Bunn v. State

• Decision Date: 18 June 2012
• Docket Number: No. S11G0682.,S11G0682.
• Citation: 12 FCDR 1918,291 Ga. 183,728 S.E.2d 569
• Parties: BUNN v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 183

728 S.E.2d 569

12 FCDR 1918

BUNN

v.The STATE.

No. S11G0682.

Supreme Court of Georgia.

June 18, 2012.

Sheueli Cindy Wang, Atlanta, for appellant.

James Bradley Smith, Dist. Atty., Office of the District Attorney, Robin Rowden Riggs, Asst. Dist. Atty., Piedmont Judicial Circuit, for appellee.

NAHMIAS, Justice.

We granted certiorari to consider whether the Court of Appeals improperly limited this Court's holding in Division 3 of Woodard v. State, 269 Ga. 317, 496 S.E.2d 896 (1998). Woodard struck down, as a violation of the equal protection of the law, a 1995 amendment to the Child Hearsay Statute, OCGA § 24–3–16, that expanded the scope of the hearsay exception to allow the admission of out-of-court statements by all children under age 14 who witnessed sexual contact or physical abuse, as opposed to only children who were themselves the victims of such abuse. Having carefully re-examined Woodard's Division 3, we conclude that its reasoning cannot be sustained. Thus, while it clearly should not be extended to the circumstances of this case, we think it is more appropriate simply to overrule Division 3.¹ ACCORDINGLY, THERe is no reversible error, and we affirm the court of Appeals' judgment.

1. Appellant Michael Shane Bunn moved in with his step-sister sometime in 2005, becoming the primary after-school care provider for his two nieces, who were ages seven and nine at the time of trial. On January 20, 2006, the girls told their mother that Appellant had put his hand down their pants; they later said that Appellant also licked their private parts and touched his penis to their vaginal areas. The mother contacted law enforcement, and the children were separately interviewed by a forensic therapist at a child advocacy center. The interviews were video recorded.

At trial in May 2006, each girl testified about what Appellant had done to her and what she saw Appellant do to her sister, and Appellant cross-examined the children. The girls' mother and the forensic therapist also testified against Appellant, and the recording of the children's forensic interviews was played for the jury. Like the children's in-court testimony, this evidence included not only each girl's out-of-court statements about sexual contact Appellant had with her, but also sexual contact she saw Appellant have with her sister. Appellant testified in his own defense, denying any wrongdoing. The jury convicted Appellant of two counts each of cruelty to children in the first degree, aggravated child molestation, and child molestation. He was sentenced to serve a total of 12 years in prison followed by 18 years on probation. The trial court denied Appellant's motion for new trial, and he timely appealed.

The Court of Appeals affirmed, rejecting Appellant's claim that his trial counsel was ineffective in failing to make a hearsay objection when the forensic therapist testified about what each child said she saw Appellant do to the other child and when the unredacted recording of the children's interviews was played for the jury. See Bunn v. State, 307 Ga.App. 381, 386, 705 S.E.2d 180 (2010). The court held that Division 3 of Woodard was “inapplicable here, because both girls were victims” and not only witnesses to the other's molestation. Id. at 386, 705 S.E.2d 180 (emphasis in original). Thus, the Court of Appeals concluded that the children's out-of-court statements about sexual conduct that happened to each other in their presence were admissible under OCGA § 24–3–16 and not subject to proper objection, thereby defeating Appellant's ineffective assistance of counsel claim. See Bunn, 307 Ga.App. at 386, 705 S.E.2d 180. We granted certiorari.

2. a. As originally enacted in 1986, Georgia's Child Hearsay Statute provided as follows:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made 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.

Ga. L.1986, p. 668, § 1.² This Court rejected various constitutional challenges to the validity of the statute as originally enacted. See Woodard, 269 Ga. at 318, 496 S.E.2d 896 (“This Court repeatedly has upheld the constitutionality of the Child Hearsay Statute to the extent that it allows the introduction of hearsay statements made by the child victim of sexual or physical abuse, so long as the statutory prerequisites for admitting such statements exist.” (citing cases)).

