Michael Brian Bernier v. State ( 2020 )

THIRD DIVISION
DILLARD, P. J.,
GOBEIL and HODGES, 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
March 10, 2020
In the Court of Appeals of Georgia
A19A2464. BERNIER v. THE STATE.
GOBEIL, Judge.
A jury found Michael Bernier guilty of one count each of child molestation and
aggravated child molestation. Bernier appeals from his judgment of conviction and
the denial of his motion for a new trial, asserting (1) that the evidence was insufficient
to support the convictions. Bernier also asserts trial court error, based on the: (2)
denial of a motion for mistrial; (3) jury charge as to conflicts in testimony; and (4)
finding that he waived his right to be present at bench conferences throughout the
trial, or acquiesced to counsel’s waiver. Finally, Bernier asserts that (5) he received
ineffective assistance of counsel, based on defense counsel’s: (a) failure to advise him
of and preserve his right to be present at bench conferences; (b) failure to seek the
suppression of the results of a search of his cell phone; (c) failure to object to the
introduction of State’s Exhibit 5, which was a video depicting a purported act of child
molestation; (d) failure to object to the introduction of State’s Exhibit 6, which was
a video depicting a woman taking a shower; (e) eliciting testimony from witnesses
that bolstered the victim’s testimony; and (f) failure to request a pre-sentence
investigation and a downward departure from the mandatory minimum sentence. For
the reasons set forth below, we affirm.
On appeal from a criminal conviction, the evidence must be viewed in
the light most favorable to support the verdict, and the defendant no
longer enjoys the presumption of innocence; moreover, an appellate
court determines evidence sufficiency and does not weigh the evidence
or determine witness credibility.
Williams v. State, 333 Ga. App. 879, 879 (777 SE2d 711) (2015) (citation and
punctuation omitted).
Thus viewed in the light most favorable to the verdict, the record shows that
in the early morning hours of February 1, 2014,1 at approximately 2:30 a.m., the
victim, H. S., awoke to find her stepfather, Bernier, in her bed. H. S.’s mother worked
the night shift and was not home at the time. H. S. felt Bernier kneeling on the
1
On February 1, 2014, H. S. was 13 years old.
2
mattress, and she believed he had his cell phone out, as she “heard buttons” and “saw
flashes.”
Bernier pulled down H. S.’s shorts and touched the area under her shorts with
“his hands and his face.” He then pulled up her shorts and tried to turn her over. At
that point, she sat up in bed, and Bernier “shot up off the bed[.]” H. S. believed that
Bernier “looked startled” but appeared to know what was going on. Bernier then
began to talk to H. S. about household chores, telling her he had already taken the
dogs outside. Bernier asked H. S. if he could sleep with her, and he cradled her in her
bed. H. S. eventually got out of bed, and she and Bernier went downstairs to play
video games, while Bernier “acted like nothing happened.” After Bernier fell asleep
on the couch, she used his cell phone to call her mother, D. B., to tell her what had
happened. D. B. told H. S. that she was on her way home and would call the police.
The police were waiting outside the house when D. B. arrived home. D. B.
drove H. S. to the police station, and later to a hospital. H. S. was examined by a
nurse, and DNA recovered from H. S.’s shorts and anus matched DNA from Bernier.
Although vaginal swabs taken from H. S. contained male DNA, there was not
sufficient DNA present to match it to any specific person.
3
Two days later, H. S. gave a forensic interview, where she recounted the
incident. The interviewer testified at trial, and the video of H. S.’s interview was
played for the jury. In her recorded interview, H. S. explained in detail that Bernier
touched her vagina and anus with his mouth, tongue, and hands. She also explained
that Bernier had never done anything like this to her in the past, and agreed with the
interviewer that the incident came out of the blue.
After H. S. gave her forensic interview, Sergeant Todd Shepard contacted
Bernier for an interview. In an interview conducted on February 2, 2014, Bernier
claimed that he had taken the prescription sleep drug Ambien on the night in
question, and did not remember parts of the evening, including any sexual contact
with H. S. However, he gave detailed accounts of other parts of the late evening of
January 31, 2014, and the early morning hours of February 1, 2014, after having taken
the Ambien. For example, he recounted H. S. coming downstairs to ask for a blanket
sometime in the 11 o’clock hour, and he brought a blanket into her bedroom, and
spoke with her for a time in her bedroom. He specifically remembered her asking him
about a chiropractor’s appointment he had the day before, and he touched H. S.’s
back to show her how the chiropractor had touched his back. He also remembered H.
4
S. coming downstairs again later to say that she could not sleep, and playing video
games with her.
