White v. State
White v. State
Opinion of the Court
Indicted for child molestation, defendant was tried before a jury and found guilty of that charge. After the denial of his motion for new trial, defendant appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilty. Held:
1. Complaining that the trial court failed to conduct the admissibility hearing mandated by Uniform Superior Court Rule (USCR) 31.3 (B), defendant first enumerates as error the admission into evidence of testimony relating to his alleged commission of a similar prior criminal transaction. The record shows that pursuant to USCR 31.1, the State gave written notice of its intent to introduce evidence that in 1989 defendant had similarly molested another child. However, there is no indication that the trial court conducted a hearing pursuant to USCR 31.3 (B). Nonetheless, this similar transaction evidence was admitted over hearsay objections. Although defendant did not object at trial on the ground that the trial court failed to conduct a USCR 31.3 (B) hearing, he raised this issue at the hearing on his motion for new trial.
Relying on Gilbert v. State, 208 Ga. App. 258, 262 (3), 263 (430 SE2d 391), the State urges that defendant has waived any error by failing to object at trial. This reliance is misplaced. In Gilbert, that defendant enumerated the admission into evidence of a prior guilty plea to trafficking in cocaine and of testimony about that earlier charge, arguing that the trial court had held no USCR 31.3 (B) hearing. There was a conflict in the evidence of the procedural history of that case and this court, applying the presumption of regularity, held that the record supported the determination of the trial court that a USCR 31.3 (B) hearing had been held. This court then injected the parenthetical observation that if defendant were “correct, and if no hearing was held, then he is estopped from raising this argument,
“[B]efore any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state must make three affirmative showings as to each independent offense or act it seeks to introduce. . . . After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” (Footnote omitted.) Williams v. State, 261 Ga. 640, 642 (2b) (409 SE2d 649). Moreover, after the State has made the necessary showings at the USCR 31.3 (B) hearing, the trial court retains the sound legal discretion to exclude relevant similar crimes evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice.
2. In his second enumeration of error, defendant urges several instances where the trial court erroneously admitted hearsay evidence,
3. Defendant’s third enumeration, urging that child hearsay statements attributed to the victim of the prior similar molestation were not admissible pursuant to OCGA § 24-3-16 because that victim was not available to testify, simply is not supported by the record. This witness took the stand and was cross-examined by defense counsel.
4. In his fourth enumeration of error, defendant contends that the trial court twice erroneously admitted hearsay statements of the mother of the victim of the prior similar offense. The record shows that Officer Storey of the Cobb County Police Department and Paige Murvis (nee Martin) went to the home of this mother of the victim of the prior similar offense to investigate a report that her daughter had been sexually abused. This mother is deaf and communicates mainly through sign language. Neither Officer Storey nor Ms. Murvis could understand sign language, so they left and returned with a co-worker who had some knowledge of sign language. Over defendant’s hearsay objection, the trial court permitted Officer Storey and Ms. Murvis
“In Cuzzort [v. State, 254 Ga. 745 (334 SE2d 661)] [the Georgia Supreme Court] held that the concerns of the rule against hearsay are satisfied where the witness whose veracity is at issue is present at trial, under oath, and subject to cross-examination. When these conditions are satisfied, the prior consistent out-of-court statement of the witness is admissible. [Cits.]” Carroll v. State, 261 Ga. 553, 554 (1) (408 SE2d 412). In the case sub judice, both the mother and her daughter were subject to cross-examination regarding the details of the incident related. Consequently, under the authority of Cuzzort v. State, supra, the trial court did not err in admitting into evidence, through the testimony of the investigators, the mother’s statement that defendant had molested her daughter in the prior similar offense.
5. Defendant’s fifth enumeration raises another instance whereby the trial court admitted purported hearsay under the following circumstances: The mother of the victim in the case sub judice testified on direct examination: “P— B--, [an adult neighbor] which is a good friend of [the prior similar offense victim’s] mother, come over and told me that [the victim in the case sub judice] may have been bored [sic] because [the prior similar offense victim] was bored [sic].” Defense counsel interposed a hearsay objection. The State’s attorney replied that the evidence was offered to explain the conduct of the victim’s mother in questioning the victim. Defendant’s objection was overruled.
While there is considerable doubt that the conduct of the victim’s mother, in the case sub judice, was an issue which needed to be explained by the hearsay statement of a neighbor who did not testify, nevertheless, we find the admission of that statement to be harmless error. By the State’s own rationale, the statement was not proffered as proof of the truth that either of the girls had in fact been “bothered” by anyone, much less by defendant. Rather, proof of defendant’s indecent liberties came from the victims themselves. The erroneous admission of such inconsequential hearsay on an issue not essential to the State’s case could not have materially affected the jury’s verdict in this case and is not a good ground for a new trial. Glass v. State, 235 Ga. 17, 18 (2), 19 (218 SE2d 776).
