Belcher v. State, 69217
| Decision Date | 22 February 1985 |
| Docket Number | No. 69217,69217 |
| Citation | 173 Ga.App. 509,326 S.E.2d 857 |
| Parties | BELCHER v. The STATE. |
| Court | Georgia Court of Appeals |
Dennis B. Dixon, Jr., Covington, for appellant.
John T. Strauss, Dist. Atty., John Ott, Asst. Dist. Atty., for appellee.
Appellant was convicted of child molestation. After filing an enumeration of error appellant's counsel filed a motion to withdraw as counsel and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. This court denied that motion and directed appellant's counsel to file a brief addressing the issue of whether the failure to swear the victim in this case was reversible error.
1. The victim in this case, an eight-year-old girl, was questioned extensively to determine if she was a competent witness. The court found her competent, but when appellant's counsel asked if the witness had been sworn, the trial court stated it was not necessary. OCGA § 24-9-60 provides in pertinent part: "The sanction of an oath or affirmation equivalent thereto shall be necessary to the reception of any oral evidence." "In this State an oath or affirmation is required of all witnesses, and unsworn statements are not treated as amounting to any evidence, except 'in specified cases from necessity.' " Huiet v. Schwob Mfg. Co., 196 Ga. 855, 859(2), 27 S.E.2d 743 (1943). Thus, it was error to fail to swear the victim as a witness in this case as required by OCGA § 24-9-60. However, even though appellant inquired as to whether the witness had been sworn when the court said it was unnecessary, appellant made no objection to the court's ruling. Where a party, without objection, allows a witness to testify against him without first being sworn he cannot after conviction urge the failure of the witness to take the oath as a ground in a motion for a new trial. Rhodes v. State, 122 Ga. 568(1), 50 S.E. 361 (1905). Thus, appellant's failure to object constituted a waiver of the requirements of an oath. Smith v. State, 81 Ga. 479, 480(2), 8 S.E. 187 (1888); Rhodes, supra.
2. Appellant contends the verdict is not supported by the evidence. The victim testified that appellant molested her sexually, and a medical doctor examined the victim and found evidence of sexual molestation. Further, appellant confessed to police that he molested the victim sexually. Hence, we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
3. Appellant contends the trial court erred by admitting appellant's confession into evidence. At a Jackson-Denno hearing (Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908) it was established that appellant was advised fully of his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and thereafter signed a waiver of his rights knowingly and voluntarily. Appellant indicated he understood his rights, and he was not threatened or coerced in any way to make a statement. In fact, shortly after arriving at jail, appellant expressed a desire to make a statement.
Factual and credibility determinations as to voluntariness of a confession are normally made at a suppression hearing and must be accepted by appellate courts unless such determinations are clearly erroneous. Griswold v. State, 159 Ga.App. 22, 23(2), 282 S.E.2d 679 (1981). We find no error here.
4. Appellant contends error...
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...v. State, 653 So.2d 1107 (Fla.App. 3 Dist.1995) (trial court erred in relying on unsworn testimony of witness); Belcher v. State, 173 Ga.App. 509, 326 S.E.2d 857 (Ga.App.1985) (unsworn statements are not treated as amounting to evidence, except in specified cases of necessity); and Hinshaw ......
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...219 Ga.App. 69, 70-71(2), 464 S.E.2d 30 (1995); Hilson v. State, 204 Ga.App. 200, 203(1), 418 S.E.2d 784 (1992); Belcher v. State, 173 Ga.App. 509, 510(1), 326 S.E.2d 857 (1985). As such, Sweeting waived any objection to the failure to place him under oath when he failed to raise the issue ......
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Bell v. State
...statements are not treated as amounting to any evidence, except "in specified cases of necessity." ' [Cit.]" Belcher v. State, 173 Ga.App. 509(1), 326 S.E.2d 857 (1985). It is clear that Bell should not have testified without being under oath. See Lee v. State, 223 Ga.App. 438(1), 477 S.E.2......
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