While at the police station, Bernier consented to a search of his cell phone. A
video file found on Bernier’s cell phone, which had been deleted but was recovered
by a digital forensic analysis, showed that there was an additional incident of child
molestation that occurred before H. S. woke up, at approximately 1 a.m. that same
morning. When Bernier was shown screen shots from this video, he did not deny that
it was him molesting H. S. in the video, but he asked the officer to take away the
screen shots so he would not have to look at them.
Based on this evidence, Bernier was indicted on one count of child molestation,
for touching H. S.’s vagina and buttocks, and one count of aggravated child
molestation, for committing an act of sodomy on H. S., by putting his mouth on her
vagina.
Bernier proceeded to trial. During jury selection, there were several bench
conferences at which Bernier was not personally present. During these bench
conferences, two potential jurors were excused by the court, after expressing their
inability to serve on the jury because of their personal history with children or child
5
molestation. Another potential juror explained that he was currently being prosecuted
by the District Attorney’s office, but he was not excused as a juror.
Both the prosecutor and defense counsel asked potential jurors if any of them
or a family member had been prescribed Ambien, and several jurors responded
affirmatively. The attorneys agreed to speak to those jurors separately at the bench
about their experiences with the drug, and the court conducted a lengthy bench
conference with the jurors, allowing both attorneys to question them. The court did
not excuse any jurors based on their answers to these questions.
At trial, the State called several witnesses, including H. S. and D. B., both of
whom testified that, before H. S. went to bed on the evening of the incident, at
approximately 11 p.m., Bernier “made” her drink a glass of orange juice before bed.
H. S. testified that, when Bernier gave her the orange juice, he said it was “a fear
factor thing,” and was daring her to drink the full glass. H. S. explained that she had
not given this information to the police or at her forensic interview because she did
not think it was relevant, but she mentioned it later because “every detail, it matters.”
On cross-examination, she testified that it was an unusual thing for Bernier to do, so
it “raised an antenna” in her mind.
6
After H. S. and D. B.’s testimony, defense counsel moved for a mistrial based
on their testimony about Bernier giving H. S. orange juice, asserting that it “came
completely as a surprise” to the defense. The prosecutor explained that he had only
just heard about the orange juice detail the week prior from D. B., and H.S. had
reviewed her recorded interview and written a note about the orange juice the day
before trial, which the prosecutor immediately provided to defense counsel. The trial
court found that the lateness in giving the information to the defense did not change
the defense’s case in any meaningful way, and denied the motion for mistrial. Further,
to the extent that the new information might affect Bernier’s decision to testify in his
own defense, the court noted that it would give the defense additional time if
necessary for him to make his decision.
The State also called Lieutenant Darin Meadows as a witness, who was
qualified as an expert in computer and digital forensic analysis. He received Bernier’s
cell phone for examination two days after the incident with H. S. and conducted a
digital forensic analysis. He found a video file that had been recorded on February 1,
2014, at approximately 1 a.m., which showed a man’s hand touching the exposed
vaginal and buttocks areas of a woman or girl. Meadows did not testify or speculate
about the identities of the people shown in the video. The video file had been deleted
7
before Meadows received the phone, but he was able to recover it. This video was
admitted without objection as State’s Exhibit 5 and was played for the jury.
Meadows testified about a second video file that was found in Bernier’s
possession, which depicted a woman taking a shower. Earlier in the trial, D. B. had
testified that Bernier had video taped her without her permission on several
occasions. She had made him delete videos in the past, but she was recently shown
a video by the police that depicted her naked in the shower. A thumb drive
purportedly containing this video and others of D. B. in the shower was admitted into
evidence as State’s Exhibit 62 without objection, but nothing from the thumb drive
was shown to the jury.
Finally, Meadows testified that he was able to recover the phone’s internet
history, which had been manually deleted. The recovered files showed that someone
had used the phone’s web browser to search for Ambien-related information, namely:
“how to test for ambien”; “temporary insanity for ambien”; and “ambien
hallucinations[.]” The phone’s browser had also accessed an article titled: “the
ambien defense criminal law unclear on how to treat the ambien zombie
phenomenon[.]” Meadows could not state when the searches were conducted, but he
2
State’s Exhibit 6 does not appear in the appellate record.
8
could tell that they were deleted in the late evening on February 1, 2014,
approximately 20 hours after the incident.
During the defense’s case at trial, Bernier put forward the affirmative defense
of involuntary intoxication, claiming that he was unaware of what he was doing at the
time of the incident because he was under the influence of the drug Ambien. Bernier
presented testimony from an expert witness in the field of pharmacology, James
O’Donnell. O’Donnell testified that many patients have reported performing activities
while under the effects of Ambien, without being conscious of even being awake at
the time. He stated that Ambien and other drugs in its class can also have an amnesiac
effect, with the patient not remembering what has happened while on the drug.
