*1 (a) Compen- that the Workers’ provides 34-9-11 Because OCGA negli- caused remedy injury exclusive Act is Cotton’s sation that Cotton undisputed and since a co-employee gence benefits, properly compensation workers’ received summary judgment. Bowen’s granted J., J., concur. Eldridge, P. Pope, Judgment affirmed. 2, 1999 Decided November 16, 1999 December denied Reconsideration Jr., Leman, David L. Coppedge, Warren N. & Coppedge McGuf- fey, appellant. McClelland, Brooks, B.
Chambers, & Walter Mabry, McClelland Wheeler, S. & Anandhi Gosdeck, Weinberg, Ansley Long, Jo Beth Barre, for appellees. Kenneth M. Rajan, THE CASTRO v. STATE.
A99A1374. Judge. Smith, Castro, was con- husband, Jose Castro, along with Maria child molestation aggravated victed of the offenses Maria Castro three-year-old daughter. their involving molestation Castro appeal, which was denied. filed a motion for new her motion for refusing grant that the trial court erred contends child molestation aggravated acquittal directed verdict after a witness a mistrial by refusing count and erred telling the victim was commented that she believed improperly one of the Although either assertion. We find no merit truth.1 remark uttered a about gratuitous witnesses improperly State’s its dis- find that the trial court abused credibility, we do not matter resolving by employing appropriate in cretion instructions. in the trial court erred
1. Castro contends child molesta- aggravated verdict on the count motion for directed disagree. tion. We verdict, evidence showed uphold
Construed three- Jose, victimized their husband, Castro and her both certain sexual mentioned daughter After their year-old daughter. babysitters, they to her and with her engaged activities & Family authorities, Floyd County Department contacted party appeal. to this Jose Castro is not a investigation. immediate instituted Children Services Campbell, an Dr. Susan psychologist House, a clinical affiliated with Harbor inter- day report initial viewed the victim the after DFCS received the allegedly perpetrated by parents. the sexual abuse child’s Campbell, psychology the field of child and forensic spoke Campbell’s victims, child.2 interviews of child abuse interview the victim was very *2 preserved videotape was on a that the permitted Campbell to view. Dr. testified that “she described easily sexual that had occurred herself and behaviors between things parents parents her and between her that are that she would knowledge experienced not have According about if she had not them herself.” Campbell, put child] actually “[this
to Dr. her on mouth say genitalia — dolls, the the which I would than five less cases something of the 450 that we’ve that seen at Harbor House During interview, I’ve initial seen children do.” the victim indi- cated that she had on her taken mother’s underwear off and her kissed vaginal buttocks, she area, that had kissed her mother in her Using her mother had kissed her in her crotch area. £®ia- placing dolls, tomical the victim her on reenacted mouth her mother’s vaginal area. psychologist, provided counseling Lovell,
Eva a clinical through therapy repeatedly victim than 22 more sessions. The victim consistently touching involving described acts of sexual her both parents during therapy.3 supervisor, to Lovell Dr. William Blackerby, against parents testified the victim’s claims her had way along.” been consistent “all the Lovell testified that the child’s explicit knowledge percent and behavior exceeded 99.999 typical age. children of her
The victim’s foster mother confirmed that the child acted out sexually age. in a behaved manner for her Accord- ing repeatedly enacting mother, to the foster she observed the victim indicating scenes with dolls intercourse and oral sex. preliminary Campbell
About six after interview, weeks Dr. again Campbell’s met with the victim. Dr. sec- decision conduct a prompted by ond interview was remarks made the victim after possibly implicate was in foster care that seemed to two additional perpetrators. tigate purpose solely of the second inves- interview persons sexually may
whether other
have also
abused
Campbell
child. Dr.
felt that she did not obtain reliable information
Campbell explained
gathering
“[a]
Dr.
interview
Dr.
forensic
is focused
data.”
Campbell
personally
participated
conducted over 250 such interviews and
in over 100
others.
victim,
Rogers, M.D.,
pediatrician
Sara
testified
child
who examined the
hymen,
object.
penetrating injury
had sustained a severe
to her
caused
the insertion of an
Campbell
parents.
by anyone
concerning
than the
other
misconduct
of the aberrant sexual
victim’s accounts
testified
According
to Dr.
over time.
consistent
remained
her
previously
anything
Campbell,
she had
retracted
the victim never
Campbell’s
parents.
view, the victim
In Dr.
