541 S.E.2d 673 | Ga. Ct. App. | 2000
Francis Kirton was convicted of incest, statutory rape, and two counts of child molestation based on the following evidence: (1) his ten-year-old stepdaughter stated on the stand and in a videotaped interview that he had repeatedly engaged in sexual intercourse with her over a period of years, (2) a physician testified that she disclosed the abuse to him and that he examined her and found definite evidence of repeated and prolonged vaginal penetration, (3) three other
1. Since the victim’s mother was a co-defendant, the court ordered that under Bruton v. United States,
Kirton moved for a mistrial, and the court immediately gave curative instructions that the jury should completely disregard the mention of “Kirton” or “the stepfather” in the statement. The court withheld ruling on the motion for mistrial until it had heard all the evidence, at which time it denied the motion. Kirton argues that this was reversible error.
A trial court has broad discretion in deciding a motion for mistrial, and we will not disturb its ruling absent a manifest abuse of that discretion and a showing that a mistrial was essential to preserve the right to a fair trial.
Though a statement is inadmissible under Bruton, its admission may be harmless and thus not necessarily reversible error.
Here the Bruton violation was the mother’s statement to police that the victim told the mother Burton had molested her. This statement was merely cumulative, for (1) the victim herself stated both on the stand and in her videotaped interview that she had told her mother that Kirton had molested her, (2) the victim reported to several witnesses that Kirton had molested her, and (3) the victim confirmed at trial that Kirton had molested her. Moreover, Kirton’s own custodial statement admitted the substance of Count 4 of the indictment. Under the circumstances, the trial court did not manifestly abuse its discretion in deciding that the curative instruction not to consider the officer’s improper testimony sufficed, without a mistrial, to correct the alleged Bruton violation.
2. Kirton’s second enumeration is that the court erred in not instructing the jury “on the law of voluntary statements given by a defendant while being questioned by law enforcement officials.”
Kirton seeks to expand this enumeration by arguing that the court erred in not giving his requested charge on the need for corroboration of a confession under OCGA § 24-3-53. Such an expansion is impermissible.
3. Citing Staggers v. State,
Judgment affirmed.
391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968) (statement of nontestifying co-defendant which identifies and incriminates defendant is inadmissible).
Wilcox v. State, 229 Ga. App. 192, 193 (2) (493 SE2d 600) (1997).
Id. at 193-194 (2).
See, e.g., Borders v. State, 270 Ga. 804, 810-811 (4) (b) (514 SE2d 14) (1999); Hanifa v. State, 269 Ga. 797, 804 (2) (505 SE2d 731) (1998); Montijo v. State, 238 Ga. App. 696, 701-702 (3) (b) (520 SE2d 24) (1999); see generally Reddish v. State, 238 Ga. 136, 138 (1) (231 SE2d 737) (1977), citing Schneble v. Florida, 405 U. S. 427, 430 (92 SC 1056, 31 LE2d 340) (1972).
Copeland v. State, 266 Ga. 664, 667 (3) (b) (469 SE2d 672) (1996); Alexander v. State, 236 Ga. App. 142, 146 (1) (511 SE2d 249) (1999). Compare Rachel v. State, 247 Ga. 130, 135 (4) (274 SE2d 475) (1981) (Bruton error held harmful where co-defendant’s incriminating confession was not merely cumulative).
Cf. Bradley v. State, 234 Ga. 664, 667-668 (217 SE2d 264) (1975) (no abuse to deny mistrial where alleged Bruton violation did not implicate defendant).
Copeland, supra, 266 Ga. at 667 (3) (b); Bradley, supra, 234 Ga. at 668.
See OCGA § 24-3-50.
(Citations and punctuation omitted.) Blackmon v. State, 197 Ga. App. 133, 134 (2) (397 SE2d 728) (1990).
Felix v. State, 271 Ga. 534, 539, fn. 6 (523 SE2d 1) (1999); Kelly v. State, 238 Ga. App. 691, 696 (2) (520 SE2d 32) (1999).
See Wright v. State, 199 Ga. App. 718, 721 (3) (405 SE2d 757) (1991) (“[a] trial court does not err in failing to give a charge in the exact language requested where, as here, the charge given substantially and adequately covered the principles in the request. [Cit.]”).
120 Ga. App. 875, 876 (2) (172 SE2d 462) (1969).
212 Ga. App. 310, 312-313 (5) (441 SE2d 851) (1994).
Compare OCGA § 16-6-4 (a) (describing the elements of child molestation).
See Kent v. State, 245 Ga. App. 531, 533-534 (4) (538 SE2d 185) (2000) (court properly denies giving a charge that is inapt or incorrect or misstates the law); see generally Register v. State, 229 Ga. App. 648 (1) (494 SE2d 555) (1997).