Another reported phenomenon with Ambien was so-called “sexsomnia,” which
involves increased sexual aggression and participation in atypical sexual activities
without having a memory of the event. On cross-examination, O’Donnell clarified
that sexsomnia with Ambien was extremely rare.
O’Donnell had reviewed the evidence in Bernier’s case, and interviewed and
examined Bernier. He opined that Bernier’s explanation that he had no memory of the
incident with H. S. was consistent with a typical case of Ambien-related side effects.
9
Bernier testified in his own defense that he had recently had trouble sleeping
while his wife was working overnight. On the day before the incident, he went to an
urgent care center and got a short-term prescription for Ambien. At approximately
10:30 p.m. the evening before the incident, he took 10 milligrams of Ambien. Bernier
recalled some details from that night into the early morning hours, including going
into H. S.’s room to bring her a blanket. As in his police interview, he recounted that
she asked him about his chiropractor’s appointment, and he touched her back to show
her where the chiropractor had touched him.3 He also remembered playing video
games with H. S. in the middle of the night. The next thing he remembered was the
police coming into his home.
Bernier testified that he had no memory of sexually assaulting H. S. and that
such a thing never would have happened had he not been under the influence of
Ambien. He acknowledged that there was evidence to support that he did do those
things, and he did not dispute that H. S. was telling the truth in her testimony. He
3
H. S. was asked about this interaction during her direct testimony, and she
stated that it did not happen – she had not asked for a blanket or asked about the
chiropractor, and Bernier had not come into her room until he woke her up at 2:30
a.m. during the molestation event.
10
stated that he cooperated with the police because he wanted to help find out what
happened and make it right.
The jury found Bernier guilty of both counts in the indictment. Shortly after the
verdict, the trial court moved on to sentencing. At the sentencing hearing, Bernier’s
brother testified in support of Bernier, and defense counsel spoke on Bernier’s behalf
as well. The State asked for a 30-year sentence of confinement, followed by life on
probation, and the defense asked for a 25-year sentence of confinement. On the
aggravated child molestation count, the court sentenced Bernier to 25 years to serve,
plus life on probation, which was the mandatory minimum sentence allowed by law.
The court sentenced Bernier to 19 years to serve, plus one year on probation, for the
child molestation count, to run concurrently with his other sentence.
Bernier filed a motion for a new trial. As amended, his motion for a new trial
asserted all of the claims of error now raised on appeal. At the hearing, trial counsel
testified that Bernier was very involved in his own defense. They had agreed to
pursue the “Ambien defense” of involuntary intoxication, and so some of his
decisions regarding the State’s evidence were based on this defense strategy. Rather
than contesting the State’s evidence, trial counsel focused on securing the expert
witness to explain the potential effects of Ambien.
11
The trial court denied the motion for new trial, upholding the jury’s verdict.
Specifically, the trial court concluded that many of counsel’s decisions were tactical,
based on the agreed-upon defense that relied on Bernier’s cooperation with the
investigation. Bernier now appeals from the judgment of conviction and the denial
of his motion for new trial.
1. On appeal, Bernier contends generally that the evidence was insufficient to
support the convictions, and the trial court should have granted his motion for
directed verdict of acquittal. Specifically, Bernier argues that he proved the necessary
elements of the affirmative defense of involuntary intoxication, and the State did not
disprove his defense beyond a reasonable doubt.
“When evaluating the sufficiency of evidence, the proper standard for review
is whether a rational trier of fact could have found the defendant guilty beyond a
reasonable doubt.” Dean v. State, 273 Ga. 806, 806 (1) (546 SE2d 499) (2001), citing
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). It is for the
jury to assess the credibility of witnesses, resolve any conflicts in the evidence, and
determine the facts. Butler v. State, 273 Ga. 380, 382 (1) (541 SE2d 653) (2001).
“Our standard of review for the denial of a motion for a directed verdict of acquittal
is the same as our standard for reviewing the sufficiency of the evidence to support
12
a conviction. Where the evidence establishes the essential elements of the offense
charged, a directed verdict of acquittal is unauthorized.” Amaechi v. State, 306 Ga.
App. 333, 337 (2) (702 SE2d 680) (2010) (citation and punctuation omitted).
Georgia’s involuntary intoxication statute provides:
A person shall not be found guilty of a crime when, at the time of the
act, omission, or negligence constituting the crime, the person, because
of involuntary intoxication, did not have sufficient mental capacity to
distinguish between right and wrong in relation to such act.
