Parker v. State

• Decision Date: 21 April 1982
• Docket Number: No. 63392,63392
• Citation: 290 S.E.2d 518,162 Ga.App. 271
• Parties: PARKER v. The STATE.
• Court: Georgia Court of Appeals

Page 518

290 S.E.2d 518

162 Ga.App. 271

PARKER v. The STATE.

No. 63392.

Court of Appeals of Georgia.

April 21, 1982.

William David Cunningham, LaFayette, for appellant.

D. L. Lomenick, Jr., Dist. Atty., H. W. Vaughn, Jr., Ralph L. Van Pelt, Jr., Asst. Dist. Attys., LaFayette, for appellee.

CARLEY, Judge.

This appeal is from appellant's conviction of aggravated sodomy and incest. The alleged victim was appellant's 15-year old daughter.

1. It is urged that the trial court erred in denying appellant's motion for a directed verdict of acquittal on the charge of aggravated sodomy because no evidence was presented to show that the act was committed with "force and against the will" of the daughter. See Code Ann. § 26-2002. The victim testified that she did not wish to commit the act and that she did not scream because she was afraid that "he might start hitting on me or something". "Lack of resistance, induced by fear, is not legally cognizable consent but is force. [Cit.]" Derr v. State, 239 Ga. 582(1), 238 S.E.2d 355 (1977). This enumeration of error is without merit.

2. Appellant cites as error the denial of his motion for new trial predicated on the general grounds. Contrary to appellant's contentions, corroboration of his daughter's testimony was not required. Motes v. State, --- Ga.App. ---(3), 288 S.E.2d 256 (1982); Baker v. State, 245 Ga. 657(5), 266 S.E.2d 477 (1980). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant's guilt as to both offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Kerr v. State, 154 Ga.App. 470(1), 268 S.E.2d 762 (1980).

3. We find no reversible error in the trial court's refusal upon request to advise, or to appoint independent counsel to advise, appellant's wife and daughter of their right to remain silent in accordance with the privileges afforded them by Code Ann. §§ 38-1604 and 38-1205(a), respectively. Wiley v. State, 150 Ga.App. 607(1), 258 S.E.2d 286 (1979). Moreover, the record affirmatively demonstrates that on two occasions prior to trial both witnesses were in fact informed of their respective statutory privilege.

4. During the prosecution's opening statement, the assistant district attorney remarked to the jury that the state intended to prove "[t]hat shortly [after the occurrence of the charged criminal conduct], the Mother, Mrs. Christine Parker, and the Father, the defendant, Robert Lee Parker, got into an argument about just what had gone on there, that Mr. Parker started to beat Christine Parker and that at that point Ladies and Gentlemen--". At this juncture, appellant moved for a mistrial on the basis that the state's reference to wife beating introduced evidence of uncharged criminal conduct and impermissibly placed appellant's character in issue. Error is enumerated upon the trial court's denial of this motion.

The state's evidence showed that the acts of incest and sodomy occurred in the living room of the family home late one night when the other family members had retired for the evening. Moments after the act of sodomy was completed, appellant's wife unexpectedly entered the room. Appellant hurriedly righted himself but neglected to zip his pants. The wife noticed that appellant's pants were "undone" and when she confronted him with this fact, appellant said "he wasn't doing nothing wrong" and then "slung [his wife] against the wall."

" 'Acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae.' [Cit.]" Mills v. State, 236 Ga. 365, 367(2), 223 S.E.2d 725 (1976); Accord Cleveland v. State, 155 Ga.App. 267(2), 270 S.E.2d 687 (1980). "Nor does it matter that the act or transaction is another criminal offense and does not tend to establish the main offense. [Cits.]" Grant v. State, 141 Ga.App. 272, 275, 233 S.E.2d 249 (1977). " 'Evidence which is otherwise admissible is not rendered inadmissible because it incidentally places the defendant's character in issue. [Cits.]' [Cit.]" Geter v. State, 157 Ga.App. 165(2), 276 S.E.2d 676 (1981).

This evidence was admissible as part of the res gestae and, in fact, was admitted into evidence during the trial without objection. "Such evidence being admissible for this purpose, and being afterwards introduced, the statement of the [prosecuting attorney] that the State proposed to introduce such evidence did not furnish a ground for a mistrial." Waters v. State, 158 Ga. 510(5), 123 S.E. 806 (1924). See also Pinion v. State, 225 Ga. 36(5), 165 S.E.2d 708 (1969).

