*1
unauthorized
Clearly,
damages.2
to general
from
ages
punitive
by a
considered
records
psychiatric
of this patient’s
release
Thus, an
the plaintiffs.
act directed at
and wanton
jury to be a wilful
alone,
recovery
allowing
plaintiffs
directed at the
intentional
tort was
the peace
is to
injury
where the entire
suffering
and
for mental pain
826)
(412 SE2d
Decided Grist, Jr., Dozier, Lee, Sikes, appellants. M. for Graham & Joel Howell, for Jones, Miller, Ashley Royal, C. Cork & Wendell K. appellees. THE
A99A0758. DUMAS v. STATE.
Pope, Judge. Presiding sod- aggravated Dumas was convicted on one count of
Frederick denied, amended, was omy. His motion for new appeals. the evidence and contrary
1. contends the verdict was In he contends that particular, of the evidence. weight consent to that the victim lacked the the State did show not force. We first note with him or that he used relationship sexual sup- most favorable to light this court views the evidence 915, 6, damages repealed as a p. vindictive § Ga. L. codified as OCGA general damage damages peace happiness dam punitive as a and recreated such jurors. descriptive enlightened impartial content age, measured in the consciences body feelings.” title, injuries peace, happiness, provide or id. at reads “to for damages expressly punitive are not recoverable. states that in such action port appellant longer enjoys presumption verdict, and an “no appellate innocence; moreover, an court determines evidence suffi- ciency weigh and does not the evidence or determine witness credibil- ity. [Cit.]” Johnson v. viewing evidence, So we record, have examined the we conclude that the evidence was sufficient to enable a rational trier *2 aggravated sodomy of fact to conclude that Dumas committed mentally 22-year-old the a retarded man. erroneously permitted 2. Dumas contends the trial court the vic- testify finding tim to after that the victim did not understand the incapacity. oath due to his relying challenged § At on Dumas the com-
petency testify, arguing of the victim to that the victim did not have the use reason and could not understand the oath because of his incapacity. provides § mental OCGA 24-9-5 as follows: (a) (b) Except provided as in subsection section, this Code persons who do not have the reason, use of idiots, such as during lunacy, lunatics and children who do not understand incompetent the nature oath, of an shall be witnesses.
(b) (a) Notwithstanding provisions the of subsection of this involving Code section ... criminal cases child molesta- tion, and in all other criminal cases in which a child was a any victim of or a witness to crime, such child shall be competent testify, credibility and his shall be determined provided chapter. as in Article 4 of this During competency hearing, prosecutor analogized allegedly adult victim to a capacity child because he functioned at the seven-year-old, of characterization apparently agreed and the trial court with argued of the victim’s mental abilities. The State that under the required statute the was not required only oath, understand the rather he to be able to rea- hearing argument, son. After further the trial court stated that the threshold issue for applied determination was whether the statute applies “as if he’s child or whether it as if he’s an adult.” The court attempted question using then the victim the sister’s assistance. After following ruling: this initial examination, the court made the [the victim]
Based on the court’s examination of and his sis- [the ter, victim] functioning it’s clear to the court that is not Clearly may as an adult. he be an adult terms of chrono- logical age but believe, he’s not an adult. I as I understand seven-year-old. it, he functions about like a . . . six or He’s fairly non-verbal. . . . Based on what the court has victim] testimony [the will allow observed, the court through assistance or some other his sister through [the I find that . . . do not of this trial. for purposes mother of his obvious the oath because understand victim] has to incapacity. reason, because ability had the the victim court also concluded down,” “get in,” “sit to “come his instructions obeyed
the victim instructions followed the the victim also noted court up.” on, go.” let’s she said “come his sister when con- again objected, Dumas to the victim’s Just an adult. testify incompetent the victim was tending that required 24-9-5, the victim under OCGA argued Dumas truth and fal- between and the difference “to understand alterna- argued to reason. ability as well as to have sity,” child, the victim victim to be a court believed tively (b), under OCGA incompetent was nevertheless stating ruling, its earlier to reason. The court reiterated was unable has come after the evidence “testify could particularly that the victim reason, it as a although he has the in as to whether *3 how to tell the you “Do know The court twice asked child.” ‘You The court responded, nodded his head. truth?” and the victim answered, The vic- “[Y]es.” for me?” you say ‘yes’ do? Can permitted testify. tim was then (a) those who cannot says 24-9-5
First, of OCGA § subsection hearing Here, competency at the testify. are incompetent reason chal- Dumas has not ability. the victim had that the court held that that conclusion. lenged (b)
Second, applies whether OCGA pretermitting mentally recognized law has long mentally incompetent, standard meet the same testify they witnesses incompetent may met that the victim in this case children, formerly applied (b) to OCGA 24-9-5 was added standard. Before subsection was assessed as witnesses mentally impaired of the the nature of children, i.e., they whether understand same test as the oath. cases, not, in all insane is adjudged
A who has been person if he testimony is admissible as a witness. His incompetent obligations understanding apprehend has sufficient of the correct account giving capable an oath and to be to the questions seen or heard reference matters he has issue. 983) (1907).1 App.
