March 6, 2015
Aggravated child molestation. Dougherty Superior Court. Before Judge Gray, Senior Judge.
Kevin C. Armstrong, for appellant.
Gregory W. Edwards, District Attorney, M. April Wynne, Cania R. Brown-Gordon, Assistant District Attorneys, for appellee.
McFADDEN, Judge. Andrews, P. J., concurs. Ray, J., concurs in Divisions 1, 2 and 4, and in the judgment in Division 3.
After a jury trial, Loyce D. Harris was convicted of aggravated child molestation. He appeals, arguing that the state violated his rights by failing to provide him with a witness's statement as required by Brady v. Maryland, 373 U.S. 83 (83 S.Ct. 1194, 10 L.Ed.2d 215) (1963), and Georgia's reciprocal discovery statutes; that the trial court erred by admitting hearsay testimony; and that the trial court erred by refusing to charge the jury on identification. We hold that Harris's failure to object on Brady grounds or to seek relief bars his challenge regarding the witness's statement; that even if the trial court erred by admitting hearsay, any error was harmless beyond a reasonable doubt; and that the trial court did not err by refusing to give Harris's requested charges on identification. We therefore affirm.
Viewed in the light most favorable to the verdict, the evidence shows that Harris dated the victim's grandmother, with whom the victim lived. The five-year-old victim told her grandmother that, " Cash touched my pie-pie," which is the name they used for the vagina. The grandmother testified that the victim referred to Harris as Cash. At the recommendation of the police, the grandmother took the victim to a child advocacy center. A forensic interviewer interviewed the victim, who told her that Cash had touched her vagina with his finger and put his penis in her vagina.
2. Witness statement.
During cross-examination, the victim's uncle testified that, at the request of the assistant district attorney, he " wrote [a] statement and turned it in." Harris's attorney then asked the trial court, " may we approach regarding the statement that I never received?" The assistant district attorney objected to that characterization. The court responded, " There's no need to approach," and defense counsel answered, " Okay." She then continued cross-examination. Harris [331 Ga.App. 33] argues that the state's failure to provide him with the uncle's written statement violated his due process rights under the federal and
Georgia Constitutions because it was material impeachment evidence falling under Brady, and violated Georgia's reciprocal discovery rules.
(a) Brady violation.
Harris argues that the state's failure to provide him with the statement violated Brady. " No such objection was made at trial, and the defendant has waived his right to raise this objection on appeal." Jones v. State, 258 Ga. 249, 250 (6) (368 S.E.2d 313) (1988) (failure to raise an objection based on Brady at trial waives the issue on appeal). Further, Harris learned of the statement at trial and " could, had he deemed it necessary, have sought a continuance to further investigate." Walker v. State, 282 Ga. 703, 706-707 (4) (653 S.E.2d 468) (2007).
(b) Violation of reciprocal discovery statutes.
Harris argues that the state's failure to provide him with the written statement violated Georgia's reciprocal discovery statutes and the only just remedy is reversal. Harris correctly argues that OCGA § 17-16-4 (c) required the state to promptly notify him of this statement. That statute provides:
If prior to or during trial a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under this article, such party shall promptly notify the other party of the existence of the additional evidence or material and make this additional evidence or material available as provided in this article.
OCGA § 17-16-4 (c). As for remedies for the state's violation, OCGA § 17-16-6 provides:
... [T]he court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. ...
However, " [Harris] did not request any of these items of relief, but merely [asked to approach regarding the statement that counsel never received]. As [Harris] did not request any relief," he is not entitled to reversal. Williams v. State, 226 Ga.App. 313, 314 (1) (485 [331 Ga.App. 34] S.E.2d 837) (1997). We observe that Harris concedes that the state did not purposefully violate the statute.
