Clark v. the State.

• Decision Date: 02 June 2011
• Docket Number: No. A11A0643.,A11A0643.
• Citation: 711 S.E.2d 339,309 Ga.App. 749
• Parties: CLARKv.The STATE.
• Court: Georgia Court of Appeals

309 Ga.App. 749

711 S.E.2d 339

11 FCDR 1675

CLARK

v.The STATE.

No. A11A0643.

Court of Appeals of Georgia.

June 2, 2011.

Scott Joseph Forster, Calhoun, for appellant.Thomas Joseph Campbell, District Attorney, Elizabeth Marian York, Assistant District Attorney, for appellee.ADAMS, Judge.

Timothy Clark was tried and convicted of aggravated child molestation, child molestation, and cruelty to children on charges involving three children, ages twelve, ten and four at the time. Clark does not contest the sufficiency of the evidence as presented, which included his confession and testimony from the children, investigators who interviewed them, and family members, all of which was consistent with his confession. On appeal, he asserts that five reversible errors occurred at trial.

1. Clark first contends the trial court erred by attempting to rehabilitate several jurors who responded in the affirmative to the following question:

Now, you know, as Judge Smith has told you, what the charges are ... and we're going to talk about some delicate subject matter. You know why you're here. How many of you just can't do it? You can't be fair one way or the other because of the subject matter that we're talking about? Anybody?

One juror responded, “I don't know if I could.” Clark's counsel continued, “Fair enough. That's what I'm saying, and if you're not sure, raise your hand.” (Emphasis supplied.) Five prospective jurors responded in the affirmative, and Clark's counsel moved to strike them for cause without asking any follow-up questions.

The court then spoke to the jurors at length about the difficulty of being fair given the subject matter; about how they were not being asked to say whether child molestation is bad or whether someone likes it; about the duty of a juror to sit in judgment of the State's evidence and to determine whether it proves a person guilty beyond a reasonable doubt; about the duty to acquit if the evidence does not meet that standard; about the duty of citizens to protect each other from being wrongly accused; and, ultimately, about how the real issue is whether the person could “sit in this box as a citizen, as a juror, and listen to the evidence in this case and to determine whether or not the State can prove these charges beyond a reasonable doubt. That is your duty.” The court added that “you have to be able ... to put [your personal feelings] aside in light of the overriding duty to be fair and impartial and to listen to this evidence and to make a determination based upon the evidence presented in this courtroom.” The court then asked each of the five whether they could fulfill that duty, and each replied that they could. The court therefore declined to strike them for cause.

We review the court's decision for abuse of discretion keeping in mind the broad general principle that “each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial.” Park v. State, 260 Ga.App. 879, 880–881(1), 581 S.E.2d 393 (2003).

Given that the voir dire does not show that the jurors “formed an opinion on the guilt or innocence of appellant that was so fixed and definite that [they] would be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence,” Clark has not shown any abuse of discretion in the court's rehabilitation or in the manner in which the voir dire was conducted. Ros v. State, 279 Ga. 604, 606(4), 619 S.E.2d 644 (2005).

2. Clark contends the court erred by closing the courtroom during the testimony of the child victims. The Sixth Amendment and the Constitution of Georgia guarantee the right to a public trial:

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Sixth Amendment rights are applicable to the states. Kesler v. State, 249 Ga. 462, 471 fn. 5, 291 S.E.2d 497 (1982). The Constitution of Georgia also provides for a public trial for criminal defendants. Const. of Ga. 1983, Art. I, Sec. I, Par. XI(a).

Purvis v. State, 288 Ga. 865, 866, 708 S.E.2d 283 (2011). That right “ ‘may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. [Cit.]’ (Punctuation omitted.) Presley v. Georgia, [558 U.S. ––––, ––––, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) ].” Id. 288 Ga. at 869(1), 708 S.E.2d 283. In this State, because “there is a compelling state interest in protecting children while they are testifying concerning a sex offense,” Delgado v. State, 287 Ga.App. 273, 279, 651 S.E.2d 201 (2007), when a child under age 16 testifies concerning any sex offense, the court may clear the court “of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters.” OCGA § 17–8–54.