Cuesta
Goldsmith,
v.
hn. 3
SE
governing
The rules
courts in the admission of evidence of
alleged
capacity
. . . one
to be . . .of insufficient mental
appreciate
understand the nature of an oath and
its sanc-
tity] ]
analogous
applicable
are
to those
to a case where tes-
timony
objected
ground
of a child is offered and
to on the
years
child,
because of its tender
and the mental
incapacity resulting
incapable
therefrom, is
of understand-
ing
[Cits.]
the nature of an oath.
Langston
State,
153 Ga.
hn. 2
SE
Understanding
require
the nature of the oath does not
a techni-
understanding
simple
cal
oath,
of the
but rather a
importance
telling
truth and falsehood and the
the truth. As stated
53) (1981),
in
ing
Smith v.
not that he be able to define anof nor process that he understand the under which the oath is appreciate administered, but rather that he know and binding fact that as a witness he assumes a solemn and obli- gation to tell the truth relative to the case and interrogated such matters as he on, and that if he obligation subject punished by violates the he is to be court. (1) (486 Vaughn App. See also 226 Ga.
(1997) (witness understood difference between truth and falsehood importance telling truth); Lamunyon and the 218 Ga. (1) (463 365) (1995) (witness App. 782, appreciate could the to tell the appreciate obligation difference between truth and lie and truth); Howard v. (1994) (witness promise good knew what a was and that it was keep promise promised it, and bad to break and then she to tell the truth); Haslem v. 251, *4 (1981) (victim charges against understood nature of oath and the defendant).
Everyone presumed competent testify, people is to even who Flynn have been shown to have mental disabilities. Cuesta, At the time of the decision in the statute on witness was essen tially the same as OCGA § 24-9-5 to 1989. pro Section 5273 of the Civil Code of 1895 “
vided, reason, idiots, “Persons who during have not the use of lunacy, lunatics and chil ” dren who do not understand the incompetent Cuesta, nature of an are witnesses.’ (3). at observed Here, the trial court testified, the vic- he reason. Before ability to had the the victim he testified truth; his mother how to tell he knew tim indicated he had the wrong right between the difference knew right between distinguish he could testified reason; and his sister sister The mother and wrong. when and is remorseful wrong competency. the victim’s testify regarding were authorized victim had (b). to show was sufficient This evidence if will be affirmed ruling “Atrial court’s the truth. for appreciation an omitted). (Citations Lewis and punctuation reason.” for it evidence erroneously admitted trial court Dumas contends the 3. Court Rule Superior a Uniform Following transactions. similar evi- introduce the State to court permitted the trial hearing, 31.3 the alleged The first involved three similar transactions. dence of testified niece. Dumas’s sister of Dumas’s molestation placed Dumas had told her that daughter seven-year-old her then alleged this reported sister Although Dumas’s in her bottom. finger at the charges authorities, eventually dropped she incident of their mother. request and Dumas were that she of Dumas’s sisters testified
Another from work home and she returned their mother living with asked “Nookie” on the door and locked. She knocked to find the house door, the wit- but coming her he was her in. Dumas told to let minutes, and she for five stood at the door ness testified she the door.” don’t come to you window pane threatened to “bust the child door, saw “a little the witness finally Dumas opened When was real scared “acted like she out the door.” The child coming . . . know, she had little eyes, you real wild. Her looking and . . . she was talk, apparently The child was unable eyes.” out little bugged however, did, The child fear, to the witness. according of her Dumas had Thinking that where she lived. out to witness point told her mother her home and child, the witness took raped The for this offense. Dumas was hospital. prosecuted her to the take indictment, him with charging an a certified copy State introduced his sex on and organ guilty “placing Dumas pled child molestation. January 1979.” of the child on or around organ the sex Officer victim. 38-year-old involved a The third transaction that he testified Department the Atlanta Police Gordon Earls with had who stated she a woman April a call investigated had two cut, and she lip Dumas. victim’s raped been a certi- introduced head, to Earls. State according “knots” on her but rape, Dumas with charging of an indictment copy fied with assault aggravated offense of to a lesser-included guilty pled for money gave Dumas testified that intent to rape. *5 215 they began him, with sex, she refused to have sex and when then going telling fighting. to victim, the “You’reeither do He admitted fight.” something going or we’re may admitted, transactions the
