Gilstrap v. State

• Decision Date: 11 March 1991
• Docket Number: No. A90A1877,A90A1877
• Citation: 199 Ga.App. 223,404 S.E.2d 629
• Parties: GILSTRAP v. The STATE.
• Court: Georgia Court of Appeals

Page 629

404 S.E.2d 629

199 Ga.App. 223

GILSTRAP v. The STATE.

No. A90A1877.

Court of Appeals of Georgia.

March 11, 1991.

Rehearing Denied March 22, 1991.

Certiorari Granted May 17, 1991.

Cook & Palmour, Bobby Lee Cook, Summerville, Robert E. Andrews, Gainesville, and Alan J. Baverman, Atlanta, for appellant.

C. Andrew Fuller, Dist. Atty., Lee Darragh, and Leonard C. Parks, Jr., Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Defendant was found guilty of one count of aggravated child molestation and two counts of child molestation and this appeal followed. Held:

1. In his first three enumerations of error, defendant contends that the trial court erred in refusing to disqualify three veniremen, Sheridan, Pittman and Richards, for cause.

" ' "When a prospective juror has formed an opinion based on hearsay (as opposed to being based on his having seen the crime committed or having heard the testimony under oath), to disqualify such individual as a juror on the ground that he has formed an opinion on the guilt or innocence of a defendant, the opinion must be so fixed and definite that it would not be changed by the evidence or charge of the court upon the trial of the case." (Cits.)' Waters v. State, 248 Ga. 355, 362 (283 SE2d 238) (1981)." Childs v. State, 257 Ga. 243, 250(8), 357 S.E.2d 48 (1987).

" 'Whether to strike a juror for favor lies within the sound discretion of the trial court ((cits.)), and absent manifest abuse of that discretion, appellate courts will not reverse. (Cit.) ... The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand as a matter of law that the juror be excused for cause. (Cits.)' Harris v. State, 178 Ga.App. 735, 736(1) (344 SE2d 528) (1986)." Scott v. State, 193 Ga.App. 577, 578(2), 388 S.E.2d 416.

Under the particular facts and circumstances of the case sub judice, the trial court's refusal to excuse these three prospective jurors for cause was not a manifest abuse of discretion.

2. Defendant contends in his fourth enumeration that the trial court erred in limiting his voir dire examination of three prospective jurors, Sheridan, Richards and Pittman, who indicated that they had preconceived ideas of defendant's guilt or innocence, but affirmed that they could set aside their prejudices and decide the case based solely upon the evidence presented at trial and instructions given by the trial court. More specifically, defendant contends he should have been allowed to ask: "How would [your preconceived notions about the case] ever be erased from your mind? Would the defendant have to prove to you that he didn't do these things? What would it take to erase those notions from your mind...? ... What would it take to [erase partiality from your mind]? What would it take to erase that preconceived notion [of partiality from your mind]?"

"The trial court has broad discretion as to what questions should be allowed on voir dire, and that discretion will not be disturbed absent abuse. Wilcox v. State, 250 Ga. 745, (301 SE2d 251) (1983); Ridgeway v. State, 174 Ga.App. 663 (330 SE2d 916) (1985)." Coleman v. State, 189 Ga.App. 366(3), 367, 375 S.E.2d 663. In the case sub judice, the trial court did not abuse its discretion in refusing to allow defense counsel's pursuit of the above lines of inquiry as the questions were not dispositive of the jurors' qualifications.

It is unnecessary that partiality be "erased" from a prospective juror's mind. To say otherwise "would be to establish an impossible standard." Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751. It is sufficient if the prospective juror can lay aside his impression or opinion of an accused's guilt or innocence and decide the case based solely on the evidence adduced at trial and instruction given by the trial court. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, supra. Under such circumstances, the only relevant inquiry would be to determine whether the prospective juror's preconceived views of the case are "so fixed that [the juror] would not follow the instructions of the trial court." Wilcox v. State, 250 Ga. 745, 757, 301 S.E.2d 251.

3. In his fifth enumeration, defendant contends the trial court erred in refusing his request to ask prospective jurors the following: "Can you restrict your deliberation to this case based upon the evidence submitted and the charge given by the Court as to whether or not the defendant has committed any act of child molestation on [the victims]?"

The record reveals that no ruling was invoked on this specific question, which was an amended version of a previous question. "Accordingly, '(t)here is nothing for us to review since appellant failed to make his objection at trial on the specific ground he attempts to raise on appeal.' [Cit.]" Ingram v. State, 192 Ga.App. 196, 198(2), 384 S.E.2d 262.

4. In his sixth enumeration, defendant contends the trial court erred in prohibiting him from questioning "similar transaction witnesses" about "sexual relations" they had with persons other than defendant. Defendant argues that this evidence was relevant to show that the "similar transaction witnesses" were molested by someone other than defendant.

Three adult witnesses testified that they attended organized youth activities directed by defendant when they were children; that these activities included visits to defendant's summer cottage and that defendant molested them at his summer cottage. Two of the witnesses remembered that defendant's cottage was painted red. Later, defendant presented testimony showing that his cabin has never been painted red, but that "[i]t was always green." Defendant then presented testimony showing that defendant's youth activities were also conducted on the property of Louis Timms and that Mr. Timms "had a barn that was barn red." Defendant argues that this evidence and proffered testimony that Louis Timms had molested the three "similar transaction witnesses" when they were children was relevant to show that defendant did not molest the "similar transaction witnesses." This argument is without merit.

"The introduction of past sexual experiences of the [similar transaction] victims is not only irrelevant and prejudicial, but it also fails to address the issue of credibility. A child is no more or less credible because of prior incidents of molestation." Ortiz v. State, 188 Ga.App. 532(1), 533, 374 S.E.2d 92. Further, even assuming this evidence had some probative value in discrediting the similar transaction victims' testimony, we find no harmful error in its exclusion. These witnesses' identification testimony carried a high degree of reliability, i.e., defendant was a leader of the witnesses' religious organization, the witnesses gave detailed descriptions of the acts of molestation and they described repeated incidents of molestation committed against them by defendant at locations other than defendant's summer cottage. This enumeration is without merit.

5. Defendant contends in his seventh enumeration of error, "[t]he trial court erred in admitting [eight] similar transactions which were from 6 to 30 years old...." Defendant argues that these prior sexual acts were too far removed in time to be admissible as similar acts or transactions.

"Although lapse of time is one of the more important factors to weigh in considering the admissibility of evidence of similar crimes, it is not wholly determinative. Campbell v. State, 234 Ga. 130, 132 (214 SE2d 656) (1975)." Cooper v. State, 173 Ga.App. 254(1), 255, 325 S.E.2d 877. The primary conditions which must be satisfied for the introduction of such evidence are as follows: "First, there must be evidence that the defendant was, in fact, the perpetrator of the crime; second, there must be sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tends to prove the latter. Davis v. State, 249 Ga. 309, 311(1) (290 SE2d 273) (1982)." Cooper v. State, 173 Ga.App. 254(1), 255, 325 S.E.2d 877, supra.

In the case sub judice, eight adult witnesses testified that defendant committed acts of child molestation against them when they were young boys. These acts of child molestation were similar in method and object to the acts of child molestation committed against the male victims. More specifically, the boys were approached by defendant and molested after he gained their confidence as a leader in the community and as a leader of young children in a religious organization. "Under such circumstances, we do not believe the lapse of time between the independent crimes and the offenses charged is a determinative factor which would make such evidence inadmissible. Campbell, supra. The lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility. Milton v. State, 245 Ga....