*1 test, conclude Barker we under four factors Balancing all con- did not defendant’s in the case violate delay the 22-month motion to denial of defendant’s trial. The to a right speedy stitutional supra; v. not error. Johnson was dismiss 517); Colling- App. v. Daughenbaugh (1) (480 370); Chambers 363, 365 sworth v. 820). Smith, JJ., concur. Beasley and Judgment affirmed. 13, 1998 March
Decided Smith, for appellant.
Putnam C. Foster, Assistant Dis- Cook, Jeffrey L. Attorney, Alan A. District Attorney, appellee. trict THE PUTNAM v. STATE.
A97A2083. (498 SE2d Smith, Judge. County grand a Richmond Putnam was indicted Miley
Jon (c), molestation, OCGA 16-6-4 one count of aggravated § (a). molestation, 16-6-4 He was con- of child OCGA and one count § denied, appeals. trial and he a his motion for new by jury, victed issue in trial, worker testified to the ultimate At Putnam’s a social in her the victim was the case and stated that letters that “con- read for the own truth. The social worker and that his name on Putnam was “the perpetrator” firmed” and the testimony Index. This the State Child Protective Services obvious, such letters, jury, plain, went out with the constitute reverse, must under the circumstances that we and harmful error objection by Putnam’s contemporaneous in the absence of even counsel. is insufficient to sus- Putnam’s contention that the evidence alone was
tain his conviction is without merit. victim’s Virginia, Jackson v. sufficient to sustain the convictions. 560) (1979); Hardy 61 LE2d who trial, specialist” the State called a “social service
2. At & Children County Department Family the Richmond employed Putnam of Putnam. investigation and who conducted Services First, as error. statements in her specific of four complains testified, put person’s “We are not allowed unless System, Services Information name on our Child Protective So we to them in some manner. what or talked we have interviewed confirm abuse, sexual did which means we point perpetrator closed the because the happened, believe Second, not in the introduced home.” State into evidence and the to the jury social worker read her own letter to Putnam on DFACS part “Although investigation letterhead stated: did find *2 occurred, neglect evidence that abuse and/or there no findings were any your prosecutor asked, of abuse ... on The part.” then “But this this, letter does confirm that there going was abuse on?” To the social ‘Yes, Third, the responded, worker does.” State introduced into evi- dence and the jury the social worker read to an “outcome letter” on letterhead, DFACS stating department that the found that child “did informing abuse occur” “was confirmed” and Putnam that his name would State be Child Protective Services Information a list System, of child abusers. when if Finally, asked she felt she an impartial investigator, “I responded, me, [the believe what happen though.” victim] told reasons, For several all these statements by the social worker were improper.
First, the courts of this held repeatedly state have and unequivo- cally may that a or express witness her as to whether (405 child Harris v. See, a has molested. e.g., Ga. 482) Sims v. 924) (1991); 782, SE2d (1991) (6) Allison v.
; 851, 853 (5), Hilliard v. (1987); 479-481 Remine v. (1997);
(1992) . in Allison, general
The rule well expressed “[A]n supra: expert may not vel as to his non of a fact testify opinion as existence (in case, whether child had been sexually) abused unless the inference to be drawn from facts in evidence is the ken beyond — jurors that jurors, unless the for want of specialized knowledge, — skill, or of experience, incapable drawing from facts in evi- —dence Allison, such an inference for themselves. [Cit.]” at supra — (5). The inference to be drawn the evidence that the child was the victim sexual abuse was not ken of the jurors. jurors did not lack requisite skill, knowledge, expe- or rience to determine based on the victim’s other evi- dence introduced trial at whether she was molested. (a)
Indeed, “[w]here the path from evidence to conclusion is not (b) shrouded in mystery skill professional or knowledge, the conclusion determines ultimate issue of fact in a jury must make the journey from evidence to conclusion without aid expert testimony.” and punctuation Remine, at supra expert testify, 30-31 While an may that alleged victim a child molestation case exhibits recognized (“child sexually abuse a abused that of consistent with
behavior may present expert syndrome”), his or accommodation opinion 31. Observations child in fact has been abused. that the expert that the and the demeanor of a victim’s demeanor was permissible great trauma” would be “indicative of light profes- analysis expert’s part facts in the of observed of an [the victim] firmly training, “I believe sional go to it does not inadmissible because molested” is nevertheless expert psychological need assis- matters the would “scientific Although physi- supra Hilliard, tance to understand.” physical may testify examination, the conclu- of a to the results cian sion Harris, inadmissible. molested is that the victim was supra at 387. not offer evidence was even
Here, the social worker did knowledge professional remotely upon Nor did she tes- or skill. based tify any professional for her that formed the basis observations unsupported opinion simply expressed She conclusions. alleged and that victim was fact abused of DFACS that strictly “perpetrator.” matter This conclusion was a was the Putnam *3 testimony jury province her and the admission of of the within was error. may “[i]n
