Buice v. State

• Decision Date: 29 June 1999
• Docket Number: No. A99A0554.,A99A0554.
• Citation: 239 Ga. App. 52,520 S.E.2d 258
• Parties: BUICE v. The STATE.
• Court: Georgia Court of Appeals

520 S.E.2d 258

239 Ga. App. 52

BUICE v. The STATE.

No. A99A0554.

Court of Appeals of Georgia.

June 29, 1999.

Reconsideration Denied July 12, 1999.

Certiorari Granted October 22, 1999.

Brian Steel, Atlanta, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee. RUFFIN, Judge.

Abe Lee Buice was charged with molesting his ten-year-old daughter on two occasions by placing his finger in her vagina. A Spalding County jury found Buice guilty of two counts of child molestation, and Buice appeals, asserting numerous errors. We affirm.

1. In his first enumeration of error, Buice contends that the trial court erred in allowing the State to try him on an indictment that had been nolle prossed. Buice was indicted twice, once in 1994 and once in 1996. The 1994 indictment accused Buice of placing his finger in the vagina of his daughter, once on July 14, 1994, and once during the month of September 1994. The 1996 indictment accused Buice of fondling the vagina of his daughter twice during the month of September 1994.

The case was scheduled for trial on February 24, 1997. On February 20, 1997, the trial court entered an order consenting to the State's entry of nolle prosequi on the 1994 indictment because the charges had been reindicted in 1996. Shortly before trial, the State informed the trial court that the State had made a mistake in requesting the entry of nolle prosequi on the 1994 indictment. The State then moved for an order from the trial court rescinding the order of nolle prosequi, and, on February 24, 1997, the trial court issued an order vacating its earlier order.

Buice argues that the State should not have been permitted to try him on the 1994 indictment. According to Buice, once an order of nolle prosequi has been entered, "the indictment is dead and no subsequent Order can bring the dead indictment back to life." Thus, Buice argues that the State's only recourse was to re-indict him prior to proceeding with the trial.¹

An order of nolle prosequi "is the State's formal action on its decision not to further prosecute that indictment." Redding v. State, 205 Ga.App. 613, 614(2), 423 S.E.2d 10 (1992). "A nolle prosequi cannot be entered without the consent of the trial court." State v. Davis, 159 Ga.App. 537, 538(1), 284 S.E.2d 51 (1981); OCGA § 17-8-3. The entry of nolle prosequi does not act as an acquittal or bar future prosecution for the same offense. McGahee v. State, 133 Ga. App. 964, 966(3), 213 S.E.2d 91 (1975). Thus, an order of nolle prosequi "is not necessarily the ending of the prosecution, but the continuance of the same" as the State clearly has the authority to re-indict the defendant for the same offense. Earlywine v. Strickland, 145 Ga.App. 626, 627, 244 S.E.2d 118 (1978).

The issue before us is whether, in addition to reindicting the defendant, the State can revive a prosecution by petitioning the trial court to vacate its order consenting to the entry of nolle prosequi. In other words, does the trial court have authority to rescind its approval of the entry of nolle prosequi? Although we are aware of no Georgia case on point, several other jurisdictions have dealt with this issue and provide some guidance.

The Illinois Supreme Court addressed this issue in People v. Watson, 394 Ill. 177, 68 N.E.2d 265 (1946) and reasoned that:

[c]ourts of general jurisdiction have inherent authority, during the term, to vacate any judgment or order that may have been made at that term. This was the rule at common law and prevails in most jurisdictions. Considering then that a court has the inherent power to set aside judgments and orders made during the term, can any sound argument be advanced why a court has not the power to set aside a dismissal of an indictment or information and reinstate the case during the term at which the dismissal was entered? The general rule is that a nolle prosequi or a dismissal of a criminal charge, if made prior to the time a jury is impaneled and sworn, is not a bar to a subsequent prosecution for the same offense. There is no difference, so far as the defendant's rights are concerned, whether, after the dismissal of a charge, a new information or indictment is filed or the order of dismissal set aside and defendant tried on the old information or indictment. An order of dismissal or a nolle prosequi in a criminal case may be set aside during the term at which the order is made.

(Punctuation omitted.) Id. at 181, 68 N.E.2d 265.

Similar reasoning has been employed in other jurisdictions including the Ninth Circuit, Missouri, Arizona and Pennsylvania. United States v. Emens, 565 F.2d 1142, 1144-1145 (9th Cir.1977) (dismissal of indictment); State v. Montgomery, 276 S.W.2d 166, 167-168 (Mo.1955); Commonwealth v. Ashe, 138 Pa.Super. 222, 227-228, 11 A.2d 173 (1940); Condos v. Superior Court for Maricopa County, 29 Ariz. 186, 190-191, 239 P. 1032 (1925) (dismissal of action).

