Boatright v. State

• Decision Date: 27 June 1989
• Docket Number: Nos. A89A0157,s. A89A0157
• Citation: 385 S.E.2d 298,192 Ga.App. 112
• Parties: BOATRIGHT v. The STATE. O'BERRY et al. v. The STATE. (Two Cases) to A89A0159.
• Court: Georgia Court of Appeals

Page 298

385 S.E.2d 298

192 Ga.App. 112

BOATRIGHT v. The STATE.

O'BERRY et al. v. The STATE. (Two Cases)

Nos. A89A0157 to A89A0159.

Court of Appeals of Georgia.

June 27, 1989.

John R. Thigpen, Sr., for appellant (case no. A89A0157).

M.C. Pritchard, for appellant (case no. A89A0158).

Jeffrey S. Parker, for appellant (case no. A89A0159).

Harry D. Dixon, Jr., Dist. Atty., Margaret M. Edwards, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellant Holder Boatright was convicted of two counts of aggravated child molestation; appellant Frank O'Berry was convicted of two counts of enticing a child for indecent purposes; and, appellant Donna O'Berry was convicted of two counts of enticing a child for indecent purposes. Each appellant has appealed.

The children of appellants O'Berry, a girl age 9 and a boy age 8, testified that their parents and an uncle, Wayne Sims, took them on certain occasions to the garage of appellant Boatright who sexually abused each child in various ways; the abuse occurred in the presence of the parents on at least one occasion.

I. A89A0157, A89A0158 & A89A0159.

1. Review of the transcript of these three companion cases in a light most favorable to the jury's verdict reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that each appellant was guilty of the offenses of which he or she has been convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Baggett v. State, 257 Ga. 735(2), 363 S.E.2d 257.

II. A89A0157. BOATRIGHT v. THE STATE.

2. Appellant Boatright asserts the trial court erred in refusing to allow appellant to hear certain recorded tapes of prior statements made by the children which would be exculpatory or mitigating. The tapes consist of certain video tapes made of an interview of the two children conducted by the Pierce County Family & Children Services'. Appellant asserted rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, to the production of the tapes or in the alternative for the trial court to conduct an in camera inspection thereof. The trial court denied the motion as it had reviewed a transcript of the tapes and the prosecutor's entire file previously during the case of the co-defendant Wayne Sims. The trial court determined and expressly stated on the record that his inspection of the State's file, which included the tapes transcript, disclosed nothing that is "exculpatory, mitigating or impeaching."

Appellants moved to have the video tape transcript and State's file attached to the record so these items would be available for appellate review. The record does not contain these items, and appellants have not made a timely motion to this court requesting that we order these matters forwarded for review. As a general rule, " '[w]e will not call up the state's files for review unless the appellant can show cause, by showing that particular evidence was suppressed which was material.' " Upshaw v. State, 172 Ga.App. 671, 672, 324 S.E.2d 529. We see no need to depart from this rule in this case. Moreover, appellants have now waived any right they may have had to assert as error the trial court's failure to seal and forward the video tape transcript and State's files with the trial record. Durham v. State, 239 Ga. 697, 700(3)(b), 238 S.E.2d 334.

"Georgia law does not provide that statements given prior to trial by key prosecution witnesses be generally made available for discovery by the defendant in a criminal case." Walter v. State, 256 Ga. 666, 668, 352 S.E.2d 570. It is well-recognized that "Brady does not require the prosecution to open its file for general inspection by the defense or for pre-trial discovery." Hicks v. State, 232 Ga. 393, 396, 207 S.E.2d 30; Julian v. State, 134 Ga.App. 592(3), 215 S.E.2d 496. Accordingly, appellant's complaint that he was not provided with a copy of the video tapes for his own inspection is without merit; " 'this is not required under the holding in Brady or its progeny.' " See Hill v. State, 248 Ga. 304, 305, 283 S.E.2d 252.

Under the attendant circumstances the trial court's prior examination in camera of the State's entire file, including a copy of the video tape transcript, was an adequate in camera inspection to satisfy the requirements of Brady and progeny.

