Taylor v. State
264 Ga. App. 665
Ga. Ct. App.
2003
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*1 Decided November 2003. December Reconsideration denied appellant. Watkins, Elliott B. for

Stephen Shepard, appellees. E.

A03A1274. v. THE TAYLOR STATE. Presiding Judge. Andrews, Rodney Taylor appeals judgment jury from the entered after a guilty rape, aggravated molestation, him of found molestation. For the child and child

following reasons, there we conclude was no reversible error and affirm. light trial,

The taken in the favorable most to the 15-year-old verdict, was as follows. The victim left her doctor’s office got wrong got home, but on the and, bus. She off bus after walking period waiting time, some for another bus when it began up get to rain. drove and convinced the victim to in his stating taking car, that he would take her home. Instead of the vic- raped orally home, tim her. he her to took house sodomized in his testified own defense and that he admitted took the any house, victim to but denied sexual However, contact. the vic- police peculiarities Taylor’s geni- tim tals and able to tell about certain pubic pictures area, and the was shown which con- description. firmed the victim’s previ-

The State also introduced similar transaction evidence. A sexually victim ous testified that her in assaulted her car gave after she him ride to his house. convicted of all court sentenced prison rape charge, years

him as a recidivist life in on the aggravated charge, the molestation child molestation and 20 on the child charge. appeal followed. Taylor argues

In his error, first enumeration of that was rever- give jurors following sible error to fail to oath before voir dire: “ give questions may You shall true answers to all as be asked authority, including parties or all asked attorneys, concerning your qualifications jurors their in the case of ” case). _(herein help you state So God.’ OCGA 15-12-132. he waived new trial because to a not entitled is beginning the giving Before oath.1 objection the incorrect repeat going voir dire oath “I’mnot trial, the court stated: given understanding you my morning. they gave It is jury management. morning by Unless there that oath attorneys, proceed Defense coun objection otherwise.” *2 will from the not informed responded: court was defense.” The from the “None sel stipulated given to oath until counsel the incorrect was that the hearing new trial. motion for on at the right conducted [A] to a voir dire forfeit defendant “ right. timely by failing ‘Federal that assert oath under including Supreme notice Court, have declined to courts, (alleged) though such even to below not errors rights.’ constitutional defendant’s a criminal errors involve (1965), Indiviglio, cert. F2d 280 352 v. United States 663) (1966). (86 887, 15 LE2d SC denied, 383 U. S. objec defendant has an is clear: if the for this rule reason obligation the matter to court’s tion, to call there is an opportunity judge to rem 508 have an the trial will so attention edy Williams, S. 425 U. Estelle v. the situation.” (1976). 133); There is fn. 3 1691, 1695, 48 LE2d SC nothing indicate that in the instant case to in the record given during by any prejudiced appellant false answer was very limited. Absent in fact The voir dire was voir dire. showing prejudice, reverse a are not inclined to we of actual not conducted under the voir dire was conviction because objection was made below. oath where 247 Ga. Gober by required § important OCGA 15-12- that the oath It is to note given have found it this oath that courts in this case and is 138 was stating given jurisdictional, in order to render a it must be that to be Slaughter “binding conclusive.” conviction (28 Ates v. Neither is SE 455) (1980), Taylor, persuasive. by Ates, the correct relied attorney given, district court allowed the but the trial oath was jurors objection coun- of defense over the administer the oath dire, they given prior Although given correct oath to voir was not by mandated OCGA 15-12-138: oath you during present term truly try each case submitted “You shall well and opinion you charge according given give, to the law as true verdict and a your produced you, and knowl- to the best of skill entertain of the discharged party, provided are not edge, to either without favor or affection help you God.” submitted. So consideration of the case from the wording mandating spite and in sel the clear of the statute judge. oath be Id. at should administered prejudice jurors’ Court held that could form in the minds when the prosecuting oath administered arm of the State. Id. point, that, not on we even those Ates is note under circum- only “presumption” stances, the court held that there is (Punctua- party injured, contrary plainly appears.” “unless the omitted.) Accordingly, Ates, tion Id. even under error was harm- clearly less because the record harmed. us before shows that assuming right 2. Even did waive raise this pre- issue, there is no for the that harm must contention supra (appellant’s argument Gober, sumed. See must be at 655 that harm presumed from the failure to administer the voir dire oath is misplaced). In Roebuck v. recently although held not be could deter- prior given mined the oath whether voir dire had been transcript, granted there was no new“a trial will not be based on proves juror voir dire error unless the movant failed to answer (or honestly) question to answer a material on voir dire and then *3 response shows that a correct would a have established valid basis challenge for a for cause.” Id. at 680. Here, there is no contention that juror could have been excused for cause. hearing Taylor’s