As in Illinois, courts of record in Georgia "retain full control over orders and judgments during the term at which they were rendered, and, in the exercise of a sound discretion, may revise or vacate them." Drain Tile Machine v. McCannon, 80 Ga. App. 373, 375, 56 S.E.2d 165 (1949); see also Bowen v. State, 144 Ga.App. 329, 330-331, 241 S.E.2d 431 (1977). In addition, Georgia follows the general rule that a nolle prosequi or a dismissal of a criminal charge is not a bar to a subsequent prosecution for the same offense. Earlywine, supra. Thus, we conclude that, notwithstanding Buice's contention to the contrary, trial courts in Georgia do have authority to vacate an order of nolle prosequi. See Clark v. Black, 136 Ga. 812, 816(5), 72 S.E. 251 (1911) ("the entry of nolle prosequi has the same force of conclusiveness ordinarily incidental to judgments, and cannot be collaterally attacked"). Accordingly, the trial court did not err in allowing the State to proceed on the indictment.

2. Buice asserts that the trial court erred in allowing a witness to testify regarding the victim's credibility. Prior to admitting the testimony of Suzanne Howell from the Department of Family & Children Services regarding the victim's statement under the Child/Victim Hearsay Statute, OCGA § 24-3-16, the trial court asked Howell, in the presence of the jury, whether the victim had exhibited "a general attitude of credibility" during the interview process. Howell responded that she "had a very strong conviction in her heart" that the victim was telling the truth. According to Buice, the trial court erred in questioning a witness about the victim's credibility in front of the jury. We agree.

It is well settled that "[i]n no circumstances may a witness' credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth." Price v. State, 220 Ga.App. 176, 177(2)(b), 469 S.E.2d 333 (1996); Roberson v. State, 214 Ga.App. 208, 210(4), 447 S.E.2d 640 (1994); Guest v. State, 201 Ga.App. 506, 507(1), 411 S.E.2d 364 (1991). The credibility of a witness is a matter exclusively for determination by the jury. OCGA § 24-9-80. Testimony that another witness believes the victim impermissibly bolsters the credibility of the victim. Roberson, supra. Accordingly, Howell's statement regarding the victim's truthfulness constituted impermissible bolstering. Cline v. State, 224 Ga.App. 235, 237(2), 480 S.E.2d 269 (1997).

In this case, the victim was not consistent regarding her allegations of abuse. When Howell first interviewed her, the victim claimed that, on July 14, 1994, Buice put his hands in her panties and put his finger in her vagina. During a subsequent interview with Howell, however, the victim recanted, telling Howell that the incident "didn't happen." At trial, the victim once again claimed that her father had molested her by rubbing her "private parts." With respect to her prior inconsistent statement to Howell, the victim testified that she recanted during the second interview with Howell as a result of family pressure.

Prior to addressing the victim's credibility, Howell testified that she had worked as an investigator on children's cases from 1987 to 1995 and that she had received specialized training with respect to handling molestation cases and interviewing victims. In view of Howell's expertise, her testimony that she believed the victim was truthful would have been particularly compelling to the jurors. It is for this reason that our courts have consistently held that expert witnesses may not testify regarding truthfulness or credibility. Smith v. State, 259 Ga. 135, 138(2), 377 S.E.2d 158 (1989); Cline, supra; Price, supra; Roberson, supra; Guest, supra.

The State contends that Howell's testimony was not objectionable because it was not the result of an attempt by the State to bolster the victim's credibility. Rather, the statement was made in response to the trial court's inquiry under OCGA § 24-3-16. However, as Howell's statement was made in front of the jury, it was objectionable notwithstanding the fact that the trial court rather than the State elicited the testimony.

Pursuant to OCGA § 24-3-16, a trial court may admit

a statement made by a child under the age of 14 years describing any act of sexual contact ... performed with or on the child by another ... if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

The Code section does not specify the procedure the trial court should use in determining whether to admit such statements. In Reynolds v. State, 257 Ga. 725, 363 S.E.2d 249 (1988), the Supreme Court concluded that a trial court is not required to conduct a hearing prior to admitting the testimony. Id. at 726(2), 363 S.E.2d 249. However, if the trial court does choose to conduct such a hearing and to ask pointed questions regarding a victim's credibility,...