White v. State

• Decision Date: 25 June 1996
• Docket Number: No. A96A0949,A96A0949
• Parties: WHITE v. The STATE.
• Court: Georgia Court of Appeals

Page 539

473 S.E.2d 539

221 Ga.App. 860

WHITE v. The STATE.

No. A96A0949.

Court of Appeals of Georgia.

June 25, 1996.

White & Choate, Harold J. Choate, III, for appellant.

T. Joseph Campbell, Dist. Atty., Sharon M. Fox, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Willard Frank White appeals his conviction of rape, aggravated sodomy, and two counts of child molestation of his 33-month-old granddaughter and enumerates three errors. For prior appellate history, see White v. State, 211 Ga.App. 694, 440 S.E.2d 68. Held:

1. Appellant's first enumeration "is that hearsay was continuously and erroneously admitted concerning statements which the two-and-one-half-year old child made to various [persons] which they interpreted ... to be allegations of sexual abuse because no hearing was conducted to ascertain whether there was sufficient indicia of reliability to admit the statements which were substantially the evidence against the accused.... This was an abuse of discretion ... even though the defense attorney did not object at trial ... [and] was certainly harmful error because the defendant would not have been convicted but for the admission of improper evidence which was highly unreliable and contained no indication of reliability." This single enumeration asserts, at least, three separate errors: the erroneous admission of hearsay, the lack of a hearing on child hearsay statement admissibility, and insufficient indicia of reliability for admission of child hearsay statements. OCGA § 5-6-40 requires that enumerations shall set out separately each error upon which relied. "When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 [cit.] or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned." Robinson v. State, 200 Ga.App. 515, 518(2)(b), 408 S.E.2d 820; accord Wilson v. Southern R. Co., 208 Ga.App. 598, 606(6), 431 S.E.2d 383. We elect in our discretion to review none of these multiple assertions of error.

Additionally, the issue of lack of indicia of reliability of the victim's statements was adversely determined against appellant in White v. State, supra at 694-695(1), 440 S.E.2d 68. Further, appellant concedes in his enumeration that no timely objection on the specific grounds enumerated was made at trial by appellant's defense counsel to the evidence at issue. Accordingly, the errors asserted in appellant's first enumeration were not preserved on appeal. Lawton v. State, 259 Ga. 855, 856(2), 388 S.E.2d 691; Ray v. State, 187 Ga.App. 451, 452, 370 S.E.2d 629.

2. Appellant contends that one of his jurors knew that appellant had been tried and found guilty in 1992, but nevertheless failed to answer affirmatively when the trial court asked the jurors on voir dire: "Do any of you know any reason you would have formed any opinion about the guilt or innocence of Mr. White before we begin the trial of the case? Would you know of any bias or prejudice you might have for or against the accused before we begin the trial? Is your mind perfectly impartial between the State and the accused before we begin?" Appellant contends that the juror's failure to respond affirmatively when asked about any bias or prejudice toward the accused deprived appellant of his right to select an impartial jury and constituted prejudicial error. In denying the new trial motion, the trial court ruled inter alia that the juror in question "testified that at the time of the trial of [appellant] in January of 1995, that she did not know any facts about the case and did not form any opinion about the guilt or innocence of the [appellant]." This ruling was made following a post-trial hearing on appellant's new trial motion.

At the post-trial hearing, the niece and sister of appellant testified as to certain conversations allegedly occurring between the juror and appellant's sister after appellant's conviction and before his sentencing in the 1992 trial. However, the juror testified and denied that any such conversations occurred and also unequivocally denied any knowledge of the 1992 trial of appellant until approximately two weeks after his second trial. The trial court determined the credibility of the three witnesses and denied the motion. In doing so, the court considered the relationship of the witnesses to appellant and the nature of their testimony, and expressly ruled that "I just choose to believe [the juror's] version of the case." An appellate court cannot judge witness credibility or weigh conflicts in testimony. See Webb v. State, 187 Ga.App. 348(1), 370 S.E.2d 204; Banks v. State, 185 Ga.App. 851(3), 366 S.E.2d 228. By its determination that the juror's version of events was credible, the trial court inherently found as a question of fact that the juror did not possess any knowledge of appellant's prior 1992 conviction until after appellant's second trial. The denial of appellant's new trial motion on this particular ground involved both a mixed question of law and fact; first, the trial court determined the fact whether the juror had knowledge of the 1992 conviction at the time of appellant's second trial and, after determining witness credibility and per force finding that such knowledge did not exist, then applied the applicable law to deny appellant's motion as to this ground. "We will not reverse the trial court's fact findings which underpin its legal conclusion made at a [motion for new trial hearing], unless they are clearly erroneous." Whatley v. State, 196 Ga.App. 73, 78(5), 395 S.E.2d 582 (findings as to mixed question of law and fact made at a suppression hearing). We also find de novo that the evidence at the pretrial hearing is sufficient to support the findings of fact of the trial court inherent in its determination that the juror's version of events were credible.

" 'In order to obtain a new trial, [appellant] must show that the juror[ ] failed to answer honestly a material question and that the correct response would have provided a valid basis for a challenge for cause.' " Maxwell v. State, 218 Ga.App. 780, 781(1), 463 S.E.2d 517. As appellant failed to prove that the juror was in fact aware of the prior 1992 conviction at appellant's second trial, he has not carried his burden of showing that the juror failed to answer honestly a material question on voir dire.

3. Appellant asserts in his enumeration of error that he was denied effective assistance of counsel on three specific grounds: (a) failed to challenge numerous contradictions of testimony and to impeach the witnesses, (b) failed to discredit the interview with the child, and (c) failed to renew the motion for change of venue at the start of trial. Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, "[t]o establish ineffective assistance of counsel, [appellant] must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense." Gross v. State, 262 Ga. 232, 233(1), 416 S.E.2d 284. "A strong presumption exists that trial counsel's performance, in any given case, falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered strong trial strategy." Rachell v. State, 210 Ga.App. 106, 108(2)(a), 435 S.E.2d 480.

At the hearing on the new trial motion, appellant's appellate counsel argued those points which appellant contended would support his inadequacy of counsel claim; appellant elected not to call his trial defense counsel as a witness and presented no other witness testimony in support of his claim. At the hearing, appellant asserted that his trial defense counsel could have impeached prosecution witnesses with several alleged prior inconsistent statements made by them at his 1992 trial. However, appellant has failed to include a transcript of the 1992 trial in the appellate record, or to move timely for leave to supplement the record with such transcript. We have already granted appellant one opportunity to supplement the record belatedly by addition of the new trial motion hearing...