Horne v. StateHorne v. State
Lead Opinion
Tried under a four-count indictment, appellants, husband and wife, were jointly convicted of one count of child molestation and one count of enticing a child for indecent purposes; Mr. Horne was also convicted of an additional count of child molestation and one count of sodomy.
1. Appellants assert that the trial court erred in refusing to allow them to have their own expert examine the child or her treatment records for the purpose of rebutting the State’s expert’s testimony concerning the victim’s exhibition of symptoms of child sexual abuse accommodation syndrome. Whether to permit such an examination is within the trial court’s discretion (J. B. v. State,
2. Appellants assert that the trial court erred in allowing “golden rule” arguments. During closing argument, the prosecuting attorney said: “Think about it, how would you like to walk over here, walk up these stairs and sit in this chair and have this microphone in your face and talk to twelve grownups, twelve people you’d never met before about the last time that you had sex.” Appellants objected on the specific ground that this constituted a “golden rule” argument. The trial judge overruled the objection. The prosecution thereafter argued, without immediate objection from appellants, as follows: “Think about what it would be like to sit in this chair and talk about the last time that you had sex. Is that an easy thing to do? Is that something that you would want to do, just want to do it for no reason?” Subsequently, while suggesting why another young girl might deny being molested, the State made the following argument without
After the State’s closing argument, appellants moved for a mistrial based on the prosecuting attorney’s statements which led to appellants’ “golden rule” objection and on another statement made thereafter. The trial court denied both the motion and appellant’s request for curative instructions. The State’s argument does not fit neatly within the category of so-called “golden rule” arguments. In a classic “golden rule” argument, jurors are invited to place themselves in the victim’s place in regard to the crime itself. See generally Wolke v. State,
“A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb a court’s ruling in the absence of a manifest abuse of discretion, and a mistrial is essential to preserve a defendant’s right to a fair trial. [Cit.]” Id. at 637. We are satisfied, after having carefully examined the closing argument in its entirety and the basis for and timing of appellants’ objections and mistrial motion, that the trial court did not manifestly abuse its discretion in denying the motion for mistrial. We also find that a mistrial was not essential to preserve appellants’ right to a fair trial. More-Iover, assuming arguendo that the prosecuting attorney’s argument was improper and that it was error not to grant appellants’ request for a curative instruction, consideration of the entire record satisfies us that it is highly probable that the argument did not contribute to the verdict. Blanchard v. State,
3. Appellants assert that the trial court erred in allowing the State to present a witness to testify in rebuttal and to permit that witness to prove by testimony the contents of regulations of the Department of Corrections.
After the defense has rested, it is within the discretion of the trial judge whether to allow the State to introduce additional evidence. Payne v. State,
Appellants raised a best evidence objection to testimony concern
Assuming without deciding that it was error to allow the witness to testify to the contents of the correctional institution’s regulations in the face of a best evidence objection, we find the error harmless. The question of how Mr. Horne came into possession of the contraband and the propriety of that possession had no bearing on the real issues to be decided at trial, the guilt or innocence of the defendants. Considering that the testimony concerning correctional department regulations was at best collateral, if not completely irrelevant, to the issues at hand, we find it highly probable that the error did not contribute to the verdict. See Jackson v. State,
4. Appellants assert that the trial court erred in refusing to allow defense counsel to take possession of medical records prepared by State’s witnesses and demanded and subponeaed by defense counsel before trial. Appellants argue that the trial court erred in allowing a medical doctor and certain social science witnesses to testify without their records first having been produced pursuant to OCGA § 17-7-211; that the trial court erred by failing to review the medical records prior to trial and to provide them to defense counsel; and that the j trial court erred in refusing to review scientific reports and records under appellant’s specific Brady request. I
