Taylor v. State, A03A1274.

• Decision Date: 01 December 2003
• Docket Number: No. A03A1274.,A03A1274.
• Parties: TAYLOR v. The STATE.
• Court: Georgia Court of Appeals

592 S.E.2d 148

264 Ga. App. 665

TAYLOR v. The STATE.

No. A03A1274.

Court of Appeals of Georgia.

December 1, 2003.

Reconsideration Denied December 12, 2003.

Certiorari Denied April 27, 2004.

Brian Steel, Atlanta, for appellant.

J. Tom Morgan, District Attorney, Rosemary W. Brewer, Assistant District Attorney, for appellee.

ANDREWS, Presiding Judge.

Rodney Taylor appeals from the judgment entered after a jury found him guilty of rape, aggravated child molestation, and child molestation. For the following reasons, we conclude there was no reversible error and affirm.

The evidence at trial, taken in the light most favorable to the verdict, was as follows. The 15-year-old victim left her doctor's office to go home, but got on the wrong bus. She got off that bus and, after walking for some period of time, was waiting for another bus when it began to rain. Taylor drove up and convinced the victim to get in his car, stating that he would take her home. Instead of taking the victim home, he took her to his house and raped and orally sodomized her.

Taylor testified in his own defense and admitted that he took the victim to his house, but denied any sexual contact. However, the victim was able to tell police about certain peculiarities of Taylor's genitals and pubic area, and the jury was shown pictures which confirmed the victim's description.

The State also introduced similar transaction evidence. A previous victim testified that Taylor had sexually assaulted her in her car after she gave him a ride to his house.

The jury convicted Taylor of all charges and the court sentenced him as a recidivist to life in prison on the rape charge, 30 years on the aggravated child molestation charge, and 20 years on the child molestation charge. This appeal followed.

In his first enumeration of error, Taylor argues that it was reversible error to fail to give the jurors the following oath before voir dire: "`You shall give true answers to all questions as may be asked by the court or its authority, including all questions asked by the parties or their attorneys, concerning your qualifications as jurors in the case of ____ (herein state the case). So help you God.'" OCGA § 15-12-132.

1. Taylor is not entitled to a new trial because he waived any objection to the giving of the incorrect oath.¹ Before beginning the trial, the court stated: "I'm not going to repeat the voir dire oath that they gave you this morning. It is my understanding you were given that oath this morning by jury management. Unless there is any objection from the attorneys, I will proceed otherwise." Defense counsel responded: "None from the defense." The court was not informed that the jury was given the incorrect oath until counsel stipulated to this at the hearing on Taylor's motion for new trial.

[A] defendant may forfeit his right to a voir dire conducted under oath by failing to timely assert that right. "`Federal courts, including the Supreme Court, have declined to notice (alleged) errors not objected to below even though such errors involve a criminal defendant's constitutional rights.' United States v. Indiviglio, 352 F.2d 276, 280 (1965), cert. denied, 383 U.S. 907 [86 S.Ct. 887, 15 L.Ed.2d 663] (1966). The reason for this rule is clear: if the defendant has an objection, there is an obligation to call the matter to the court's attention so the trial judge will have an opportunity to remedy the situation." Estelle v. Williams, 425 U.S. 501, 508 fn. 3, 96 S.Ct. 1691, 1695, 48 L.Ed.2d 126, 133 (1976). There is nothing in the record in the instant case to indicate that appellant was prejudiced by any false answer given during voir dire. The voir dire was in fact very limited. Absent any showing of actual prejudice, we are not inclined to reverse a conviction because the voir dire was not conducted under oath where no objection was made below.

Gober v. State, 247 Ga. 652, 654-655, 278 S.E.2d 386 (1981).

