Harris v. State
Decision Date | 17 January 1991 |
Docket Number | No. A90A1578,A90A1578 |
Citation | 402 S.E.2d 62,198 Ga.App. 503 |
Parties | HARRIS v. The STATE. |
Court | Georgia Court of Appeals |
Hudson & Solomon, James D. Hudson, Douglas, for appellant.
Robert B. Ellis, Jr., Dist. Atty., Timothy L. Eidson, Asst. Dist. Atty., for appellee.
Appellant was tried before a jury on charges that he had committed child molestation and aggravated sodomy against two sisters. He was acquitted on the charges as to one of the sisters and found guilty on the charges as to the other sister. He appealed to the Supreme Court from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts. The case is now before this court pursuant to the Supreme Court's order of transfer.
1. The denial of appellant's motion for new trial on the ground that he was denied effective assistance of trial counsel is enumerated as error. The alleged deficiency is the failure of appellant's trial counsel to call certain additional witnesses.
"The defendant must overcome the strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct." Brogdon v. State, 255 Ga. 64, 68(3), 335 S.E.2d 383 (1985). The determination as to which defense witnesses will be called is a matter of trial strategy and tactics. Garrett v. State, 196 Ga.App. 872, 873(1), 397 S.E.2d 205 (1990). Garrett v. State, supra at 874(1), 397 S.E.2d 205.
2. One ground of the motion for new trial was predicated upon the purported failure of certain jurors to answer truthfully and fully voir dire questions regarding whether they knew appellant. The denial of appellant's motion for new trial on this ground is enumerated as error.
In support of this enumeration, appellant relies upon the testimony given by his wife at the hearing on the motion for new trial. However, in her testimony, appellant's wife also conceded that she had been present throughout the trial and had been sitting in the front row immediately behind the defense table and that she had not been hindered from, but rather had the opportunity of speaking to appellant and his lawyers during voir dire. Furthermore, she acknowledged that the defense may have preferred to have jurors who knew appellant.
"[T]his situation is controlled by Brown v. Holland, 228 Ga. 628, 629(2), 187 S.E.2d 246 (1972), where it was held the acceptance of a juror with knowledge of any alleged disqualification was a waiver of such disqualification." Sanders v. State, 246 Ga. 42, 43(3), 268 S.E.2d 628 (1980). Moreover, Mosley v. State, 257 Ga. 382, 384(4), 359 S.E.2d 653 (1987). See also Brown v. Holland, supra 228 Ga. at 629(2), 187 S.E.2d 246.
3. In support of his motion for new trial, appellant presented evidence of the exculpatory results of his post-trial polygraph examination. The denial of appellant's motion for new trial on the ground that the polygraph results constituted newly discovered evidence is enumerated as error.
Appellant has offered no explanation as to why he did not submit to a polygraph examination prior to trial. Timberlake v. State, 246 Ga. 488, 491-92(1), 271 S.E.2d 792 (1980). Rucker v. State, 177 Ga.App. 779, 781(4), 341 S.E.2d 228 (1986).
4. Appellant challenges the constitutionality of OCGA § 24-3-16. However, "[t]he transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious." Egerton v. Jolly, 133 Ga.App. 805, 806(1), 212 S.E.2d 462 (1975). See also In the Matter of J.S.S., 175 Ga.App. 361, 364(1), 333 S.E.2d 417 (1985).
5. A physician was asked if, based upon his physical examination of the victim, he had an opinion whether she had been sexually molested. Over appellant's objection that this question called for an opinion as to the ultimate issue to be decided by the jury, the physician was allowed to respond. This evidentiary ruling is enumerated as error.
The physician's opinion was based upon his physical examination of the victim, not upon the child abuse accommodation syndrome. See State v. Butler, 256 Ga. 448, 349 S.E.2d 684 (1986). Compare Allison v. State, 256 Ga. 851, 353 S.E.2d 805 (1987). (Emphasis in original.) Allison v. State, supra 256 Ga. at 853(6), 353 S.E.2d 805.
6. The trial court did not err in ruling that another witness for the State was qualified as an expert as to the child abuse accommodation syndrome. See generally Baker v. State, 156 Ga.App. 283, 274 S.E.2d 678 (1980).
7. Appellant enumerates as error the admission into evidence of certain drawings made by the victim. The only objection that was raised at trial to the admission of these drawings was to their lack of authentication. On appeal, however, appellant relies upon other grounds for asserting that the drawings were not admissible. The objection that was raised below is, therefore, deemed abandoned and the grounds that are raised for the first time on appeal will not be considered.
8. The arrest warrant charged appellant with commission of the crimes on July 3, 1988, and he was originally indicted for having committed the crimes on that date. However, appellant was subsequently reindicted for having committed the crimes on June 22, 1988. At trial, appellant sought to introduce into evidence the arrest warrant and original indictment. The trial court sustained the State's objection to the relevancy of these documents and appellant enumerates this ruling as error.
Obviously, the arrest warrant and original indictment had no direct or tangential relevancy whatsoever to any issue related to appellant's guilt or innocence. Moreover, Warren v. State, 185 Ga.App. 108, 109(2), 363 S.E.2d 357 (1987).
9. The trial court's...
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