Sosebee v. State, 77282

• Decision Date: 02 February 1989
• Docket Number: No. 77282,77282
• Citation: 380 S.E.2d 464,190 Ga.App. 746
• Parties: SOSEBEE v. The STATE.
• Court: Georgia Court of Appeals

Page 464

380 S.E.2d 464

190 Ga.App. 746

SOSEBEE v. The STATE.

No. 77282.

Court of Appeals of Georgia.

Feb. 2, 1989.

Rehearing Denied March 14, 1989.

Certiorari Denied April 19, 1989.

Cook & Palmour, Bobby Lee Cook, Summerville, Jake Arbes, Atlanta, for appellant.

Johnnie L. Caldwell, Jr., Dist. Atty., J. David Fowler, Asst. Dist. Atty., for appellee.

POPE, Judge.

In 1986, defendant Geary Sosebee was a party to a divorce proceeding and custody dispute regarding his two children. The court, in the divorce proceeding, placed the two children in the custody of Department of Family and Children Services pending a determination of custody. While the court was considering the custody issue, defendant's mother-in-law reported to DFACS her suspicion that defendant had sexually abused one of the children. Following an investigation of the complaint, defendant was indicted for multiple counts of child molestation. Defendant appeals his convictions.

1. At trial, defendant raised the issue that others, including the child's babysitters, had had the opportunity to commit the acts complained of by the child. In closing argument, the prosecuting attorney stated: "I could have called every babysitter that's ever been around that child, and what would they have said? If I asked every one of those babysitters, have you ever touched this child, what would they have said? No. Does that surprise you? Did I have to put them up here to prove that to you?" Defendant's attorney objected on the ground the prosecutor was arguing matters not in evidence, but the objection was overruled. On appeal, defendant argues this portion of the state's closing argument constitutes reversible error.

A prosecutor may not inject in his final argument matters which were not proven in evidence. Williams v. State, 254 Ga. 508(3), 330 S.E.2d 353 (1985). However, even an improper statement, when taken in context, may not constitute reversible error. Smith v. State, 141 Ga.App. 529(2), 233 S.E.2d 841 (1977). A review of the transcript shows the objectionable statement concerning the expected testimony of witnesses not actually called to testify was made in the context of explaining to the jury why such witnesses were not called. The prosecuting attorney went on to state: "I could have brought every man that has ever been around this child in here, and what would you expect them to say if they were asked [whether they had touched the child]...." When considered in the context of the entire closing argument, it is obvious that the prosecuting attorney was not stating as a fact what the unpresented testimony would have been but was posing a rhetorical question to the jury as to whether they would have expected any given witness to admit they had molested the child. We find no reversible error in this portion of the closing argument.

Defendant also argues the prosecuting attorney improperly questioned the defendant's failure to call his wife as a witness. Defendant maintains such argument constitutes reversible error because the defendant could not compel his wife to testify. In fact, spousal immunity does not apply to proceedings in which one spouse is charged with a crime against a minor child. OCGA § 24-9-23(b). Thus, defendant's wife could have been compelled to testify and we find no reversible error in the state's remarks on defendant's failure to call her as a witness.

Defendant also argues the prosecuting attorney committed reversible error in appealing to the passions or prejudices of the jury by asking the jury to convict defendant in order to protect the victim from further harm. The prosecuting attorney may make a rhetorical argument about what acts the defendant could be expected to commit in the future so long as it is a reasonable deduction from the evidence. See Brand v. Wofford, 230 Ga. 750(9), 199 S.E.2d 231 (1973); Davis v. State, 178 Ga.App. 357(3), 343 S.E.2d 140 (1986). The record shows the prosecuting attorney repeatedly stated that if they did not believe the evidence against defendant, the jury should acquit him. However, if the jury believed the defendant was guilty, the attorney asked them not to "put [the victim] back into this trap...." We find no error in the closing argument.

2. Prior to the trial of the case, defendant challenged the constitutionality of the Child Hearsay Statute, OCGA § 24-3-16. The Georgia Supreme Court granted interlocutory review of this issue and, in Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987), upheld the constitutionality of the statute by holding that where the statute is implemented it must be accompanied by the right of either party to examine or cross-examine the child-witness by requesting the court to call the child as a witness. On appeal of the guilty verdict, defendant again challenges the constitutionality of the statute, arguing that its constitutionality should be reconsidered in light of the more recent pronouncement of the United States Supreme Court in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). We find no merit to defendant's argument and therefore are not required to transfer the appeal to the Supreme Court pursuant to Rule 21(b) of the Rules of the Court of Appeals of Georgia.

3. Defendant argues his constitutional rights pursuant to the Sixth Amendment Confrontation Clause were violated by the court's denial of his motion to compel access to the witness and examination of the child's medical records. The state may not deny defendant access to a witness material to the defense, but a witness cannot be compelled to submit to a pre-trial interview. See Rutledge v. State, 245 Ga. 768(2), 267 S.E.2d 199 (1980); Emmett v. State, 232 Ga. 110(2a), 205 S.E.2d 231 (1974). The child-witness in this case was in the custody of the state acting through DFACS. In an effort to eliminate the conflict of interest between the state as prosecutor and the state's role in supervising the child, the court appointed a guardian ad litem to represent the legal interests of the child. The guardian refused to make the child available to defendant and refused to consent to the release of confidential medical records. "A witness may refuse to be interviewed prior to trial [cit.]; and when the witness is a child, the child's guardian may make this decision." Dover v. State, 250 Ga. 209, 211-212, 296 S.E.2d 710 (1982), cert. denied, 459 U.S. 1221, 103 S.Ct. 1228, 75 L.Ed.2d 462 (1983).

Defendant's constitutional argument has been decided adversely to him by the United States Supreme Court. In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the criminal defendant, charged with sexual child abuse, similarly argued that by denying him access to information necessary to prepare his defense, the trial court interfered with his right of "effective" cross-examination of witnesses. The United States Supreme Court rejected this argument. "If we were to accept this broad interpretation ... the effect would be to transform the Confrontation Clause into a constitutionally-compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right to confrontation is a trial right.... In short, the Confrontation Clause only guarantees 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' [citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) ]." Pennsylvania v. Ritchie 480 U.S. at 52-53, 107 S.Ct. at 999. According to Pennsylvania v. Ritchie, the defendant is entitled to an in-camera inspection by the trial judge to determine what, if any, material information should be released as useful to the defense. The record of the case now before us shows the court conducted such an inspection in response to defendant's request.

Defendant also maintains he was denied the right of effective cross-examination by the court's denial of his motion for an independent psychiatric evaluation of the child to determine her competence at the time her out-of-court statements were made. The statutory test for determining the competency of a child to testify as a witness in a judicial proceeding is that he understand the nature of an oath. OCGA § 24-9-5. See generally Smith v. State, 247 Ga. 511, 277 S.E.2d 53 (1981). Therefore, the concept of "competency" at the time an out-of-court statement was made is meaningless and irrelevant. OCGA § 24-9-7 contemplates only that a small child be found competent to testify at trial; the code section has no applicability to out-of-court statements and does not require that the court determine the child's competency at the time the out-of-court statements were made. Newberry v. State, 184 Ga.App. 356(4), 361 S.E.2d 499 (1987). Thus, defendant had no right, at the competency hearing, to present evidence concerning the child's competency at the time the out-of-court statements were made.

Defendant also argues he was denied a...