Brantley v. State, 70257

• Decision Date: 20 November 1985
• Docket Number: No. 70257,70257
• Parties: BRANTLEY v. The STATE.
• Court: Georgia Court of Appeals

Page 694

338 S.E.2d 694

177 Ga.App. 13

BRANTLEY v. The STATE.

No. 70257.

Court of Appeals of Georgia.

Nov. 20, 1985.

Samuel A. Hilbun, Dublin, for appellant.

Beverly B. Hayes, Dist. Atty., William T. McBroom III, Asst. Dist. Atty., for appellee.

POPE, Judge.

Defendant Michael DeWayne Brantley was convicted of aggravated sodomy and was sentenced to serve 20 years in prison. In this appeal defendant enumerates four errors.

1. Defendant's first two enumerations of error concern alleged prejudicial comments made by the prosecuting attorney during the State's opening statement. The record discloses that during the opening statement, the prosecutor stated that he intended to put the victim, a three-year-old boy, on the stand. Acknowledging that the trial judge would first have to qualify the three-year-old as a witness, the prosecutor told the jury that the victim "may not know the correct terminology, but when you ask him as I will do in this courtroom ... 'show me where your pee pee is,' [h]e'll point right there. And I will ask him ... 'where did DeWayne [the defendant] put his pee pee?' And he's going to point right there." Counsel for defendant objected on the ground that the prosecutor was going beyond the scope of the opening statement in that the prosecutor was "telling in detail what ... he expects and it's not supposed to be in detail. It's supposed to be in general terms." The objection was overruled. The prosecutor then stated that the victim's grandmother and his father would tell the jury that they both heard the victim state that the defendant hurt him by putting his "pee-pee" in his "doo-doo." No objection was made to this comment nor to the prosecutor's comment concerning confirming testimony by the victim's physician. On appeal defendant first alleges error in that these comments amounted to the prosecutor becoming a witness on behalf of the State and, in that capacity, giving unsworn hearsay testimony which was misleading and prejudicial. Defendant also alleges that the trial court erred in not interposing curative measures to remove the alleged prejudicial effect.

While opening statements by the prosecutor are limited to what the State expects to prove, Watson v. State, 137 Ga.App. 530(1), 224 S.E.2d 446 (1976), he may state what he expects in good faith a witness will testify if the witness is going to testify. Hall v. State, 138 Ga.App. 20(1), 225 S.E.2d 705 (1976). Any objection in this regard must be raised in the trial court before it can be heard on appeal. Cochran v. State, 213 Ga. 706(2), 100 S.E.2d 919 (1957). Defendant did not object to the prosecutor's statements concerning the testimony of the grandmother, father, and family physician. Therefore, any alleged error as to this portion of the State's opening statement was waived. Harvard v. State, 162 Ga.App. 218(2), 290 S.E.2d 202 (1982). Although defendant did object to the prosecutor's statements concerning the victim's testimony, the error enumerated on appeal is not the same as the objection urged at trial. It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal. See 134 Baker St., Inc. v. State, 172 Ga.App. 738(5), 324 S.E.2d 575 (1984); Craig v. State, 130 Ga.App. 689(3), 204 S.E.2d 307 (1974). Defendant's first two enumerations of error present no ground for reversal.

2. Over objections by the defendant, the victim's grandmother and father were allowed to testify about statements the victim made to them several hours after the alleged incident occurred. Defendant argues that their testimony constituted hearsay. The State, on the other hand, contends that the testimony fell within the res gestae exception to the hearsay rule.

