Salley v. State
| Decision Date | 11 February 1991 |
| Docket Number | No. A90A1712,A90A1712 |
| Citation | 405 S.E.2d 260,199 Ga.App. 358 |
| Parties | SALLEY v. The STATE. |
| Court | Georgia Court of Appeals |
Bentley C. Adams III, Thomaston, for appellant.
W. Fletcher Sams, Dist. Atty., J. David Fowler, William T. McBroom III, Asst. Dist. Attys., for appellee.
Appellant was convicted of three counts of child molestation. Count 1 alleged that on January 1, 1986, appellant fondled the pubic area of Shanda Johnson, under age 14. Count 2 alleged that during November 1985, appellant fondled the breast of Jennifer Davis, also under 14 years of age. Count 3 alleged that during February 1986, appellant again fondled the breast of Jennifer Davis.
1. Appellant argues that the trial court erred in denying his motions for directed verdicts of acquittal on general evidentiary grounds and on the specific ground that the State did not establish venue of the offense involving Shanda Johnson in Upson County.
Jennifer Davis testified that during the Thanksgiving holiday in 1985, appellant, who was the choir director of a church in Upson County, approached her while they were alone in the church kitchen. He put his arms around her, fondled her breast, pulled her close to him, and told her she was pretty. She pushed him aside and ran away.
At a Valentine's Day party at the church in 1986, appellant again approached her while they were alone. He kissed her and again fondled her breast, telling her afterward she should not tell anyone. She became depressed and tried to kill herself by taking an overdose of pills. Eventually, she told her minister what had occurred and, at his urging, she told her parents.
Shanda Johnson testified that she also knew appellant through the church. She was spending the night at his home on New Year's Eve on January 1, 1986, so as to babysit for appellant's children the next day. As she was going to sleep in the living room, he approached her and put his hand down her underwear touching her pubic area. She fled to the bathroom where she remained until dawn.
The evidence was sufficient to authorize a rational trier of fact in finding appellant guilty of the offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As to venue, slight evidence, either direct or circumstantial, is sufficient where there is no conflicting evidence. Patterson v. State, 157 Ga.App. 233, 276 S.E.2d 900 (1981). In this case, it amounted to uncontradicted evidence that the Upson County law enforcement and family services authorities conducted the investigation, as to the alleged molestation of Shanda Johnson at defendant's home.
2. Appellant argues that the trial court erred in denying his pretrial motion for the disclosure of records of counseling and therapy sessions between Jennifer Davis and State's witness Cheryl Cole. He also complains of the trial court's refusal to allow him to examine these records during the course of the trial, on the ground that witness Cole had used the records to refresh her recollection.
(a) At the commencement of the trial, defense counsel argued that these records should be disclosed under Bobo v. State, 256 Ga. 357, 349 S.E.2d 690 (1986), and "[a]t the very least, I think that a review of that file by the Court, under ... our Brady motion would be in order." The trial judge asked whether this witness was a psychologist or psychiatrist, and neither defense counsel nor the prosecuting attorney could give a definite answer to this question. The trial judge ruled,
At trial, Cole testified that she works as a "psychotherapist [and is] a master level psychologist." In that capacity, she counsels children who have been physically or sexually abused, and she began counseling Jennifer in March of 1989. On cross-examination, defense counsel asked this witness how many times she had met with Jennifer, and she responded that they had been having regularly scheduled sessions every two weeks since March. In order to answer cross-examination about the exact number of times she had seen Jennifer, defense counsel suggested that the witness refresh her memory by reviewing her case file which she had brought with her. After counting the number of dates appearing in her file, the witness testified that she had seen Jennifer 23 times, whereupon defense counsel sought to examine the file. The prosecuting attorney objected on the ground that the contents of the file were confidential. The trial judge sustained this objection, noting that the witness had only counted the number of therapy sessions between her and Jennifer, and she had not otherwise reviewed the contents of the file. Appellant concedes that the records of witness Cole's counseling and therapy sessions with Jennifer constitute confidential medical records.
Where, during the course of a trial or hearing, a witness in a criminal case examines a document in order to refresh the witness' recollection, the defendant has the right to examine the document. Johnson v. State, 259 Ga. 403, 383 S.E.2d 118 (1989). However, this case is akin to Reese v. State, 191 Ga.App. 887, 888(2), 383 S.E.2d 149 (1989), where a detective testifying in a criminal trial examined portions of his report in order to testify as to the specific dates on which certain events had occurred. Defense counsel was not thereby entitled to examine the witness' entire file. The same applies here. The witness was not using the file to refresh her recollection or memory of the precise total number of times she had met with the victim; she was simply ascertaining that number.
