Beam v. State
400 S.E.2d 327
Ga.
1991
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BEAM v. THE STATE.

S90A1645

Supreme Court of Georgia

FEBRUARY 7, 1991

260 Ga. 784 | 400 SE2d 327

BELL, Justice.

then described to the witness what the defendant had done to her. Using anatomically correct male and female dolls, the victim demonstrated to the witness what the defendant had done to her. Based on this evidence the witness was permitted to express her opinion that the victim had been sexually molested.

We agree with the defendant that it was error to allow the witness to express her opinion as to whether the child had been molested. The only evidence offered by this witness involved a recitation of what the victim said and demonstrated to the witness.1 The opinion of the witness was impermissibly based on the credibility of the victim, see

, and was not based on her specialized experience or knowledge as an expert in the field of child sexual abuse. The inference to be drawn from this particular evidence was not beyond the ken of the jurors. We cannot say that the jurors lacked the requisite skill, knowledge or experience to determine whether the victim had been molested based on the testimony of the victim‘s statements and her demonstration of what had been done to her. See generally
.

Because it cannot be said that the admission of the witness’ opinion was not harmful, we must reverse.

5. We have examined the defendant‘s remaining enumerations of error, and find them to be either without merit, or unlikely to occur on retrial.

Judgment reversed. All the Justices concur.

DECIDED FEBRUARY 7, 1991.

David F. Dickinson, for appellant.

John M. Ott, District Attorney, Alan A. Cook, Assistant District Attorney, for appellee.

BELL, Justice.

Steven L. Beam was convicted and sentenced to life imprison- ment for the malice murder of Oruada Okpani.1 Beam appeals, contending, in part, that the trial court committed reversible error by failing to excuse for cause a prospective juror who was a full-time employee of the district attorney‘s office. We agree with this contention, and, accordingly, we reverse.

1. There was evidence that the victim was a cab driver and appellant was a passenger in the victim‘s cab. The two men argued, and appellant then killed the victim, shooting him eight times with two different guns. Considering the evidence most favorably to the state, we conclude that the evidence was sufficient to permit a rational trier of fact to find appellant guilty of malice murder beyond a reasonable doubt.

.

2. In his first enumeration of error, appellant contends the trial court committed reversible error by denying his motion to excuse for cause a prospective juror who was a full-time employee of the district attorney‘s office.2 We agree.

“Jurors should be above suspicion.” [Cits.] It is inherent in the nature of [the duties of employees of district attorneys] and the closeness with which such [employees] are identified with criminal procedures that questions regarding possible bias, fairness, prejudice or impermissible influence upon jury deliberations inevitably arise. These questions cannot be erased by a mere subjective, albeit sincere, declaration by the officer that he or she can be fair and impartial as to a defendant. [

.]

See generally LaFave & Israel, Criminal Procedure, Vol. 2, § 21.3 (c) (West 1984 & 1990 pocket parts).

We hold that because the full-time employee of the district attorney‘s office was not excused for cause, the judgment must be reversed.3 Even if the juror in this case was actually unbiased, her ser- vice as a juror while she was an employee of the same district attorney who prosecuted the appellant created a substantial appearance of impropriety. The trial court should have stricken the juror to preserve public respect for the integrity of the judicial process. Our reversal of the conviction is necessary to ensure that such public respect is not eroded in future cases.

3. Our holding in the previous division of this opinion moots appellant‘s remaining enumeration of error.

Judgment reversed. All the Justices concur, except Hunt, J., who dissents.

HUNT, Justice, dissenting.

The majority would disqualify the juror under challenge for principal cause, that is, because of her employment, she was automatically disqualified.4 This expands the holding in

, to equate employees of district attorneys with full-time police officers. To be sure, there are occasions in which such employees should be disqualified, but those employees are not law enforcement officers in any sense of the term, and, as jurors, should not be treated with the same status.5 Indeed, we have consistently refused to extend the rule in Hutcheson, to those less connected with law enforcement than full-time police officers. In
, we rejected an assumption of bias on the part of sworn deputies, employed by the sheriff. Likewise, we rejected such an assumption as to inactive reserve policemen and auxiliary policemen in
, and as to former police officers currently working for the state at a correctional facility in
.