3. Hearsay testimony.
Harris argues that the trial court erred by allowing a former law enforcement officer, who had investigated a similar transaction introduced against Harris, to testify about what the similar-transaction victim had told him. In the similar transaction, Harris was charged with child molestation and pled guilty to statutory rape. At Harris's trial here, the former detective who investigated the similar transaction testified:
I went to the hospital where I started my investigation. I called DFACS; we notify DFACS anytime a child is involved in a rape. I got some information from the victim. I started my investigation. I interviewed some witnesses, and I also interviewed the victim. She advised me that her and two more juvenile females were riding bicycles and that Alonzo Harris [a name Harris was known by] grabbed her, drug her down into the woods where he attempted to rape her. She stated that he put his finger inside of her private parts; he also gave me a statement hisself [sic] that he did put his finger inside of her. He was charged with child molestation.
Harris argues that introduction of the similar-transaction victim's testimonial statements violated his confrontation rights and that those statements were inadmissible hearsay. It is true that out-of-court statements are inadmissible if they are testimonial in nature:
The confrontation clause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant. ... [S]tatements made to police officers during an investigation qualify as testimonial.
Gay v. State, 279 Ga. 180, 181-182 (2) (611 S.E.2d 31) (2005) (citations and punctuation omitted). But see Hatley v. State, 290 Ga. 480, 484 (II) (722 S.E.2d 67) (2012) (" Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." ) (citation omitted). We conclude, however, that any confrontation-clause error was harmless beyond a reasonable doubt. See Griffin v. State, 292 Ga. 321, 324 (5) (737 S.E.2d 682) (2013).
[331 Ga.App. 35] The detective's testimony that the victim said she was riding her bicycle does not implicate Harris whatsoever. See Bell v. State, 294 Ga. 443, 448 (3) (754 S.E.2d 327) (2014) (officer's hearsay testimony regarding witness's statement was harmless beyond a reasonable doubt because it was cumulative of other admissible evidence and did not establish any fact related to defendant's guilt). The testimony that the victim said Harris attempted to rape her is cumulative of his guilty plea to statutory rape. See Gay, supra, 279 Ga. at 182 (2) (admission of hearsay statement violated confrontation clause but was harmless beyond a reasonable doubt because it was cumulative of other admissible evidence). The testimony that the victim said Harris " put his finger inside of her private parts" is cumulative of Harris's admission to that act. Id. The testimony that the victim said Harris grabbed her and dragged her into the woods added nothing material and was merely incidental to the properly admitted evidence of the statutory rape conviction. See Horne v. State, 281 Ga. 799, 808-809 (5) (642 S.E.2d 659) (2007) (any confrontation clause violation caused by state's leading questions in the presence of the jury to a co-indictee who had been granted immunity but refused to testify was harmless beyond a reasonable doubt because questions were not evidence and added nothing of material value that had not otherwise been properly admitted).
Harris also argues that the admission of the victim's statements violated the Georgia statutory prohibitions against hearsay evidence. Assuming for purposes of appeal that there was error in this regard, any such error was harmless as detailed above.
4. Jury instruction.
Harris argues that the trial court erred by refusing to give two requested charges on identification. One of the charges concerned the reliability of identification and the other concerned the state's burden to prove beyond a reasonable doubt the identity of Harris as the person who committed the crime. Harris argues that the victim was never reported to have identified Harris as the person she referred to as Cash regarding this incident. But the grandmother testified that the victim called Harris by the name " Cash," and said that Cash had touched her.
" There is no requirement of our law that a trial judge warn the jury against the possible dangers of mistaken identification of an accused as the person committing a crime." McLean v. State, 291 Ga. 873, 878 (5) (b) (738 S.E.2d 267) (2012) (citation and punctuation omitted) (ineffective assistance of counsel claim). The trial court charged the jury on the state's burden of proof, the presumption of innocence, reasonable doubt, credibility of witnesses, and impeachment of witnesses. " Thus, the jury was instructed on the general [331 Ga.App. 36] principles of law underlying a defense of misidentification." Id. See also Sullivan v. State, 242 Ga.App. 613, 615 (4) (530 S.E.2d 521) (2000) (trial court's failure to instruct jury that state must prove identity beyond a reasonable doubt not error because court gave instruction that jurors must find beyond a reasonable doubt that the defendant committed the offenses charged in the indictment).
Andrews, P. J., concurs. Ray, J., concurs in Divisions 1, 2 and 4, and in the judgment in Division 3.