OCGA § 16-3-4 (a). Intoxication may be considered involuntary when it is caused by
the consumption of a substance through excusable ignorance. OCGA § 16-3-4 (b)
(1).4 A defendant asserting involuntary intoxication “bears the burden of showing by
a preponderance of the evidence, that he was not mentally responsible at the time of
the alleged crime.” Stewart v. State, 291 Ga. App. 846, 847 (663 SE2d 278) (2008)
(citation and punctuation omitted). “If the defendant meets that burden, the State must
present sufficient evidence to show beyond a reasonable doubt that the defendant was
not involuntarily intoxicated. The ultimate resolution of the issue is for the finder of
fact.” Id. (citations omitted).
4
The parties do not dispute the voluntariness of Bernier’s intoxication and thus
we do not reach this issue.
13
Pretermitting whether Bernier met his burden of proving the elements of his
defense by a preponderance of the evidence, the State also presented sufficient
evidence to disprove it beyond a reasonable doubt. Undisputed testimony from the
victim established that Bernier molested H. S. at 2:30 a.m. on February 1, 2014, and
video evidence depicted another act of molestation earlier at approximately 1 a.m.
Regarding Bernier’s memory of the event, his interview with police and his testimony
established that he remembered much of the night before and the early morning hours
of the incident, including going into H. S.’s bedroom in the middle of the night and
touching her back while talking to her, and later playing video games with her.
Further, although Bernier acted as though he had not seen the video of himself
molesting H. S., digital forensic analysis showed that someone had accessed the video
file in order to delete it. This evidence was sufficient to allow a jury to convict
Bernier of the child molestation offenses despite his claim of involuntary
intoxication. See Stewart, 291 Ga. App. at 847-848 (affirming conviction of
defendant claiming he was involuntarily injected with drugs, where victim’s
statement that she did not drug defendant was sufficient evidence to support the jury’s
verdict); Burchfield v. State, 219 Ga. App. 40, 41-42 (1) (464 SE2d 27) (1995) (even
where another witness admitted to placing drugs in defendant’s coffee, evidence was
14
sufficient to convict because jury questions remained as to whether defendant’s
intoxication was involuntary or whether he had the capacity to distinguish right from
wrong at the time of the offense).
This case ultimately turned on whether the jury believed Bernier’s explanation
for the events of that night. The jury was free to conclude that Bernier was not telling
the truth about not having control over himself during the incident. They heard him
testify at the trial and were able to assess his credibility firsthand. See Jones v. State,
352 Ga. App. 380, 389 (2) (b) (834 SE2d 881) (2019) (when a criminal defendant
testifies, his credibility is central to the outcome of the trial); Adams v. State, 187 Ga.
App. 340, 344 (1) (370 SE2d 197) (1988) (stating that “in every case the jury is the
arbiter of credibility including as to the defendant’s explanation” of the event, and
“the jury is the body which resolves conflicting evidence, and where the jury has done
so, the appellate court cannot merely substitute its judgment for that of the jury”). In
light of these facts and our standard of review, we cannot conclude that the evidence
did not support the verdict.
2. Bernier next contends that the trial court erred in denying his motion for
mistrial after the State’s witnesses testified that Bernier gave H. S. orange juice on the
evening before the incident, and Bernier was not given this information until the day
15
before trial. Specifically, Bernier asserts that the court’s ruling — that any harm
caused by the testimony could be refuted by Bernier testifying that he did not tamper
with the orange juice — infringed on his Fifth Amendment right to remain silent.
Bernier’s argument is belied by the record.
We review the denial of a motion for mistrial under an abuse of discretion
standard. Davis v. State, 263 Ga. App. 230, 233 (2) (587 SE2d 398) (2003). Although
the trial court denied Bernier’s motion for mistrial, it did not do so solely because any
harm could be remedied by Bernier’s testifying in response. The primary reason the
court denied the motion for a mistrial was because it did not believe that the lateness
of receiving the information about the orange juice affected the defense’s position or
strategy at trial. Moreover, although the State attempted to imply that Bernier had
tampered with H. S.’s orange juice, there was no other evidence to support the
implication. Thus, the court reasoned that the defense could argue that the State had
not proved anything concretely, no matter what the State was implying.
The trial court did suggest that, if Bernier chose to testify, he could deny the
implication. But the court also stated that if Bernier chose not to testify, defense
counsel could make the argument in other ways. Bernier would have had to decide
whether to testify regardless of when his attorney received the information. When
16
defense counsel suggested that the issue may affect Bernier’s decision to testify, the
trial court stated that it would give the defense additional time for Bernier to make his
decision. In any event, Bernier cites no authority to support his argument that the trial
court’s ruling implicated his Fifth Amendment rights, or that the orange juice
testimony should have been excluded as it might have impacted his decision to
testify. To the contrary, even if Bernier was “forced to choose between asserting a
defense based upon his own testimony or remaining silent, that is a choice that is
inherent in any defendant’s decision whether to testify[,]” and “does not violate a
defendant’s constitutional rights.” Whitman v. State, 316 Ga. App. 655, 660 (729
SE2d 409) (2012) (citation and punctuation omitted). Accordingly, we find no
reversible error based on the trial court’s denial of Bernier’s request for a mistrial.