The record shows that motion for new juror trial, guilty pled testified she that disclosed she robbery and was Act, sentenced under the First Offender but did not disclose that had she been arrested ten other times for proba- misdemeanor offenses and been sentenced to various terms of why tion. When asked she did not tell the court about the other juror responded: offenses, the “I did not know that had to advise her — you only just know, let them of all know of the because felony.” juror: “[D]id you assumed it was for the The State asked the honestly you believe when the Court asked if had been you honestly you only involved in other crimes, did believe [sic] juror replied, “[y]es, to ask disclose felonies?” The I did.” Further, when trial counsel was asked at motion for new hearing: your striking “Would it have been material to of juror] [the to know that had been arrested ten other times robbery besides the Would that she shared with this Honorable Court? have wanted to know that information?” Trial counsel answered: “I would have wanted to know would because have exactly wanted to were, find out what the other offenses what the cir- cumstances of them There were. have been some violence something know, behind it. I don’t but it is I would have wanted to know.” juror

Accordingly, above, that it is clear from truthfully responding answered thought and, even had she she was challenge provided correctly, a basis not have answer would for cause. her juror’s

“[T]o . . of a of a . trial because invalidate result question, though response is to insist honest, to a mistaken, judicial system something perfection than our closer to on can be important give. represents expected an A trial private resources, ill and it serves and social investment simply finality wipe important the slate clean end challenge process peremptory coun- recreate the objectively he which an item of information sel lacked juror dire examination. from a on voir should have obtained situation, a new trial in such hold that to obtain a We party juror that a failed answer must first demonstrate honestly question dire, and then further on voir a material provided response a valid have a correct would show that (Citations challenge punctuation for cause.” basis omitted.) (44) (e) Isaacs Grogan assuming Taylor juror

Therefore, failed to has established response only honestly question, a “would a material correct answer [Taylor] peremptory not, strike and did allowed exercise challenge provide Id. at In this itself, a valid for cause.” 878. argue peremptory that he would have used a does not even question. juror on the strike

Accordingly, above, all reasons the trial court stated Taylor’s ground. denying trial on err in motion for new did not holdings 2, above, 1 and we need 3. of our in Divisions Because relying was ineffective in address claim that trial counsel given. trial Next, that the oath had been on the court’s statement argues indictment on the that because the *4 age, allege 16 of the failed that the victim was under count automatically jury “against the the element is instruction that will” supplied the victim was under 16 was error because was conformity of cites in with the bill indictment. point argument we find none. on of this directly contrary. point Roebuck, In Rather, case the law argued supra appellant indictment did 681-682, that because the age 14, of the State should state the victim was under the required prove sodomy “against have the of been acts her will.” Id. at 681. held that: fact that the

the indictment this case failed state the age trump precept of the victim did not the that a child age legal ability under of 14 the lacks the to consent to sod- omy. presented jury clearly The evidence to the established age 14, that the victim in this case the and, was under of [v. App. such, in State, accordance with Jenkins 259 Ga. (576 68) (2003)], prove SE2d the did not State have to sodomy against the in this case was the victim’s will.

Id. at 682. clearly

Likewise, in the instant the evidence established age that not buck, 16, the victim was of therefore, under the State did prove against the victim’s will. See Roe- supra; supra Jenkins, Therefore, at 88. it follows that it was not charge jury accordingly. error for the court to See also McFall v. 839) (1975) (although State, 235 Ga. SE2d allegation age indictment contained no as to the “if victim, evi- question, charge dence can admitted on the the court can thereto”), grounds, the law reference rev’d on other Drake v. 748) (1977). 239 Ga. 232 SE2d claims that trial counsel was ineffective because he prosecutor’s questions failed to to the victim and similar transaction victim as howto the attacks had affected their impact § lives. OCGA 17-10-1.2 allows of upon only during the crime victim, this evidence is admissible (a) (2). sentencing phase of trial. See OCGA 17-10-1.2 To establish counsel, ineffective assistance of must show performance that his counsel’s performance prejudiced was deficient and that the deficient Washington, his defense. Strickland v. 674) (1984); U. S. SC 80 LE2d Gross v. (1) (416 232, 233-234 test is whether there is a probability reasonable would have reached different ver- supra. analyzing dict, Gross, absent the error of counsel. a claim counsel, ineffective assistance of we note at the outset a trial finding court’s that a defendant has not been denied effective assis- clearly tance of counsel will be affirmed unless erroneous. Warren v. (1) (397 Further, strong presumption must overcome the that defense counsel’s con- range professional duct falls within the broad of reasonable conduct. (8) (1991). Snyder regard First, transaction, victim the similar objected-to response were asked on redirect examination *5 any by idea ‘You as follows: don’t counsel defense to why speak?” charge, up pleading Answer: so to to lesser he ended any the D.A.’soffice with had contact ‘Youhave never Question: “No.” Rodney?” regards disposition regards in of the case in the at all “No.” Answer: questioned questions, prosecutor the similar the After these clarify why she reluctant in order to

transaction victim through why she was able of the crime and at the time Having opened testify. evidence, the door to and now come Taylor Casserly testimony. e.g., complain See, cannot 889) (1985). Therefore, the because 272, 273 SE2d any objection testimony been meritless. admissible, would have Accordingly, ineffective assis- cannot be counsel’s failure Ga. 726 See Collins v. 276 questions tance. The victim in this case. the Next, we address her prosecutor had affected and victim how the asked the nightmares replied had from it and also that she that she victim “boy” body dressing “covered so her would be more like started up.”

