Payne v. State
| Decision Date | 09 February 1993 |
| Docket Number | No. A92A2376,A92A2376 |
| Citation | 207 Ga.App. 312,428 S.E.2d 103 |
| Parties | PAYNE v. The STATE. |
| Court | Georgia Court of Appeals |
John R. Emmett, Trenton, for appellant.
Ralph L. Van Pelt, Jr., Dist. Atty., Mary Jane Palumbo, Asst. Dist. Atty., for appellee.
The appellant, George Donald Payne, was convicted of incest and two counts of rape, with each offense involving his mentally retarded twenty-two-year-old daughter. He was sentenced to two life sentences for the rape convictions, and to twenty years in prison for the incest conviction, all to be served consecutively, and this appeal followed.
At the trial, the appellant's daughter testified that her mother usually took her sister to the doctor on Wednesdays, and that she was left alone with the appellant. On those occasions, the appellant would take her upstairs to her bedroom, tell her to lie down on the bed, and then make her have sex with him. She described his erection, ejaculation, and use of a condom. On another occasion, they had also had sexual intercourse in the woods. After each incident, the appellant told her not to tell anyone about what they had done, and she had felt threatened by that instruction. When asked how many times her father had made her have sex with him, she initially indicated once, but later stated that it occurred every Wednesday. She denied having sexual experiences with anyone else.
An emergency room physician examined the appellant's daughter on August 19, 1991, and observed inflammation of the vaginal wall that was suggestive of sexual abuse over an extended period of time. The daughter's hymen was absent. A clinical psychologist evaluated the daughter on September 17, 1991, and found her to have a full scale IQ of 59, which fell within the middle range of mild mental retardation. The psychologist estimated that the daughter had the mental development of an 11- or 12-year-old child, and was of the opinion that she was incapable of relating in an adult-like manner or consenting to sexual activity.
After interviews with several members of the appellant's family, including his wife, daughter, and son, an investigator with the Dade County Sheriff's Department obtained an arrest warrant for the appellant around August 16, 1991. When the appellant was finally apprehended a few weeks later, he gave custodial statements in which he stated that things would not have happened to his daughter if he had not been drinking so heavily at the time, and indicated that it had only happened two or three times. He admitted that he needed help for his "drinking and sex problem."
The appellant's wife testified against him and told how she had suspected that he had been abusing their daughter for several years. In fact, about 12 years earlier, she had instigated his arrest for such sexual abuse, but the charges were dropped when the daughter would not talk about the matter. She also stated that she and the appellant had remained sexually active up until the time she reported his sexual abuse of their daughter to the police in August 1991. The only problem she had noticed regarding the appellant's sexual activity had been his insatiable appetite. She stated that he had never gone to any doctor regarding a problem with sexual dysfunction.
The state presented evidence of similar transactions in which the appellant had sexually abused two of his nieces. One incident involved his fondling and kissing a 13-year-old niece in July 1991. Two other incidents involved his fondling of a seven- or eight-year-old niece in 1978 or 1979, and his subsequent rape of that same niece when she was 13 years old.
The appellant testified and denied any sexual contact between him and his daughter, and with any of his nieces. He stated that he could not have engaged in the alleged sexual experiences with his daughter because he has been impotent since a back operation in 1984. He also claimed to have been examined by a physician for that problem, but he could not remember the name and location of that doctor. The appellant acknowledged initialling the custodial statements made after his arrest, but stated that he had not actually read what was written down by the interrogating officer. He suggested that so many members of his family had accused him of sexual offenses because they wanted to get rid of him.
1. The appellant contends that the trial court erred in denying his motion for a continuance, which was based upon counsel for the appellant not having sufficient time to prepare for trial. The appellant's attorney indicated that he had been appointed as counsel for the appellant on October 22, 1991, and had first met with him three days later. He was able to interview several of the state's witnesses, including the daughter, and at first it was anticipated that the appellant would enter a guilty plea on November 1, 1991. On that date, however, the appellant changed his mind, resulting in the matter going to trial on November 13, 1991.
The appellant's attorney asserted that because of his heavy trial load in other cases, he had not had time to locate a physician who supposedly examined the appellant for his complaint of impotency. The attorney acknowledged that the appellant could not remember the name and location of the doctor in question, but suggested that the orthopedic surgeon in Tennessee who performed the appellant's back surgery might be able to provide that information.
The state points out that during a calendar call on November 4, 1991, the appellant had announced ready. The motion for continuance was not made until the case was actually called for trial nine days later on November 13, 1991. When the motion for continuance was made, the state objected to delaying the trial because of the inconvenience it would present to the many witnesses who were present. The assistant district attorney invited the appellant's attorney to interview the witnesses, and was willing to assist him in trying to locate the doctor. The trial court agreed to take a recess during the trial, if needed, during which the appellant's attorney could telephone the orthopedist and inquire about the identity and location of the other doctor, but denied the motion for continuance.
A motion for continuance predicated upon a claim of insufficient time to prepare for trial is addressed to the sound discretion of the trial court, and will not be interfered with unless it is clearly shown that the court abused its discretion. OCGA § 17-8-22, generally; Cantrell v. State, 154 Ga.App. 725, 270 S.E.2d 12 (1980). In this case, counsel for the appellant acknowledged that he had interviewed several of the state's witnesses prior to the trial, and the motion for continuance was not based upon lack of preparation in that regard. Rather, the motion concerned the need for more time to locate a doctor who possibly had treated the appellant for impotency.
In Corbin v. State, 212 Ga. 231(1), 91 S.E.2d 764 (1956), as grounds for continuance, it was asserted that counsel for the defendant had been employed only two weeks, had been handling other cases, and had been unable to find some of the defendant's witnesses. The Supreme Court held that it Id.
In the instant case, the appellant's attorney was unable to show the actual existence, much less the identity, of the doctor sought as a witness. Further, the attorney was unable to show whether the doctor was within the jurisdiction of the court. The trial court tried to accommodate the appellant by offering to take a recess at some point in the proceeding, so that the attorney could contact the orthopedist for any information regarding the other doctor, and the state even offered to provide what assistance it could in locating the possible witness....
To continue reading
Request your trial
-
Taylor v. State
...S.E.2d 85 (2008), overruled on other grounds, Adams v. State, 299 Ga.App. 39, 41-42(1), 681 S.E.2d 725 (2009); Payne v. State, 207 Ga.App. 312, 316(5), 428 S.E.2d 103 (1993), overruled on other grounds, Sims v. State, 266 Ga. 417, 418(2), 467 S.E.2d 574 (1996); Hilliard v. State, 193 Ga.App......
-
Dumas v. State, A99A0758.
..."Such evidence is particularly relevant and needed, where the victim of ... sexual abuse is mentally retarded." Payne v. State, 207 Ga.App. 312, 316(2), 428 S.E.2d 103 (1993), overruled on other grounds, Sims v. State, 266 Ga. 417, 418(2), 467 S.E.2d 574 (1996). "Absent an abuse of discreti......
-
Bryson v. State
...disposition and to corroborate the victim's testimony. Stine v. State, 199 Ga.App. 898(2), 406 S.E.2d 292 (1991); Payne v. State, 207 Ga.App. 312, 315, 428 S.E.2d 103 (1993). Both the subject case and the prior transactions involved Bryson's sexual exploitation of young family members, and ......
-
Evans v. State, A93A0712
...the state may have a great need for the similar transactions evidence to prove the current charges. See, e.g., Payne v. State, 207 Ga.App. 312(2), 428 S.E.2d 103 (1993); Adams v. State, supra. However, the instant case presents no such The majority opinion suggests that the required determi......