Butler v. State
| Decision Date | 05 December 1984 |
| Docket Number | No. 68607,68607 |
| Citation | 173 Ga.App. 168,325 S.E.2d 835 |
| Parties | BUTLER v. The STATE. |
| Court | Georgia Court of Appeals |
Timothy S. Minors, La Grange, for appellant.
Arthur E. Mallory III, Dist. Atty., for appellee.
Donald Butler was convicted in a jury trial of two counts of child molestation. He was sentenced to serve concurrently 20-year terms of confinement on each count. Butler brings this appeal enumerating two alleged errors. Held:
1. In his first enumeration, Butler argues it was error to grant the State's motion in limine pertaining to the potential evidence of a neighbor of Butler. This neighbor had been convicted of child molestation. Butler's counsel argued that the neighbor knew the victim, the victim had been in the neighbor's presence, and that this neighbor might possess relevant information. The trial court concluded the mere possibility of relevancy when weighed against the neighbor's insistence that he would invoke his rights against incrimination as to any questions concerning molestation rendered any reference to the neighbor wholly irrelevant. Butler now argues that the grant of the motion in limine curtailed his right to meaningful cross-examination and precluded him from a potential defense.
These arguments are without merit. The scope of cross-examination is not without limit. An exercise of discretion by the trial court in excluding irrelevant evidence cannot be error and will not be error in the absence of an abuse of discretion. Harris v. State, 160 Ga.App. 47(1), 285 S.E.2d 781; Crawford v. State, 154 Ga.App. 362, 363(2), 268 S.E.2d 414. Under the circumstances of this case, all that was presented to the trial court was speculation and remote possibilities. It was not an abuse of discretion by the trial court to grant the motion in limine. Gray v. State, 156 Ga.App. 117, 119(3), 274 S.E.2d 115.
2. In his second enumeration, Butler contends the trial court gave an erroneous, misleading and burden-shifting charge. We note that the court gave the jury an extended charge in which the court repeatedly emphasized to the jury and correctly placed the burden on the State to prove guilt beyond a reasonable doubt. At one point in its charge the court inadvertently stated if "you believe beyond a reasonable doubt that this defendant is not guilty of either or both of these counts, it would then be your duty to acquit...." While we could urge in well-supported reasoning that this was a mere slip of the tongue when the charge is considered in its entirety and thus not prejudicially harmful (Leonard v. State, 146 Ga.App. 439, 444, 246 S.E.2d 450), an even sounder reason for assigning lack of prejudice to the erroneous charge is based in waiver. When asked by the trial court if there were objections to the charge on any of several grounds, including slip of the tongue, counsel for Butler stated he had no objections at the time that he knew of.
In the first place, the mere insertion of the caveat "at this time" is a far cry from a reservation of objections to a later time, a standard set forth in Gaither v. State, 234 Ga. 465, 466, 216 S.E.2d 324. See also White v. State, 243 Ga. 250, 260, 253 S.E.2d 694. In the absence of a reservation and in the face of the specific inquiry of the trial court, we hold that counsel's statement that he had no objections constitutes a waiver of that portion of the charge to which objection is now, belatedly, made. Jackson v. State, 246 Ga. 459, 460, 271 S.E.2d 855.
Judgment affirmed.
While concurring fully with what is said in the majority opinion, we offer the following additional observations.
As to the charge
Leonard v. State, 146 Ga.App. 439, 443, 246 S.E.2d 450. "We are aware of the rule of Leonard v. State, 146 Ga.App. 439, 444, 246 S.E.2d 450, which was also written by the author of this opinion, but under the different facts of that case we found harmless error." Johnson v. State, 148 Ga.App. 702, 704, 252 S.E.2d 205. The instant case under consideration falls more under the Leonard case than within the whole-court-cited Johnson case.
I further concur with the majority opinion regarding waiver. When the trial court inquired, "Any slip-of-the-tongue changes or any deletions or additions?", appellant's counsel replied, "I listened as carefully as I could; I have no exceptions at this time that I know of." (Emphasis supplied.) Any attempt to reserve objections in the cited response falls far short of the minimum standard set forth in Gaither v. State, 234 Ga. 465, 466, 216 S.E.2d 324, to wit: " 'I will reserve my objections to the charge for motion for new trial.' " See also, White v. State, 243 Ga. 250, 460, 253 S.E.2d 694, and Jackson v. State, 246 Ga. 459, 460, 271 S.E.2d 855, reaffirming the rule of Gaither.
As to the evidence
The dissenting opinion states that the evidence is not overwhelming; to this I cannot agree. The evidence is clear, convincing, and perhaps even overwhelming that the defendant actually did molest the child, specifically by having her perform fellatio on two occasions. The child's mother stated that when she was looking for her child in the neighbor's house, the defendant also grabbed her hand and asked her for a kiss.
The defendant testified that he had sexual intercourse with his steady girlfriend at least three or four times a week. Thereafter an expert witness on homosexual and heterosexual pedophiles stated that, given defendant's normal sexual activities with his girlfriend as related by him, and on the basis of statistical probability projections, these habits would be inconsistent with child molestation and that rarely would the two types of sexual behavior coexist. See Graham v. State, 168 Ga.App. 23, 308 S.E.2d 413 (1983). The expert here was discussing comparative sexual normality, not sexual morality (although the two are frequently inseparable), but the jury may have chosen to disregard the conclusions of the expert and believe the child and her mother.
Even if error existed here, which we hold it does not under the record before us, "it is 'highly probable that the error did not contribute to the judgment'." Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869.
The judgment of the trial court should be affirmed.
I am authorized to state that Judge BENHAM joins in this special concurrence.
I agree with the majority. In my opinion there was a waiver. Trial procedure rules and due process recognize that perfection in the conduct of a trial cannot be the required standard. A number of mechanisms are provided for correcting errors during trial which, if used properly, will satisfy the goal of a fair and impartial trial and conclude it without retrial.
So, for example, inadmissible evidence can be stricken from the factfinder's consideration. See Fudge v. State, 164 Ga.App. 392, 297 S.E.2d 329 (1982). An attorney's misstatements can be corrected by the court, and counsel can even be reprimanded for wrongful argument in the presence of the jury. See OCGA § 17-8-75; London v. State, 142 Ga.App. 426, 236 S.E.2d 158 (1977); Fudge v. State, supra. The harmless error rules also acknowledge the degree to which a trial must reach the ultimate. Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869 (1976); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
The mechanism for correcting erroneous charges is focused on here. By it, the parties are given an opportunity not only to submit requested charges to the court before it instructs the jury, but also to ask for revision of the charge immediately after it is given, when error is noted about which the party may have an objection. The object of this mechanism, of course, is to bring to the attention of the court that the party is dissatisfied with the instructions to the jury with respect to the law to be applied, and to correct the instruction if in fact it was...
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