*1 immunity. family of tort trine Judge Pope joins special this I am authorized state that concurrence. concurring specially. Judge, Pippin, Hennessy see Cadillac as Division concur App. 448 February Decided
Rehearing denied March appellants. Salter, Cook, Jr., L. Charles W. William Joyce, Alexander, Jones, Miller, C. Thomas Cork & Thomas W. Attorney Joy, General, C. Assis- Bowers, Senior William Michael J. Attorney Attorney Hackemeyer, General, L. Assistant tant Jennifer appellees. General, for THE STATE. SHAVER v. A90A1843. Judge. Andrews, one one count of child molestation and Shaver was convicted of four-year-old against aggravated molestation, both of
count appeals judgment convictions. He entered son. testimony from mother of the were based on convictions repeated investigative officers, state- two who out-of-court victim and ments made describing of molestation. the victim the acts them Additionally, her to statements made to one of the officerstestified confessing that he committed acts molestation. Shaver error, 1. In his first three Shaver contends enumerations probative value, inadmissible, and was therefore evidence was lacked to sustain convictions. insufficient testimony regarding the victim’s The state offered the exception created OCGA statements out-of-court Statute), these statements 24-3-16 under which Child “if the child is available a child molestation case are admissible testify proceedings circumstances in the and the court finds that the sufficient indicia reliability.” A child is if he is of considered “available statement testify” only under OCGA 24-3-16 meaning testify In the § 24-9-5.1 within the of OCGA prior alleged place the 1989 date of this case took effective offenses B., Interest K. T. Ward v. State, 186 Ga. After the defendant (Sosebee expressed have his desire to the victim called as a witness 562) (1987)), hearing State, was held de competency victim, termine years child’s in which the who four trial, time old refused to and otherwise failed to *2 qualify competent Accordingly, hearsay testimony as a witness. the § was not admissible under OCGA 24-3-16. hearsay testimony any
Nor do we find this admissible under applicable exception. By Wright, relying other on Idaho U. 497 S. _ (110 638) (1990), (under totality 3139, SC of circum test, stances available as court found that out-of-court statements of child un guarantees
witness, trustworthiness, lacked sufficient purposes), comparing so inadmissible for Confrontation Clause and (273 216) (1980) 462) (1988) App. Caldwell, 813, Finch 155 Ga. 815 SE2d (372 State, 152, and Glisson v. 155 SE2d apparently suggests cases, the dissent the out-of-court state necessity exception hearsay ments are admissible under the to the (b). necessity exception commonly ap § rule. OCGA 24-3-1 most plies testify when the out-of-court declarant is unavailable to because privilege testify (Glisson, supra or death the exercise of a not to 154), surrounding provide and the circumstances the statement guaranty (351 Higgs State, 606, of trustworthiness. 607-609 qualify Here the victim was unavailable because failed as a competent Moreover, § witness. former OCGA 24-3-16 Child applied prior Statute as it to the 1989 amendment to OCGA 24-9-5) exception hearsay directly applicable § set rule provided exception here, and no for admission of these statements testify. competent where the child unavailable because he is not “Only hearsay supra. B., In the Interest K. T. marked with such departure trustworthiness that ‘there is no reason material ” (Citations general may punctuation of rule be admitted.’ and omitted.) (1989). State, Adams v. Ga. 191 17 Under these circumstances the victim’s out-of-court statements fail to reliability qualify necessity demonstrate sufficient indicia of exception. incompetence by of the witness cannot be avoided presenting testimony through the mouths others. though hearsay, object
Even Shaver failed admission of provide “[H]earsay it can no no basis evidence has convictions. probative Germany objection.” value even it is admitted without 24-9-5, any provided competent amendment to OCGA child is § case; applies, requiring qualify child molestation thus former OCGA 24-9-5 as a witness. 430 817) (1976); State, Collins v. State, Ga. hearsay any probative value, it cannot lacks Since necessary confession, the defendant’s to corroborate evidence material support corroboration, con- which, unsufficient without such Brown v.
victions. hearsay argument is rendered trust- that the 24-3-53. The OCGA worthy con- the defendant’s because corroborated and admissible simultaneously by the fessions, hearsay corroborated while the confessions unpersuasive. This admission otherwise would sanction bootstrapping. Idaho v. See mutual unreliable attempt inherently (rejecting supra, bolster LE2d at 656-657 evidence). corroborating hearsay by other reference to unreliable confession, was a there uncorroborated Without Jackson v. Vir- the convictions. sufficient evidence sustain lack of ginia, 2781, LE2d U. S. need reached Division we of the conclusions view remaining of error. enumerations the defendant’s address Birdsong, Sognier, Judgment Banke, J., J., J., P. P. reversed. C. McMurray, Carley, Cooper, Pope J., JJ., P. concur.