either of
said about
symptoms
“absolutely”
child who has
of a
and behaviors
exhibited
sexually
the mean-
within
evidence was sufficient
abused. This
been
Virginia,
2781, 61 LE2d
ing
SC
After both defendants renewed their motions The then wit- mistrial. denied the motions and cautioned the ness follows: trying question you Doctor,
THE THE WITNESS: I’m COURT: —. Yes, sir. [B]ut
THE COURT: there is a line of demarcation between you’re jury by way helping what to do for able them —. (affirmative). THE WITNESS: Uh-huh —— [A]nd you THE COURT: what can do you’re prohibited telling your opin- from what purpose opinion. ion is for their concedes,
As the State comment improper. exclusively believed the child was Witness lies province jury. within the OCGA 24-9-80. A witness’s credibil- ity simply cannot be bolstered of another that wit- telling e.g., See, ness the truth. Buice v. 55- (2) 258) Ga. 481- Hilliard (1997); Lagana Ga. But in circumstances, mistrial was not mandated. grant or denial motion of a lies within the mistrial sound discre- court, tion of the trial manifestly and this discretion will not unless be disturbed Mosier abused. 589-590 see Davis 88-89 *4 (517 808) (1999). SE2d Unless it is obvious that a mistrial is essen- preservation right appellate tial to the to a the fair courts will not interfere with the v. exercise court’s discretion. Jones (2) (487 618) (1997). App. State, 721, 226 Ga. 725 SE2d recognizing problem impermissible
Here, the with this bolster- ing, rectify the trial court took immediate remedial action to the situ- strongly provided instruction, ation. court worded curative jury, giving opinion. the then advised the witness avoid supra cautionary (by providing polling Jones, the instructions and 550 in did its discretion not abuse
jury, the 751, State, v. Davis, 202 Ga. 755 mistrial); supra; English see (415 659) (1992). efforts, the nature the court’s curative SE2d Given comment, prejudice, and the lack of we apparent the in the denial of the motion mistrial. find abuse of discretion no (4) (513 207) (1999). State, 675, 677 SE2d James v. Ga. Moreover, here, State, v. Stamey 409) (1990), defendant, the implicated sufficient other SE2d the highly us to that it is that errone- permitting probable conclude See testimony not contribute to the verdict. Johnson ous did (1976) (even 59, SE2d when error is State, 238 Ga. when it that shown, highly probable reversal warranted is verdict). In jury’s Stamey, supra, not contribute to the error did improper concerning that victim’s opinion testimony concluded role did not because that also usurp the child’s “exhaustively explained determining the basis credibil- (1) (a). Here, heard ity.” Campbell explain Id. at 306 syndrome abuse accommodation characteristics child sexual acting acts, to do sex pretending which includes out videotapes explicitly viewed two of the victim activi- depicting ties in which she was an active participant, describing heard from several witnesses victim’s evidence, bizarre sexual behavior. From this could determine appeared itself whether victim’s accounts and conduct credi- any occurred, ble. if error we nevertheless conclude it is Even highly probable therapist’s response did not (5) (518 to the Huntley contribute verdict. Since the abundant other evidence from judge which it could the victim’s reversal is not war- 435) credibility, Berry ranted. 591) (1993)
see (harmless Dickerson analysis despite error applied impermissible bolstering credibility). reasons, For two concurrence special Their required. Curative instructions are not items. content fungible always matter. Whether curative instructions are suffi- quality harm always cient to cure the must be determined under the circum- stances of each case. Wilson v. Ga. Maddox v.
(1997). It a trial court simply provides cannot be said whenever instructions those two polls and also combined always appellate are sufficient” foreclose all con- “legally actions its sideration as to whether the trial exercised discre- properly Jones, the trial contrary, tion. On the as noted when supra, also the issue gives cautionary jury, instructions polls *5 fair right the to á trial. preserved measures remains whether Id. oth- do not hold by special the concurrence upon relied The cases 666) 653, State,
erwise. In Garcia to his motion for a mistrial elected not renew (1993), defendant the Id. jury. the curative instructions gave after the trial reason- there was a explored nevertheless whether at This court 657. of the changed the result improper comment able probability (4) (477 trial. at 658. Smith Id. merely the but limited (1996), trial court did poll the of the evidence. the consideration fact, horren- was, in the victim of
The evidence The evidence absolutely overwhelming. dous abuse was sexual as a of sexual abuse was also Maria Castro incriminating perpetrator Division 1 Indeed, the last of this overwhelming. sentence fundamentally But it would be says just that. Castro in unfair evidence not to defendant Maria relating to consider the appeal. special Yet much the evidence cited reviewing Jose Castro and not necessa- may pertained only concurrence have to addition, evidence, rily Maria Castro. In there was some albeit also this child. conflicting, may that others have abused J, J., P. Eldridge, spe- concurs. concurs Judgment Pope, affirmed. cially. in Judge, concurring specially judgment only. Eldridge, I concur in the fully majority opinion following cannot reasons: I2,
1. In Division do not believe that additional majority’s analysis regarding “the nature of comment [Lovell’s] that, lack of I find apparent prejudice” required law. thorough instructions, after the trial court’s poll (or thereof) legally and its lack sufficient to deter- mine that the trial did not motion err Castro’s mistrial.4 poll juror
[T]he trial court’s reflects that no believed he or she could not the curative instruction. follow Moreover, oath, are in the qualified jurors, presumed under of clear follow contrary procedural absence evidence to of and of the trial respond honestly questions directives judge. majority analysis necessary, proposition In the case cited for the that further instructions, poll alone, did not to determine the trial court issued curative (1999). testimony. improper
effect James Garcia v. (1993); Smith Accordingly, the trial court’s denial the motion for mistrial was not error. Also, I contrary 2. to the majority, would not characterize this case as “sufficient” but overwhelming. Three-year- old J. C. was able to a year sustain over a consistent version of defendants, which was a “highly feat unlikely” according forensic psychologist Campbell; Susan three different J. psychologists6 outcry testified that C.’s fit within the parameters *6 well-recognized standards; outcry repeated witnesses same version of sexual abuse her parents C.; as told to them by J. in two video J. tapes, C. repeated statements about her parents’ abuse; a evidence of “child sexual behavior checklist” was introduced J.
