Bryan Coleman Dague was indicted for committing two offenses against P C.: (i) child molestation, by touching her vaginal area; and (ii) aggravated child molestation, by placing his mouth on the child’s sex organ. At trial, the state invoked the Child Hearsay Statute and introduced evidence of P. C.’s out-of-court accusations about Dague, and a jury found him guilty as charged. Judgment of conviction was entered thereon.
The trial court granted Dague’s motion for new trial, because it determined that the child hearsay had been admitted in violation of Dague’s Sixth Amendment right to confront P. C. The state appeals the grant of a new trial.
P. C.’s mother testified that, one morning the following February (2011), she and P. C. talked with the cousin by phone. After the phone call, P. C. told her mother that when she was living at the cousin’s residence, Dague often came into her bedroom and touched her vaginal area. P. C. told her mother that, during those times, she would pretend to be asleep.
On February 7,2011, P. C.’s mother reported P. C.’s allegations to police. A psychotherapist who specialized in sexual abuse conducted a forensic interview of P. C. The interview was audio-video recorded, and the recording was authenticated at trial by the psychotherapist, then played for the jury. During the interview, six-year-old P. C. said that on more than one occasion, Dague had come into her bedroom, approached her as she lay on her bed, pulled down her panties, and put his tongue on her vaginal area. P. C. also said that on more than one occasion, Dague had come into her bedroom, approached her as she lay in her bed, pulled down her panties, and touched her vaginal area with his fingers and/or his penis. P. C. described that Dague had sometimes brought with him a “bottle” and used his finger to transfer some of its contents — which she described was like hair grease or hair conditioner — onto her vaginal area before touching that area with his penis.
P. C. was examined in February 2011 by a nurse practitioner, who was qualified at trial to testify as an expert in the area of child sexual assault. The nurse practitioner opined that P. C.’s vaginal area was “normal.” She explained, however, that “a normal exam is completely consistent with [P. C.’s] disclosure” because, given the amount of time that had passed between the reported sexual incidents and the date of the examination, any touching of the vaginal area would likely not have left any marks, and any cuts to that area would likely have healed.
A police detective assigned to the case interviewed Dague on February 15, 2011. The interview was audio-video recorded, and played for the jury. During the interview, 20-year-old Dague recounted moving into his father’s residence in November 2009, when he was nearly 19 years old, and living there until the summer of 2010. Dague recalled P. C. living there, too, but denied ever inappropriately touching her.
Dague took the stand and denied P. C.’s allegations, as well as the acts described in both counts of the indictment.
P. C. was seven years old at the time of the trial. She was brought to the courthouse before the trial began, but neither side called her to testify.
1. Although its sufficiency is not specifically contested in this appeal, the evidence presented at trial and summarized above, when viewed in the light most favorable to the prosecution, was sufficient to authorize a rational trier of fact to find Dague guilty beyond a reasonable doubt of the crimes for which he was convicted.
2. We turn to the state’s contention that Dague was not entitled to a new trial.
After a hearing on the motion for $ew trial, the trial court entered an order on October 19, 2012. Therein, it determined that, under the pipeline rule,
The objection to the constitutionality of the child hearsay statute was properly preserved for appeal by trial counsel’s Motion in Limine regarding the same. While defendant clearly was on notice of the State’s intent to introduce the child hearsay, and trial counsel waived the opportunity to have the child testify, he did so in light of a now-overturned procedure. The Court cannot find a valid waiver of defendant’s rights under the Confrontation Clause. There exists insufficient properly admitted, evidence to sustain the jury’s verdict. Defendant’s Motion for New Trial is granted.
On appeal, the state challenges the grant of a new trial to Dague, which was based on the trial court’s finding of a violation of the Confrontation Clause. The state claims that defense counsel not only failed to object on that ground, but also conceded that the defense had deliberately waived confronting P. C. at the trial for strategic reasons. For reasons that follow, we agree with the state that Dague was not entitled to a new trial.