3. Next, Bernier asserts that the trial court erred in failing to grant his request
to charge the jury on “conflicts in testimony” because such a charge “was essential
for the jury to navigate through the many conflicts that arose in testimony throughout
the trial.” We disagree.
We review a trial court’s refusal to give a requested jury charge for an abuse
of discretion. Salazar-Balderas v. State, 343 Ga. App. 201, 203 (1) (806 SE2d 644)
17
(2017). At trial, Bernier requested the following jury charge for conflicts in
testimony:
When you consider the evidence in this case, if you find a conflict, you
should settle this conflict, if you can, without believing that any witness
made a false statement. If you cannot do so, then you should believe that
witness or those witnesses whom you think are best entitled to relief.
You must determine what testimony you will believe and what
testimony you will not believe.
The trial court stated that it would not give a “conflicts in testimony” charge, as such
charge had been eliminated by Noggle v. State, 256 Ga. 383 (349 SE2d 175) (1986).
Bernier argues that the charge he requested was not the same as the one eliminated
by Noggle, and the trial court’s reliance on Noggle was in error.
Bernier is correct that his charge differs in substance from the one discussed
in Noggle, 256 Ga. at 385 (4), which recommended eliminating so-called
“presumption-of-truthfulness” charges that state “when witnesses appear and testify
in a case such as this, they are presumed to speak the truth unless they are impeached
in some manner provided by law.” In Hopkins v. State, 309 Ga. App. 298, 300-301
(2) (709 SE2d 873) (2011), the defendant requested a jury charge very similar to the
18
one requested by Bernier.5 We first noted that Hopkins’s requested charge was not a
presumption-of-truthfulness charge. Id. at 301 (2), citing Mallory v. State, 271 Ga.
150, 151 (2) (517 SE2d 780) (1999).
However, we then found no error in the trial court’s refusal to give Hopkins’s
requested charge, as “[i]t is error to refuse to give a charge only where the request is
a correct statement of law that is pertinent and material to an issue in the case and not
substantially covered by the charge actually given.” Hopkins, 309 Ga. App. at 301 (2)
(citation and punctuation omitted). We determined that the court’s other charges,
including on the credibility of witnesses, “adequately covered the principle of law set
out in Hopkins’s requested charge.” Id.
5
The charge at issue in Hopkins stated:
If upon consideration of the evidence in this case, you find that there is
a conflict in the testimony of the witnesses or a conflict between a
witness or witnesses, it is your duty to settle this conflict, if you can,
without believing that any witness made a false statement. If you cannot
do this, then it becomes your duty to believe that witness or those
witnesses you think best entitled to belief.
Hopkins, 309 Ga. App. at 300 (2).
19
Here, the trial court charged the jury on credibility of witnesses and conflicting
statements by witnesses. Such instructions adequately explained to the jury how to
determine the credibility of witnesses and how to resolve conflicts in the testimony.
Accordingly, we find no reversible error on this issue.
4. Bernier asserts that the trial court erred in finding that he had waived or
acquiesced to counsel’s waiver of his right to be present at bench conferences during
jury selection.6 Specifically, he asserts that these bench conferences during jury
selection were not made up of merely legal argument. Instead, they included
substantive testimony from prospective jurors regarding their competency to hear his
case, and the trial court made rulings on some of these jurors during the bench
conferences. He argues that these were critical stages of his criminal proceeding, and
he had a constitutional right to be present and counsel failed to inform him of that
right. And, as he was not aware of his right, he could not have waived it.
A criminal defendant has the right to be present at bench conferences at which
the “composition of the jury” is discussed. Burney v. State, 299 Ga. 813, 819 (3) (b)
(792 SE2d 354) (2016); Ramirez v. State, 345 Ga. App. 611, 615-616 (2) (814 SE2d
6
Although Bernier also challenges his exclusion from bench conferences
during the trial, he does not cite to any examples of conference during the trial from
which he was excluded.