Here, before the youngest sexual abuse victim testified, the State requested that the court clear the courtroom “of nonessential personnel for [the child's] testimony.” The court then announced that persons “who are not associated with this case or who are not otherwise an officer of this court will need to step out of the courtroom ...”; the court also said, “if you are not an officer of the court or a bailiff, you will need to step out....” The record states that “the spectators exited the courtroom.” Clark's counsel objected on the ground that “[Clark] is entitled to an open and public trial. I object to the Court closing the courtroom”; he later renewed the same objection. The court explained its ruling: “[T]he Court finds that public policy outweighs the previous concern weighed by you on the protection of the identity of the juvenile witness. ...” After the two sexual abuse victims testified, the court opened the courtroom.

Neither at trial nor on appeal, has Clark identified any specific people or category of people who he contends were wrongly excluded. Therefore, Clark has not shown that the trial court violated OCGA § 17–8–54 in any specific manner. And because “the partial closure permitted under [that] statute does not violate a defendant's Sixth Amendment right to a public trial,” Delgado v. State, 287 Ga.App. at 279(2), 651 S.E.2d 201, citing Hunt v. State, 268 Ga.App. 568, 571(1), 602 S.E.2d 312 (2004), Clark has not shown that the trial court violated his constitutional rights.

3. Clark contends the court erred by admitting his in-custody statement. At a Jackson–Denno hearing, the trial court examines the totality of the circumstances to determine whether a preponderance of the evidence shows that the confession was voluntary. Bell v. State, 280 Ga. 562, 564, 629 S.E.2d 213 (2006). “Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.” Id.

(a) Clark first contends the State violated the rule that “[a]n interrogating officer cannot induce a confession by offering hope of a lighter sentence.” Burdette v. State, 251 Ga.App. 30, 31(1), 553 S.E.2d 340 (2001). See also Caffo v. State, 247 Ga. 751, 757, 279 S.E.2d 678 (1981). He argues that the officer's testimony that she offered “help in the court proceedings” showed that she made improper promises of a benefit in exchange for Clark's confession.

The hearing transcript shows that Clark, who was one day shy of his 18th birthday at the time of his arrest, was read Miranda warnings twice; he then signed a waiver of those rights. When asked if he knew why he was being questioned, Clark began speaking so quickly that the officer had to stop him in order to turn on the recording equipment. On tape, the officer again reviewed Clark's rights and the waiver form.

It was Clark who first raised the topic of getting help. Right after the Miranda warnings and before the tape was turned on, he commented “that he needed help for what he had done.” Clark then told about burning the oldest child and about a sexual encounter with the ten-year-old. Clark initially denied anything improper with the four-year-old, even after questioning. The officer said, “there is a problem ... [if] you think that is normal behavior [;] obviously due to the fact that is not normal behavior you obviously need some sort of help....” Later, Clark asked “Any way I can get help[?]” The officer replied,

Yeah I am sure there is, Timothy I am sure there is. Like I said you are going to need a lot of help, but there is no denying, you are going to need help. But the best thing to do right now ... have you told me the truth about everything?

(Punctuation supplied.)

Eventually, when Clark appeared to have nothing more to say, the tape was turned off; it was at that point that Clark began to sob at length. The officers let Clark sit there and sob, and eventually Clark again said that he wanted help. He then began to tell what happened with the youngest child. Again, the officer had to stop him while she turned on the recorder. Also, at one point the officer testified, “Now, he had advised me before that he wanted help and I had told him while the tape was on that the only way to get help is you have to tell the truth, you have to admit what you've done wrong....”

During the Jackson–Denno hearing, when asked “now, when we're talking about help, what kind of help are we talking about?”, the officer replied:

Well, apparently any kind of help that he would be able to get in, you know, in the court system, whether it be some kind of counseling. I mean, I don't know. There was nothing in my mind. I couldn't help him, of course.... Just help for his problem basically ... he had mentioned he had urges and these are things he needed help with.

On cross-examination, when again asked about the nature of the help being discussed, the...