Hunt v. State
| Decision Date | 16 July 2004 |
| Docket Number | No. A04A0256.,A04A0256. |
| Citation | 268 Ga. App. 568,602 S.E.2d 312 |
| Parties | HUNT v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Garland, Samuel & Loeb, Donald F. Samuel, William C. Lea, Atlanta, for appellant.
Patrick H. Head, District Attorney, Robert B. Lovett, Assistant District Attorney, Amy H. McChesney, Assistant District Attorney, for appellee.
Following the denial of his motion for new trial, Thomas Matthew Hunt appeals his convictions of aggravated child molestation, burglary, and child molestation. We find no reversible error and affirm Hunt's convictions.
An indictment was returned charging Hunt with (1) aggravated child molestation of between August 1, 1998, and September 30, 1999, by performing an act of sodomy involving Hunt's penis and the child's anus, (2) burglary between August 1, 1998, and September 30, 1999, by entering the dwelling of Cs. D.'s mother with the intent to commit the felony of child molestation, and (3) child molestation of "Cy. D." on and about May 8, 1999, by touching and fondling the child's genital area.
At the time of trial in November 2001, Cs. was eleven years old and Cy. was nine years old. Their mother had divorced their father in 1993 and began dating Hunt in August 1995. At times, she allowed Hunt to be alone with her children. In May 1999, Cy. and Hunt spent the afternoon alone together. Cy. was upset when he returned home, and he remained upset. The following week, he revealed to his mother that while Hunt was driving his truck he had reached over and touched and fondled Cy.'s genital area.
Cy.'s mother abruptly ended her relationship with Hunt, and she took Cy. for psychological counseling. She later reported the incident to Detective Rick Whitaker of the Cobb County Police Department. Whitaker interviewed both Cy. and Cs. Cy. repeated the charges against Hunt. Cs. said that Hunt had not done anything to him. Whitaker, however, felt as though Cs. was holding something back, and he referred Cs. to psychologist Denise Houston at a children's advocacy center known as Safepath for more extended forensic interviews. During the interview process, Cs. was examined by a pediatrician who found that Cs. had a distended anal sphincter muscle consistent with repeated insertion of a foreign object into the child's anus or a history of a chronic medical condition such as constipation. The pediatrician testified that Cs.'s mother had reported no such medical history. When Houston told Cs. that the pediatrician had concerns, Cs. tearfully revealed that Hunt had anally sodomized him when he was in the third grade. Cs. later told his mother that "it" had happened so many times he could not remember. After these disclosures, both boys and their mother participated in extended individual and group therapy sessions at Safepath. Karen Nash, a licensed clinical social worker, was their therapist. During individual therapy sessions, both boys discussed the details of the sexual abuse by Hunt. At trial, they testified consistently with their pretrial accusations against Hunt.
OCGA § 17-8-54 pertinently provides:
In the trial of any criminal case, when any person under the age of 16 is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters.
As recognized in Martin v. State,1 the purpose of OCGA § 17-8-54 is to protect the interest of the child witness. Therefore, Martin held that a trial court's failure to exercise its statutory authority to clear the courtroom does not violate any statutory rights of the defendant.
Before Cy. testified, the trial court announced its intent to remove about seven spectators from the courtroom during the child's testimony if there were no objections; otherwise, the court stated that it would rule on the objections. Defense counsel stated that he had no objections, and the courtroom was cleared of all spectators, including members of Hunt's immediate family. Again without objection, the court employed the same procedure before Cs. testified.
Hunt argues that in closing the courtroom during the victims' testimony, the trial court did not comply with the decision of the United States Supreme Court in Waller v. Georgia.2 In reliance on the decision of the Eleventh Circuit Federal Court of Appeals in Judd v. Haley,3 Hunt argues that the ensuing deprivation of his Sixth Amendment right to a public trial constituted a structural defect obviating the requirement that he show prejudice.
The Sixth Amendment to the United States Constitution states (in part): "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." Perhaps the most definitive statement the United States Supreme Court has issued on the scope of one's right to a public trial came in the 1984 case of Waller v. Georgia..4
In Waller, the Court held that the defendants' Sixth Amendment rights had been violated when the trial court granted the state's motion to close the hearing on the defendants' motion to suppress and barred spectators.
OCGA § 17-8-54 provides for only a partial closure of a criminal trial based upon a legislative determination that there is a compelling state interest in protecting children while they are testifying concerning a sex offense.8 This distinguishes Waller.9
Hunt complains, however, that the trial court did effect a total closure of the courtroom by ordering the removal of all spectators, including his immediate family. That complaint was waived by defense counsel's failure to object to the closure at trial.10 Had there been such an objection, the trial court would have had an opportunity either to allow Hunt's immediate family and any press members to remain in the courtroom or to engage in the four-part Waller inquiry.
On direct examination, Nash described Cs.'s fear and anxiety when he talked about Hunt's sexual abuse of him. The prosecuting attorney asked Nash whether Cs.'s behavior was consistent with that of a child who had been coached or told what to say. Nash responded no and then described certain behaviors generally exhibited by children who are not being truthful. In contrast, Nash then referred to "[Cs.] and ... other children who have been abused." At that point, defense counsel moved for a mistrial on the ground that Nash had improperly expressed an opinion as to the ultimate issue to be decided by the jury. The trial court refused to declare a mistrial but instructed the jury that no witness could answer the ultimate issue of the defendant's guilt and that the jury should disregard any opinion expressed by a witness on the ultimate issue of guilt.
Although there is nothing wrong with bolstering the credibility of the indicted allegations of sexual abuse with expert opinion testimony (e.g., that the victim's physical examination showed injury consistent with sexual abuse or that the victim's psychological evaluation was consistent with sexual abuse), Georgia law forbids expert opinion testimony that directly bolsters the victim's credibility (i.e., that the victim is telling the truth) or that implicitly goes to the ultimate issue to be decided by the jury, when such issue (i.e., that the victim was sexually abused) is not beyond the ken of the average juror.11
Here, the trial court promptly gave a curative instruction directing the jury to disregard the witness's unresponsive answer to the prosecutor's question, to the extent that the witness had improperly expressed her opinion on the ultimate issue of whether Cs. had been abused by Hunt. We find no abuse of discretion.13
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