Exley v. State, A90A1799

• Citation: 198 Ga.App. 748,402 S.E.2d 798
• Decision Date: 27 February 1991
• Docket Number: No. A90A1799,A90A1799
• Parties: EXLEY v. The STATE.
• Court: Georgia Court of Appeals

Page 798

402 S.E.2d 798

198 Ga.App. 748

EXLEY v. The STATE.

No. A90A1799.

Court of Appeals of Georgia.

Feb. 27, 1991.

John Van Lloyd, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., Gregory M. McConnell, Asst. Dist. Atty., for appellee.

COOPER, Judge.

Appellant was charged in five indictments with five counts of child molestation, one count of rape, two counts of aggravated sodomy and two counts of aggravated child molestation. He was tried before a jury and was acquitted of one count of child molestation and convicted of the remaining counts. This appeal follows the entry of judgment on the verdict and sentencing.

1. Appellant enumerates as error the admission of testimony of a psychiatrist and a counselor which appellee contends improperly placed his character in issue. Relying on Sanders v. State, 251 Ga. 70, 303 S.E.2d 13 (1983), appellant argues that the testimony of a psychiatrist, who treated one of the victims, describing a pedophile, the general difficulties suffered by their victims and the particular problems of one of the victims, coupled with the testimony of appellant's former counselor that appellant admitted having a sexual preference for eight to ten-year-old-girls, was improper. In Sanders, however, the court held that evidence of a syndrome, in that case the "battering parent syndrome," and "character evidence showing a defendant's personality traits and personal history as [the] foundation for demonstrating the defendant has the characteristics of a typical battering parent" were inadmissible "unless a defendant has placed [his] character in issue or has raised some defense which the battering parent syndrome is relevant to rebut...." Id. at 76, 303 S.E.2d 13. A review of the psychiatrist's testimony in the instant case reveals that he did not set forth the profile of a pedophile but merely defined the term, and there was no discussion of appellant's personal history or traits in connection with the definition of the term. Therefore, this testimony did not place appellant's character in issue. The counselor's testimony was properly admitted (Lipsey v. State, 170 Ga.App. 770(3), 318 S.E.2d 184 (1984)) and may have incidently placed appellant's character in issue (See Walls v. State, 166 Ga.App. 503(2), 304 S.E.2d 547 (1983)); however, it is highly probable that such error, if any, did not contribute to the conviction, in view of the extensive evidence provided by the victims, girls between the ages of eight and eleven. See Stevens v. State, 195 Ga.App. 324, 326, 393 S.E.2d 482 (1990).

2. Appellant charges that the trial court abused its discretion in refusing to allow appellant to recall one of the victims for cross-examination after a videotaped interview of the victim was shown. " 'Pursuant to OCGA § 24-3-16, a statement made by a child under the age of 14 to another concerning sexual contact or physical abuse is admissible if the child is available to testify and the court finds sufficient indicia of reliability in the statement.' [Cit.] It is well settled that the admission of such evidence under these circumstances does not violate the constitutional right of confrontation 'if the witness testifies at trial and is subject to cross-examination.' [Cit.]" McCoy v. State, 194 Ga.App. 244(3), 390 S.E.2d 251 (1990). Appellant contends the trial court deprived him of the opportunity to cross-examine the witness on certain allegations made in the videotaped interview. The record shows that this witness was extensively cross-examined by appellant and answered questions under recross-examination. She was excused without objection before the tape was played, and appellant was aware that the State intended to use the videotape. Four days later, after the State rested, appellant's motion for directed verdict had been denied, and appellant stated that he had no further evidence to present, appellant asked if the witness could be called for a "brief cross." " ' "The scope of cross-examination is not unlimited. That extent necessarily must rest largely within the discretion of the trial judge in order to keep the questioning within reasonable bounds. It is error only when this discretion is abused." ' [Cit.]" Lucas v. State, 192 Ga.App. 231, 233(2), 384 S.E.2d 438 (1989). Based on the foregoing, we find no such abuse of discretion. See White v. State, 193 Ga.App. 428(6), 387 S.E.2d 921 (1989).

3. Appellant next contends his right to a thorough and sifting cross-examination of a victim was abridged by the chilling effect of the court's citing his counsel for contempt and the court's command of counsel, in a threatening tone, to "be quiet" and to "finish up." The trial transcript reveals that prior to the...