Second, no circumstance it is well established credibility witness’ts] another, an even be bolstered (Punctuation expert, omitted.) the truth.” as to whether witness (447 (4) App. 208, SE2d State, 214 Roberson v. Ga. (1994). exclusively credibility for deter- of a witness is a matter Testimony jury. § 24-9-80. that another wit- mination ness believes the victim OCGA impermissibly of the bolsters the (464 Lagaña App. SE2d 219 Ga. victim. only impermissible state an conclu- Here, not did the social worker by Putnam, testified that she that the victim was abused she sion key witness. This believed the victim State’s supported by expert opinion personal Instead, or her observation. wholly conclusory, gave impermissible unsupported an it was credible, and should have been that another witness was App. State, allowed. Cline v. (1997). compounded The error here was because repeatedly opinion as the official of DFACS characterized her majority through gave agency, speaking her. She or others at that of her stated, “editorial ‘we.’ She in the say anything happened,” he did without “we cannot “we believe (placing talking a letter” them a list him,” and “we send them abusers). into evidence the Moreover, the State introduced stationery. The social worker on DFACS social worker’s own letters jury, stating then read those letters to the as the official conclusion of happen,” DFACS that child abuse “was confirmed” and “did that Put- “perpetrator,” nam was the and that he had been on an official testimony by This, effect, list of child abusers. bolstered own giving unsupported imprimatur approval conclusions the agency. improper. App. a state This In Harris v. (309 poly- 458 graph this Court found it error to allow report” jury.
examiner’s “official to be sent out with the report nothing “[t]he held that that was submitted to the bearing imprimatur reiteration, but a written on a document officiality, polygraph belief, examiner’s his appellant lying. merely opin- evidence, It was not direct already fully given ion. . . . The examiner had from the Report nothing jury except stand, and the Official could for the do weight add to that in the room which the defendant was helpless dislodge. [Cit.] improper surplusage It was and calculated jury. [Cit.]” to influence the Id. at 460-461 Having testimony complained determined that of was error, we must decide whether its admission amounts to harmful despite attorney error exceptional the failure of Putnam’s “In trial. especially appellate
circumstances, cases, criminal public may, courts, interest, motion, their own notice errors exception to which no taken, has been if the obvious, errors are or if they seriously integrity public repu- otherwise affect fairness, judicial proceedings.” punctuation tation of (on Almond v. reconsideration). motion for In Mindock v. 670) (1988), appellant ambiguous made an and non- specific objection at trial to an absent fellow-offender’s confession. citing prejudicial Court, This Almond, held that the evidence was “so repugnant and so to the idea of a fair trial that to admit such evi- objection. [Cit.]” dence would be error even of an absence Drug Emporium 509. See also Peaks, 500) (1997) (rule applied charge *4 in case to civil erroneous statute); superseded (2) (387 Boatwright v. 142-143 386) (1989) (appellant object failed to to evidence of guilty plea; objected reversal); Kearney codefendant and won 633) (1987) {Almond rule appeal although appellant general grounds did not assert when State case). prove failed to essential element of
Here, the circumstances mandate the conclusion that this testi- mony error, was harmful and reversible even in the absence of an objection. As in 2, above, discussed Division in error this case was forbidding testimony obvious and violated rules well-established goes to the ultimate issue or that bolsters of another overwhelming, consisting in the case was not The evidence witness. accusations, by as testified to of the victim’s primarily as it did denials. witnesses, and Putnam’s to other or communicated victim psy- and no medical or a by physician, never examined The child was by the State. presented chological circumstances sur- the combination of Finally, troubling we find made until at least six report No allegations. these rounding months occurred and several allegedly the incidents months after allegations were told mother. allegedly after divorce in the context of an acrimonious the victim’s mother by raised confer- religious family her children to a after the mother took the truth” to their they “telling were exhorted about ence at which ignore and to exceptional, These circumstances are indeed parents.1 fairness, affect “seriously error would underlying the obvious Almond, supra. reputation judicial proceedings.” integrity public J., J., Beasley, P. concurs McMurray, reversed. concurs. Judgment specially. concurring specially. Judge,
Beasley, I I not in all that is written. find it judgment concur but necessary explain. . by in the normal
First, shortcutting process using we are effect United Court cre- error” rule which the States “plain Atkinson, ated United States cir- exceptional
LE to address certain of issues types cumstances, taken the trial despite exception being absence court. case any prior Georgia
