State v. Oliver, 75893

• Decision Date: 11 July 1988
• Docket Number: No. 75893,75893
• Citation: 372 S.E.2d 256,188 Ga.App. 47
• Parties: The STATE v. OLIVER.
• Court: Georgia Court of Appeals

Page 256

372 S.E.2d 256

188 Ga.App. 47

The STATE v. OLIVER.

No. 75893.

Court of Appeals of Georgia.

July 11, 1988.

Rehearing Denied July 27, 1988.

Certiorari Denied Sept. 8, 1988.

Spencer Lawton, Jr., Dist. Atty., Gregory M. McConnell, Asst. Dist. Atty., for appellant.

Kenneth D. Kondritzer, Louisville, for appellee.

POPE, Judge.

Defendant Berthine Oliver was charged with three counts of child molestation in regard to the two young children for whom she was employed as a babysitter. The case was first called for trial on March 25, 1987. After the jury was chosen but before the jurors had been sworn, defendant challenged the selection of the jury, alleging the prosecutor had exercised his strikes against prospective black jurors in a racially discriminatory manner in violation of the standard set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In response to said challenge, the trial court dismissed the jury and the trial was rescheduled. ¹ The trial of the case was recommenced on May 20, 1987. Over a two-day period, the state called eleven witnesses, including one of the victims who was four years old at the time of the alleged incident and six years old at the time of trial. The court conducted a hearing outside the presence of the jury and determined the victim was competent to testify.

The eleventh and final witness for the prosecution was a clinical psychologist who had examined the victim and was called as an expert witness. During the direct examination of the expert witness the prosecutor asked the witness what she looks for in counseling sessions with a child to validate whether or not alleged abuse has occurred. In response, the witness commenced a lengthy discussion of how she attempts to assess the credibility of a child. Defendant's attorney objected to the testimony concerning credibility and moved for mistrial. The jury was excused and a lengthy discussion was conducted on the record between the judge and the attorneys concerning the admissibility of the expert's testimony about the victim's credibility. The prosecutor argued he was simply trying to establish that credibility was one of the factors considered by the expert in arriving at her opinion that the child had been molested. The court properly instructed, "[S]he can tell what the child said, what conclusions she arrived at from that, but she ought not to comment on anything as far as the credibility is concerned." The trial judge repeatedly instructed the prosecutor that the expert could not comment upon the victim's credibility. When the jury returned, shortly after recommencing his direct examination of the expert witness, the prosecutor asked: "[I]n your opinion, based on those personal sessions with [the victim], can [she] distinguish between telling the truth and telling a lie?" The expert answered, "Yes, I believe she can." Defendant moved for mistrial and the judge granted defendant's motion.

Defendant then filed a plea in bar arguing the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution precludes her from being retried for the charged offenses. After a hearing on the plea of double jeopardy, the court found it was the prosecutor's intention to cause a mistrial by asking the fatal question in violation of the specific instructions of the court. The court also found evidence of prosecutorial overreaching and harassment. Accordingly, the court granted defendant's plea of former jeopardy. The state appeals.

1. We first address the state's third enumeration of error which argues the trial court applied the wrong standard for determining whether double jeopardy would bar retrial of defendant's case. The United States Supreme Court has articulated a clear and unambiguous standard for barring retrial of a criminal case where the defendant was successful in moving for mistrial. "[T]he circumstances under which ... a defendant [who successfully moves for mistrial] may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." (Emphasis supplied.) Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Prosecutorial misconduct amounting to harassment or overreaching, even if sufficient to justify a grant of mistrial, is nevertheless insufficient to bar retrial "absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Id. at 676, 102 S.Ct. at 2089. Accord Fugitt v. State, 253 Ga. 311, 319 S.E.2d 829 (1984); State v. Whitehead, 184 Ga.App. 162, 361 S.E.2d 41 (1987); Hampton v. State, 179 Ga.App. 14, 345 S.E.2d 117 (1986).