Before evidence of similar showings as each transaction. must make three affirmative State being permissi- a the evidence is used for State must show that purpose, the to have been ble that sufficient evidence shows accused perpetrator transaction, and simi- the of similar that sufficient the larity which transaction and the crime for the the exists between the prove proof trial, that the former tends to accused is on such of (2) (b) (409 640, Ga. SE2d State, latter. Williams v. 261 642 (1991). exception general admission the rule the of This liberally independent most extended evidence of offenses “has been (Citation omitted.) punctuation in area of sexual offenses.” and 292) (1991). (2) App. 898, State, 199 899 SE2d Stine v. Ga. respect charge initiated after With to the child molestation seven-year-old frightened girl and the Dumas’s sister discovered the aggravated charge, find in the assault we no error admission these transactions to transactions. The State introduced all of similar e.g., permissible purpose. mind, See, show Dumas’s state of McCor- 903) (1997). (5) App. 467, mick testimony 228 468 Ga. was sister sufficient evidence to show Dumas’s against perpetrator child, and his own was the of the offense tes- aggravated timony his involvement in the assault showed required showing adult As third the State was woman. for the similarity prior and the make, a sufficient between the offenses one charge child for which Dumas was on molestation tendency sexually demonstrated Dumas’s limited assault individuals of capacity. mental against
Although similarity aggravated of the assault woman to the sexual assault the victim this case is adult similarity exist, clear, not some Dumas’s relevance as conduct tendency during the former incident to use force an showed engage contact Even if the effort to court did sexual with victim. trial findings explicit
not make record each of on the these requirements met, occurred, no harmful error because the evi- requirements was sufficient to show that the Williams were dence (6) (d) (512 Byrd satisfied. See 489 372) (1999). relevancy Moreover, it clear in case that the is outweighed prejudice similar their these transactions particularly admission have occasioned. “Such evidence is rele- mentally needed, vant . . sexual abuse is where the of. Payne App. retarded.” (1993), grounds, Ga. overruled on other Sims v. discretion, we will not “Absent an abuse a trial determination that similar transaction evi- disturb dence court’s [Cit.] We find no such abuse here.” Arnold v. admissible. involving regard niece, to the incident Dumas’s With argues conviction, there was no indictment or through other than the the court introduced failed make the three someone required any pos- findings. We conclude that *6 Appellate sible error was harmless. as error when similar transaction evidence has been admitted. White v. courts must assess harm as well
improperly (2) 278) (1998); 269 Ga. 75 618) (1997). Jones v. 724 highly probable is is error when it the error did harmless not contrib- (2); judgment. White, the 269 ute to Ga. at 75 Johnson v. Ga. jury Here, the victim demonstrated for the what did to Dumas person him. The victim’s sister identified Dumas as the she whom missing victim; the victim entrusted the were an Dumas for over half; found, and a hour when the victim was the sister observed evi- dence the assault on victim the and she noted that his underwear missing; day the and she found underwear victim’s the next some bushes. Given this evidence and the other two similar transac- highly probable any introducing it tions, with is that error the incident judgment. the niece did not contribute to the See Sweet v. 317) (1999) (similar App. 613, transaction only evidence of molestation was harmless when evidence against three-year-old defendant was child told mother social phys- that her, worker ical evidence on defendant had molested and mother saw some child). suggests presented the State fourth similar transaction regarding Rosemary daughter. appear, however, Dumas’s It does not that evidence of this incident was introduced trial. To the extent regarding arguably inquired that evidence the transaction was into objec- Dumas, the State on cross-examination of Dumas raised no tion at trial. erroneously charged jury
4. Dumas the contends trial court the concerning the use of court, however, similar transactions. The trial jury instructed the that evidence the similar transactions purpose was admissible “for the issue or sole to which the evidence purpose” limited transactions was tity not for other and that evidence of similar among admissible, reasons, other iden- show “the perpetrator, depraved the mind, i.e., the state of mind, state of disposition, knowledge lustful or intent of the crime defendant the charged in the case now on trial.” The court went on that if to state jury the transactions, believed Dumas committed the similar it strictly [its] would “be limited consideration the evidence as to to an mind as relates state of or to his the defendant identity Considering in the indictment.” charged the offense element of instructed jury properly whole, we conclude as a charge generally no error. See transactions, and we find similar on the law of Barnes cross-examine right his he was denied contends 5. Dumas testily victim to permitted the trial court victim hearing, victim’s During the his mother. “through” his “through the victim’s permit it would court ruled purposes mother for his through assistance or some other sister this trial.” denied that he was with Dumas agree inclined to might