(a) At trial appellants asserted they had been denied access to certain scientific reports (“records from the [D.A.I.S.Y.] Youth Clinic . . . including the records of Doctor Butler . . . Ms. Bernice Gordon and Ms. Donna McClain”) in contravention of OCGA § 17-7-211. The State responded that there were no “scientific reports in these cases, and they’re not entitled, necessarily, to the doctors’ notes.” We are satisfied that any written notations made by Dr. Butler constituted only “notes and work products” not within the purview of OCGA § 17-7-211. However, even assuming that Dr. Butler had compiled a “written scientific report” within the meaning of OCGA § 49-5-40,
OCGA § 49-5-40, as amended, provides that “[e]ach and every record concerning reports of child abuse and neglect . . . which is in the custody of the [Department of Human Resources] or other state or local agency is declared to be confidential, and access thereto is prohibited except as provided in Code Section 49-5-41 and Code Section 49-5-41.1.” “[U]nder OCGA § 49-5-41 (a) (2), where a court considers it necessary for the resolution of an issue before it, the court may order the disclosure of the information.” Napper v. Ga. Television Co.,
Thus, “[e]ach and every record” of the D.A.I.S.Y. Clinic concerning reports of child abuse maintains its confidentiality and is not subject to discovery under OCGA § 17-7-211 unless properly ordered to be disclosed by the court. Davidson v. State,
Accordingly, we find that all of the express requirements of OCGA § 49-5-41 have not been met and that the records and reports of the D.A.I.S.Y. Clinic, including those authored by Ms. Gordon and Ms. McClain, were not subject to disclosure under OCGA § 17-7-211. OCGA § 49-5-40. See also Napper, supra at Division 2 (b). Moreover, assuming OCGA § 49-5-40 does not take precedence over OCGA § 17-7-211, we find that § 17-7-211 does not apply to the testimony of mental health therapists and psychologists, even if such testimony is based on written notes or reports. Moss v. State,
(b) Appellants assert that the trial court erred in refusing to review the records in question prior to trial and in refusing to provide them to the defense. Appellants also assert that the trial court erred in refusing to review the records in question under appellants’ specific Brady request. The trial record reflects that appellants were authorized access during trial to the reports of the D.A.I.S.Y. Clinic pertaining to Ms. Gordon and Ms. McClain. After obtaining the court’s permission to gain access to the reports of Ms. Gordon and Ms. McClain,
A technical violation of OCGA § 17-7-211 would occur as to any matters which were required to be timely disclosed thereunder and which were not so produced. Nevertheless, under OCGA § 17-7-211, “[i]f the prosecuting attorney furnishes a copy [of the scientific record] but not in the time frame specified, there is nothing in the statute to require exclusion of the document from evidence. Perhaps late furnishing of a copy will mean the defendant is entitled to a continuance or recess of the trial as the trial judge may determine. The only circumstance making the exclusionary rule applicable is the failure of the prosecuting attorney to afford discovery at all.” Law v. State,
The burden is on the appellant to establish any type of Brady violation. See generally Cromer v. State,
Moreover, regarding the notes of Dr. Butler, assuming without deciding such notes were discoverable under Brady, appellants have failed to show “that the information withheld so impaired [their] defense that [they were] denied a fair trial within the meaning of the Brady rule. . . .” Davidson v. State, supra at 559. We are satisfied that there exists no reasonable probability that had this evidence been disclosed to the defense, “the result of the proceeding would have been different.” Rogers v. State,
5. Appellants assert that the trial court erred by allowing the State to introduce a statement made by Mr. Horne asserting that the State’s evidence was insufficient to indict him. We are satisfied that reasonable inferences could be drawn from this voluntary statement that would have relevance in this case. “Admission of evidence is a matter which rest largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion. [Cit.] If an item of evidence has a tendency to establish a fact in issue, then it is relevant and admissible. [Cit.]
6. Mr. Horne contends that the child molestation count with which he was separately charged and the sodomy count with which he was also separately charged merged. The child molestation count alleged that appellant committed various acts, including an act of sodomy; the sodomy count alleged an act of sodomy of the same type. The evidence showed only one act of sodomy occurred.