The element of fairness in the jury selection process remains intact by virtue of the fact that a juror not automatically disqualified is yet subject to challenge for cause if bias is shown, and in any event is subject to peremptory challenge.6 Because there was no showing during the voir dire examination that this particular juror was in any way biased or prejudiced,7 and because I would not expand the Hutcheson rule to presume bias on the part of one of many secretaries in the appellate division in the district attorney‘s office, I would affirm the conviction.

Therefore, I respectfully dissent.

DECIDED FEBRUARY 8, 1991.

Lynne Y. Borsuk, Donna Lea Avans, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, Constance C. Russell, Assistant District Attorneys, Michael J. Bowers, Attorney General, for appellee.

Notes

1
The witness did not testify that her evaluation of the child‘s recitation and demonstration was based on any scientific study, see Justice Hunt‘s special concurrence in
, or any recognized syndrome associated with victims of sexual abuse. In fact, the witness testified that she was not familiar with the child sexual abuse syndrome. The crime occurred on October 30, 1989. Beam was indicted on April 17, 1990. The verdict was returned on June 6, 1990, and appellant was sentenced on June 8, 1990. On June 22, 1990, the court reporter certified the trial transcript. Beam moved for a new trial on July 8, 1990. On July 27, 1990, the trial court denied the motion. Beam filed his notice of appeal on August 24, 1990, and the clerk of the trial court certified the record on September 13, 1990. The record was filed in this Court on September 17, 1990. On November 2, 1990, the appeal was submitted for decision without oral argument.
2
The juror was a secretary in the appellate section of the district attorney‘s office.
3
The State argues that because appellant did not exhaust his peremptory strikes, this Court should deem harmless the trial court‘s erroneous refusal to strike for cause the employee of the district attorney. However, in
, we resolved this argument adversely to the State.
4
There are two types of challenges to an individual juror for cause: [fn.] (1) for principal cause, and (2) for favor. [Cits.] Challenges for principal cause are based on facts which, if proved, automatically disqualify the juror from serving. . . . Challenges for favor are based on admissions of the juror or facts and circumstances raising a suspicion that the juror is actually biased for or against one of the parties.
. Both types of challenges involve a determination of bias on the part of the juror. Challenges for principal cause, the first type, involve a nonrebuttable presumption of bias. In challenges for favor, the second type, bias on the part of the juror is asserted by the party moving to disqualify but is not presumed. In the latter case, a decision is made by the trial judge, based on his or her discretion, whether the juror should be excused for cause. The holding in this case places all employees of a district attorney, regardless of how remotely they may be connected with the case on trial, in the former category. I would place them in the latter.
5
Accord
(trial court did not err in refusing to excuse for cause a prospective juror, an administrative assistant in the district attorney‘s office, who stated she was not involved in any aspect of the case, or its investigation, and that she could serve as a fair and impartial juror);
(fact that prospective juror was employed by the district attorney at the time of trial did not impute bias as a matter of law);
(trial court did not err in overruling a challenge for cause of a juror who was a client and employee of one of the attorneys for the prosecution).
6
But for the rule in
, this alleged error would have been found harmless. The potential juror was peremptorily struck by the defendant who had two remaining peremptory strikes after the jury was ultimately selected. The speculative nature of weighing the value of unused peremptory strikes, referred to in cases such as
; and
, is not present in this case.
7
Beam‘s lawyer ended her principal voir dire examination of the juror without moving to disqualify her. Thereafter, she called the juror for further questioning, and upon learning that the juror had access to case files, although she received and reviewed only those dealing with appeals, moved to disqualify her. The basis for the motion to disqualify, and for the ultimate striking of the juror, was not over any concern of undue loyalty to her employer, but seemed related to a fear that the juror might, from a source beyond the evidence, learn something about the case. Nothing from the voir dire examination demonstrated such fear would be realized. The information acquired, therefore, would certainly encourage a peremptory strike, but would not authorize a challenge for cause.