It is important to note that the oath required by OCGA § 15-12-138 was given in this case and it is this oath that courts have found to be jurisdictional, stating that it must be given in order to render a conviction "binding and conclusive." Slaughter v. State, 100 Ga. 323, 28 S.E. 159 (1897). Neither is Ates v. State, 155 Ga.App. 97, 270 S.E.2d 455 (1980), relied on by Taylor, persuasive. In Ates, the correct oath was given, but the trial court allowed the district attorney to administer the oath to the jurors over the objection of defense counsel and in spite of the clear wording of the statute mandating that the oath should be administered by the trial judge. Id. at 98, 270 S.E.2d 455. This Court held that prejudice could form in the jurors' minds when the oath is administered by the prosecuting arm of the State. Id. Although Ates is not on point, we note that, even under those circumstances, the court held that there is only a "presumption" that the party was injured, "unless the contrary plainly appears." (Punctuation omitted.) Id. Accordingly, even under Ates, any error was harmless because the record before us clearly shows that Taylor was not harmed.

2. Even assuming that Taylor did not waive his right to raise this issue, there is no authority for the contention that harm must be presumed. See Gober, supra at 655, 278 S.E.2d 386 (appellant's argument that harm must be presumed from the failure to administer the voir dire oath is misplaced). In Roebuck v. State, 261 Ga.App. 679, 583 S.E.2d 523 (2003), this Court recently held that although it could not be determined whether the oath prior to voir dire had been given because there was no transcript, "a new trial will not be granted based on a voir dire error unless the movant proves that a juror failed to answer (or to answer honestly) a material question on voir dire and then shows that a correct response would have established a valid basis for a challenge for cause." Id. at 680, 583 S.E.2d 523. Here, there is no contention that the juror could have been excused for cause.

The record shows that at the hearing on Taylor's motion for new trial, the juror testified that she disclosed to the court that she pled guilty to robbery and was sentenced under the First Offender Act, but did not disclose that she had been arrested ten other times for misdemeanor offenses and been sentenced to various terms of probation. When asked why she did not tell the court about the other offenses, the juror responded: "I did not know that I had to advise her—you know, let them know of all of the charges because I just only assumed it was for the felony." The State asked the juror: "[D]id you honestly believe that when the Court asked you if you had been involved in any other crimes, did you honestly believe that you only had to ask [sic] disclose felonies?" The juror replied, "[y]es, I did."

Further, when trial counsel was asked at the motion for new trial hearing: "Would it have been material to your striking of this jury to know that [the juror] had been arrested ten other times besides the robbery that she shared with this Honorable Court? Would you have wanted to know that information?" Trial counsel answered: "I would have wanted to know it because I would have wanted to find out exactly what the other offenses were, what the circumstances of them were. There may have been some violence behind it. I don't know, but it is something I would have wanted to know."

Accordingly, it is clear from the testimony above, that the juror thought she was responding truthfully and, even had she answered correctly, that answer would not have provided a basis to challenge her for cause.

"[T]o invalidate the result of a ... trial because of a juror's mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination. We hold that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." (Citations and punctuation omitted.) Isaacs v. State, 259 Ga. 717, 741(44)(e), 386 S.E.2d 316 (1989).

Grogan v. State, 230 Ga.App. 876, 877-878, 497 S.E.2d 589 (1998). Therefore, assuming Taylor has established that the juror failed to honestly answer a material question, a correct response "would only have allowed [Taylor] to exercise a peremptory strike and did not, by itself, provide a valid challenge for cause." Id. at 878, 497 S.E.2d 589. In this case, Taylor does not even argue that he would have used a peremptory strike on the juror in question.

Accordingly, for all of the reasons stated above, the trial court did not err in denying Taylor's motion for new trial on this ground.

3. Because of our holdings in Divisions 1 and 2, above, we need not address Taylor's claim that trial counsel was ineffective in relying on the trial court's statement that the oath had been given.

4. Next, Taylor argues that because the indictment on the rape count failed to allege that the victim was under 16 years of age, the jury instruction that the "against the will" element is automatically supplied because the victim was under 16 was error because it was not in conformity with the bill of indictment. Taylor cites to no authority on point in support of this argument and we find none. Rather, case law directly on point is to the contrary. In Roebuck, supra at 681-682, 583 S.E.2d 523 (2003), appellant argued that because the indictment did not state that the victim was under the age of 14, the State should have been...