Callaway v. State

• Decision Date: 19 April 1993
• Docket Number: No. A93A0396,A93A0396
• Citation: 208 Ga.App. 508,431 S.E.2d 143
• Parties: CALLAWAY v. The STATE.
• Court: Georgia Court of Appeals

Page 143

431 S.E.2d 143

208 Ga.App. 508

CALLAWAY v. The STATE.

No. A93A0396.

Court of Appeals of Georgia.

April 19, 1993.

Hallman & Stewart, D. Jay Stewart, Claxton, for appellant.

Dupont K. Cheney, Dist. Atty., J. Stephen Archer, Asst. Dist. Atty., for appellee.

BEASLEY, Presiding Judge.

Callaway appeals from the judgments of conviction and sentences entered for two counts of child molestation, OCGA § 16-6-4(a). His motion for new trial was denied.

1. Appellant, who is indigent, contends the trial court erred in denying his application for funds for an independent psychiatric examination.

In accordance with USCR 31.4(A), appellant filed a notice of intent to raise the issue of insanity or mental incompetency at the time of the acts charged and at the time of trial. The court, under USCR 31.5, ordered a mental evaluation by the Department of Human Resources to ascertain appellant's competency in both regards.

In a joint report by a psychologist and a psychiatrist at Georgia Regional Hospital, appellant was found to be "functioning within the borderline range of intellectual capability," but exhibiting no "major psychiatric and/or psychological dysfunctioning." His competency to stand trial was addressed as follows: "based upon his cognitive and verbal capabilities, we would judge him to be able to effectively assist his attorney in the preparation of his defense.... It is therefore our opinion he may be considered competent to stand trial...." The report concluded: "Our examination of Mr. Callaway this date fails to find any evidence indicative of a major psychiatric disorder of either mood or thought which could conceivably influence and/or adversely affect his behaviors. We find no indication, either historically or at this time, that Mr. Callaway suffered from a psychosis such that his contact with reality has been compromised. He demonstrates an ability to differentiate between right and wrong in a general sense, a capability we would surmise to have been in place during the time frame in question. His actions therefore are considered to have been volitional and goal-directed, free from influence of any delusional and/or hallucinatory activity over which he would have no control. It is therefore our opinion Mr. Callaway may be considered psychologically competent and responsible for his behaviors."

Appellant thereafter filed a "motion for funds for psychiatric assistance" to retain a private psychiatrist to help "ensure the preparation of a proper defense." He had previously filed a "motion for leave to proceed ex parte, in camera and on a sealed record with regard to applications for expert and investigative assistance," under the authority of Brooks v. State, 259 Ga. 562(2), 385 S.E.2d 81 (1989).

Nothing further appears in the record with respect to the above-stated motions. Although certain other motions were heard prior to trial and the court inquired about the need to address any additional matters, none were mentioned. Appellant did not file a plea of mental incompetency to stand trial, OCGA § 17-7-130, and did not present an incompetency defense at trial, OCGA § 17-7-131. Instead, he testified in his own behalf and denied the charged misconduct.

Appellant asserts first that the court failed to ascertain satisfactorily his competency to stand trial. After the issue was drawn into question by appellant's notice of intent, the court fulfilled its duty under USCR 31.5 by ordering a psychiatric evaluation. Appellant contends that his competency to stand trial should also have been determined by a special jury under the procedure of OCGA § 17-7-130. However, its requirements are implemented when a plea of mental incompetency to stand trial is filed. No such plea was filed. Other than his notice of intent, which was met with psychiatric evaluation, there was nothing before the court which raised a question of appellant's competency and required it to constitute a special jury under OCGA § 17-7-130. Christenson v. State, 261 Ga. 80(2)(b), 402 S.E.2d 41 (1991). Compare Baker v. State, 250 Ga. 187(1), 297 S.E.2d 9 (1982) (where there was evidence that defendant was psychotic and unable to understand the proceedings, it was error to dismiss a special plea of incompetency without a hearing under former OCGA § 17-7-130); Holloway v. State, 257 Ga. 620(2), 361 S.E.2d 794 (1987) (when evidence during trial indicated defendant was incompetent, the court was required to hold a hearing on the issue of competence to stand trial).

Second, appellant asserts that the court erred in refusing his request for funds for an independent evaluation. " 'Whether to grant the motion (for a second psychiatric examination) was in the discretion of the trial court ... (cit.).' [Cit.] That determination 'will not be overturned unless an abuse of discretion is shown. (Cit.)' [Cit.]" Tolbert v. State, 260 Ga. 527(2)(a), 397 S.E.2d 439 (1990).

Appellant showed no specific need for a second evaluation, other than to "ensure the preparation of a proper defense." His claim of mental deficiency was addressed in the original evaluation, which resulted in a finding of competency and the absence of any serious mental disorder. It was not abuse of discretion to deny the motion for an independent state-paid psychiatric evaluation. Christenson, supra at (2)(c). See also Roseboro v. State, 258 Ga. 39, 41(3)(d), 365 S.E.2d 115 (1988), which describes the showing an indigent defendant must make when requesting public funds to obtain the services of a scientific expert.

Since appellant did not present his application for funds in the presence of the state and was not required to reveal his theory of the case to the prosecution, it follows that there was no violation of Brooks, supra. Moreover, as there was no entitlement to state funds for a second psychiatric evaluation, the failure to conduct an ex parte hearing as described in Brooks was not error.

Appellant also asserts that he was denied due process of law under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ake held that "when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one." 470 U.S. at 74, 105 S.Ct. at 1092. Appellant has not made a preliminary showing that his "mental condition [at the time of the offense was] seriously in question." 470 U.S. at 82, 105 S.Ct. at 1096. In addition, he did receive the assistance of a psychiatrist at the state's expense. Ake rejected the notion that an "indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own." 470 U.S. at 83, 105 S.Ct. at 1096.

Appellant was not entitled to public funds for an independent psychiatric evaluation for any of the reasons advanced.

2. During voir dire, a prospective juror asked to be dismissed for the reason that he and appellant had worked together for 15 years, and "I don't think I could be right for this case...." In response to the court's inquiry whether he could put aside his acquaintance with appellant and decide the case strictly on the evidence, the juror responded, "Yes, I could but ... I've got so many mixed emotions about it. But I'll put it like this. From what I thought of [appellant] first and then after what I found out, I just don't think I could be fair." The juror was excused for cause.

Appellant's counsel objected on the basis that the juror's remarks tainted the entire panel and denied him a fair trial. The state requested curative instructions and the court admonished the jury that they may draw no inference from the remarks and to disregard them entirely. The court then inquired whether any juror could not follow those instructions and decide the case on the evidence. None responded.

During the continuing voir dire, several additional members of the panel were excused for cause, either because they knew appellant or expressed their inability to be impartial, for reasons independent of the juror's statements. At the conclusion of the questioning, appellant moved for mistrial on the ground previously asserted, noting that "six people ... walked out that said that they could not be impartial." Mistrial was denied.

"[S]ince a jury had not yet been impaneled and sworn to try the case, the motion for mistrial was premature. [Cit.] The proper...