I do not find the of this rule application an ultimate by is a witness on given where inadmissible Thus, set a issue to be decided the factfinder. this case would new for the fact that Court precedent non-precedential. (a). it to it would precedent, apply Rule 33 Were become Appeals act cases, at least where the witness’ is that other such did occur and that the witness believed the victim’s victimization as in this case. perpetrator, of it and identification description Putnam did not to admission of the evidence which this unfair. are reach- fundamentally Court deems rendered the trial lack of for the trial court to rule. ing despite request the issue objection the affected silence waive the Normally, party would it, by the court would not address for the reasons appellate Atkinson, rule of procedure Court in The well-settled supra. mother after conference the victim’s brother also confessed to his We note that siblings made that he was involved with the victim. Putnam contended relationship. against him divert attention from their illicit false accusations *5 repeated applied in, for Kitchens v. (5) (401 552) (1991): App. 284, 286 “An enumeration of error complaining going of admission of evidence or of documents out with jury presents nothing by objec- for decision this court where no punctuation tion was made at the trial.” question not trial, even raised in the motion for new which was argued by appellate counsel without amendment to the motion filed general grounds Compare trial counsel on the alone. Stidem v. 338) (1980): even where a con- cededly (allowing reversible error is made defendant’s written state- police transcript preliminary hearing ment to the mony and a of his testi- go jury), judgment out with the was affirmed because no timely objection was made. position
Thus, instance, in this we take the in effect that if we do appeal, likely not address the issue on this direct there would be a corpus brought ground habeas on the of ineffective assistance of ruling would, counsel. Failure to on the substantive performance prejudicial here, issue constitute deficient so to the probability defense that a reasonable exists that the trial result oth- Washington, erwise would have been different. Strickland v. 674) (1984). Deciding question 80 LE2d on this appeal process delay direct avoids that and the resultant of a new trial.
Although
agree
repeated
I
instances of inadmissible
province
evidence which invaded the
resulted in
majority
trial,
an unfair
I do not find the
law clear-cut as the
presents
684) (1986),
it. In
Butler,
State v.
because to and to abuse training respect related her experience with the child had on “the ultimate issue of whether opinion state out, the first This Court not for sexually pointed been molested.” time, as to whether such conflicting authority expert that there is cases, it admissible, is cited several and what understood as the current law. the in Sims v. year justices
The next all concurred 924) (1991), held that it was reversible which to that the express error to allow a DFACS caseworker not child had molested. The reason was that the was abuse, on in the field of child sexual so as to be expertise based Thus it inadmissible it lacked a jury’s outside the ken. because and constituted more expert opinion nothing foundation proper jury than the an ultimate fact which the could witness’ about decide her opinion.] itself without 62)
Our decision Harris v. (1991), in Harris v. Supreme was reversed the Court Allison, holding understood the Ga. 386 opinion, to state his based on supra, physician expert allow victim, that the child foundation of his examination of the physical sexually jury had been molested. This Court reasoned that held, in itself. The Court capable deciding this issue that Court explanation, misinterpreted effect and without dissented, out justices pointing they regarded Allison. Three what line, making, the Court was a fine “a semantical distinction” which not. The author of the between what was admissible what was Court. justice Court of decision is now Appeals In Remine v. again. had call to address the issue We soon Allison the Court applied expert per- and held that citing without Harris “in had testify, objection, mitted to over that the victim pain suffered ‘extensive emotional abuse.’ The reason it, that did not need as it had extensive evidence it could draw its own conclusion this fact. The Court distin- regarding guished, explanation, without instances where the offers his expert that has exhibited behavioral characteristics con- sistent with those of a abused child. .
These cases subject demonstrate that the law on the is still sum, evolving. In that an appears expert’s opinion respect with whether the child in fact charged suffered the act which defendant is i.e., fact, with an ultimate is committing, inadmissible where proper is, foundation is not laid for an ade- reaching opinion, quate expertise knowledge base field and of this particular absent, victim is the fact is determinable without is expert, evidence sufficient for jury to reach its own conclusion directly. When evidence is same as that which the bases his or her upon expert opinion, is not the type of evidence that needs in order for its expert deciphering understood, meaning be then the expert’s opinion inadmissible for fear that that jury will substitute it for its own.
2. I do not join to the majority’s challenge credibility of factfinder, witnesses. It is a matter for the and we ruled that have *7 guilt evidence of was sufficient. Decided March Johnson,
Peter D. for appellant. Daniel J. Craig, District Attorney, Charles R. Sheppard, Assis- tant District Attorney, for appellee.
A97A2252. DENHAM v. YOUNG MEN’S CHRISTIAN ASSOCIATION & YOUTH OF THOMASVILLE, CENTER INC. Judge.
Ruffin, L. Denham Jacqueline sued the Young Men’s Christian Associa- (“the YMCA”) &tion Youth Center Thomasville, Inc. for damages that she incurred when she and fell slipped on the YMCA’s premises. Denham the trial appeals court’s grant summary judgment. We affirm. “ The Supreme Court of Georgia has held that ‘routine issues’ of premises i.e., the liability, negligence of the defendant and plain- tiff, and the plaintiff’s lack of care ordinary personal safety