J., dissent. Judge, dissenting. gave unobjected-to Three out-of- witnesses by the statements made to them victim.
court Kelly appellant’s The was born ex-wife. Elizabeth Shaver age August trial, he four. the time of the was them on At appellant April 8,1988. on The testified that she divorced mother boy’spenis July, played boy with the In that his father had stated sitting during the child was at weekend visit. October repri- playing penis. table with his After witness the breakfast manded doing, said, “Pee and come comes him for what he was he my Daddy penis all the time.” The witness comes on me anything “He son father done else. then asked her whether his had up penis and down. He that he took his his mouth and moved said said magazines peed or that he him. he looked He said that — played played him with himself and with and David books and [the child].” then came on investiga- reported protective
The services witness to a child Glynn County Family Department Ser- & Children’s tor with the vices. Because of tacted investigator
allegations abuse, con- of sexual county police detective. boy presence investigator of the The the The child stated that interviewed boy’s detective, as mother and sister. as well ejaculated penis, appellant his well masturbated and had sucked as as genital onto the child’s area. He illustrated these acts reference to drawings. anatomical investigator appellant, also testified that he interviewed who penis.
“indicated me that he did on his suck son’s He also admitted masturbating ejaculating onto his son. He stated that he would his all kiss son over to show affection his child he because believed suffering emotionally sepa- his child was ration from him.” as a result of the divorce and appellant The detective arrested on October 1988. After the hearing court trial conducted a Jackson-Denno and determined that appellant’s investigator admissible, statements to the she testi- appellant “something happened sexually fied that her told that had (sic) being times, between he and his son three the last time at the ejaculated masturbated, Sands Motel. He said that he that he onto genitals. plays [his son’s] [his He said he son] that with and that he penis, put kisses him all over and that he has [the kissed his has boy’s] penis boy] put [the his mouth. He said that has his mouth penis on his that, also.” He said “he didn’t feel like he should have to go jail happened for what’s him between son. He and his said that ever since . the divorce . . [his has drawn closer and closer to family problems son]. He said have caused this and that this way get son] him to [his close to as he could be.” prosecuting attorney stated to the trial court testi- mony provisions of these witnesses had been elicited under the Statute, § 24-3-16, Child procedure OCGA and was outlined Sosebee v. party The court asked if either wished to have the child called conferring appellant, a witness. After stated, with defense counsel “My only perhaps client feels that’s salvation is the child would testimony.” recant his The child was then called as a witness questioned presence jury. repeatedly outside He stated that testify, he did not want to and he re- then refused or was unable to spond questioning. Appellant did not move to strike the witnesses’ testimony child’s out-of-court statements. *4 Appellant allowing 1. enumerates as error the trial court’s statements, State’s witnesses to 24-9- to these since OCGA (b) apply alleged prior 5 does not to ef- acts to have occurred prior amendment, fective was not a date the 1989 and under law the child witness. argues appellant objection The State waived to the wit- testimony by failing object nesses’ to to the introduction of their tes- timony by failing it when was to make motion to introduced a testimony strike their it after was introduced. agree appellant objection waived his to State’s wit-
432 A out-of-court statements. the child’s
nesses’ object of evidence at trial constitutes a to the admission to failure complaining party precluding of the admission of the waiver (1) (197 appeal. E.g., State, v. Ga. 477 Herrin 230 on evidence SE2d 475 too (1973). Yarbrough App. State, v. Ga. As stated in 369) (1979): (2) (260 in this state that it is “It well settled SE2d urge objections to the admission evidence after it has late to objection. [Cits.]” admitted without been exception. here, Where, with- an evidence is admitted There is appears objection, inadmissible, in but it later the evidence out admissibility appeal com- of the evidence contest the order to plaining party rule a motion to strike the evidence or it must make (3) App. Taylor State, v. 174 Ga. SE2d at trial. (1985). ruling Appellant Thus is no failed to do this also. there complaint. register a to court on which trial Appellant error the court’s failure instruct enumerates as testimony. disregard jury this jury charge given, the trial court asked there was After Appellant any objections to that there was none. See it. stated 855) (1980). generally State, v. SE2d Jackson jury charge object in criminal case constitutes a ‘there has been a Failure “ (c), except where, OCGA 5-5-24 waiver under charge law, harmful as a matter of which was substantial error Maynard regardless objection not.’ was made hereunder or of whether 806) (1984).” State, State, Barnett v. v. SE2d Ga. (1) App. 685, see v. Ga. Crawford (n. 4) (330 