Sosebee v. The State., 190 Ga. App. 746, 380 S.E.2d 464 (1989)
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Judgment affirmed. McMurray, P. J., and Benham, J., concur.
Summary
Judgment affirmed. McMurray, P. J., and Benham, J., concur.
Text
Cook & Palmour, Bobby Lee Cook, Jake Arbes, for appellant.
In 1986, defendant Geary Sosebee was a party to a divorce proceeding and custody dispute regarding his two children. The court, in the divorce proceeding, placed the two children in the custody of the Department of Family and Children Services pending a determination of custody. While the court was considering the custody issue, defendant's mother-in-law reported to DFACS her suspicion that defendant had sexually abused one of the children. Following an investigation of the complaint, defendant was indicted for multiple counts of child molestation. Defendant appeals his convictions.
1. At trial, defendant raised the issue that others, including the child's babysitters had had the opportunity to commit the acts complained of by the child. In closing argument, the prosecuting attorney stated: "I could have called every babysitter that's ever been around that child, and what would they have said? If I asked every one of those babysitters, have you ever touched this child, what would they have said? No. Does that surprise you? Did I have to put them up here to prove that to you?" Defendant's attorney objected on the ground the prosecutor was arguing matters not in evidence, but the objection was overruled. On appeal, defendant argues this portion of the state's closing argument constitutes reversible error.
A prosecutor may not inject in his final argument matters which were not proven in evidence. Williams v. State,
Defendant also argues the prosecuting attorney improperly questioned the defendant's failure to call his wife as a witness. Defendant maintains such argument constitutes reversible error because the defendant could not compel his wife to testify. In fact, spousal immunity does not apply to proceedings in which one spouse is charged with a crime against a minor child. OCGA
Defendant also argues the prosecuting attorney committed reversible error in appealing to the passions or prejudices of the jury by asking the jury to convict defendant in order to protect the victim from further harm. The prosecuting attorney may make a rhetorical argument about what acts the defendant could be expected to commit in the future so long as it is a reasonable deduction from the evidence. See Brand v. Wafford,
2. Prior to the trial of the case, defendant challenged the constitutionality of the Child Hearsay Statute, OCGA
3. Defendant argues his constitutional rights pursuant to the Sixth Amendment Confrontation Clause were violated by the court's denial of his motion to compel access to the witness and examination of the child's medical records. The state may not deny defendant access to a witness material to the defense, but a witness cannot be compelled to submit to a pre-trial interview. See Rutledge v. State,
Defendant's constitutional argument has been decided adversely to him by the United States Supreme Court. In Pennsylvania v. Ritchie, 480 U. S. 39 (107 SC 989, 94 LE2d 40) (1987), the criminal defendant, charged with sexual child abuse, similarly argued that by denying him access to information necessary to prepare his defense, the trial court interfered with his right of "effective" cross-examination of witnesses. The United States Supreme Court rejected this argument. "If we were to accept this broad interpretation . . . the effect would be to transform the Confrontation Clause into a constitutionally-compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right to confrontation is a trial right. . . . In short, the Confrontation Clause only guarantees 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' [citing Delaware v. Fensterer, 474 U. S. 15, 20 (106 SC 292, 88 LE2d 15) (1985)]." Pennsylvania v. Ritchie, supra at 52-53. According to Pennsylvania v. Ritchie, the defendant is entitled to an in-camera inspection by the trial judge to determine what, if any, material information should be released as useful to the defense. The record of the case now before us shows the court conducted such an inspection in response to defendant's request.
Defendant also maintains he was denied the right of effective cross-examination by the court's denial of his motion for an independent psychiatric evaluation of the child to determine her competence at the time her out-of-court statements were made. The statutory test for determining the competency of a child to testify as a witness in a judicial proceeding is that he understand the nature of an oath. OCGA
4. Defendant had no constitutional right to examine all materials in the file maintained on this case by DFACS. The record reflects that the trial court inspected the DFACS file on several occasions in response to defendant's motion to examine the records. Thus, defendant's right to obtain material information from the state's files was protected. See Pennsylvania v. Ritchie, supra.
5. Defendant argues the trial court erred in failing to require the state to produce "all" scientific reports gathered in the case. The state is not required to disclose all reports but, upon a proper written request, the state is required to disclose those scientific reports which will be used as evidence at trial. OCGA
6. An investigator employed by the Fayette County Juvenile Court testified that she observed the child-victim in a waiting room of the DFACS offices saying to her father, who was visiting her there, "I won't tell [the DFACS officer] our special secret." Defendant objected to the statement as inadmissible hearsay. "A witness may testify as to what he saw and heard in the defendant's presence." Moore v. State,
7. Defendant argues he was entitled to a continuance in order to secure the attendance of a former DFACS caseworker who was out-of-state at the time defendant attempted to serve her with a subpoena to appear at trial. A defendant is not entitled to a continuance to secure the attendance of a witness when it was within his power to subpoena the witness but he failed to do so. OCGA
8. Defendant argues the court erred in excluding the testimony of a witness that she had been told by a friend of the child's mother, at the child custody hearing prior to the report of child molestation, "It's not over yet, we've got our bag of tricks." Hearsay evidence is admitted only from necessity. OCGA
9. Prior to trial, the prosecuting attorney revealed, in response to defendant's Brady motion, that the child-witness had recanted her earlier statements against defendant. Defendant argues the court improperly denied his motion to disqualify the prosecuting attorney because he would be called as a witness at trial. First, the prosecuting attorney's testimony was not necessary to establish that the child had recanted her statements since the attorney identified two other persons who witnessed the recantation. Secondly, although the prosecuting attorney was subpoenaed as a witness, he was never called to testify. Thus, the court was not required, nor was it necessary, to disqualify the prosecuting attorney.
10. Finally, a review of the record shows sufficient evidence was presented to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the crimes charged.
Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.
1989
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This document cites
- U.S. Supreme Court - Pennsylvania v. Ritchie, 480 U.S. 39 (1987)
- U.S. Supreme Court - Delaware v. Fensterer, 474 U.S. 15 (per curiam) (1985)
- Supreme Court of Georgia - SOSEBEE v. THE STATE., 257 Ga. 298, 357 S.E.2.d 562 (1987)
- Supreme Court of Georgia - WILLIAMS v. THE STATE., 254 Ga. 508, 330 S.E.2.d 353 (1985)
- Supreme Court of Georgia - DOVER v. THE STATE., 250 Ga. 209, 296 S.E.2.d 710
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