Grayer v. State, 72953

Decision Date20 February 1987
Docket NumberNo. 72953,72953
Citation354 S.E.2d 191,181 Ga.App. 845
PartiesGRAYER v. The STATE.
CourtGeorgia Court of Appeals

Susan C. Janowski, James A. Yancey, Jr., Waycross, for appellant.

Harry D. Dixon, Jr., Dist. Atty., Richard E. Currie, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Defendant, the stepfather of the two victims, appeals his conviction of statutory rape of one sister, OCGA § 16-6-3, and child molestation of the other, OCGA § 16-6-4(a & b).

1. Defense counsel was cross-examining a police officer as to defendant's statement which began "Dear Judge." After counsel was reprimanded for expressing his disbelief of the officer's testimony that there had been statements by others which began similarly, defense counsel inquired how the statement got that heading. The officer stated: "He told me during this entire time, when--my job as an investigator is to determine what had happened and if this thing did happen, reduce it to writing. My opinion during this period of time I was convinced that he did do it, that it did happen--" Motion for mistrial was made immediately and a hearing was conducted out of the presence of the jury. Following the hearing, the jury was instructed that they were the ones to decide the question of defendant's guilt or innocence, not a witness, and they should disregard entirely the response by the witness. The motion for mistrial was renewed and denied.

Defendant contends the testimony was so prejudicial that a mistrial should have been granted. While a witness' opinion as to an accused's guilt may be inadmissible (Frink v. Southern Express Co., 82 Ga. 33, 40(3), 8 S.E. 862 (1888)), there was no error in the denial of a mistrial. It has long been the rule that a prosecuting attorney is forbidden from expressing his belief as to an accused's guilt during argument. However, where that occurs, prompt corrective instructions are sufficient. Hall v. State, 139 Ga.App. 142, 143(4), 227 S.E.2d 917 (1976); Wells v. State, 194 Ga. 70, 75(5), 20 S.E.2d 580 (1942). The trial court did not abuse its discretion in declining to declare a mistrial. Flowers v. State, 252 Ga. 476, 314 S.E.2d 206 (1984).

2. During the direct examination of a psychologist who examined the two sisters the state sought to elicit whether one of them was suffering from "sexual abuse syndrome." Defendant objected on the grounds this was irrelevant and immaterial. The trial court overruled the objection, but the prosecuting attorney then asked the witness whether she found the appearance and assessment made of the victim to be consistent with that of a sexually abused child. No further objection was made.

For several reasons there is no basis for reversal. 1) The objection was insufficient to raise any question as to the admissibility of the evidence. Harrison v. State, 120 Ga.App. 812, 817(8), 172 S.E.2d 328 (1969); Colbert v. State, 149 Ga.App. 266, 268(2), 253 S.E.2d 882 (1979). 2) There was no answer given to the question objected to and no objection to the question actually asked. Harris v. State, 96 Ga.App. 395, 400(2), 100 S.E.2d 120 (1957); Anglin v. State, 173 Ga.App. 648, 327 S.E.2d 776 (1985). 3) An objection to the admission of evidence not urged on trial cannot be considered on appeal. Austin v. State, 100 Ga.App. 142, 143(1), 110 S.E.2d 422 (1959). 4) Even if the matter had been properly raised, the evidence was not objectionable under the recent decision of Butler v. State, 256 Ga. 448, 349 S.E.2d 684 (1986).

3. Defendant contends it was error to deny his motion for mistrial because the court's questioning of one of the victims amounted to reforming the witness.

" 'The trial judge has the right to propound a question or a series of questions to any witness for the purpose of developing fully the truth of the case; and the extent to which the examination conducted by the court shall go is a matter within his discretion.' " Beavers v. State, 132 Ga.App. 94, 96(7), 207 S.E.2d 550 (1974). The only limitation upon this right is not to express an opinion or intimate to the jury what has or has not been proven. Parker v. State, 51 Ga.App. 295(1), 180 S.E. 390 (1935).

Here the questions were propounded outside the presence of the jury. Jones v. State, 250 Ga. 498, 500(4), 299 S.E.2d 549 (1983); Dick v. State, 246 Ga. 697, 701(4), 273 S.E.2d 124 (1980). The admonition to the young witness to tell the jury what she related to the judge, not being in the jury's presence, was not error. The trial court did not abuse its discretion in refusing to declare a mistrial on this ground.

4. Defendant complains of the admission of his statements. The trial court conducted a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing. Its determination, based upon the totality of circumstances, as to the disputed facts and credibility of the witnesses must be accepted unless clearly erroneous. Stephens v. State, 170 Ga.App. 342, 343, 317 S.E.2d 627 (1984). This ground reveals no reversible error.

5. Defendant contends the court erred in charging OCGA § 16-3-4(c) without additional embellishments concerning when voluntary intoxication might be an excuse, see Blankenship v. State, 247 Ga. 590, 591(3), 277 S.E.2d 505 (1981). Even where there were written requests as to such principles, we have found no error in their exclusion. Hutter v. State, 166 Ga.App. 608, 609(3), 305 S.E.2d 124 (1983), reversed on other grounds, 251 Ga. 615, 307 S.E.2d 910 (1983). Accord Gilbreath v. State, 247 Ga. 814, 830(13), 279 S.E.2d 650 (1981); Harris v. State, 250 Ga. 889, 890, 302 S.E.2d 104 (1983); Faircloth v. State, 175 Ga.App. 130(1), 332 S.E.2d 686 (1985).

Furthermore, absent a written...

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10 cases
  • Mitchell v. State, A96A0956
    • United States
    • United States Court of Appeals (Georgia)
    • September 5, 1996
    ...an impermissible opinion, however, the error may be cured by appropriate remedial action of the trial court. See Grayer v. State, 181 Ga.App. 845, 846(1), 354 S.E.2d 191 (1987). Such an error may also be harmless where the evidence against the defendant is overwhelming, and the court instru......
  • Kincey v. State, A89A0082
    • United States
    • United States Court of Appeals (Georgia)
    • April 11, 1989
    ...179 Ga.App. 623(1) (347 SE2d 673) (1986); see also Sanders v. State, 182 Ga.App. 581(1) (356 SE2d 537) (1987); Grayer v. State, 181 Ga.App. 845(4) (354 SE2d 191) (1987); Newsome v. State, 180 Ga.App. 243(3) (348 SE2d 759) (1986); Jones v. State, 178 Ga.App. 15(2) (342 SE2d 5) (1986)." Johns......
  • Miller v. State, A00A0742.
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    • United States Court of Appeals (Georgia)
    • April 14, 2000
    ...396 S.E.2d 71 (1990). 26. See Smith v. State, 236 Ga.App. 122, 124-125(3), 511 S.E.2d 223 (1999). 27. See Grayer v. State, 181 Ga.App. 845, 846(3), 354 S.E.2d 191 (1987). 28. See Nunn v. State, 224 Ga.App. 312, 313(1)(b), 480 S.E.2d 614 (1997) (physical precedent only); Odum v. State, 220 G......
  • Wilcox v. State, A98A2205.
    • United States
    • United States Court of Appeals (Georgia)
    • February 4, 1999
    ...right is not to express an opinion or intimate to the jury what has or has not been proven." (Emphasis added.) Grayer v. State, 181 Ga.App. 845, 846(3), 354 S.E.2d 191 (1987). See also OCGA § 17-8-57. As the Supreme Court explained, the purpose of the limitation "is to prevent the jury from......
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