Shaver v. State

• Decision Date: 15 March 1991
• Docket Number: No. A90A1843,A90A1843
• Citation: 405 S.E.2d 281,199 Ga.App. 428
• Parties: SHAVER v. The STATE.
• Court: Georgia Court of Appeals

Page 281

405 S.E.2d 281

199 Ga.App. 428

SHAVER v. The STATE.

No. A90A1843.

Court of Appeals of Georgia.

March 15, 1991.

Rehearing Denied March 29, 1991.

Certiorari Denied May 15, 1991.

Lane, Tucker & Crowe, Robert L. Crowe, Brunswick, for appellant.

W. Glenn Thomas, Jr., Dist. Atty., John B. Johnson, III, Stephen D. Kelley, Asst. Dist. Attys., for appellee.

ANDREWS, Judge.

Shaver was convicted of one count of child molestation and one count of aggravated child molestation, both against his four-year-old son. He appeals the judgment entered on the convictions.

The convictions were based on testimony from the mother of the victim and two investigative officers, who repeated out-of-court statements made to them by the victim describing the acts of molestation. Additionally one of the officers testified to statements made to her by Shaver confessing that he committed the acts of molestation.

1. In his first three enumerations of error, Shaver contends this evidence was inadmissible, lacked probative value, and was therefore insufficient to sustain the convictions.

The state offered the hearsay testimony regarding the victim's out-of-court statements pursuant to the exception created in OCGA § 24-3-16 (the Child Hearsay Statute), under which these statements in a child molestation case are admissible "if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability." A child is considered "available to testify" under OCGA § 24-3-16 only if he is competent to testify within the meaning of OCGA § 24-9-5. ¹ In the Interest of K.T.B., 192 Ga.App. 132, 384 S.E.2d 231 (1989); Ward v. State, 186 Ga.App. 503, 368 S.E.2d 139 (1988). After the defendant expressed his desire to have the victim called as a witness (Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987)), a hearing was held to determine the child's competency in which the victim, who was four years old at the time of trial, refused to testify and otherwise failed to qualify as a competent witness. Accordingly, the hearsay testimony was not admissible under OCGA § 24-3-16.

Nor do we find this hearsay testimony admissible under any other applicable exception. By relying on Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (under totality of circumstances test, court found that out-of-court statements of child unavailable as witness, lacked sufficient guarantees of trustworthiness, so inadmissible for Confrontation Clause purposes), and comparing the Finch v. Caldwell, 155 Ga.App. 813, 815, 273 S.E.2d 216 (1980) and Glisson v. State, 188 Ga.App. 152, 155, 372 S.E.2d 462 (1988) cases, the dissent apparently suggests that the out-of-court statements are admissible under the necessity exception to the hearsay rule. OCGA § 24-3-1(b). The necessity exception most commonly applies when the out-of-court declarant is unavailable to testify because of death or the exercise of a privilege not to testify (Glisson, supra at 154, 372 S.E.2d 462), and the circumstances surrounding the statement provide a guaranty of trustworthiness. Higgs v. State, 256 Ga. 606, 607-609, 351 S.E.2d 448 (1987).

Here the victim was unavailable because he failed to qualify as a competent witness. Moreover, former OCGA § 24-3-16 (the Child Hearsay Statute as it applied prior to the 1989 amendment to OCGA § 24-9-5) set out the exception to the hearsay rule directly applicable here, and provided no exception for admission of these statements where the child is unavailable because he is not competent to testify. In the Interest of K.T.B., supra. "Only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the general rule may be admitted.' " (Citations and punctuation omitted.) Adams v. State, 191 Ga.App. 16, 17, 381 S.E.2d 69 (1989). Under these circumstances the victim's out-of-court statements fail to demonstrate sufficient indicia of reliability to qualify for the necessity exception. The incompetence of the witness cannot be avoided by presenting his testimony through the mouths of others.

Even though Shaver failed to object to admission of the hearsay, it can provide no basis for the convictions. "[H]earsay evidence has no probative value even if it is admitted without objection." Germany v. State, 235 Ga. 836, 840, 221 S.E.2d 817 (1976); Collins v. State, 146 Ga.App. 857, 859-860, 247 S.E.2d 602 (1978).

