Hyde v. State

• Decision Date: 30 November 1988
• Docket Number: No. 77500,77500
• Citation: 377 S.E.2d 187,189 Ga.App. 727
• Parties: HYDE v. The STATE.
• Court: Georgia Court of Appeals

Page 187

377 S.E.2d 187

189 Ga.App. 727

HYDE v. The STATE.

No. 77500.

Court of Appeals of Georgia.

Nov. 30, 1988.

Rehearing Denied Dec. 20, 1988.

Certiorari Denied Feb. 2, 1989.

Ronald L. Davis, for appellant.

Darrell E. Wilson, Dist. Atty., and William F. Riley, Jr., Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

Appellant Hyde was convicted on one count of child molestation and one count of aggravated child molestation, the victim of both being appellant's daughter, who was four or five years old when the offenses occurred. After his conviction Hyde moved for new trial on the general grounds and the additional grounds that the child (ten-years-old at the time of trial) was incompetent to testify and that the testimony of the nurse practitioner who had examined and talked with the victim was inadmissible because the witness was not a medical doctor. After denial of the motion, Hyde appealed to this court, enumerating the denial of the motion for new trial as a multi-pronged error which alleged that the evidence was insufficient to sustain the verdict, that no proper foundation had been laid for the nurse practitioner's testimony, and that the nurse practitioner's testimony was improperly admitted because she was not a medical doctor. Held:

1. Examination of the record and transcript reveals that there was more than a sufficiency of competent evidence, including but not limited to the testimony of the victim herself, to authorize the rational trier of fact to find appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

As to appellant's allegations concerning the nurse practitioner's qualifications and the alleged lack of foundation for her testimony, the transcript shows that during the course of the testimony defense counsel objected on these two bases but that the court overruled both objections; that the objection that the witness' qualifications were less than those of a medical doctor was renewed and again overruled; and that the objection regarding lack of foundation was not renewed. According to the transcript, the nurse practitioner's credentials as to education, special training, and experience were elicited at the commencement of her testimony, which followed the testimony of two social workers who had testified regarding their knowledge of the victim's family situation in general and the abusive activities of her father in particular.

McAfee's credentials to testify as to the victim's vaginal and hymenal scarring, as brought out on direct examination, are as follows. In response to a question as to her duties under the protocol for nurse practitioners working (as she had testified she did) under a physician's supervision, she testified, "I do history taking, physical examinations, order lab work ..., order ... x-rays or other diagnostic tests." Counsel then asked, "Are there any particular groups of patients that you specifically handle for Dr. Ward?," to which McAfee replied: "Yes, all the women's exams for annual checkups [,] ... well-baby checkups on children ... [, and] exams on children who have had alleged sexual abuse." In response to further questions, McAfee stated that she had examined approximately fifty alleged child abuse victims since undertaking her present work, and that she had previously "been trained at [Atlanta's] Grady Hospital in the Rape Crisis Center to evaluate adult and child victims of sexual abuse." She went on to state that, in addition to her bachelor's degree in nursing, she had earned two professional master's degrees (one in Critical Care and another which qualified her as a Nurse Practitioner); that she had had thirty hours' course work and training at Ridgeview Institute (an Atlanta psychiatric hospital); and that she had only recently completed "two days of intensive training in [the child sexual abuse] area" in a Huntsville, Ala., medical facility. After giving this testimony regarding her experience and training in the child abuse area, the nurse practitioner then went on to recount her factual findings and certain conclusions therefrom. We regard this sequence as constituting an adequate foundation for this witness' testimony, given the nature of the charges against defendant/appellant.