Taylor State, 274 Ga. 640 cites Lucas v. argument case, this was reversible error. guilt/innocence phase opening statement and in improperly evidence that raised the worth of of the trial introduced impact wrought their deaths. Id. at 642. the victims and the jury’s any held, however, that error was harmless because the guilt/innocence phase at the did of this evidence consideration contribute to guilty verdict. Id. at 644. Likewise, we conclude that the vic- the instant cannot nightmares style and contributed to the tim’s dress jury’s Accordingly, although trial counsel could have verdict. testimony, we conclude there is reasonable to probability above verdict, a different absent would have reached supra. Gross, error of counsel. erroneously Next, claims the trial court allowed prosecutor he had com- to cross-examine about other crimes examination, mitted. When testified on direct he stated: said, . “Another came in . . do have a detective at time battery previous sex kind of sexual record or kind of crime County up before, crime? or been locked ever been in DeKalb Have — any jail? pulled guess had, he told him and so went — paperwork.” pulled up computer, pulled up went some he history.2 Taylor opened of his criminal the door to a discussion taking." Also, probation for note that himself testified that he “was on theft we prior conduct, “Where the defendant testifies and he admits criminal placed meaning has ‘in character issue’ within the of OCGA (b). fully Rather, 24-9-20 he has raised an issue which (Punctuation omitted.) explored by State cross-examination.” Cobb v. Accord- ingly, topic examination, introduced the on direct he *6 complain prosecutor up now cannot followed on cross- admissible, examination. Id. Because the was trial counsel failing objection. was not ineffective for to make a meritless 7. Next contends that trial counsel was ineffective in fail- ing object to the introduction into evidence of two bills of indict- Taylor argues go ment. that to allow these indictments to out with jurors during impermissible their deliberations an comment failing object. on his character and trial for counsel ineffective charged Taylor rape imprison- The first indictment with and false charged ment and the second indictment him with two counts of aggravated rape. appears assault with instances, intent to In both Taylor pled guilty battery. to the lesser offenses of sexual imprisonment, indictment, first for and false concerned charges against Tay- the victim stated, in the similar transaction. As pled guilty battery. lor But, misdemeanor sexual this evidence was presented admissible because the victim testified at trial and evi- Wagner dence to the indictment. v. App. 874, regard indictment, With to the second trial counsel objections numerous times to this evidence and his were overruled. support Taylor’s addition, we find contention that it was harmful error for these out indictments jury. Taylor opened above, As stated the door to this evidence and he was cross-examined on offenses, the circumstances of the charges, disposition charges. Accordingly, of those enu- presents nothing meration further for our review. Judgment Eldridge, Johnson, J, Blackburn, J., P. P. affirmed. Adams, JJ, J.,

Mikell Barnes, and concur. concurs in Divisions 3 through judgment only 7 and concurs Divisions and 2.

Barnes, Judge, concurring specially. fully grave 3-7, concur Divisions reserva- long-term justice tions about the effect on the administration applying waiver failure counsel to agree application Nevertheless, court’s statement. that such is not I can- wholly inconsistent with our law in Further, this area. agree majority’s application with the in Division 2 of Roebuck 523) (2003), Grogan

State, 261 Ga. and 589) circumstances, I in these 230 Ga. must concur only judgment and as to Divisions in the 1,2003 Decided December 12, 2003 denied December Reconsideration appellant. Steel, for Brian Rosemary Attorney, Brewer, Morgan, W. Assistant District TomJ. Attorney, appellee. for District DEVELOPMENT, et al. v. JPS DEERE &

A03A2125. COMPANY INC. (592 SE2d Presiding Judge. Andrews, interlocutory Company’s application granted Deere & We Develop- appeal to dismiss JPS denied its motion after the trial court misrepresenta- warranty negligent ment, breach of Inc.’ssuit for corporation appeal whether a The sole issue below tion. file a renewal more two could than that had been dissolved *7 incorrectly con- 9-2-61. Because action under OCGA could, we that it reverse. cluded Company bought from Deere & two John Deere tractors JPS February corporation was dissolved. In March the JPS warranty against implied Deere JPS filed suit breach voluntarily the suit JPS dismissed with the two tractors. connection years corpora- February July over two after

in tion was 2002. On against suit dissolved, filed a renewal action of the JPS claiming file a dismiss, that JPS could not Deere Deere. moved two-year winding-up period had run and action renewal legal corporation existence. provides: § 14-2-1410 OCGA except by corporation any manner, of a

The dissolution supervised superior court has court when the decree corporation liquidation and business of the of the assets through provided 14-2-1433, in Code Sections 14-2-1430 away any remedy impair to such available shall not take corporation, or directors, officers, or shareholders existing prior right if action or to such dissolution or claim proceeding pending such the date of dis- other thereon the date of within two after or is commenced solution such dissolution. corpo- proceeding Any such action corporate corporation prosecuted in its ration