Since the hearsay lacks any probative value, it cannot provide the material evidence necessary to corroborate the defendant's confession, which, without such corroboration, is insufficient to support the convictions. Brown v. State, 253 Ga. 363, 364, 320 S.E.2d 539 (1984); OCGA § 24-3-53. The argument that the hearsay is rendered trustworthy and admissible because corroborated by the defendant's confessions, while the confessions are simultaneously corroborated by the hearsay is unpersuasive. This would sanction admission of otherwise unreliable evidence by mutual bootstrapping. See Idaho v. Wright, supra 497 U.S. at ---- - ----, 110 S.Ct. at 3149-3151, 111 L.Ed.2d at 656-657 (rejecting attempt to bolster inherently unreliable hearsay by reference to other corroborating evidence).

Without the hearsay and uncorroborated confession, there was a lack of sufficient evidence to sustain the convictions. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In view of the conclusions reached in Division 1, we need not address the defendant's remaining enumerations of error.

Judgment reversed.

SOGNIER, C.J., and BANKE and BIRDSONG, P.JJ., and CARLEY, POPE and COOPER, JJ., concur.

McMURRAY, P.J., and BEASLEY, J. dissent.

BEASLEY, Judge, dissenting.

Three witnesses gave unobjected-to testimony concerning out-of-court statements made to them by the victim.

Elizabeth Kelly Shaver is appellant's ex-wife. The child was born to them on August 14, 1984. At the time of the trial, he was age four.

The mother testified that she divorced appellant on April 8, 1988. In July, the boy stated that his father had played with the boy's penis during a weekend visit. In October of 1988, the child was sitting at the breakfast table playing with his penis. After the witness reprimanded him for what he was doing, he said, "Pee and come comes from my penis and Daddy comes on me all the time." The witness then asked her son whether his father had done anything else. "He said that he took his penis in his mouth and moved up and down. He said that he peed on him. He said that he looked at magazines or books and played with him--and David played with himself and then came on [the child]."

The witness reported this to a child protective services investigator with the Glynn County Department of Family & Children's Services. Because of allegations of sexual abuse, the investigator contacted a county police detective.

The investigator interviewed the boy in the presence of the detective, as well as the boy's mother and sister. The child stated that appellant had sucked his penis, as well as masturbated and ejaculated onto the child's genital area. He illustrated these acts by reference to anatomical drawings.

The investigator also testified that he interviewed appellant, who "indicated to me that he did suck on his son's penis. He also admitted to masturbating and ejaculating onto his son. He stated that he would kiss his son all over to show affection for his child because he believed his child was suffering emotionally as a result of the divorce and separation from him."

The detective arrested appellant on October 29, 1988. After the trial court conducted a Jackson- Denno hearing and determined that appellant's statements to the investigator were admissible, she testified that appellant told her that "something had happened sexually between he (sic) and his son three times, the last time being at the Sands Motel. He said that he masturbated, that he ejaculated onto [his son's] genitals. He said that he plays with [his son] and that he kisses him all over and that he has kissed his penis, has put [the boy's] penis in his mouth. He said that [the boy] has put his mouth on his penis also." He said that, "he didn't feel like he should have to go to jail for what's happened between him and his son. He said that ever since the divorce ... that he has drawn closer and closer to [his son]. He said that the family problems have caused this and that this was a way for him to get as close to [his son] as he could be."

The prosecuting attorney stated to the trial court that the testimony of these witnesses had been elicited under the provisions of the Child Hearsay Statute, OCGA § 24-3-16, and was pursuant to the procedure outlined in Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987).

The court asked if either party wished to have the child called as a witness. After conferring with appellant, defense counsel stated, "My client feels that's his only salvation is perhaps the child would recant his testimony." The child was then called as a witness and questioned outside the presence of the jury. He repeatedly stated that he did not want to testify, and he then refused or was unable to respond to questioning. Appellant did not move to strike the witnesses' testimony of the child's out-of-court statements.

1. Appellant enumerates as error the trial court's allowing the State's witnesses to testify as to these statements, since OCGA § 24-9-5(b) does not apply to acts alleged to have occurred prior to the effective date of the 1989 amendment, and under prior law the child was not a competent witness.

The State argues that appellant waived his objection to the witnesses' testimony by failing to object to the introduction of their testimony when it was introduced and by failing to make a motion to strike their testimony after it was introduced.

I agree that appellant waived his objection to the State's witnesses' testimony concerning...