The Child Hearsay Statute in effect at the time of Dague’s September 2011 trial provided:
A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.6
In Sosebee v. State,
[I]f the prosecution invokes the Child Hearsay Statute to introduce out-of-court declarations by the alleged victim, the court shall,.. .at the request of either party, cause the alleged victim to take the stand. The court shall then inform the jury that it is the court who has called the child as a witness, and that both parties have the opportunity to examine the child. The court shall then allow both parties to examine and cross-examine the child as though the Child Hearsay Statute has not been invoked.8
But Sosebee and its progeny were recently overruled in Hatley v. State.
However, the Hatley Court went on to explain that the statute could survive a Confrontation Clause attack provided that
the prosecution... notifies] the defendant within a reasonable period of time prior to trial of its intent to use a child victim’s hearsay statements and... give[s] the defendant an opportunity to raise a Confrontation Clause objection. If the defendant obj ects, and the State wishes to introduce hearsay statements under OCGA § 24-3-16, the State must present the child witness at trial; if the defendant does not obj ect, the State can introduce the child victim’s hearsay statements subject to the trial court’s determination that the circumstances of the statements provide sufficient indicia of reliability. The trial court should take reasonable steps to ascertain, and put on the record, whether the defendant waives his right to confront the child witness.16
Accordingly, this court, citing Bunn v. State,
[T]o comport with the Confrontation Clause, [former] OÓGA § 24-3-16 requires that the child whose statements are at issue not merely be “available to testify” but actually testify at trial, unless the defendant forfeits or waives such testimony, andrequir[es] pretrial notice of the [s]tate’s intent to use child hearsay statements to allow the defendant to exercise that right.19
In Walker, Walker argued that the trial court had improperly admitted certain child hearsay in violation of his Sixth Amendment right to confront one of his accusers.
Not only did Walker fail to object on Sixth Amendment grounds at trial, but he affirmatively declined the opportunity to question the victim before the jury, thereby waiving his right to confront the child witness. Walker asserts that any waiver was induced by the Sosebee line of cases. In essence, he argues that under Sosebee, the admission of child hearsay did not violate his right to confront witnesses, so he did not raise a Confrontation Clause objection. But Walker was given the opportunity toquestion the child and chose not to. Under these circumstances, it is clear that Walker waived his right to confront the child witness. 21
The record in the instant case convinces us that Dague waived his right to confront P. C. Prior to trial, Dague filed a motion in limine, stating that he believed that the state was planning, pursuant to OCGA § 24-3-16, to introduce evidence of P. C.’s out-of-court statements. Dague pointed out that the trial court had not yet made a determination, as statutorily required, that “the child is available to testify in the proceedings and . . . that the circumstances of the statement provide sufficient indicia of reliability.”
But “[e]ven if OCGA § 24-3-16 authorizes the admission of such evidence as an evidentiary matter, it may still be inadmissible as a violation of the accused’s rights under the Confrontation Clause.”
Here, Dague pursued pretrial (unsuccessfully) his argument that P. C.’s out-of-court statements failed to satisfy the reliability requirement of the Child Hearsay Statute. Although Dague included in his motion in limine a conclusory claim that the Child Hearsay Statute was unconstitutional as violative of his right to confront witnesses, he thereafter neither advanced any argument in support thereof,
Rather, as was confirmed by D ague’s trial lawyer when he took the stand at the hearing on Dague’s motion for new trial, the defense had chosen, as a matter of trial strategy, not to confront seven-year-old P. C. in front of the jury. The lawyer recounted that he had been concerned about the reliability of P. C.’s out-of-court statements, and thus had sought before trial to exclude the child’s outcry to her mother and the child’s disclosures to the forensic interviewer. But when that effort failed, the lawyer testified, “as a matter of trial strategy our focus was more on the mother and the circumstances surrounding the child’s outcry than upon placing the child on the stand.” As the lawyer revealed:
My concern —• I’ve •— I’ve had to put children on the stand before, especially in Juvenile Court, and my experience is that’s a very difficult thing to do. It’s fraught with peril. And I thought that — I mean, I wanted to try and keep it out, fought to keep it out. But since [the trial court] ruled it was coming in, I felt it was enough to work with on the child statement without muddying the waters and risking putting her on the stand.