20
751) (2018) (“proceedings at which the jury composition is selected or changed are
critical stages at which the defendant is entitled to be present”) (citation and
punctuation omitted). In Georgia, “absent a valid waiver by the defendant,” a
violation of this right is “presumed to be prejudicial.” Peterson v. State, 284 Ga. 275,
279 (663 SE2d 164) (2008). However, a defendant may waive this right in different
ways, including by acquiescing to counsel’s waiver of the right. Heywood v. State,
292 Ga. 771, 775 (3) (743 SE2d 12) (2013).
Here, because potential jurors were excused by the trial court during two of the
bench conferences at Bernier’s trial, and potential jurors answered questions about
their experiences with Ambien at another, Bernier had a right to be present. Ramirez,
345 Ga. App. at 615-616 (2); Pennie v. State, 271 Ga. 419, 421 (2) (520 SE2d 448)
(1999) (“the trial judge should have no communications with a juror about the case,
except as to matters relating to the comfort and convenience of the jury” when
defendant is not present). In its ruling on the motion for new trial on this issue, the
trial court found that Bernier acquiesced to his counsel participating in bench
conferences without his presence. We agree.
At the motion for new trial hearing, regarding Bernier’s presence at bench
conferences, trial counsel testified that he was aware that defendants have a right to
21
be present, and although he could not remember specifically informing Bernier of this
right, he assumed that he would have done so. Trial counsel did not recall Bernier
affirmatively waiving this right, but Bernier never asked to be included in the bench
conferences. In counsel’s experience, it was rare for a client to join him at a bench
conference, and he relayed any important information from the bench conferences to
Bernier.
“Acquiescence, which is a tacit consent to acts or conditions, may occur when
counsel makes no objection and a defendant remains silent after he or she is made
aware of the proceedings occurring in his or her absence.” Williams v. State, 300 Ga.
161, 166 (3) (794 SE2d 127) (2016) (citation and punctuation omitted). Here, where
Bernier was present before, during, and after all of these bench conferences took
place, saw jurors being questioned and on two occasions excused, and voiced no
objection, we conclude that he acquiesced to counsel’s waiver of his presence. See
Heywood, 292 Ga. at 775 (3) (defendant’s “failure to voice any objection to his
absence from this bench conference, either directly or through counsel, constituted
acquiescence in his counsel’s waiver of his right to be present”); Williams, 300 Ga.
at 166 (3) (defendant, who was present in the courtroom during the juror’s inquiry
before the bench conference, during the bench conference, and immediately after
22
when the court announced that a juror was being excused, her “remaining silent in the
face” of the juror’s excusal after a bench conference was acquiescence); Kennedy v.
State, 274 Ga. 396, 397 (3) (554 SE2d 178) (2001) (defendant acquiesced where “all
of the bench conferences in question took place while [defendant] was in the
courtroom, and she voiced no objection to them”).
Although Bernier contends that he was unaware of his right to be present,
defense counsel testified that he assumed that he made Bernier aware of this right,
and he had a practice of not having his clients join him at bench conferences, but
informing them of their contents when important. By finding that Bernier acquiesced
to counsel’s waiver, the trial court implicitly found that he was aware of his right.
Heywood, 292 Ga. at 775 (3) (acquiescence “implies a knowledge of those things
which are acquiesced in”) (citation and punctuation omitted). Based on counsel’s
testimony at the motion for new trial hearing, we conclude that the trial court’s
finding on this issue was not clearly erroneous. Russell v. State, 236 Ga. App. 645,
650 (2) (512 SE2d 913) (1999) (trial courts’s findings of fact must be affirmed unless
clearly erroneous). Accordingly, we find no reversible error on this issue.
5. In related claims of error, Bernier also contends that he received ineffective
assistance of trial counsel, and the trial court erred in denying his motion for new
23
trial. To prevail on any of these claims, Bernier must prove both that his lawyer’s
performance was deficient and that he suffered prejudice as a result of this deficient
performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80
LE2d 674) (1984). If Bernier cannot meet his burden of proving either prong of the
Strickland test, then we need not examine the other prong. Causey v. State, 319 Ga.
App. 841, 842 (738 SE2d 672) (2013). “The trial court’s determination that an
accused has not been denied effective assistance of counsel will be affirmed on
appeal unless that determination is clearly erroneous.” Johnson v. State, 214 Ga. App.
77, 78 (1) (447 SE2d 74) (1994) (citations and punctuation omitted).
With respect to the first prong of the Strickland test, deficient performance,
Bernier must show that his attorney performed his duties at trial in an objectively
unreasonable way, considering all the circumstances, and in light of prevailing
professional norms. Strickland, 466 U. S. at 687-688 (III) (A).To demonstrate that he
suffered prejudice as a result of his attorney’s performance, Bernier must prove “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694 (III)
(B). “This burden, though not impossible to carry, is a heavy one.” Arnold v. State,
24
292 Ga. 268, 270 (2) (737 SE2d 98) (2013), citing Kimmelman v. Morrison, 477 U.
S. 365, 382 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986).
(a) Bernier asserts that counsel was ineffective for failing to advise him of his
right to be present at bench conferences, and waiving that right without consulting
him. Based on our discussion in Division 4, supra, we affirm the trial court’s finding
that counsel informed Bernier of his right to be present at bench conferences.