Moreover, the law in Georgia does not require that only medical doctors be permitted to give testimony regarding a medical issue, but allows others with certain training and experience to testify on issues within the scope of their expertise. In Avret v. McCormick, 246 Ga. 401, 271 S.E.2d 832 (1980), the Supreme Court on certiorari affirmed the ruling of this court that a licensed registered nurse is qualified to testify as an expert witness within the areas of her expertise. See McCormick v. Avret, 154 Ga.App. 178, 267 S.E.2d 759 (1980). The Supreme Court held that the excluded testimony in McCormick should have been admitted: " 'A witness with such skill, knowledge or experience in a field or calling as to be able to draw an inference that could not be drawn by the average layman may be qualified as an expert witness.' Agnor, Georgia Evidence, § 9-5. 'Medical experts are persons possessing technical and peculiar knowledge, and any person learned in medical or physiological matters is qualified to testify as an expert thereon, even though he is not a medical practitioner [as defined in OCGA § 43-34-20(3) ].' 32 CJS 336, Evidence, § 546(92). 'A nurse may or may not be qualified to state an inference ... according to the extent of his or her training and experience.' 32 CJS 345, Evidence, § 546(92)." In Bethea v. Smith, 176 Ga.App. 467, 336 S.E.2d 295 (1985), this court, at 470, 336 S.E.2d 295, distinguished the issue there (Is a podiatrist qualified to testify as to the standard of care in "the medical profession generally," and with special reference to orthopedic surgeons?) from that in McCormick, noting that in certain special areas, as in McCormick, there is "an overlap of medical and nursing expertise" which permits nurses with expertise in those areas to testify as expert witnesses.

Further, Agnor's Ga. Evidence (2d ed., 1986) states at § 9-5 that a person's "qualification as an expert witness rests entirely in the sound discretion of the judge ... The decision of the judge will not usually be overturned" unless the witness actually lacks appropriate credentials or the judge has applied the wrong criteria. We find here that McAfee's qualifications were appropriate and adequate.

Appellant further alleges that the portion of the nurse practitioner's testimony which identified the father as the molester was hearsay and therefore inadmissible. OCGA § 24-3-4 permits, as an exception to the hearsay rule, testimony concerning statements made as part of the medical history when relevant to diagnosis or treatment. OCGA § 43-26-1(3) defines "Practice of nursing as a registered professional nurse" as "the performance for compensation of any act in the observation, care, and counsel of the ill, injured, or infirm ... which requires substantial specialized judgment and skill based on knowledge and application of the principles of physical ... science." In recording the child's statements as part of the medical history, then (including statements relating to sexual abuse), McAfee was merely fulfilling her professional duty under OCGA § 43-26-1 and under the protocol under which she worked for supervising physicians. The same is true of the nurse's clinical findings during her examination of the child's pubic and pelvic areas; in response to direct examination McAfee replied that her findings "were consistent with the history that [the child] related to me," and that vaginal scarring of the sort she found "would occur from an object being placed in the vagina, a blunt type." This testimony was well within the scope of this nurse's expertise, given the specialized training and experience to which she had previously testified.

We find readily distinguishable such cases as Pegg v. State, 183 Ga.App. 668, 359 S.E.2d 678 (1987); Russell v. State, 181 Ga.App. 624, 353 S.E.2d 820 (1987); and Penn., etc., Ins. Co. v. Gilliam, 88 Ga.App. 451, 76 S.E.2d 834 (1953), which speak only of a physician's qualifications as an expert witness and make no mention of a nurse's qualifications. Smith v. Hospital Auth., 161 Ga.App. 657, 288 S.E.2d 715 (1982) is also distinguishable. In that case the exclusion of testimony proffered by a nurse was upheld because it was determined that the excluded testimony dealt with "decisions and treatment that were exclusively within the professional skills of medical doctors," id. at 660, 288 S.E.2d 715, unlike the observation of the scarred vaginal tissue which, in the instant case, was well within the expertise of the specially trained nurse practitioner.

In Johnson v. State, 149 Ga.App. 544, 254 S.E.2d 757 (1979), a case closely analogous on its facts to that at bar, this court held at 545, 254 S.E.2d 757: "The ... enumeration complains of the admission over objection of the physician's testimony as to the victim's out-of-court statements ... that intercourse with her father had taken place." The court found that the inclusion in the testimony of the identity of the perpetrator as the defendant, which was contained in the out-of-court statements, was unnecessary for medical purposes, OCGA § 24-3-4, and that admission of that part of the statement was therefore error. Nevertheless, the court went on to hold at 545, 254 S.E.2d 757: "However, the evidence was cumulative and its admission not prejudicial to the defendant." Examination of the transcript in the instant case reveals that the nurse practitioner's testimony was cumulative of that of other witnesses, including the victim herself, and therefore harmless.

2. We remind appellant that "[a]n enumeration of...