showing C. had more knowledge and acted more sexually children; that (defendant of percent 99.999 similar statements from J. C.’s father Castro) Jose were introduced that he [J. C.] “noticed awake” and watching sex, as the defendants had and “he had noticed them watching have sex on at least one occasion and that per- haps she had seen them also”; other times J. C.’s was outcry further corroborated Dr. Sara Rogers who testified that a exami- physical nation three-year-old J. C. showed severe vaginal penetration that removed completely hymenal membrane.
Clearly there was overwhelming which the jury could judge the credibility, notwithstanding single improper statement a statement it confirmed would not Further, credit. contrary majority’s position, it is not “inappro- priate and fundamentally unfair” to consider cill of the evidence against Castro, Maria is a party any crimes committed Jose Castro and versa, vice and the trial court charged parties on to a crime. OCGA 16-2-21. Accordingly, is “‘highly probable that ” [Lovell’s statement] did not contribute to judgment.’ Johnson v. (230 869) State, 59, 238 Ga. (1976); State, SE2d Huntley v. 271 Ga. 890) (1999). 227, 230 SE2d 3, 1999 Decided December 16, 1999 Reconsideration denied December 742) State, (1993); Accord Dennis v. 263 Ga. SE2d Griffin 744) (1996); 221 Ga. Touchton v. 370) (1993); McDaniel v. Harris v. (309 Truitt v. Lovell, psychologist psychologist Campbell, Clinical neuropsycholo Eva forensic gist Blackerby. William appellant. Wyatt, for James C. Simpson, Stephen Attorney, C. Colston, FredR. District TambraP. Attorneys, appellee. Cox, District Assistant al. THE STATE. et A99A1457. MULLINS (525 SE2d Judge. Smith, Kimberly
Jimmy Wayne Mullins were Carmela Mullins and possession amphetamines charged in with two-count indictment a possession less than an ounce and intent to distribute alleg- they appeal, guilty by jury, marijuana. ing were found Both custody adequate prove chain for the failed to the State the trial court erred their home and that seized from contraband upon juror based misconduct. motion for mistrial their custody, adequate Although proved an chain of find that the State declared, there- have been and we that a mistrial should we conclude reverse. 1. The fore Drug
Appalachian Force executed a search warrant Task January Jimmy Kimberly on 1997. Mullins the home of Jimmy Cagle Agent house found Mullins in the bathroom of the John Agent Cagle trying plastic bags toilet. down the flush several bags and He initialed the seize the contraband. able retrieve *7 Agent bags the the Shane Henson at and turned them over evidence scene. Henson along placed them, items seized from other plastic bag- including marijuana, scales, home, “corner” electronic smoking pipe, jar gies, Fresh, can of Fruit and a into trunk or placed he first vehicle locked the trunk. Henson testified that his Appa- in the secured evidence locker at office the evidence County Drug and that he later carried lachian it Task Force Dawson Investigation Georgia personally crime lab Bureau testing. 1 and At Henson identified State’s Exhibits Decatur for eventually samples he 2 delivered to took from the Mullinses’ home the crime lab. lab, that she Ali, a forensic chemist at the crime testified
Unaiza May supervisor, Burns, 1 from Mark received State’s Exhibit sample the lock Lonnie 1998. The been taken from box employed chemist, Jones, then the crime lab as a forensic who was at longer employed analyzed by it was Jones. Because Jones was no prosecutor requested sample lab, be ana- at the crime lyzed again. analyzed sample anew, it as Ali and she identified amphetamine. bag, it
Ali that when she received the testified “unique stapled crime it bore a sealed but was shut. She stated that