Moreover, since the examination sought was based only on the witness' use of the file to establish an incidental fact, any error in denying the examination would be harmless. That is, it was of little consequence whether the number of bi-weekly meetings between March and the time of trial was 23 or more or less. Had counsel's count differed upon review of the file, defendant would not have been aided.
(b) State's witness Cole testified on cross-examination that Jennifer had told her she had attempted to commit suicide by taking an overdose of sinus medication and The witness also acknowledged that Jennifer had told her she had recently been involved in a relationship with a young man. Defense counsel argued that the young man's ending the relationship is what caused Jennifer to attempt suicide. The witness testified that Jennifer had not made such statements to her.
Jennifer had previously testified on cross-examination that she had been dating this young man, that he had unbuttoned her shirt while they were on a date, and that she had buttoned it back without further incident. She further testified that they did break up and that she tried to kill herself because of this by running a razor blade across her wrist one time, but the razor blade did not cut her. She testified that the first suicide attempt followed the incidents with appellant and occurred several years prior to trial, and the more recent suicide attempt followed her involvement with the young man. Cole testified that it was her understanding that the suicide attempt relating to appellant's molestation of the victim was the more recent attempt.
Sosebee v. State, 190 Ga.App. 746, 748(3), 380 S.E.2d 464 (1989), holds that although the defendant in a child-molestation case cannot compel a child-witness to submit to a pre-trial interview, the defendant is entitled, upon request, to have the trial court conduct an in-camera inspection of the child's medical records in order to determine if there are any portions which constitute material information that should be released to the defense.
The trial judge denied the appellant's pre-trial motion for an in-camera inspection of witness Cole's records of counseling sessions with the victim because of the appellant's uncertainty as to whether witness Cole would be testifying as an expert witness. When she was called to testify, appellant did not renew his motion. Consequently, the trial court did not err in failing to conduct the in-camera inspection. See Swann v. State, 256 Ga. 254(2), 347 S.E.2d 555 (1986); Holmes v. State, 187 Ga.App. 214, 369 S.E.2d 533 (1988).
Bobo v. State, supra, is a plurality opinion holding that the statutory psychiatrist-patient evidentiary privilege must yield to a...
To continue reading
Request your trial
-
Thomas v. State
...two counts of child molestation for fondling the breast of the same 11-year-old victim on different dates. See Salley v. State , 199 Ga. App. 358, 362 (4), 405 S.E.2d 260 (1991). The Court simply quoted the erroneous proposition of law in Hamilton , and provided a comparison citation for La......
-
Hunt v. State, A15A2064.
...conviction punish the defendant for the various crimes." (Citation and punctuation omitted; emphasis supplied.) Salley v. State, 199 Ga.App. 358, 362(4), 405 S.E.2d 260 (1991) ; see also Anderson v. State, 306 Ga.App. 423, 424(2), 702 S.E.2d 458 (2010). Moreover, it is well settled that whe......
-
Byrd v. State
..., 271 Ga. App. 330, 332 (2), 609 S.E.2d 678 (2005) (citation and punctuation omitted; emphasis in original).23 Salley v. State , 199 Ga. App. 358, 362 (4), 405 S.E.2d 260 (1991) (citation and punctuation omitted); see Simmons , 271 Ga. App. at 332 (2), 609 S.E.2d 678.24 See Simmons , 271 Ga......
-
Jones v. State
...alleged that the victim was younger than 14, but that additional element is not relevant to our analysis.3 See, e.g., Salley v. State, 199 Ga.App. 358, 362(4), 405 S.E.2d 260 (1991), Hamilton v. State, 167 Ga.App. 370, 371, 306 S.E.2d 673 (1983).4 While Jones cites McCranie v. State, 157 Ga......
-
The Absolute Privilege Between Patient and Psychiatrist in Civil Cases
...similar evidence is otherwise unavailable to him."Id. at 360, 349 S.E.2d at 692. 25. Id. at 361, 349 S.E.2d at 693. 26. Salley v. State, 199 Ga. App. 358, 361, 405 S.E.2d 264 (1991); Brown v. State, 261 Ga. 66, 71, 401 S.E.2d 492, 496 (1991); Atkins v. State, 243 Ga. App. 489, 496, 5533 S.E......