We inter- indeed, the mother or sister if, to confront the statements or communications jury unintelligible for the preted language victim’s they interpreted particularly him. This did not the crime meaning that Dumas committed ruled the court also hearing, occur, pre-trial however. During testimony.”2 to “make up the mother or sister permit it would not Dumas, contended argument by prosecutor At further upon with the ‘victim’ present “to be permitted the mother should be The court then composure.” his calm and and . . . maintain help made clear and the victim questions, victim a series of asked the *7 English language. in the responses his later,
A time after the victim demonstrated short and say to make a sandwich follow the instructions of his mother identify The “begin asked his mother to .him.” grace, prosecutor him com- you?” gave simple “Who are and mother asked the The mother then asked whether microphone. mands to talk into the Nookie, affirmatively. and the victim responded the victim knew in the whether the victim saw Nookie After the asked prosecutor to answer the courtroom, question. the mother instructed the victim and asked “[p]oint the victim to at Nookie” instructed prosecutor it “all the victim that was what Nookie did to him. The mother told what Nookie At the to show prosecutor’s request to tell him.” right indi- and, according transcript, him, did to the victim stood then asked the occurred. The jury prosecutor cated to the what out Nookie’s pick he asked the victim to away mother to look while photograph victim chose a The record reflects that the photograph. Dumas from a series of photographs. the victim. allowed to cross-examine
Defense counsel was then victim if he could mother asked the request, At defense counsel’s you allow, stated, prosecutor]' where were on [the if asks The court also “I will not going back, yes, to be admitted.” they did it. .. . That’s not come the defendant June 5th any questions, responded affirmatively.
ask the victim and the victim Throughout ques- cross-examination, defense counsel asked some response. during tions to which he received no But at other times by cross-examination, the victim would answer when instructed yes ques- mother to “answer or no.” After defense counsel finished tioning claiming witness, mistrial, he moved for that he “did not receive the assistance from the mother ... as the State did.” This record, however, contention is belied as the mother instructed questions, the victim several times to answer counsel’s and the court aptly “[i]f during your you getting noted that examination weren’t you you brought the the needed, assistance had it to the attention of court, I could have corrected it.”
Under the facts of case, we find no violation of Dumas’s given opportunity to confront the victim. Dumas was to cross- during examine the victim and chose to use the mother’s assistance testimony. the victim’s preted” Furthermore, the mother in no manner “inter- “explained” responses, pre- or the victim’s which could have depending sented a violation, constitutional on the mother’s state- unresponsive Moreover, ments. the fact that the victim was often abridgement rights. was not an of Dumas’s Sixth Amendment victim’s jury [his]
silence evidence, itself was as the could observe question posed. respon- demeanor as each A witness’ unresponsiveness, siveness or evasiveness or directness, intelligence, memory, perception, appar- skills, verbal ent are all factors which can be assessed jury raise a reasonable doubt. Bright (1990).3 given opportunity full and fair to cross-examine the victim in this case. regard
6. With to Dumas’s assertion that his character was wrongly placed issue, Dumas waived consideration of the denial of his motion for mistrial because he failed to renew the motion after gave the court curative instructions. Ford v. regard With about *8 preference, although response Dumas’s sexual that he likes “both ways” may put object have issue, character in Dumas failed to on grounds Hagger App. these trial. v. 179 Ga. 16 SE2d 118) (1986). Further, the comment was not evidence of a similar 3 Although Bright application (b), involves of § OCGA 24-9-5 as noted the State appellate brief, analysis in its applied [Bright] “the helpful in [the] to the resolution of appellant’s issue of whether to confrontation was violated.”
