Fain v. State

• Decision Date: 25 January 1983
• Docket Number: 65077,Nos. 65076,s. 65076
• Parties: FAIN v. The STATE (two cases).
• Court: Georgia Court of Appeals

Page 197

300 S.E.2d 197

165 Ga.App. 188

FAIN v. The STATE (two cases).

Nos. 65076, 65077.

Court of Appeals of Georgia.

Jan. 25, 1983.

Robert Donovan, Richard L. Moore, Marietta, for appellant.

Mickey R. Thacker, Asst. Dist. Atty., Darrell Wilson, Dist. Atty., Cartersville, for appellee.

POPE, Judge.

Defendants Kenneth "Bo" Fain and Mary McCoy Fain, husband and wife, were indicted, tried and convicted of cruelty to children, Code Ann. § 26-2801(b) (now OCGA § 16-5-70(b)). Kenneth Fain was sentenced to fifteen years; Mary Fain to fifteen years, to serve ten. They assert eight enumerations of error on this appeal.

1. Defendants assert the general grounds in their first enumeration of error. We hold that the evidence was sufficient to enable any rational trier of fact to find defendants guilty of cruelty to children beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence showed that a day care center employee, in changing the diaper of the eighteen-month-old daughter of defendant Mary Fain, the stepdaughter of defendant Kenneth Fain, observed horrible injuries to the child. The injuries included whelps on the child's buttocks, legs and stomach and bruises on her buttocks, legs, arms and on her rectum and vagina as well. This was the third time unusual injuries had been observed on the child. Moreover, a medical doctor testified that the injuries to the rectum and vagina suggested attempted forced entry with an object of similar dimension to a penis.

Both defendants pleaded not guilty and denied any knowledge of the injuries to the child. Defendant Mary Fain swore the child was all right when she took her to the day care center.

After a careful review of the trial transcript in a light most favorable to the jury verdict, we have no difficulty in finding that every reasonable hypothesis save the guilt of the defendants was excluded by the evidence and that the verdict is clearly supportable as a matter of law. See Jones v. State, --- Ga.App. ---(1), 299 S.E.2d 576 (1983); Slack v. State, 159 Ga.App. 185(3), 283 S.E.2d 64 (1981). But see Division 6, infra.

2. In their second enumeration of error defendants claim that the trial court committed reversible error when it did not prevent two witnesses, both medical doctors, from answering questions posed by the state seeking the doctors' opinions of whether the injuries to the child's rectum and vagina could have been caused by a sexual device such as a dildo or vibrator. Both doctors, one a witness for the state and the other a witness for the defense, stated that the injuries could have been caused by such a device.

Defendants assert that the questions were designed to inflame the minds of the jurors and not to adduce testimony of any probative value. They further assert that the answers had no probative value and that the trial court should have ordered the dialogue stricken from the record even though no objection was made. We disagree. We find, without deciding, that the questions appear relevant and the answers appear probative as tending to prove that both defendants were guilty of cruelty to the child. See Code Ann. § 38-201 (now OCGA § 24-2-1). More basically, however, we are unpersuaded by defendants' argument that they should be entitled to appellate review of this issue despite their failure to raise the issue at trial and we reject their contention for this reason. See Scott v. State, 243 Ga. 233(2), 253 S.E.2d 698 (1979); Joyner v. State, 208 Ga. 435(2), 67 S.E.2d 221 (1951).

3. Defendants contend that the trial court erred in failing to charge on the defense of accident, even absent a request. They argue that "accident" was their sole defense and therefore the charge was required. See generally Jones v. State, 161 Ga.App. 610(4), 288 S.E.2d 788 (1982). We find contrarily that "accident" was not in fact their sole defense. Their principal defense appears to have been the general defense of lack of knowledge; their attempts to show that the injuries to the child could have been sustained accidentally appear only incidental thereto.

