Calloway v. StateCalloway v. State
Lead Opinion
Defendant was indicted for rape and two counts of child molesta-1 tion. He appeals from his conviction of both counts of child molesta-j tion. Held:
1. In his first enumeration of error, defendant contends that thej trial court erroneously allowed the victim to testify over objection! that he had a temper and he and her mother fought frequently, asj this wаs brought in only to intimate his violent nature to the jury and] impermissibly place his character in evidence. The victim testified! that she was afraid of what defendant might have done if she did nоt do what he told her to do because of the “fights and fusses” he hadl with her mother. Since force is an essential element of rape, this testi-j mony as to defendant’s violence and the victim’s fear of him was rele-j vant and admissible. Lack of resistance, induced by fear, is force, anc may be shown by “the prosecutrix’ state of mind from her prior expе l
2. The social worker from the Spalding County Department of Family & Childrеn Services testified that she observed from her investigation that the mother believed the victim and was protective of her. Defendant complains that this was impermissible opinion evidence, “if not hearsay,” and should not have been admitted over his objection on this ground. Even if this testimony was not admissible under
3. Defendant asserts in his third enumeration that the trial court incorrectly invoked the “rape-shield” statute and erred in preventing defense counsel from asking “questions regarding the child’s and her family’s sexual background.” We do not agree.
While
4. In his fourth enumeration, defendant’s contention that the trial сourt improperly denied his motion to suppress the evidence taken with the permission of the victim’s mother from the bedroom he and the mother shared is likewise without merit. “A warrantless search of a residence may be authorized by the consent of any person [who possesses a sufficient relationship to the premises to be inspectеd. [Cits.]” Williams v. State,
5. The trial court granted the State’s motion in limine prohibiting any mention during opening arguments of a civil suit allegedly filed by the victim’s mother against defendant. Defense counsel was allowed to question the mother on cross-examination at length on this subject, but defendant contends in his fifth enumeration that he was “irreparably harmed” by not being allowed to cross-examine the State’s witnesses who precedеd the mother. However, the mother was the first witness for the State who had any interest or involvement in the purported lawsuit, which she denied having filed. Defense counsel made no рroffer to disclose to the trial judge that the excluded testimony would have been material or relevant to the issues in the case. “Even where a party is under cross-examination, the court may exercise a sound discretion in requiring counsel to make the relevancy of the questions apparent. [Cit.]” Cox v. Norris,
6. The trial court did not improperly limit defеnse counsel in his cross-examination of the physician who examined the victim concerning his pay scale for appearing as a witness, and whether he had to be paid “up front” before he would honor a court subpoena. When questioned by the court, counsel admitted that there was no evidence the doctor had made any suсh demands in the instant trial. Since defense counsel had extensively examined this witness about his pay scale for testifying in court, and knew that he was in fact testifying in defendant’s trial, the questiоn could only have been asked to place the doctor in an unfavorable light before the jury. In such case, “the trial judge has as a discretion to be exercised in determining admissibility.[ [Cits.]” Smith v. State,
7. During the State’s questioning of the doctor on redirect, th< trial court asked several questions to clarify what effect the two-wee] lapse between the victim’s molestation and his examination of heij would have on any physical evidence of sexual abuse. Defendant con-[ tends in his seventh enumeration that this constituted an expressiоi or intimation on the court’s part of its opinion on the facts of th< case, or what had or had not been proven, in violation of
8. In his final enumeration, defendant asserts that the trial court violated Rule 10.3 of the Uniform Rules for the Superior Courts by giving the jury two charges requested by the State the day after the trial began over his objection that they were not timely filed. While that rule does require all requests tо charge to be submitted in writing “at the commencement of trial,” it also provides “that additional requests may be submitted to cover unanticipated points which arise thereafter.” Defendant does not complain that the instructions given were incorrect statements of the law or unadjusted to the evidence. “The court, whether requested or not, should give to the jury appropriate instructions on every substantial issue in the case presented by the evidence, and a failure to do so is cause for a new trial.” Walker v. State,
Judgment affirmed.
Dissenting Opinion
dissenting.
I cannot agree with the majority’s conclusion in Division 2 of its Ipinion that the testimony of the sоcial worker that the mother be
I am authorized to state that Presiding Judge Birdsong joins in this dissent.
Concurrence Opinion
concurring specially.
I concur in the dissent to the extent that the witness’ opinion [that another witness believed the victim was inadmissible. Credibility lis a matter for the jury itself, and it does not need the opiniоn of [others on this subject to aid it in finding this fact. Thus it is not the sort of opinion admissible by virtue of
Nevertheless, even though the mother’s opinion was itself irrelevant, the evidеnce was harmless as cumulative, since it was, by inference if not otherwise, clear from the mother’s testimony as a State’s witness and from her actions in response to her child’s accusations, |;hat she accepted as true what the child said. “Evidence which is cu-rulative of other legally admissible evidence of the same fact, renders jiarmless admission of incompetent evidence. [Cits.]” Lynn v. State, [
I am authorized to state that Judge Andrews joins in this special loncurrence.