219 sexual preference. comment on only a transaction but Blackburn, J., J, Elling- Johnson, P. C. Judgment affirmed. Smith, J., J., specially. and concurs ton, J., concurs Eldridge, concur. and dissents 1, 4, in part 5 and 6 and concurs Divisions concurs as to Barnes, J., con- 2. as to Division 3 and dissents in as to Division part and dissents 1, 2, 4, part and concurs in 5 and 6 as to Divisions curs as to Division 3. in part concurring specially. Judge,
Eldridge, I write separately the majority. in the fully opinion I concur for the admission standard proper concern that my maintained. outcry testimony be need not dissent, outcry a child’s
Contrary position in order for such evi- the sexual assault” “immediately made after 1986, the law since at trial. That has not been dence to be admissible Statute, was 24-3-16, Hearsay Child Georgia when OCGA § 668, is not “res 1986, gestae” 1. Such evidence p. enacted. See Ga. L. § contact and time between sexual improper evidence. amount of looks at in order to determine be one a trial court outcry may aspect outcry testimony pursuant for the admission of reliability’ “indicia Medina v. dispositive. it is no means to OCGA but (505 State, 222 Ga. 13, (1998); Wells v. 234 Ga. SE2d App. (2) (1996); 587, Gregg App. App. 65) (1991). in part. in Judge, concurring part dissenting Smith, majority opinion, I concur with the remainder of the Although I in Divi- part I Division dissent dissent as to respectfully 3. sion was shown to be
1. I do not the victim this case agree (a). That statute meaning within the of OCGA competent receive, “that the witness has sufficient requires obligation and is sensible of the impressions remember and narrate (2) (b) (383 to tell the truth. Ambles v. [Cit.]” (3) Dorsey See also (witness 224) (1992) only) competent (physical precedent and can give to tell truth obligation where he or she understands issue). matter at concerning subject evidence material minimal contains only require- statute Although testify, those competent whether a witness is ments indicated to While the victim were not met this case. requirements truth, nothing it meant to tell the the court that he knew what victim or the record itself shows court’s examination of the trial and falsehood. difference between truth the victim understood the State, 226 Ga. Vaughn Compare
(1997) (victim demonstrated her of the difference truth). truth and importance between falsehood and telling While the victim well have capable meeting require- been statute, ments of the was not demon- competence adequately strated Had the trial court simply below. also asked the victim whether he knew what it meant to tell a lie or to tell a falsehood and of not truthful under I consequence, being might well be able to that his agree competence adequately shown.
2.1 with the agree majority the similar transaction evidence the child molestation involving charge initiated defendant’s sister after discovering seven-year-old neighbor girl properly admitted, as was the evidence concerning the incident with the adult however, woman. I do not agree, the trial court correctly admit- ted similar transaction testimony involving Dumas’s niece. The herself, alleged aged at the time of did not testify. Instead, her mother testified as to what the then vic- seven-year-old her, tim reported to and she did so without showing child made the outcry immediately after the alleged sexual assault. It therefore was not shown that the outcry might have been admis- sible as of the res See generally Tucker v. part gestae.
I am authorized to state that Judge joins Barnes Division this dissent. July 16, 1999.
Decided Cynthia Harrison, W. for appellant. Howard, Jr.,
Paul L. Baker, District Elizabeth Attorney, A. Jr., Dobson, Nathaniel Assistant District Attorneys, for appellee. A99A2174. WADDELL v. FINANCIAL, T & G INC. et al. Presiding Judge. McMurray, Waddell,
Plaintiff Stacy an inmate at State Rogers Prison in Reidsville, filed a se breach of pro action, contract alleging defend- Financial, ants T & Inc., G Hugh Turner, M. Crumley Service, Auto Inc., and James Crumley negligently repaired plaintiff’s Porsche 944 Turbo. The superior court granted summary judgment defendants, in favor of and plaintiff brings this direct appeal. Held: Under the express mandate of of all appeals actions filed by shall prisoners by application for discretionary appeal provided in OCGA 5-6-35. Plaintiff’s failure to comply