Moss v. State
| Decision Date | 17 March 1995 |
| Docket Number | No. A94A1894,A94A1894 |
| Citation | 216 Ga.App. 711,455 S.E.2d 411 |
| Parties | MOSS v. The STATE. |
| Court | Georgia Court of Appeals |
William T. Hankins, III, Decatur, for appellant.
Lewis R. Slaton, Dist. Atty., Barry I. Mortge, Carl P. Greenberg, Michael L. Spotts, Asst. Dist. Attys., for appellee.
William Moss was convicted by a jury of three counts of aggravated child molestation, two counts of aggravated sodomy, and one count of sodomy involving his three daughters who were aged eight, seven and six at the time they were molested. Moss was sentenced to ten years' imprisonment and appeals following the denial of his motion for new trial.
1. Moss enumerates as error the trial court's denial of his motion in limine to suppress the testimony of witnesses added to the State's list on the eve of trial. He maintains there was insufficient time to prepare a defense to the testimony of the clinical social worker and counselor who interviewed the victims at Grady Hospital two-and-one-half weeks after the molestations occurred in August 1989, and the clinical social worker who counseled one of the children in October 1989, in Savannah.
The former OCGA § 17-7-110 provided that, on demand, the State must supply a defendant with "a list of witnesses on whose testimony the charge against him is founded." 1 The Code section further mandated that "[w]ithout the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state in his place that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses." OCGA § 17-7-110.
The prosecutor explained that he discovered the identity and whereabouts of the witnesses on the Thursday immediately preceding the start of trial on Monday and promptly notified defense counsel. Moreover, unlike the situation in Allison v. State, 256 Ga. 851(8), 353 S.E.2d 805 (1987), counsel had time to interview the witnesses between Thursday and the beginning of trial Monday. At trial, his thorough cross-examination of the witnesses demonstrated his preparation for evidence concerning the Child Abuse Accommodation Syndrome. We find no abuse of discretion in the trial court's decision to admit the evidence and allow defense counsel time to interview the two out-of-town witnesses prior to their testimony. See Willis v. State, 202 Ga.App. 447, 448(1), 414 S.E.2d 681 (1992).
2. Moss also contends the trial court erred by refusing to require production of the notes and records of the social workers who counseled the victims and testified at trial. He argues that these materials constitute the factual basis for these experts' opinions and are, therefore, discoverable pursuant to the procedures of OCGA § 49-5-41.
OCGA § 49-5-40, as amended, provides that records maintained by a state or local agency in connection with reports of child abuse are confidential, and access to such records is prohibited except as provided in OCGA §§ 49-5-41 and 49-5-41.1. The record shows that the trial court examined the records of the Department of Family & Children Services subpoenaed by Moss and found they were unrelated to any issue in the case. Furthermore, this court has held that "OCGA § 17-7-211 [] does not apply to the testimony of mental health therapists and psychologists, even if such testimony is based on written notes or reports." Horne v. State, 192 Ga.App. 528, 531(4)(a), 385 S.E.2d 704 (1989). Accordingly, the trial court did not err in denying the defense request for the notes and work product of the social workers who testified at trial concerning their contact with the Moss children.
3. Moss next enumerates as error the trial court's failure specifically to accept the testimony of counselor Marie Simmons, who interviewed the victims at Grady Hospital two-and-one-half weeks after the molestations occurred, as an expert qualified in a specified field. The record shows, however, that the witness was examined by the prosecutor and defense counsel regarding her credentials and expertise in the area of clinical psychology and the Child Abuse Accommodation Syndrome after which the trial court directed the prosecutor to proceed. When the State questioned the court as to whether the tender was accepted, the court repeated, "You may proceed." Defense counsel did not object to the court's implicit acceptance of the witness as an expert, and thus failed to preserve this enumeration for appellate review. Morris v. State, 212 Ga.App. 42, 44(2), 441 S.E.2d 273 (1994).
4. We find no merit in Moss's fourth enumeration that the trial court refused to strike a juror for cause who stated during voir dire that he found the charged offenses "repugnant" and was "not likely to give anybody the benefit of the doubt." Moss claims he was prejudiced by having to use a peremptory strike to remove this juror from the panel. The record shows the court probed this juror's statement, reminding him that "[U]nder our system [Moss] is entitled to all of the benefit of the doubt, [because] he is presumed innocent." The juror replied that he understood and, to the court's query, "You would require the State to prove him guilty, wouldn't you?" the juror answered "I would."
We find no abuse of discretion in the court's refusal to strike this juror for cause. It is not clear that this juror held opinions " 'so fixed and definite' " as to render him Garland v. State, 263 Ga. 495, 496(1), 435 S.E.2d 431 (1993).
5. Finally, Moss enumerates the denial of his motion for new trial on the ground of ineffective assistance of trial counsel.
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Cannon v. State, A01A0862.
...for appellate review by failing to object to the court's implicit acceptance of the witness as an expert. Moss v. State, 216 Ga.App. 711, 712-713(2), 455 S.E.2d 411 (1995). Because this issue may recur on retrial, however, we address it on the A plastics and trace evidence expert from the s......
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Johnson v. State
...Counsel was clearly unprepared to defend appellant. See Hawes v. State, 240 Ga. 327(1), 240 S.E.2d 833 (1977); Moss v. State, 216 Ga.App. 711(5), 455 S.E.2d 411 (1995). Counsel's legal error compels us to conclude that appellant has "overcome the strong presumption that counsel's conduct [f......
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