In support of the trial court's order, defendant argues the Georgia standard for barring retrial is more protective than the minimum standard imposed by the United States Supreme Court in Kennedy. We find no reason for holding the Georgia standard to be more protective than that provided by federal law. The Fifth Amendment to the United States Constitution states: "No person shall be ... subject for the same offense to be twice put in jeopardy of life or limb...." The Georgia Constitution states: "No person shall be put in jeopardy of life or liberty more than once for the same offense except ... in case of mistrial." Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII. If anything, the Georgia Constitution is less protective than the Fifth Amendment, for it recognizes an exception to the bar against double jeopardy when the first trial ends in mistrial. See Benford v. State, 164 Ga. App. 733(2), 298 S.E.2d 39 (1982) (where this court concluded the federal constitution provides a broader former jeopardy defense than state statutory law, OCGA § 16-1-8).

Defendant cites to Morris v. State, 180 Ga.App. 896, 350 S.E.2d 851 (1986) for support of her argument that mere prosecutorial overreaching is still sufficient under Georgia law to bar retrial. However, the language relied upon by defendant was quoted in Morris from Studyvent v. State, 153 Ga.App. 161, 264 S.E.2d 695 (1980), a Georgia case predating the Kennedy decision by the United States Supreme Court. Even the Studyvent opinion involved the application of federal constitutional principles and not those of our state constitution. Hampton v. State, 179 Ga.App. 14 n. 1, 345 S.E.2d 117 (1986). Moreover, the Studyvent opinion "emphasized the importance of determining whether or not there has been intentional misconduct on the part of the prosecution, and to that extent it previsioned Oregon v. Kennedy, [supra]." Benford v. State, supra 164 Ga.App. at 734, 298 S.E.2d 39. The issue presented on appeal in Morris was whether the prosecutor had deliberately "prompted" defendant to move for mistrial. Thus, all cases decided in Georgia since the ruling of the United States Supreme Court in Kennedy have applied the "intent to provoke a mistrial" standard set forth in Kennedy. See, e.g., Fugitt v. State, supra; State v. Whitehead, supra; Wicker v. State, 181 Ga.App. 612, 353 S.E.2d 40 (1987); Hampton v. State, supra. We reject defendant's argument that mere overreaching or harassment by the prosecutor, without a finding the prosecutorial misconduct was intended to subvert the protections of the Double Jeopardy Clause, would bar retrial of defendant's case pursuant to Georgia law.

The trial court in this case based its grant of the motion to bar retrial partially upon a finding of prosecutorial overreaching and harassment. This conclusion was based on the earlier finding of impermissible use of peremptory strikes and upon a finding the prosecutor had attempted to influence the defendant's husband to convince the defendant to plead guilty. These findings alone would not support the grant of defendant's plea of double jeopardy according to the rule set forth in Kennedy. However, the court's order does include a finding that the prosecutor intended to cause a mistrial by asking the fatal question. The crucial inquiry on appeal, then, is whether this finding is supported by the record.

2. The state's first two enumerations of error argue the court improperly found the prosecutor intended to cause a mistrial. First, the state argues the question and answer which prompted the defendant's objection were insufficient to justify a mistrial. With this argument, we disagree.

The state argues the jury was entitled to hear testimony concerning the competency of the minor witness to testify. "The competency of a witness shall be decided by the court." OCGA § 24-9-7(a). In this case, the court held a competency hearing outside the presence of the jury and ruled the minor witness was competent. No objection was made by defendant to that ruling. We agree with the state that the jury also had a right to hear evidence concerning the child's competency to testify, for it is ultimately the jury which must decide what credit to place on that testimony. See Frasier v. State, 143 Ga. 322(5), 85 S.E. 124 (1915); Young v. State, 122 Ga. 725(1), 50 S.E. 996 (1905). However, any evidence concerning the child's understanding of the oath, intellectual maturity or any other factor affecting her capacity to testify is to be developed from the examination of the child herself. See Schamroth v. State, 84 Ga.App. 580(1b), 66 S.E.2d 413 (1951); Webb v. State, 7 Ga.App. 35(1), 66 S.E. 27 (1909). The record shows the prosecutor was allowed to present such evidence by questioning the minor witness in the presence of the jury concerning her knowledge of the difference between the truth and a lie. In no circumstance may a witness' credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth. An expert witness may not testify as to his opinion of an ultimate issue of fact unless the inference to be drawn from the evidence is beyond the ken of the...