In 1994, however, we held, as a matter of statutory interpretation, that the Child Hearsay Statute did not apply to out-of-court statements by a child under age 14 describing physical abuse he saw the defendant inflict on two other young children. See Thornton v. State, 264 Ga. 563, 564, 449 S.E.2d 98 (1994). The original OCGA § 24–3–16 admitted only statements “by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another.” (Emphasis added.) Thus, the statute, “by its own language, except[ed] from the hearsay rule ‘only ... such statements as are made by the actual victim of the event being related.’ ” Thornton, 264 Ga. at 565, 449 S.E.2d 98 (emphasis in original; citation omitted).

In response to Thornton, the next year the General Assembly amended OCGA § 24–3–16 to add the phrase italicized below:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made 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.

Ga. L.1995, p. 937, § 1 (emphasis added). See Vicki Lynn Bell, Note, Peach Sheets, Evidence, 12 Ga. St. U.L.Rev. 197, 197–200 (1995). Thus, the hearsay exception was no longer limited to out-of-court statements by the child who was the victim of the defendant's sexual contact or physical abuse—or to statements about sexual contact or physical abuse committed against children.

In Division 3 of Woodard, this Court considered the constitutionality of the 1995 amendment. See 269 Ga. at 317, 496 S.E.2d 896. Woodard sexually molested a five-year-old child in front of her six-year-old friend, and both children testified at trial. See id. An investigator testified that the victim's young friend told him during an interview that she saw Woodard put his hand in the victim's pants, and a video recording of that interview was played for the jury. See id. at 317–318, 496 S.E.2d 896. Woodard was convicted of one count of child molestation. See id. at 318, 496 S.E.2d 896. Over dissent on this issue,³ this Court reversed Woodard's conviction, holding in Division 3 that the 1995 amendment was unconstitutional because it deprived Woodard of equal protection. See id. at 321–323, 496 S.E.2d 896. This case requires us to re-examine the reasoning underlying that holding to decide if the Court of Appeals improperly limited it.

b. In deciding an equal protection challenge, the level of scrutiny applied by the court depends on the nature of the distinction drawn by the legislation at issue. If neither a suspect class nor a fundamental right is implicated, the most lenient level of judicial review—“rational basis”—applies. See Ambles v. State, 259 Ga. 406, 407, 383 S.E.2d 555 (1989). Rational basis review involves a two-prong evaluation of the challenged statute. “Initially, the claimant must establish that he is similarly situated to members of the class who are treated differently from him. Next, the claimant must establish that there is no rational basis for such different treatment.” Drew v. State, 285 Ga. 848, 850 n. 3, 684 S.E.2d 608 (2009) (citation omitted). And because “ ‘the legislation is presumptively valid, the claimant has the burden of proof as to both prongs.’ ” Id. (citation omitted).

Woodard accurately described the 1995 amendment to the Child Hearsay Statute as creating a disparity in the substantive evidence admissible against defendants charged with identical crimes (in Woodard's case, child molestation) “based on nothing more than the age of the hearsay declarant.” 269 Ga. at 322, 496 S.E.2d 896. Because no suspect class or fundamental right was implicated by the statute, the Court correctly identified rational basis review as the test for evaluating the equal protection claim. See id. at 323, 496 S.E.2d 896 (referring three times to “rational basis”). The Court held that Woodard satisfied the first prong of the test because “for equal protection purposes, ... all defendants accused under the Code of child molestation are similarly situated” with respect to the Child Hearsay Statute. Id. at 322, 496 S.E.2d 896. This may be true; it is on the second prong of the rational basis analysis that Woodard went awry.

The Woodard majority started its analysis of that point by saying, “We cannot identify any rational basis for this disparity,” that is, for the difference between the evidence potentially admissible at the trial of a defendant who committed his child molestation crime in front of another child and the evidence admissible against a defendant who committed the same crime in the presence of someone older than 14. Id. at 323, 496 S.E.2d 896. The Court accepted the premise that the State has a legitimate interest in protecting certain types of witnesses more than others, noting that “compelling reasons ... support the admission of hearsay statements made by a child victim of physical or sexual abuse.” Id. In other words, the Court recognized that an interest in protecting certain witnesses more than others can justify a disparity in the...