Patrick Walker was found guilty by a jury of four counts of child molestation. On appeal, he claims the trial court erred by refusing to strike a juror for cause, and by denying his motion to exclude testimony about pornographic material seized at his residence in a search conducted pursuant to a search warrant he claims was issued without a showing of probable cause. For the following reasons, we find no error and affirm the judgment of conviction entered on the guilty verdicts.
1. The State charged that Walker committed four counts of child molestation against the same minor child when the child was nine to eleven years old. The State charged that, with the intent to arouse and satisfy his sexual desires, Walker placed his penis on the child’s vagina (Count 1); caused the child to place her hand on his penis (Count 2); placed his hands on the child’s breasts (Count 3); and, in the presence of the child, exposed and touched his penis and ejaculated (Count 4). In support of these charges, the State presented testimony from the child that Walker committed all of the charged acts. A clinical psychologist who interviewed the child also testified that the child told him Walker rubbed her breasts. The State presented a video of the psychologist’s interview of the child concerning the molestation charges, but the video was not included in the record on appeal. Walker did not testify but presented testimony from various witnesses attacking the child’s credibility.
The child’s credibility was for the jury to determine.
Dunagan v. State,
2. Walker claims the trial court erred by refusing to strike juror no. 21 for cause. During voir dire, the trial court asked all the jurors if anyone could not set aside “preconceived ideas, opinions, conclusions, and prejudices” and base their verdict on the evidence and instructions on the law. Several jurors, including juror no. 21, raised their hands in response to this question. In its follow-up questions posed to individual jurors, the State explored the fact that juror no. 21’s father had been murdered, and asked the juror, “[D]espite that experience, do you feel if selected you could be a fair and impartial juror?” The juror responded, “Yes, I’ll try my best. That’s all I can do.” Defense counsel followed by asking the juror, “Did you raise your hand or let [the trial court] know that you might have a problem setting aside your personal experiences?” To this question, the juror responded,
Well, because I have two points of view in the sense that I was almost raped and also my — because of my daughter, you know, being a parent and all, it would be difficult for me because, you know, it was a very traumatic experience. I don’t know if these children — if they were being traumatized or not. So in that respect, it would be difficult.
The trial court denied Walker’s motion to strike the juror for cause, finding that the juror said it would be hard to be impartial, but not that the juror could not be impartial.
Whether to strike a juror for cause lies within the sound discretion of the trial court. Before a juror is excused for cause, it must be shown that he or she holds an opinion of a defendant’s guilt or innocence that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence and the court’s instructions.
(Citations omitted.)
Head v. State,
3. Walker contends the trial court erred by denying his “Motion to Suppress Illegally Obtained Evidence and Motion in Limine” filed two days before the trial commenced.
The motion to suppress notes that “items of a pornographic nature” were found in Walker’s residence during a search conducted about six months prior to the trial pursuant to a search warrant. This motion sought an order suppressing admission of the items of physical evidence on grounds that the search violated the Fourth Amendment of the United States Constitution and Article I, Section I, Paragraph XIII of the 1983 Georgia Constitution because there were insufficient facts before the judicial officer who issued the search warrant to support a finding of probable cause. The motion in limine noted that the State may have lost the physical items seized in the search, but that, even if the seized items were not available for admission, the State intended to introduce testimony from police officers describing the items they seized during the search. In this motion, Walker sought an order excluding all testimony about the seized items as the “fruit of the poisonous tree” because the testimony was obtained as a result of a constitutionally invalid search. See
Ruffin v. State,
The trial court denied the motion seeking suppression of the physical items seized in the search on the basis that the motion to
suppress filed more than ten days after the date of arraignment was untimely. OCGA § 17-7-110. Because Walker failed to file a timely motion to suppress, he waived his right to claim that the seized items were inadmissible because the search was constitutionally invalid.
Copeland v. State,
Walker also filed a motion in limine to exclude any testimony describing the items seized in the search on the basis that the testimony was obtained solely as the result of the unconstitutional search and seizure. Because the admissibility of testimony about property seized in a search is not tested by a motion to suppress under OCGA § 17-5-30, which applies only to suppression of tangible physical evidence, a pretrial motion in limine may be employed to seek a ruling on the admissibility of the testimonial evidence.
State v. Johnston,
Walker’s sole basis in the motion in limine for exclusion of the testimony describing the seized physical evidence was his claim that
the physical evidence was inadmissible as the product of an unconstitutional search. Since Walker’s failure to file a timely motion to suppress the seized physical evidence waived any right to claim that the underlying search which produced the physical evidence was unconstitutional, it follows that he was not entitled to exclusion of testimony describing the physical evidence on the basis that the testimony was the fruit of an unconstitutional search.
Reid,
Citing Bobo
v. State,
Judgment affirmed.