Rolader v. State, A91A0904
| Decision Date | 15 November 1991 |
| Docket Number | No. A91A0904,A91A0904 |
| Citation | 202 Ga.App. 134,413 S.E.2d 752 |
| Parties | ROLADER v. The STATE. |
| Court | Georgia Court of Appeals |
England, Weaver & Kytle, J. Melvin England, Atlanta, for appellant.
Robert E. Wilson, Dist. Atty., John T. Morgan III, Barbara B. Conroy, Asst. Dist. Attys., for appellee.
ARNOLD SHULMAN, Judge, Sitting by Designation.
The appellant was charged with one count of aggravated sodomy, one count of aggravated child molestation, and two counts of simple child molestation, all involving his then four-and-one-half-year-old daughter. A jury found him guilty on all four counts, but the trial court thereafter nolle prossed the aggravated sodomy count, based apparently on a determination that it was predicated on the same conduct as the aggravated child molestation count. The appellant's primary contention on appeal is that his constitutional right to confront the witnesses against him was violated by the introduction of certain statements made by his daughter during the course of two videotaped interviews conducted prior to trial. The child did not testify at trial, although there appears to be no question that she was available to do so.
According to the indictment, the offenses were committed on or about December 24, 1989. The appellant testified that he got off work at about 3:15 p.m. on that date and spent the remainder of the afternoon moving his belongings from a guest house behind his parents' residence, where he had been living, to another house located about two miles away, which he had just recently purchased. The appellant's daughter and three-year-old son lived with their mother, the appellant's ex-wife; and that evening the mother brought them to the appellant's parents' home to spend Christmas Eve night. After dinner, the children expressed a desire to go with the appellant to his new house, and accompanied by George Waters, a family friend who lived with the appellant's parents, he drove them there. The four spent several hours at the appellant's new house playing together and watching television, following which they returned to the appellant's parents' house, where the appellant's son and Mr. Waters spent the remainder of the night. The appellant and his daughter, however, went back to his house to spend the night.
The following morning, the appellant returned to his parents' house with his daughter to celebrate Christmas. Various family friends and relatives were present there during the course of the day, and by all accounts the child's behavior, including her interaction with her father, seemed entirely normal and carefree. The mother returned for the two children that afternoon, stayed for a brief period of time exchanging gifts, and then took the children to the home of her father's mother (i.e., the children's great grandmother), Elizabeth Braswell. The mother testified that the daughter called to her while using the bathroom at the Braswell home and complained that it hurt her to urinate. She testified that she asked the child if she had "been drinking a lot of Coca-colas" during the day and that the child responded, Mrs. Braswell either overheard this statement or heard the child make a similar statement, and she telephoned the mother's father and his wife to inform them of it and to insist that the matter be reported to the authorities.
The next day, the mother's father's wife, Marie Braswell, called the Atlanta police to report the incident; and later that day she and the mother took the child to Atlanta police headquarters, where they discussed the incident with Detective Battle. He, in turn, sent them to a hospital to have the child examined by a physician. The physician, Dr. Gilcrest, testified that he asked the child "if anybody had been playing with her in her private parts," and that she responded by saying "something to the effect that ... some one had been putting their finger down there." He stated that she subsequently identified her father as the person who had been doing this. He testified that he did not observe any "tearing" or "gapping" of the child's vaginal area during his examination but did observe that the labia of her vagina were "very red." He stated that this condition could have been caused by the use of a bubble bath or harsh soaps or by contact with sand and dirt but that it was also consistent with the child's statement that her father had placed his finger in her vagina. The mother testified at trial that she bathed the child every night and had not observed any vaginal irritation prior to the incident in question.
About a week after the child was examined by Dr. Gilcrest, a female police investigator specializing in child sexual abuse cases conducted a videotaped interview with her at the Atlanta Police Station. Also present during this interview were Detective Battle and a "court advocate" from the "Victim Witness Program." After being reminded of a talk she and the investigator had just had "about some things that happened at Christmas," the child recalled having gone to her father's house with her little brother on Christmas Day, and, pointing to her genital area, she then stated: "Daddy put his finger down back here." Asked if this was the first time her daddy had ever done this, she nodded her head in the affirmative. However, she then gave the same response upon being asked if her father had ever done this to her before. The child recalled that as her father was driving her to his house on the occasion in question, a policeman and policewoman had followed them. She said that she told the policeman what her father had done and "hurried and tried to get to the door before he (her father) gets me," and she added that her little brother was with her at the time and tried to help her by holding her hand and making her run fast. Asked why she had run from her father, she replied: "Because he want to get me and put that thing back down here." Asked what "thing" she was referring to, she answered, "A dick."
Around the time this interview took place, that is, about a week after Christmas, the appellant was summoned to the police station to discuss the allegations against him, and he denied any wrongdoing. It appears that he was given some sort of "ticket" at this time requiring his appearance in the Municipal Court of Atlanta. At a hearing which took place in that court on February 2, 1990, Detective Battle recommended that the child and both parents be required to participate in counseling.
The child was interviewed in late February by Lisa Wise, a social worker employed by a private, non-profit organization in DeKalb County known as the Georgia Center for Children, Inc. Ms. Wise described herself as a child therapist specializing in child abuse and testified that the mission of the Georgia Center for Children was to assist the police in their investigation of child sexual abuse, to help prepare children for court testimony, and to provide free psychotherapy to sexually abused children and their families. On cross-examination, she stated that she had interviewed hundreds of children who had complained of being sexually abused and that in her opinion all of them had been telling the truth.
Ms. Wise testified that she concentrated during her initial sessions with the child on getting to know her and "[j]ust gathering ... information in my office so she'd feel comfortable and trust me." She recalled that during a session which occurred on March 29, 1990, the child spontaneously took a pair of anatomically correct male and female dolls from a table, removed their clothes, and laid the male doll on top of the female doll. She testified that she did not question the child "at a great extent" about this at the time because she wanted her "to go at her own pace." The following week, however, she conducted a videotaped interview with the child in which she questioned her in detail about the incident. The following are selected excerpts from a transcript of that interview:
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