5. The victim's mother and a representative from the Department of Family and Children Services were allowed to testify as to the circumstances of the alleged incest and aggravated sodomy as related to them by the victim. Appellant contends that the admission of this testimony over his hearsay objection was error.

The record reveals that the incidents charged in the indictment occurred on Friday night, April 3, 1981. During the scuffle which ensued between appellant and his wife, the victim and her brother fled the house. Although the victim spoke with her mother by telephone on the following Saturday and Sunday, it was not until the two met on Monday morning April 6, 1981 that the victim informed her mother as to what had happened on the preceding Friday.

The state offered the substance of what the victim related to her mother on Monday about the events that occurred on the previous Friday under the res gestae exception to the hearsay rule. See Code Ann. §§ 38-301 and 38-305. When appellant objected and argued that under the facts of the instant case the proffered testimony did not come within the scope of res gestae, the state cited Williams v. State, 144 Ga.App. 130, 240 S.E.2d 890 (1977) as authority for its admissibility. The trial court overruled appellant's objection and admitted this testimony stating "I think [the mother] is repeating what the other witness said, [the daughter's] testimony."

It is readily apparent that the testimony of the mother constitutes hearsay as defined in Code Ann. § 38-301 and, thus, was inadmissible and without probative value unless it comes within one of the exceptions to the rule. Higgins v. Trentham, 186 Ga. 264(1), 197 S.E. 862 (1938); Duke v. State, 205 Ga. 106, 110, 52 S.E.2d 455 (1949). It is also apparent that the trial court did not purport to admit this evidence under the res gestae exception to the hearsay rule as initially offered by the state. Nor would the trial court have been justified in so doing. "Tested by well-established rules concerning the res gestae exception, this evidence was not free from suspicion of afterthought but was rather in the nature of narrations of past transaction. The statements were made some [three days] after the [alleged offenses], giving the victim more than ample time to reflect on the occurrence. It is apparent that the victim's statements were made deliberately and were not spoken as a part and parcel of the [alleged offenses]. [Cit.]" Peebles v. State, 236 Ga. 93, 95(2), 222 S.E.2d 376 (1976). See also Green, The Georgia Law of Evidence § 292, p. 590. Rather, it appears that the trial court, relying on Williams v. State, 144 Ga.App. 130(2), 240 S.E.2d 890, supra, admitted the evidence on the basis that it was "cumulative" of the daughter's testimony. The fact that inadmissible evidence to which objection is interposed at trial is cumulative of other competent, admissible evidence is a factor to be considered on appellate review in determining whether the admission thereof is reversible error. Glass v. State, 235 Ga. 17, 19, 218 S.E.2d 776 (1975). Cumulativeness, however, is not an exception to the hearsay rule and certainly affords no basis for an evidentiary ruling at trial. Thus, the trial court erred in admitting this hearsay evidence on the basis that it was cumulative of the daughter's testimony.

This error was exacerbated and compounded by the actions of the trial court in thereafter permitting, over objection, a representative of the Department of Family and Children Services to also testify as to the circumstances and particulars of the events on that Friday night as related to her by the victim on the following Monday. In seeking to have this evidence admitted the state said "Your Honor, I offer the substance of that conversation for the same purpose as I offered [the mother's] testimony earlier." Again appellant objected on the basis that this testimony was hearsay and did not come within the scope of res gestae as the statements were the product of reflection and afterthought. For the same reasons attributed to the mother's testimony, this testimony was hearsay, not part of the res gestae, and, thus, inadmissible. Likewise, it certainly was not admissible on the basis that it was "cumulative" of the mother's testimony and the daughter's testimony.

The state failed to proffer a legitimate exception, and we are aware of none, for the admission of this challenged hearsay testimony. As appellant did not raise the issue of consent as a defense to the aggravated sodomy charge, this testimony was not admissible for the purpose of rebutting such contentions. Compare Riddlehoover v. State, 153 Ga.App. 194(1), 264 S.E.2d 666 (1980). The only plausible reason this testimony could have been offered was to bolster and corroborate the testimony of the daughter. In Georgia, as well as most other jurisdictions, the general rule is that a witness' testimony cannot be fortified or corroborated by his own prior consistent statements. See Stephens v. State, 156 Ga.App. 859, 860(3), 275 S.E.2d 758 (1980); ...