamble was aware of the document and how he used it in
his representation of Chandler. The habeas court then admitted
Habeas Exhibit 10 “for that purpose.” The warden now argues that
the exhibit should not have been admitted at all. The warden did not
make this argument in the habeas court, so we review the habeas
court’s ruling only for plain error. Cf. Crayton v. State, 298 Ga. 792,
799 (784 SE2d 343) (2016) (reviewing only for plain error where
counsel stated that he had no objection to the admission of
documentary evidence).
To show plain error, the warden must point to a legal error that
was not affirmatively waived, was obvious beyond reasonable
dispute, likely affected the outcome of the proceedings, and seriously
affected the fairness, integrity, or public reputation of judicial
proceedings. See Lupoe v. State, 300 Ga. 233, 243 (794 SE2d 67)
(2016). The failure to establish any one of these elements is fatal to
the warden’s plain error claim. See Wright v. State, 315 Ga. 459, 462
(883 SE2d 294) (2023).
10
We conclude that the warden has failed to point to a clear legal
error by the habeas court. OCGA § 24-8-801 (c) defines “hearsay” as
an out-of-court statement “offered in evidence to prove the truth of
the matter asserted” in the statement. The habeas court admitted
Habeas Exhibit 10 for the limited purpose of showing whether
Gamble was aware of it and how he used it in his representation of
Chandler, not to prove the truth of the statements that N.C. had
“only [been] touched” by Chandler or that “no sexual penetration
occurred.” Accordingly, the warden has failed to show error, much
less plain error, in the habeas court’s admission of the exhibit over
her hearsay objection.
3. The warden also contends that the habeas court erred in
determining that Chandler’s appellate counsel was ineffective. “In
reviewing the grant or denial of a petition for habeas corpus, this
Court accepts the habeas court’s factual findings and credibility
determinations unless they are clearly erroneous, but we
independently apply the law to the facts.” Luckie v. Berry, 305 Ga.
684, 691 (827 SE2d 644) (2019) (cleaned up).
11
(a) To prevail on a claim of ineffective assistance of appellate
counsel, a habeas petitioner must show that his appellate counsel’s
performance was deficient and that the deficiency prejudiced the
outcome of his appeal. See Cartwright v. Caldwell, 305 Ga. 371, 378
(825 SE2d 168) (2019). See also Strickland v. Washington, 466 U.S.
668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To establish deficient
performance, the petitioner must show that his appellate counsel
performed his duties in an objectively unreasonable way,
considering all the circumstances at the time and in the light of
prevailing professional norms. See Cartwright, 305 Ga. at 378. To
establish the required prejudice, the petitioner must show that, but
for his appellate counsel’s unprofessional errors, there is a
reasonable probability that the result of his appeal would have been
more favorable. See id. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694.
When the petitioner contends that his appellate counsel
performed deficiently by failing to properly raise or prove a claim of
12
ineffective assistance of trial counsel, in order to establish the
required prejudice, “the petitioner must demonstrate that the
underlying ineffectiveness-of-trial-counsel claim would have had a
reasonable probability of success.” Cartwright, 305 Ga. at 378. In
other words, to establish the prejudice required to prevail on this
type of ineffective assistance of appellate counsel claim, a habeas
petitioner must show that his trial counsel’s performance was
professionally deficient and that, but for the deficiency, there is a
reasonable probability that the outcome of his trial would have been
more favorable. See Gramiak v. Beasley, 304 Ga. 512, 513 (820 SE2d
50) (2018). Accordingly, we turn first to whether Chandler was
denied the effective assistance of counsel at trial.
(b) At Chandler’s trial, N.C. testified that Chandler had
licked her vagina and breasts and put something inside her vagina
when he was on top of her, and these alleged acts were the basis for
the charges of child molestation and aggravated child molestation
against Chandler. But according to N.C.’s medical records, she made
statements at the hospital that she had “only [been] touched” by
13
Chandler, that “no sexual penetration occurred,” and “den[ying] any
oral contact.” Gamble briefly cross-examined N.C. at trial but did
not ask her a single question about her statements at the hospital
as reflected in the medical records, even though those statements
likely would have been admissible as prior inconsistent statements.
See Nicholson v. State, 307 Ga. 466, 472 (837 SE2d 362) (2019) (“A
prior inconsistent statement of a witness who takes the stand and is
subject to cross-examination is admissible as substantive evidence.”
(cleaned up)). Moreover, if, on being confronted with the statements
by Gamble, N.C. had denied or claimed not to remember making
them, then Habeas Exhibit 10 and Habeas Exhibit 14 would have
been admissible as extrinsic evidence of the prior inconsistent
statements. See OCGA § 24-6-613 (b) (providing for the admission of
extrinsic evidence of a prior inconsistent statement if “the witness is
first afforded an opportunity to explain or deny the prior
inconsistent statement and the opposite party is afforded an
opportunity to interrogate the witness on the prior inconsistent
statement”). See also OCGA § 24-8-801 (d) (1) (A) (excluding such
14
statements from the definition of hearsay if the declarant testifies
at trial and is subject to cross-examination concerning the
statement).
At the habeas hearing, Gamble testified that his defense
strategy was to show the jury that N.C. “was lying, and she wasn’t
trustworthy, and she didn’t like [Chandler], and she was making
this up because she didn’t like [Chandler].” Impeaching N.C. with
her own prior statements and denials as reflected in the medical
records would have strongly supported the defense strategy by
putting evidence before the jury that she had been significantly
inconsistent in her allegations of abuse, information that the jury
did not otherwise have. Although the scope of cross-examination will
rarely support a claim of deficient performance, under these
circumstances, no reasonably competent defense attorney would
have decided against presenting this impeachment evidence to cast
doubt on the credibility of the State’s key witness. See Cartwright,
305 Ga. at 379.
15
In order to show prejudice, Chandler was not required to show
that Gamble’s failure to use the impeachment evidence “more likely
than not altered the outcome of the case,” only that “the likelihood
of a result more favorable” to him is great enough “to undermine
confidence in the outcome.” Strickland, 466 U.S. at 693-695.