OCGA § 24-3-3 defines res gestae testimony as "[d]eclarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought...." Of this exception, Chief Justice Bleckley said, "What the law altogether distrusts is not after-speech but afterthought." Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 775, 12 S.E. 18 (1890). In cases when a statement is narrative rather than exclamatory, "the circumstances must be closely scrutinized, because narrative is generally the result of afterthought." Southern R. Co. v. Brown 126 Ga. 1, 4, 54 S.E. 911 (1906). "If the declarations appear to spring out of the transaction--if they elucidate it--if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous." Mitchum v. State, 11 Ga. 615, 627 (1852). However, "[n]o precise time can be fixed a priori when the res gestae ends, but each case must turn on its own circumstances, the inquiry being rather into events than to the precise time which has elapsed." Turner v. State, 212 Ga. 199, 200, 91 S.E.2d 501 (1956). " 'The admissibility of such declarations does not depend upon any arbitrary time or general rule for all cases, but is left to the sound discretion of the court in determining from the time, circumstances and statements in question, whether declarations meet the requirements of being free from "all suspicion of device or afterthought." (Cit.)' [Cit.] It is also a well established rule of law that if the admissibility of evidence is doubtful, the rules of evidence require that the evidence be admitted and its weight and effect left to the jury. [Cit.]" Wallace v. State, 151 Ga.App. 171, 173, 259 S.E.2d 172 (1979). A trial court's determination that the declaration offered as part of the res gestae "is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous." Andrews v. State, 249 Ga. 223, 228, 290 S.E.2d 71 (1982); see Richardson v. State, 172 Ga.App. 12(2), 322 S.E.2d 66 (1984).

In the case at bar, the evidence shows that defendant was alone with the victim only between 1:45 p.m. and 3:00 p.m. About 3:00 p.m., defendant, his family, and the victim got in a van and went on various errands. The Brantleys returned the victim home about 6:00 p.m. that evening. When his grandmother picked him up, the victim began screaming. When asked twice what was wrong, he told her that "Wayne [the defendant] put his pee pee in my doo doo." The father testified that the victim repeated the same statement when he came in the room. Applying the standard in Andrews, we are unable to say that under these circumstances, the admission of testimony here was clearly erroneous. See, e.g., Busby v. State, 174 Ga.App. 536(1), 330 S.E.2d 765 (1985); Sparks v. State, 172 Ga.App. 891(1), 324 S.E.2d 824 (1984); Samples v. State, 169 Ga.App. 605(4), 314 S.E.2d 448 (1984). Compare Sanborn v. State, 159 Ga.App. 608(1), 284 S.E.2d 110 (1981), and cit.

3. Defendant's remaining enumeration of error alleges that the trial court erred by not allowing defense counsel to impeach the credibility of the hearsay declarant, the three-year-old victim. At trial the court examined the victim to determine whether he was competent to stand trial. The trial court ruled the victim was incompetent because the child did not understand enough about the situation or an oath to testify. During the presentation of the defense, counsel for defendant asked Iris Brantley, mother of defendant, what kind of child was the victim. The State objected on the ground that the question was improper because defense counsel was trying to impeach the statements of the victim who did not testify. This objection was overruled but later objections to questions elicited about the victim's reputation for truthfulness were sustained. The trial court stated that the defendant could not delve into the truthfulness of a three-year-old child who did not testify.

Although there appears to be no precedent in Georgia which has addressed the right of a party (in this case, defendant) to impeach a hearsay declarant whose statements have been admitted into evidence as part of the res gestae, Georgia courts have allowed impeachment of dying declarations. See Johnson v. State, 169 Ga. 814, 825, 152 S.E. 76 (1930); Redd v. State, 99 Ga. 210(1), 25 S.E. 268 (1896). Evidence of the bad character of the deceased as well as prior inconsistent statements are admissible to attempt to impeach the dying declarant. Redd, supra; Battle v. State, 74 Ga. 101(2) (1885). The solemnity of the scene and hour gives the declarations of a dying man a sanctity of truth, more impressive and potential than the formalities of an oath. Hill v. State, 41 Ga. 484, 503 (1871). A res gestae statement, however, derives its credibility not from the declarant's veracity, but from its relation to the transaction out of which it springs. Mitchum v. State, supra at 624. Yet any hearsay statement that qualifies as an exception to the hearsay rule is introduced for its truth. This makes the credibility of the...