Brown v. State

• Decision Date: 14 June 1985
• Docket Number: No. 70057,70057
• Citation: 175 Ga.App. 246,333 S.E.2d 124
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

Page 124

333 S.E.2d 124

175 Ga.App. 246

BROWN v. The STATE.

No. 70057.

Court of Appeals of Georgia.

June 14, 1985.

Rehearing Denied June 27, 1985.

Certiorari Denied Sept. 3, 1985.

James Whitmer, Gainesville, for appellant.

Rafe Banks III, Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was tried before a jury and found guilty of incest. He appeals from the judgment of conviction entered on the guilty verdict.

1. The general grounds are enumerated as error. The evidence adduced at trial was as follows: Upon returning home from an outing, appellant and his wife discovered that their daughter, Michelle, was missing. Michelle, who was approximately 14 years old, is Mrs. Brown's natural daughter and appellant's stepdaughter. The Browns later found Michelle at a friend's house. However, she was unwilling to return home for the stated reason that appellant had been having sex with her. Mrs. Brown sought counseling at the Forsyth County Mental Health Department, where she was referred to the Department of Family and Children Services (Department). Subsequently, Michelle was interviewed by either Ms. Vaughn of the Department or Investigator Sims on four separate occasions. During these videotaped interviews, which were played for the jury, Michelle admitted having sex with appellant and gave explicit details. During one interview, Michelle stated that she did not know how she would react by the time the case got to court, and that if she later denied the relationship it would be because she was afraid that she would go to a foster home and that her mother would not have an income. However, there was also evidence that, on several occasions following her interviews, Michelle called Ms. Vaughn and Investigator Sims and recanted her statements. At trial, Michelle admitted telling her mother and the interviewers about her sexual relations with appellant. However, she denied from the stand that the events she had reported to them had ever taken place. Ms. Vaughn testified that Michelle's behavior was consistent with that of a sexually abused child. A nurse practitioner who examined Michelle testified that it was possible that Michelle had been sexually active.

The prior inconsistent statements of Michelle were admissible as substantive evidence of the guilt of appellant. "[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value to impeachment purposes." Gibbons v. State, 248 Ga. 858, 862, 286 S.E.2d 717 (1982). The jury was thus authorized to believe Michelle's prior inculpatory statements rather than her present exculpatory testimony. " 'If, from all that the jury see of the witness, they conclude that what [s]he says now is not the truth, but what [s]he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.' [Cit.]" Gibbons v. State, supra at 864, 286 S.E.2d 717. Based on Gibbons, we find that Michelle's prior statements, coupled with the other evidence adduced at trial, was sufficient to authorize a rational trior of fact reasonably to find proof of appellant's guilt beyond a reasonable doubt. See generally Simmons v. State, 168 Ga.App. 1(1), 308 S.E.2d 27 (1983); Scales v. State, 171 Ga.App. 924, 321 S.E.2d 764 (1984); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant enumerates as error the denial of his motion for mistrial. Following Mrs. Brown's answer to a question posed to her by the State, appellant objected and made a motion for mistrial. The trial court sustained the objection and gave curative instructions. Appellant did not renew his motion for mistrial. "Since the defendant did not renew his motion after the curative instructions, he cannot complain on appeal. [Cits.]" Jackson v. State, 248 Ga. 480, 483(2), 284 S.E.2d 267 (1981).

3. On cross-examination, appellant's attorney asked Mrs. Brown the following questions: "[T]o your knowledge has [appellant] ever beaten [Michelle]?" On re-direct examination, the State asked Mrs. Brown if appellant had beaten anyone else in the home. Mrs. Brown responded that appellant had beaten or hit her. Objecting that his character had been placed in issue, appellant asked for a mistrial. The trial court initially reserved a ruling on the motion, but later denied it. We find that the State's question was not improper in light of the fact that defense counsel had opened the door to this line of inquiry. See generally Bryan v. State, 137 Ga.App. 169, 172(4), 223 S.E.2d 219 (1976); Martin v. State, 143 Ga.App. 848(1), 240 S.E.2d 219 (1977); Phillips v. State, 254 Ga. 370, 329 S.E.2d 475 (1985).

4. Over objection, testimony was admitted to the effect that after appellant had entered into a stipulation that he would submit to a State-administered polygraph test and that the results would be admissible in evidence, he declined to take the test. Appellant asserts that the admission into evidence of this testimony violates the rule in Georgia regarding polygraph evidence.

In State v. Chambers, 240 Ga. 76-77, 239 S.E.2d 324 (1977), the Supreme Court held that "upon express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have." (Emphasis supplied.) Accordingly, assuming the validity of the particular written stipulation of admissibility agreed to by appellant, it is clear that had the polygraph been administered to appellant, evidence as to the results would have been admissible. See Garmon v. State, 167 Ga.App. 781, 784(6), 307 S.E.2d 298 (1983). However, in the present case, appellant did not submit to a polygraph test, and therefore it was not evidence of the results of a polygraph examination which was admitted. Instead, what was admitted was evidence that appellant agreed but then refused to take such examination. Chambers, supra, is not authority for the admission of such evidence, nor can we find any case law in support of the State's assertion that such evidence is admissible.

In Porterfield v. State, 150 Ga.App. 303(1), 257 S.E.2d 372 (1979), this court held that, despite an express stipulation as to admissibility, polygraph results which are inconclusive have no probative value whatsoever and are not admissible. Compare Lawson...