Chandler made that showing here.
The entire case against Chandler was one built on N.C.’s
statements about her alleged abuse, and on N.C.’s credibility. No
physical evidence supported N.C.’s allegations. All the State’s
evidence that the charged crimes had occurred traced back to
statements made by N.C. The testimony of N.C., and of Williams
and Field about what N.C. told them, was certainly sufficient to
support Chandler’s convictions, see Jackson v. Virginia, 443 U.S.
307, 319 (99 SCt 2781, 61 LE2d 560) (1979); OCGA § 24-14-8 (“The
testimony of a single witness is generally sufficient to establish a
fact.”). But the evidence of Chandler’s guilt was not overwhelming,
particularly in light of his adamant denials of N.C.’s accusations;
Williams’ testimony that N.C. sometimes lied and hated Chandler;
16
and N.C.’s creation, after she made the accusations, of a backdated
entry in her diary that for the first time talked about the things that
she claimed that Chandler did to her. See Strickland, 466 U.S. at
696 (“[A] verdict or conclusion only weakly supported by the record
is more likely to have been affected by errors than one with
overwhelming record support.”).
Had the jury been presented with N.C.’s prior inconsistent
statements and denials of the alleged abuse, there is a reasonable
probability that the outcome of the trial would have been different.
The jury heard evidence that N.C. was sometimes untruthful, but it
did not hear that, according to her medical records, she had been
significantly inconsistent in the very allegations of abuse that
formed the basis for the charges against Chandler. To be sure,
despite the habeas court’s statement that the jury was “completely
unaware of the alleged victim ever being inconsistent” in her
allegations against Chandler, there was some evidence of minor
inconsistencies about the details of the abuse, but those
inconsistencies were not material to the habeas court’s conclusion
17
that Gamble’s deficient performance prejudiced the defense.4
Presented with N.C.’s prior denials, jurors may well have concluded
that N.C.’s trial testimony against Chandler, like the hastily
scribbled entry in her diary, was a deliberate fabrication designed to
harm Chandler. Moreover, without the impeachment evidence, it
was just Chandler’s testimony against that of N.C., Williams, and
Field. We are not confident that the jury would have reached the
same result if presented with this impeachment evidence. See id. at
694 (“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”). Thus, Chandler has shown
Strickland prejudice from Gamble’s deficient performance at trial.
The warden resists this conclusion, arguing that in order to
show prejudice from Gamble’s deficient performance, Chandler was
required to call N.C. to testify at the habeas hearing or to present
an appropriate substitute for her sworn testimony such as an
affidavit to show how she would have responded when confronted
4 N.C.’s allegations about when the abuse started were somewhat
unclear, and she was inconsistent about whether an object was put in her
vagina once or more than once.
18
with her prior inconsistent statements. The important point for
purposes of assessing prejudice here is that Gamble’s failure to
introduce the prior inconsistent statements deprived Chandler of
the only evidence of N.C. denying the allegations at issue, which
would have been support different in kind from any other evidence
that he had to show that she was lying and untrustworthy.
Whatever N.C. might have testified on cross-examination could not
have had the effect of erasing that evidence entirely: even if she
could have cast doubt on or contested the accuracy of the statements,
they remained the only evidence of her denying the allegations at
issue and thus were still of substantial importance to a defense
grounded in trying to discredit N.C. Under these circumstances,
calling N.C. to testify at the habeas hearing was not necessary to
establish prejudice. See Cartwright, 305 Ga. at 379-381 (reversing
denial of habeas relief based on counsel’s failure to impeach a key
State witness with evidence of a prior inconsistent statement,
despite the lack of testimony or an affidavit from the witness
showing how he would have responded to the impeachment
19
evidence, given the less than overwhelming evidence of guilt,
counsel’s chosen theory of defense, and the importance of the
witness’ testimony to the State’s case).
(c) Because Chandler has shown that his trial counsel
provided ineffective assistance, any deficiency in his appellate
counsel’s failure to raise and prove that ineffectiveness-of-trialcounsel claim prejudiced his appeal. See id. at 381; Gramiak, 304
Ga. at 513. Thus, the only remaining question is whether Rogers
was professionally deficient in failing to raise and prove a claim that
Gamble provided ineffective assistance by failing to impeach N.C.’s
testimony at trial with her prior inconsistent statements contained
in Habeas Exhibit 10 and Habeas Exhibit 14.
We fail to see why a competent appellate attorney would have
failed to raise and support such a claim under these circumstances.
As the habeas court recognized, this claim was clearly stronger than
the claims of insufficient evidence and improper bolstering that
Rogers chose to raise at the motion for new trial stage and on appeal,
which were easily rejected. No reasonable attorney would have
20
failed to raise an ineffective-assistance-of-trial-counsel claim based
on Gamble’s failure to impeach N.C. with her prior inconsistent
statements and denials as reflected in the medical records and to
support that claim by presenting Habeas Exhibit 10 and Habeas
Exhibit 14 at the motion for new trial hearing, which were essential
to proving Gamble’s ineffectiveness. We therefore conclude that
Rogers provided ineffective assistance of appellate counsel in this
regard, and we affirm the habeas court’s grant of relief on this basis.
Judgment affirmed. All the Justices concur, except McMillian,
J., disqualified.
21