State, order to 438-439 allegedly satisfy appellant standard, errone must show that “the charge blatantly prejudicial that it raises a extent ous question deprived, extent, some of a fair trial. whether he has been (Cits).” presented Maynard “[N]othing supra State, v. at 606 miscarriage justice gross appeal unless ... for consideration on Foskey charge] jury State, [the is about to result.” attributable following This case cases which omissions is unlike substantially jury charge harmful as a to be error and were found (the supra in- State, failed to law: Barnett v. trial court matter of jury disregard of the defendant’s struct the character or conduct in other inadmissible evidence transactions); Phelps State, 192 (the (1) (384 260) (1989) App. burglary charged with defendant was rape, to de- the trial court failed with intent to commit gratuitous rape charge jury made fine in its the crime of matters); Christopher State, references to irrelevant 205) (1989) charge pos- 393, sibly nature Laney charged); a crime not authorized a conviction for *5 (2) (1987) (the defendant’s justifiable necessary defense was the homicide based on use of force prevent felony, and forcible the trial court failed define the felony robbery). forcible at issue which was required charge jury disregard The court was not the evi- objected sought by dence which was defendant. nor to be excluded the Although right had a its exclusion because the child testify,” was not “available to is a condition for the admission hearsay 24-3-16, the of under OCGA he did not avail himself of the right. obligated step The court was not in a modicum protection right by instructing jury, the affords after it report heard three different witnesses the child’s them statements to objection, entirely disregarded. without that this should be Unlike the totally inflammatory irrelevant and evidence of character which supra, Barnett, marred the fairness of the trial in probative and, §.24-3-16, case was relevant under OCGA issues. up points failing supra, procedure, Sosebee, This case competency availability which assumes the of the child If victim. hearsay prerequisite called, is admitted before the child is for a demand for allowing hearsay may wanting, prompting be found hearsay. unnecessarily problem exclusion of the This creates the erasing from attentive minds indelible marks which have been made upon by them a facile “don’t consider” All directive. of this can be by establishing admissibility jury’s presence first, avoided out of the calling and, satisfied, the condition then the child for examina- appropriate. tion and cross-examination at whatever time is hearsay foundation for the should first be laid. Appellant argues
3. witnesses’ child’s out-of-court statements constituted inadmissible with- probative any guilty value, and the verdict therefore without support evidence to it. they made,
Under the circumstances which the out-of- reliability court statements of the bore sufficient indicia of so as to be U. S. admissible evidence in with Idaho v. accordance _ There such were two independent being initially spontaneous, statements, first and the being authority second consistent with the first. All were made to figures, person and the one the mother was made ato towards naturally whom the child would have confidence and trust well punishment. addition, fear of There no was motive to fabricate. graphic accuracy nature and details of the statements and visual being reliability. when interviewed the caseworker contribute to So having frequent opportu fact did the of defendant’s had access and nity victim, with the These, before the statements were made. surrounding making “pro- other circumstances each statement trustworthy.” Idaho v. the statement sufficient assurance vide Therefore, be said that Wright, supra, LE2d it cannot Compare Finch any probative value.” “without these statements Caldwell, Glisson v. State, United probative cer accepts the value of Supreme implicitly Court States such as allowing witness hearsay statements an unavailable tain *6 Idaho Confrontation Clause. See non-violative States, Bourjaily v. United 5038, U. S. citing supra, 58 LW Craig, Maryland v. 144) (1987), SC S. _ (110 3157, 111 LE2d 497 U. SC reliability, appellant’s in the they test
Although
factors
crimes
the truth of
confirmed
independent
confessions
two
The confession constituted direct
in the statements.
what was related
Fields v.
guilt.
of the confes-
adequate
corroboration
The statements
sions,
24-3-53.
evidence is sufficient
required by OCGA
Virginia,
of Jackson
this dissent. Decided March
Rehearing 29, 1991 denied March Crowe, Lane, Crowe, L. Tucker & Robert appellant. III, Thomas, Jr., Attorney, B. Johnson District John Glenn W. Kelley, Attorneys, D. Assistant appellee. Stephen District BLALOCK; vice A90A1886, versa. A90A1890. ARFORD A90A1887. BLALOCK v. WILENSKY. COMPANY,
A90A1888, STATES MORTGAGE A90A1889. GULF BLALOCK; vice versa. INC.
Pope, Judge. commenced a mort- Anthony Blalock and Arford In 1982 Eulas Mort- operating the name of Gulf States business under gage banking concerning presented Company. Conflicting evidence gage partnership was en- Blalock and Arford established whether Gulf States independent corporation an contractor gaged as Inc., agreement, or an franchise Company, oral Mortgage employ- agreement were hired oral whether Blalock and Arford