Furthermore, we do not find that the defense was reasonably raised by the evidence. The expert witnesses, medical doctors, testified that some of the bruises on the child could have been the result of common accidents, but they steadfastly maintained that the more severe injuries, particularly those to the rectum and vagina, were inflicted injuries. This is corroborated well by the photographic evidence. We hold, therefore, that the trial court did not err by not giving the unrequested charge. See generally Green v. State, 154 Ga.App. 245(2), 267 S.E.2d 855 (1980).

4. Defendants contend that their long prison sentences constitute cruel and unusual punishment. This contention is meritless because the sentences are within the statutory limits. Code Ann. § 26-2801(c) (now OCGA § 16-5-70(c)); see Mydell v. State, 238 Ga. 450(2), 233 S.E.2d 199, cert. den., 431 U.S. 970, 97 S.Ct. 2933, 53 L.Ed.2d 1068 (1977).

5. Defendant Kenneth Fain asserts that the trial court erred in refusing him reasonable appeal bond. This court has already ruled against defendant on this issue. Fain v. State, Case No. 64908, decided July 20, 1982.

6. Defendant Mary Fain contends that the trial court erred in allowing into evidence the substance of a statement she made to the police. The state had not attempted to use the statement in its case in chief, but, after Ms. Fain volunteered during cross examination that she had made the statement, the state then used it for impeachment purposes during the cross examination and later with a rebuttal witness. Her counsel repeatedly insisted that the statement was not admissible because it was given in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in that Ms. Fain had requested the presence of counsel and the police had continued to question her, obtaining the statement. See Edwards v. Arizona, 451 U.S. 477, 481-87, 101 S.Ct. 1880, 1883-86, 68 L.Ed.2d 378 (1981). The state, on the other hand, argued that the statement was admissible for impeachment purposes regardless of any Miranda violations and, furthermore, that it was admissible without a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 377, 84 S.Ct. 1774, 1781, 12 L.Ed.2d 908 (1964).

Defendant is clearly correct in this instance. Under Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), it is a denial of due process of law for the state to use an involuntary statement against a defendant at trial for any purpose. Id. at 398, 98 S.Ct. at 2416; see Howard v. State, 160 Ga.App. 487, 488, 287 S.E.2d 392 (1981); Green v. State, 154 Ga.App. 295(1), 267 S.E.2d 898 (1980); see also New Jersey v. Portash, 440 U.S. 450, 458-59, 99 S.Ct. 1296-97, 1292, 59 L.Ed.2d 501 (1979). Once defendant raised the issue of voluntariness, she was entitled to a determination of the issue by the trial court before the statement could be used, although not to a separate "Jackson v. Denno hearing." Jones v. State, 243 Ga. 820(6), 256 S.E.2d 907, cert. den., 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 (1979); Scott v. State, 243 Ga. 233(1), 253 S.E.2d 698 (1979). The trial court erroneously made no determination as to the voluntariness of the statement and we must therefore remand the case for such a determination. See Payne v. State, 249 Ga. 354(7), 291 S.E.2d 226 (1982); see also Mincey v. Arizona, supra, 437 U.S. at 398, 98 S.Ct. at 2416. In the absence of such hearing, or in the event the trial court finds that the statement was not voluntary, defendant Mary Fain must be granted a new trial. Cofield v. State, 247 Ga. 98(4), 274 S.E.2d 530 (1981); Schneider v. State, 130 Ga.App. 3(1), 202 S.E.2d 238 (1973).

We are unpersuaded by the state's additional argument that a voluntariness determination was not then, and is not now, required because defendant Mary Fain opened the door by volunteering that she had made the statement. We hold that the fact that Ms. Fain exposed the existence of the statement does not render the substance of the statement immune from the requirement for admissibility set forth in Mincey v. Arizona, supra, that is, that the statement was given voluntarily. In so holding, however, we note that it is apparent from the transcript that Ms. Fain was not trying to capitalize on a belief that the statement was inadmissible.

7a. Defendant Kenneth Fain alleges that he was denied his right of confrontation because the court prohibited him from cross examining his wife after the...