6. Next, the defendant enumerates the overruling of his motion for a new trial on the ground of ineffective assistance of counsel. The transcript of the motion hearing indicates that trial counsel did not testify and that the evidentiary basis is the transcript of the trial and the posture of the record. The specific allegations of unprofessional omissions are: (1) the failure to pursue a Batson-type challenge to the
The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed unless that determination is clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641). In the case sub judice, we have reviewed the transcript of the motion hearing, as well as the entire trial record, and find that the evidence supports the conclusion that defendant has failed to establish his claim of ineffective assistance under the standards of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). Hammock v. State, 210 Ga. App. 513, 514 (2) (436 SE2d 571). The strategic decision not to pursue a Batson-type challenge to the State’s use of its peremptory strikes against black venire, on behalf of a Caucasian defendant, did not demand a finding that “trial counsel’s conduct fell below that standard of reasonably effective assistance which members of the bar in good standing are presumed to render, as that right to effective assistance is protected by both the Georgia and federal constitutions. Hill v. Balkcom, 213 Ga. 58 (1) (96 SE2d 589).” Shaw v. State, 211 Ga. App. 647, 649 (2) (440 SE2d 245). The failure of trial counsel to insist on the admissibility hearing mandated by USCR 31.3 (B) has not resulted in harm requiring a new trial, in light of our disposition in Division 1 and consequent remand. It follows that defendant is unable to establish that he has been prejudiced by this omission. Miller v. State, 208 Ga. App. 547, 548 (2) (430 SE2d 873). The evidentiary objections proffered as proof of harmful unprofessional omissions have been considered above in separate enumerations and have been found to be without merit in every instance but one. The sole instance in which evidence was in fact erroneously admitted involved inconsequential hearsay. Evidence that inconsequential hearsay was not objected to did not demand a finding that, but for trial counsel’s allegedly unprofessional failure to exclude that inconsequential hearsay, there was a reasonable probability that the result of the proceeding would have been different. Robinson v. State, 210 Ga. App. 278, 279 (2) (435 SE2d 718). The trial court correctly overruled defendant’s motion for new trial on the ground of ineffective assistance of counsel.
Judgment affirmed and case remanded with direction.
Concurring Opinion
concurring specially.
I concur fully as to Divisions 1, 2, 4, and 5, but differ with the majority’s treatment of Divisions 3 and 6.
2. (a) As for the issue of trial counsel’s effectiveness, I first address trial counsel’s waiver of the competency issue as discussed above. After reviewing the transcript, there appears to be no reasonable probability that but for trial counsel’s failure to object on competency grounds, the child witness would have been declared incompetent. The State’s questioning of the child and the child’s responses affirmatively indicate that the child could distinguish between the truth and a lie, that she knew she should only tell the truth in court, and that she intended to do just that. This testimony belies any contention that the trial court probably would have ruled the witness incompetent if trial counsel had asked for such a determination. Based on the transcript of the child’s testimony, I see no reason to believe that the trial court would have exercised its discretion to White’s benefit and declared the witness incompetent even if trial counsel had timely objected. White “has failed to show that, but for this omission, the result at trial would have been different.” Robinson v. State, 210 Ga. App. 278, 280 (3) (435 SE2d 718) (1993).
(b) The majority affirmatively states that trial counsel did not testify at the motion for new trial, but then later states, without apparent support, that the failure to pursue a Batson-type challenge by counsel for this white defendant was a “strategic decision.”
The State likewise disagrees with the majority’s conclusion. In fact, the State readily concedes that trial counsel did in fact attempt to allege a Batson violation, albeit late. The State’s position is that it did not in fact discriminate, or at least the record does not show it, and that therefore White cannot show harm as well as error.
Despite my strong differences with the majority’s analysis, I nevertheless can find no basis for reversible error on this ground. “Appellant made no attempt to have the record or transcript amended to include any objectionable matter which might have transpired during voir dire. OCGA § 5-6-41 (f). The entire voir dire is not required to be reported in all felony cases. Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). When this is not done, there is nothing for the appellate court to review.” (Citations and punctuation omitted; emphasis supplied.) Meier v. State, 190 Ga. App. 625, 626 (1) (379 SE2d 588) (1989).
White has failed to meet his burden to complete the record using the statutory means available to him. Since we have been presented with no basis to determine the existence of a Batson violation in the first instance, we are likewise presented with no basis to conclude that the ruling of the trial court in denying White’s motion for new trial on the ground of ineffective assistance of trial counsel was clearly erroneous. Nolan v. State, 204 Ga. App. 170, 172 (3) (419 SE2d 72) (1992).
I am authorized to state that Chief Judge Pope joins in this special concurrence.
Since trial counsel has not been heard on this issue, it is questionable whether White has presented a claim worthy of review. See, e.g., Williams v. State, 251 Ga. 749, 809 (20) (312 SE2d 40) (1983).
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