Moreover, because counsel relayed all of the information from the bench conferences
to Bernier, there is not a reasonable probability that his being present at the bench
conferences would have changed the outcome of his trial. See Ramirez, 345 Ga. App.
at 621-622 (3) (c) (defendant’s speculation over how his being present at bench
conferences could have changed the result of his trial did not show ineffective
assistance of counsel).
(b) Bernier asserts that trial counsel was ineffective for failing to seek the
suppression of the results of the forensic analysis conducted on his cell phone.
Although Bernier admits that he consented to having law enforcement view his phone
and laptop, he argues that he did not consent to a forensic analysis of these devices,
which led to the discovery of deleted files, including the video that was admitted as
State’s Exhibit 5, which was extremely incriminating.
25
At the motion for new trial hearing, counsel testified that he was aware that
Bernier had consented to the police searching his cell phone. When asked if he was
aware of case law concerning the police exceeding the scope of consent to search cell
phones, counsel responded that he was generally aware of those kinds of cases, but
“what we were doing for Mr. Bernier, [that] really wasn’t a focus.”
Here, counsel’s decision not to seek the suppression of the results of the search
of Bernier’s phone and laptop did not constitute deficient performance for at least two
reasons. First, counsel was under the impression that Bernier consented to the search,
and Bernier does not allege that he raised this issue with counsel, or asked him to file
a suppression motion. Thus, counsel had no reason to believe that a motion to
suppress would have been successful. Based on what counsel knew at the time he
formulated his opinion about filing a motion to suppress, we do not find deficient
performance. See Hill v. State, 351 Ga. App. 58, 68-69 (8) (830 SE2d 478) (2019)
(“we do not view a claim of ineffective assistance of counsel with 20/20 hindsight but
in light of what was objectively reasonable based on what counsel knew at the time”).
Second, as the defense theory in this case did not rely on denying the
allegations, but on proving an affirmative defense, it was not unreasonable for
counsel not to challenge the State’s evidence. See Deleon-Alvarez v. State, 324 Ga.
26App. 694, 709 (7) (751 SE2d 497) (2013) (“The decision of whether to file a motion
to suppress is a matter of professional judgment, and thus will not form the basis for
an ineffective assistance of counsel claim unless it was so patently unreasonable that
no competent attorney would have chosen it.”) (citations and punctuation omitted).
Counsel testified that he was not focused on suppressing the State’s evidence,
but rather on procuring the expert witness to support the Ambien theory. Moreover,
counsel drew the jury’s attention to Bernier’s cooperation with the investigation to
support his contention that Bernier had nothing to hide because he had not willingly
assaulted the victim. For example, defense counsel specifically highlighted Bernier’s
willingness to provide his phone to police, noting to Sergeant Shepard that, before
Shepard had even finished asking for the phone, Bernier had handed it over.
Accordingly, where filing a motion to suppress was inconsistent with the defense
strategy, we conclude that the trial court’s ruling on counsel’s effectiveness on this
ground was not clearly erroneous. Johnson, 214 Ga. App. at 78 (1).
(c) Bernier asserts that trial counsel was ineffective for failing to object to the
introduction of State’s Exhibit 5, which is a video depicting Bernier molesting H. S.
while she was sleeping. Bernier argues that the video was not properly authenticated,
and would have been subject to exclusion had counsel objected.
27
Generally, evidence may be authenticated by offering sufficient evidence that
a reasonable jury or factfinder could find that the item is what the proponent claims
it to be. OCGA § 24-9-901 (a). Video recordings “shall be admissible in evidence
when necessitated by the unavailability of a witness who can provide personal
authentication7 and when the court determines, based on competent evidence
presented to the court, that such items tend to show reliably the fact or facts for which
the items are offered.” OCGA § 24-9-923 (b).
Here, the record shows that State’s Exhibit 5 was discovered on Bernier’s
personal cell phone. Moreover, Bernier never denied recording the video or that he
was the person whose hands were depicted in the video. Finally, the video depicts an
incident similar to another incident that occurred an hour and a half later, to which
H. S. testified. Accordingly, there was sufficient evidence to authenticate the video,
and any objection that defense counsel would have made to the admission of State’s
Exhibit 5 was unlikely to have succeeded. Thus, counsel was not ineffective for
failing to object to State’s Exhibit 5. See Stuckey v. State, 301 Ga. 767, 771 (2) (a)
7
Here, there was no available authenticating witness, as Bernier, the person
who recorded the video, claimed not to recall recording it, and H. S., the other person
in the video, was asleep at the time it was recorded. See OCGA § 24-9-923 (a) (3)
(explaining that a witness is unavailable when they claim a lack of memory of the
subject matter of the authentication).