Appellant specifically asserts that the video tape if reviewed by the court in lieu of the transcript thereof might reveal a demeanor on the part of the children during pre-trial interviews which could detract from their credibility if presented to the jury. This is entirely speculative. The defense is not entitled under Brady to engage in a mere fishing expedition into the files of the State. See Hicks v. State, supra 232 Ga. at 396, 207 S.E.2d 30. " 'There is no general constitutional right to discovery in a criminal case, and Brady did not create one....' [Cit.] Brady cannot be read as requiring that 'as a matter of constitutional law everything must be disclosed which might influence a jury.' " Castell v. State, 250 Ga. 776, 782, 301 S.E.2d 234; Massengale v. State, 189 Ga.App. 877, 377 S.E.2d 882.

Further, appellant has failed to carry his burden to show either that any type of Brady violation occurred, see generally Cromer v. State, 253 Ga. 352, 320 S.E.2d 751, or, that assuming error had occurred, he was prejudiced thereby. See generally, Rogers v. State, 257 Ga. 590, 592, 361 S.E.2d 814; see also Parks v. State, 254 Ga. 403, 407, 330 S.E.2d 686. Accordingly, this enumeration of error is without merit.

3. Appellant Boatright asserts that the trial court erred in denying appellant's motion to suppress evidence obtained through an improper and illegal search warrant. The evidence in question concerns certain sexually oriented materials found in the home of appellants Donna and Frank O'Berry. Appellant Boatright did not reside in that home, apparently was not present in the home when the materials were seized, and has not claimed any right of ownership or possession of said evidence.

We find that appellant Boatright has no reasonable expectation of privacy in the premises searched, neither has he asserted any valid right of ownership or possession in the property seized. See generally, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619. Clearly, appellant Boatright has no standing to assert either a Fourth Amendment or a state constitutional challenge to this search and seizure. See generally, Rich v. State, 188 Ga.App. 287, 288-289, 372 S.E.2d 670, citing Rakas v. Illinois, 439 U.S. 128(1), 99 S.Ct. 421, 58 L.Ed.2d 387; Todd v. State, 184 Ga.App. 750(2), 362 S.E.2d 400; Sanders v. State, 181 Ga.App. 117(1), 351 S.E.2d 666. See also Section III, Division 8 below.

III. A89A0158. FRANK O'BERRY v. THE STATE.

4. Appellant Frank O'Berry asserts on general grounds that the trial court erred in denying his motion for new trial. We disagree. See Division 1, above.

5. Appellant Frank O'Berry asserts the trial court erred in allowing the children to testify while sitting at a small round table in front of and facing the jury, allegedly with their backs to the defendants and attorneys; erred in allowing their foster father to stand behind them while they testified, allegedly shielding them from the defendants; and, erred in taking no corrective action regarding a statement made by the assistant district attorney during closing argument to the effect that the sheriff and the foster father had to stand behind the children because they are in constant fear someone will get them.

The record reveals that the thrust of appellant's objections at trial to the seating of the children was that such seating could give undue weight to their credibility and testimony thereby prejudicing appellants. After an initial objection was raised that the seating arrangement might prevent the defendants and their attorneys from seeing the children while they testify, the trial judge allowed the attorneys and the defendants to position themselves at certain locations in the courtroom. Further, prior to the testimony of the first child, one defense attorney requested that "we be allowed to move," and the request was granted. Later, during the same child's testimony, the defendants and their attorneys were allowed to reposition themselves; however, the defendants were not allowed to stand around the witness box closer to the child witness. Thereafter, neither the defendants nor their attorney asserted on the record that their vision or hearing of the children was impaired. Further, at no time was an objection made or was it otherwise reflected in the trial record that the foster father of the children was "shielding" them from defendants during the children's testimony. Regarding the assertions made in appellant's brief regarding these matters, we have consistently held that factual assertions contained in the parties' briefs unsupported by evidence of record cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga.App. 845, 846, 366 S.E.2d 223.

It was not error to allow the foster parent of the children, who was not a witness in the case subject to sequestration, to stand behind the children during their testimony. Benton v. State, 184 Ga.App. 684(4), 362 S.E.2d 421.

It was not error to allow the children to sit at the small table in front of the jury. Ortiz v. State, 188 Ga.App. 532(2), 374 S.E.2d 92. This case is distinguishable from Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 where a one-way screen was employed that was specifically designed to enable the complaining witnesses to avoid viewing the appellant as they gave their testimony. "Although in the present case the angle of the witness chair [at the little table] did make it possible for the [children] to avoid looking directly into the eyes of the appellant[s], it was also possible that the [children] could see the appellant[s] with the mere turning of their...