Davitt v. StateDavitt v. State
- Reporters:
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- Before:
- Johnson
David Davitt was found guilty of child molestation and aggravated child molestation for offenses committed against his friend’s five-year-old sister. He appeals from the convictions entered on the jury’s verdict.
1. Davitt claims the trial court erred in allowing the child’s mother to bolster the child’s credibility. When the prosecutor asked the mother whether her child was generally credible, the mother responded that the child “doesn’t go around lying,” but then volunteered examples of when the child had lied in the past. Davitt did not object to the state’s question, the mother’s response, or request any relief at trial. “[I]t is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection. . . . [I]t is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” (Punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 196 (2) (491 SE2d 387) (1997). Davitt has waived this enumeration.
2. Davitt contends the trial court expressed its opinion as to what had been proved by stating in the jury’s presence that the child victim was qualified to testify. See
3. Davitt claims the trial court erred in failing to determine whether jurors actually heard testimony taken during a JacksonDenno hearing held outside of their presence. At trial, defense counsel told the trial court that the bailiffs reported being able to hear the testimony from another room and that the jurors might also have heard the testimony. The trial court and counsel agreed that “something needs to be done about” the “paper thin” door. Trial counsel did not move for mistrial, suggest what needed to be done, or request that the court inquire into what, if anything, the jurors actually heard. Instead, he engaged in a colloquy with the trial judge and opposing counsel regarding construction of a new courthouse and then began discussing other matters.
If the trial court is not requested to take curative action, its failure to do so cannot be addressed on appeal as error. See generally Boatright v. State, 192 Ga. App. 112, 116 (5) (385 SE2d 298) (1989); Kennedy v. State, 207 Ga. App. 798, 799 (2) (b) (429 SE2d 167) (1993). An appellate court will not grant more relief than that actually prayed for at trial. Reddin v. State, 223 Ga. App. 148, 153 (6) (476 SE2d 882) (1996). Davitt’s failure to request any type of relief at trial precludes reversal based on the trial court’s failure to act. See Zellner v. State, 260 Ga. 749, 751 (3) (b) (399 SE2d 206) (1991); Newton v. State, 259 Ga. 853, 854 (5) (388 SE2d 698) (1990).
Moreover, the argument is without merit. Davitt is correct that there is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove that no harm occurred. See Anderson v. State, 203 Ga. App. 118, 122 (6) (416 SE2d 309) (1992). The burden of proving the absence of harm shifts to the state only after an irregularity is shown. See McIntyre v. State, 207 Ga. App. 129, 130 (3) (427 SE2d 99) (1993). Davitt has not shown on the record that the alleged irregularity occurred. While he has shown that the courtroom is not soundproof, he has not presented any evidence that any of the jurors actually heard the testimony. As Davitt has failed to show harm by the record, this enumeration presents no grounds for reversal. See McBrayer v. State, 259 Ga. 513, 514 (2) (383 SE2d 879) (1989).
4. Davitt asserts for the first time that he was denied effective assistance of counsel because trial counsel failed to: object to alleged bolstering by the victim’s mother; object to the trial court’s statement in the jury’s presence that the child was qualified to testify; develop the record as to whether the jury overheard testimony from the Jackson-Denno hearing; made no opening statement; and filed no written requests to charge.
We disagree with the state that Davitt waived the ineffectiveness claim by not raising it earlier. The judgments of conviction were entered on April 10, 1997. Trial counsel filed a notice of appeal on April 16, 1997. No motion for new trial was ever filed. New appellate counsel notified this Court of his appointment in August 1997, though the record is silent as to the precise date he was appointed, and filed a motion for remand on the ineffective assistance of counsel issue in his first appearance. See generally Herndon v. State, 229 Ga. App. 457, 461 (12) (494 SE2d 262) (1997).
An attorney cannot reasonably be expected to assert that he was ineffective at trial. Under the circumstances presented here, we cannot say that Davitt had an adequate opportunity to raise the ineffectiveness claim before the appeal was filed. See generally
Glover v. State,
266 Ga. 183, 184 (2)
Judgments affirmed and case remanded with direction.
Birdsong, P. J, and Smith, J., concur.