28
(804 SE2d 76) (2017) (no deficient performance where defendant failed to show that
an objection to the authenticity of photographs would have prevented the evidence
from being admitted).
(d) Bernier asserts that trial counsel was ineffective for failing to object to the
introduction of State’s Exhibit 6, a thumb drive containing videos depicting a woman
in the shower. Bernier argues that this evidence was irrelevant, and even if it was
relevant, its probative value was substantially outweighed by the danger of unfair
prejudice.
Here, State’s Exhibit 6 was relevant, as it showed that Bernier had a history of
using his cell phone to record others in a clandestine manner, which he had also done
during the incident with H. S. See Patterson v. State, 350 Ga. App. 540, 546 (2) (829
SE2d 796) (2019) (“any evidence is relevant which logically tends to prove or to
disprove a material fact which is at issue in the case, and every act or circumstance
serving to elucidate or to throw light upon a material issue or issues is relevant”)
(citation and punctuation omitted). In fact, defense counsel testified at the motion for
new trial hearing that he intended to introduce the thumb drive as a defense exhibit
if the State did not introduce it, as he believed that it could support their argument
that Bernier might have videotaped H. S. as a kind of habit while in his Ambien-
29
influenced state. Accordingly, because counsel believed that it could support the
defense’s argument, he reasonably chose not to object to its introduction into
evidence. See Brunson v. State, 322 Ga. App. 302, 303 (2) (744 SE2d 801) (2013)
(finding trial counsel’s decision not to object to the State’s line of questioning was
reasonable trial strategy, where testimony supported the defense theory of the case).
Additionally, because the videos were not shown to the jury, they cannot be
said to have affected the outcome of his trial. See Razor v. State, 259 Ga. App. 196,
200 (5) (c) (576 SE2d 604) (2003) (no prejudice in admission of evidence that was
not published to the jury). Thus, we conclude that counsel was not ineffective on this
claim.
(e) Bernier asserts that trial counsel was ineffective for twice eliciting
testimony from State witnesses that bolstered H. S.’s testimony. Specifically, he states
that trial counsel asked both Jane Ford, the forensic interviewer, and Sergeant
Shepard, the lead investigator, if they believed that H. S. was telling the truth.
Here, where Bernier did not deny H. S.’s allegations, but argued the affirmative
defense of involuntary intoxication, there can be no prejudice resulting from
counsel’s actions, as there was no dispute as to whether H. S. was telling the truth or
not. Moreover, Bernier himself testified that he did not dispute H. S.’s account of the
30
incident. Accordingly, this claims necessarily fails. See Rozier v. Caldwell, 300 Ga.
30, 34 (4) (793 SE2d 73) (2016) (no prejudice for bolstering of a victim’s testimony
by another witness, where the evidence of guilt was strong and victim’s testimony
was supported by other evidence).
(f) Finally, Bernier asserts that trial counsel was ineffective for failing to
request a pre-sentence investigation that could have revealed additional mitigating
circumstances for sentencing or led to a chance that Bernier would be allowed
continued contact with his biological children. He also asserts that counsel failed to
seek a downward deviation from the mandatory minimum sentence for aggravated
child molestation. We disagree.
Here, where Bernier received the mandatory minimum sentence for his
convictions, defense counsel was not ineffective for his actions at the sentencing
hearing. And Bernier did not testify at the motion for new trial hearing, so any claim
that defense counsel could have revealed additional mitigating factors if he sought a
pre-sentence investigation is merely speculative, as he did not establish what
favorable evidence a pre-sentence investigation would have uncovered. Thus, Bernier
does not support his claim of ineffective assistance of counsel. See Hernandez v.
State, 303 Ga. App. 103, 106 (2) (692 SE2d 712) (2010) (defendant must explain
31
what witnesses would have testified on his behalf or what their testimony might have
been to establish reasonable probability that he would have received a more lenient
sentence had counsel conducted further sentencing investigation).
Further, Bernier’s claim that defense counsel did not seek a downward
deviation from the mandatory minimum is belied by counsel’s testimony at the
motion for new trial hearing, where he stated that he approached the State on multiple
occasions to ask for a downward deviation on the sentence, but the State declined.
See OCGA § 17-10-6.2 (c) (1) (stating that a trial court may deviate from the
mandatory minimum sentence applicable to certain sexual offenses, but the
prosecuting attorney must agree). Accordingly, we find no error on this claim.
For the reasons stated above, we conclude that the trial court did not clearly err
in finding that Bernier received effective assistance of counsel. Johnson, 214 Ga.
App. at 78 (1).
Judgment affirmed. Dillard, P. J., and Hodges, J., concur.
32