As the lawyer recalled:
[P. C.] was here at the courthouse. I spoke with her very briefly. I can’t remember if it was outside or in the courtroom. [The prosecutor] had her in a room down the hall. And I know that they brought her up to the witness stand and—but I did not go into any kind of lengthy questioning of the child.
The lawyer had calculated that cross-examining the child was
somewhat risky. And . . . our better — the strategy at the time was to try to go after the mother and the family circumstances. My concern was, is that I didn’t want the child reaffirming on the stand what she says in the forensic interviews. I felt like there was enough to work with in the interviews that it gave me some openings.
The lawyer also had a “concern at the time ... I didn’t want to come across as beating the child up.” Furthermore, the lawyer recounted, he had examined the discovery from the state and had discerned no material variations amongst P. C.’s allegations. Had there been, he added, “that probably would have changed my strategy.”
The record shows that any pretrial objection Dague may have had that the Child Hearsay Statute itself was unconstitutional as violative of his right to confront was abandoned.
3. Finally, we note that Dague asserts in his brief that “the grounds in his motion for new trial are interwoven into the trial court’s analysis and consequent ruling with its findings of fact and conclusions at law.” Dague further states that the trial court’s order granting his motion for new trial was “silent as to not excluding any of the said grounds as its basis for same.” Dague does not go so far, however, as to request remand for an express ruling from the trial court. And indeed, remand is unwarranted.
(a) Contrary to Dague’s claim on motion for new trial, the trial court committed no error in admitting evidence of P. C.’s out-of-court statements to her mother and to the forensic interviewer.
(b) Thus, contrary to Dague’s claim on motion for new trial, the trial court did not err by denying his motion for a directed verdict of acquittal.
(c) Dague failed to show on motion for new trial that his trial counsel rendered ineffective assistance of trial counsel.
Judgment reversed.
Notes
See OCGA §§ 5-7-1 (a) (8); 5-7-2 (c); State v. Caffee,
See Jackson v. Virginia,
See Taylor v. State,
Because the trial court granted Dague’s motion for new trial on a special ground instead of the general grounds, we review that ruling de novo. See State v. James,
OCGA § 24-3-16 (2011). The similar version of the Child Hearsay Statute, adopted as part of the new Georgia Evidence Code, is codified at OCGA § 24-8-820. See Walker v. State,
Id. at 299 (emphasis supplied); see Hatley, supra at 482 (I) (explaining holding in Sosebee, supra).
Sosebee, supra; see Hatley, supra (explaining rationale underlying Sosebee, supra).
Supra at 483 (I).
Id. at 480.
Id. at 481.
Id. at 481-482.
Id. at 482.
Id. at 483.
Id. at 483-484 (I).
Supra.
Id. at 160 (1) (emphasis supplied).
Id.
Id. at 161 (1) (citations and punctuation omitted).
OCGA § 24-3-16 (2011).
Bunn, supra (citations omitted).
Johnson v. State,
See generally In re D. H.,
See generally Nathans v. Diamond,
See Hatley, supra; Bunn, supra; Walker, supra; see also Johnson, supra (explaining the “distinct difference” between Confrontation Clause and other challenges to hearsay); Battles v. State,
Sosebee, supra at 299.
See generally Taylor, supra at 586 (3) (“Application of the [pipeline] rule to a pending case will, of course, depend on the preservation of the issue for appellate review.”).
See Battles, supra; In re D. H., supra; Taylor, supra; Buckler, supra; Dye, supra.
Walker, supra (citation and punctuation omitted).
See McClure v. Kemp,
See Bunn, supra (OCGA § 24-3-16 requires that the child actually testify, “unless the defendant forfeits or waives such testimony’); Walker, supra (where defendant affirmatively declined the opportunity to question the victim before the jury, defendant waived his right to confront the child witness).
See Division 2, supra.
See Division 1, supra; Joyner v. State,
See Strickland v. Washington,
See Welch v. State,
See Jones v. State,