“ ‘(A) crime is an included crime and multiple punishment therefor is barred if it is the same as a matter of fact or as a matter of law. . . .’ [Cit.] OCGA § 16-1-6 defines an included crime as one ‘established by proof of the same or less than all the facts . . . required to establish the commission of the greater crime charged.’ ” Green v. State,
Under the indictment in this case, the offense of child molestation involved several acts, one of which was an act of sodomy, and had as one element proof of the age of the victim. The sodomy count of the indictment alleged only the commission of an act of sodomy. Since the evidence established only one act of sodomy, the proof of which was necessary to prove the child molestation count as alleged, the sodomy count of the indictment was “established by proof of . . . less than all the facts . . . required to establish the commission of [child molestation].” OCGA § 16-1-6 (1). It follows that the offense of sodomy as alleged was included as a matter of fact in the offense of child molestation as alleged. Therefore, the sodomy count merged into the child molestation count. Green, supra.
The State asserts that since there were several acts of molestation alleged and proved, there was sufficient evidence for both counts. That argument ignores the fact that the State alleged and proved the act of sodomy as part of the child molestation count. McCollum v. State,
Because of the merger, Mr. Horne’s conviction of sodomy must be vacated.
7. Appellants further contend that there was a Brady violation in the trial court’s failure to conduct a pre-trial in camera inspection of the State’s files to determine whether they contained anything impeaching, mitigating, or exculpatory. Specifically, they complain that
Without going into the question of how the trial court could have determined from a pre-trial inspection that the child’s statements to the officer would differ from her trial testimony, we find that there was no Brady violation. The recording was introduced at trial and appellants were provided with transcripts of it. Although they did not ask for a continuance when they got the transcripts, appellants requested and were given “a moment to look over” one of the transcripts. Under those circumstances, there was no Brady violation. Glenn v. State, supra, Division 2; see Chambers v. State,
8. Appellants have abandoned their eleventh enumeration of error. Rule 15 (c) (2) of the Rules of the Court of Appeals; Adams v. State,
For reasons stated in Division 6, the conviction of and sentence for sodomy only are reversed; the remaining convictions and sentences are affirmed.
Judgment affirmed in part and reversed in part.
Concurrence Opinion
concurring specially.
1.1 fully concur in all divisions of this opinion, and as to Division 6, I concur specially.
2. Regarding Division 6, I wish to emphasize the following: Some type of merger is required as stated by the majority. In State v. Estevez,
These offenses (child molestation as averred and simple sodomy) may be separate as a matter of law; however, I believe that in this instance they definitely are not separate as a matter of fact. The trial record conclusively establishes that one and only one act of sodomy occurred during this entire period. Clearly, in order to prove the offense of child molestation, as that offense was charged, the State of
The case of McCollum v. State,
3. Believing that some type of merger is mandated, I would have preferred to seize upon this opportunity to overrule in part Green v. State,
Concurrence Opinion
concurring in part and dissenting in part.
I concur fully with the majority opinion except for Division 6, from which I dissent.
If the act of sodomy were the sole evidentiary basis for both the sodomy conviction and the child molestation conviction of Gary Horne, I would agree with the majority opinion that under Green v. State,
Specifically, the indictment charged Gary Horne with child molestation by (1) exposing his genitals to the victim, (2) by performing sodomy on the victim, and (3) having the victim sit on the defendant’s lap. The evidence adduced to support this child molestation charge was (1) the victim’s testimony that Gary Horne had exposed his genitalia by masturbating in her presence 10 to 20 times over the period of a year; (2) the evidence concerning the act of sodomy; and (3) the victim’s testimony about an incident when Gary Horne had her sit on top of him while he was lying on a bed so that his erected penis touched her vagina. Even though the evidence concerning the act of sodomy was the same evidence used to prove the sodomy charge, all of the episodes of masturbation and the lap-sitting incident certainly independently and separately support the conviction for child molestation. Under McCollum v. State,
Further, the jury was authorized to infer that the pornographic photographs introduced into evidence promulgated, promoted, and portended the permissiveness and perversion of mental and physical abuse and molestation, and acted as a type of Bundy “blueprint” of anticipated assaults and acts, or as a type of “pied piper” approach, to try to round up or turn the victim on. See Megar v. State,