Schaefer v. State
| Decision Date | 01 November 1996 |
| Docket Number | CR-92-1258 |
| Citation | 695 So.2d 656 |
| Parties | Raymond Lewis SCHAEFER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
L. Dan Turberville, Birmingham, for Appellant.
James H. Evans, Atty. Gen., Steve Willoughby, Deputy Atty. Gen., for Appellee.
On Return to Remand
The appellant, Raymond Lewis Schaefer, was indicted for two offenses: sodomy in the first degree, see Code of Alabama 1975, § 13A-6-63 (), and sexual abuse in the first degree, see § 13A-6-66 (). The cases were consolidated, and after a jury trial, the appellant was found guilty in both cases as charged in the indictments. He was sentenced to 25 years' imprisonment on the sodomy conviction and to 5 years' imprisonment on the sexual abuse conviction. He was also ordered to pay restitution.
The state's evidence showed that the appellant, who was divorced from D.L.F.'s mother at the time of the incidents forming the bases of the charges, engaged in sexual activity with D.L.F. on several occasions. This activity consisted of mutual masturbation and fellatio, performed while the appellant and D.L.F. were watching pornographic films. The sexual activity came to light when D.L.F. was observed performing similar acts on a younger boy, and, when confronted, he stated that the appellant had done those same things to him. A pornographic film, which contained scenes that had been described by D.L.F., was found in the appellant's residence.
The appellant's defense consisted of a denial of the charges and of attempts to discredit the testimony of D.L.F. He does not question the sufficiency of the evidence to support the convictions. He appeals, raising nine issues. On original submission, we remanded, in regard to the issue discussed in Parts IV and V, infra, for the trial court to conduct an in camera examination of D.L.F.'s psychiatric records and the records in the files of the Alabama Department of Human Resources pertaining to D.L.F. Schaefer v. State, 676 So.2d 947 (Ala.Cr.App.1995). The trial court has complied with our instructions.
The appellant first contends that the trial court committed reversible error in allowing a social worker to testify to the alleged ultimate issue in the case, i.e., whether the child, D.L.F., was telling the truth about the sexual abuse. The record in this regard shows the following:
(Emphasis added.)
The record reflects that the issue now raised on appeal was not properly preserved for our review by timely objection and an adverse ruling. When the prosecutor asked the witness to relate his "impressions" gained from his interviews with D.L.F., defense counsel's objection was general and stated no grounds. This was insufficient to preserve for review the question of whether the witness's testimony that D.L.F. seemed credible invaded the province of the jury. A general objection that does not specify any grounds generally will preserve nothing for review. Whitley v. State, 607 So.2d 354 (Ala.Cr.App.1992).
Moreover, we note that when the prosecutor asked the witness if he believed that D.L.F. was telling the truth, an objection was made and was overruled; however, the question was never answered. The prosecutor did not insist on an answer, and he abandoned the question. Thus, no error or injury to the appellant occurred even if the ruling had been erroneous because the question was never answered by the witness. We find likewise in regard to the appellant's motion for a mistrial. The prosecutor then asked the witness how he came to the conclusion that D.L.F. was credible. Here, no objection was made, and the witness testified that D.L.F. "did not seem to be rehearsed." Thus, the issue now raised on appeal was not preserved for review by proper objection.
The state argues, in the alternative, that even if the issue was preserved, the testimony of the expert witness would have been admissible even though it dealt with the ultimate fact in issue to be decided by the jury, i.e., whether to believe the child victim or the appellant. In support of its argument, the state cites Inmon v. State, 585 So.2d 261 (Ala.Cr.App.1991), which discussed the modern trend, which Alabama follows, of allowing expert testimony in child sexual abuse cases, notwithstanding the fact that the testimony encroaches on the function of the jury, if the testimony assists the jury in resolving a matter beyond the knowledge of the average juror. Because this issue was clearly not preserved for review, we deem it unnecessary to address the state's alternative argument.
The appellant contends that reversible error occurred when the trial court allowed the social worker to give hearsay testimony concerning his interview with D.L.F. He refers to the testimony of the witness set out in part I above, wherein the witness testified concerning D.L.F.'s credibility. There is no merit to this contention. The witness's testimony concerning D.L.F.'s out-of-court statements was properly admissible pursuant to §§ 15-25-31 and -32(1). See Edwards v. State, 612 So.2d 1282 (Ala.Cr.App.1992).
The appellant contends that the trial court committed reversible error in allowing the appellant's medical records to be used by the state at sentencing. After the appellant was charged with the offenses involved in the instant case, he was admitted to Charter Woods Hospital for psychiatric treatment when it was discovered that he was contemplating suicide. While at the hospital, he admitted to three occasions of sexual misconduct with D.L.F., involving mutual masturbation. He also stated that in defending himself he contemplated denying the charges and attempting to convince the jury that D.L.F. was lying. The hospital records reflect these statements and admissions. The trial court ordered the records delivered to the court for its consideration in sentencing. The contents of the records were not known by the state during the guilt phase of the trial, and they came to light only during the sentencing phase. At the sentencing hearing, the prosecutor was allowed to cross-examine character witnesses presented by the appellant by asking each if his or her opinion as to the appellant's character would be the same if he or she knew that the appellant had confessed to committing sexual acts with D.L.F.
There is no merit to the appellant's contention. A defendant's medical and psychological history, if available, may be made a part of a presentence report. Ala.R.Crim.P. 26.3(b)(6). The appellant did not object to the use of the records on grounds of confidentiality, and apparently concedes that the trial court has a right to review the records in arriving at a proper sentence. He objects only to the use of the records by the prosecutor in attempting to impeach the appellant's character witnesses. The trial court was properly aware of the impeaching evidence in the hospital records and could consider the testimony of the character witnesses in the light of that evidence regardless of its use by the prosecutor. Thus, if any error in the use of the records for impeachment of the witnesses by the prosecutor occurred, and we do not find that it did, it would, at most, be harmless. Ala.R.A.P. 45.
On original submission, we remanded this case to the trial court with instructions to conduct an in camera examination of the records of Major Kenneth Green, Dr. Fred George, Dr. Robert Nolan, and the Alabama Department of Human Resources pertaining to D.L.F. and to determine if those records contain any exculpatory evidence or any impeachment evidence that should have been disclosed, bearing upon the question of the credibility of D.L.F. The trial court has complied with our instructions and has filed a return to our remand. The return shows that the trial court required the production of those records, examined them in camera, and made specific findings in reference to them. It found that the records contained no exculpatory evidence...
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...certain circumstances, give way to a defendant's Sixth Amendment right of confrontation and cross-examination." Schaefer v. State, 695 So.2d 656, 661 (Ala.Crim.App.1996)(on return to remand). The defendant must first allege that the privileged documents contain evidence that is material and......
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