White v. State

• Decision Date: 03 June 1994
• Docket Number: No. A94A0012,A94A0012
• Citation: 445 S.E.2d 309,213 Ga.App. 429
• Parties: WHITE v. The STATE.
• Court: Georgia Court of Appeals

Page 309

445 S.E.2d 309

213 Ga.App. 429

WHITE v. The STATE.

No. A94A0012.

Court of Appeals of Georgia.

June 3, 1994.

Wallace C. Clayton, Austell, for appellant.

Thomas J. Charron, Dist. Atty., Rose L. Wing, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Indicted for child molestation, defendant was tried before a jury and found guilty of that charge. After the denial of his motion for new trial, defendant appeals from the judgment of conviction and sentence entered by the trial court on the jury's verdict of guilty. Held:

1. Complaining that the trial court failed to conduct the admissibility hearing mandated by Uniform Superior Court Rule (USCR) 31.3(B), defendant first enumerates as error the admission into evidence of testimony relating to his alleged commission of a similar prior criminal transaction. The record shows that pursuant to USCR 31.1, the State gave written notice of its intent to introduce evidence that in 1989 defendant had similarly molested another child. However, there is no indication that the trial court conducted a hearing pursuant to USCR 31.3(B). Nonetheless, this similar transaction evidence was admitted over hearsay objections. Although defendant did not object at trial on the ground that the trial court failed to conduct a USCR 31.3(B) hearing, he raised this issue at the hearing on his motion for new trial.

Relying on Gilbert v. State, 208 Ga.App. 258, 262(3), 263, 430 S.E.2d 391, the State urges that defendant has waived any error by failing to object at trial. This reliance is misplaced. In Gilbert, that defendant enumerated the admission into evidence of a prior guilty plea to trafficking in cocaine and of testimony about that earlier charge, arguing that the trial court had held no USCR 31.3(B) hearing. There was a conflict in the evidence of the procedural history of that case and this court, applying the presumption of regularity, held that the record supported the determination of the trial court that a USCR 31.3(B) hearing had been held. This court then injected the parenthetical observation that if defendant were "correct, and if no hearing was held, then he is estopped from raising this argument, since he made no objection to the evidence of [the] prior act when it was introduced." However, that statement was not necessary to the decision and is not to be considered as having been decided so as to constitute binding precedent. See State Hwy. Dept. v. Cooper, 104 Ga.App. 130, 136, 121 S.E.2d 258. "Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are obiter dicta, and lack the force of an adjudication." Black's Law Dictionary, p. 541 (4th ed.). The issue of whether the procedural error in failing to conduct a USCR 31.3(B) hearing has been preserved for appellate review in the case sub judice is controlled by the following direct ruling in Riddle v. State, 208 Ga.App. 8, 9(1b), 11, 430 S.E.2d 153: "[T]he burden of conducting the requisite hearing before similar transaction evidence can be admitted at trial is placed squarely with the State and the trial court; defendant bears no burden to initiate this procedure. Accordingly, [since this ground was raised before the trial court at the hearing on the motion for new trial and pursued on appeal via an enumeration of error supported by argument and citation of authority,] the defendant's failure to object to the admission of similar transaction evidence on the basis that a Rule 31.3(B) hearing was not conducted does not constitute a waiver of the procedure dictated by Rule 31.3(B) and does not preclude our consideration of this issue on appeal." Riddle v. State, 208 Ga.App. 8, 11(1b), 430 S.E.2d 153, supra. See also Ross v. State, 210 Ga.App. 455, 458(2), 436 S.E.2d 496, acknowledging the authority of Riddle that an objection to the failure to conduct a USCR 31.3(B) hearing is not necessarily waived by failing to object when such evidence is offered at trial, but distinguishing that case and holding that the complete failure to object at trial coupled with the complete failure to raise the issue on appeal precludes appellate review of the procedural error in failing to conduct the USCR 31.3(B) hearing.

"[B]efore any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3(B). At that hearing, the state must make three affirmative showings as to each independent offense or act it seeks to introduce.... After the 31.3(B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act." (Footnote omitted.) Williams v. State, 261 Ga. 640, 642(2b), 409 S.E.2d 649. Moreover, after the State has made the necessary showings at the USCR 31.3(B) hearing, the trial court retains the sound legal discretion to exclude relevant similar crimes evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice. See Brockman v. State, 263 Ga. 637, 640(3), 436 S.E.2d 316. In the case sub judice, the trial court did not conduct an admissibility hearing pursuant to USCR 31.3(B), nor did the trial court make a determination on the record that the State had satisfied the three requirements for the admission into evidence of the alleged similar transaction. However, the trial court's error in failing to conduct the admissibility hearing mandated by USCR 31.3(B) is not automatically a good ground for new trial but is subject to scrutiny for harmless error. Cavender v. State, 208 Ga.App. 61, 62(2), 63, 429 S.E.2d 711. See also Barrett v. State, 263 Ga. 533(2), 535, 436 S.E.2d 480. In the case sub judice, the State presented the victim's direct evidence as well as circumstantial evidence of defendant's guilt as related by adults pursuant to OCGA § 24-3-16. In opposition, defendant testified that he did not commit the crime alleged in the indictment. There is no conclusive medical or physical evidence as to his commission of the crime. Consequently, the evidence of defendant's guilt in this instance cannot be said to be overwhelming. See Stewart v. State, 263 Ga. 843, 844(1), 440 S.E.2d 452. Compare Cavender v. State, 208 Ga.App. 61, 62(2), 63, 429 S.E.2d 711, supra; Barrett v. State, 263 Ga. 533(2), 436 S.E.2d 480, supra. The failure to conduct a USCR 31.3(B) hearing prior to the introduction of evidence of similar acts of child molestation has been held to be reversible error requiring a new trial where such error is not rendered harmless by overwhelming evidence of guilt. Riddle v. State, 208 Ga.App. 8, 11(1b), 430 S.E.2d 153, supra. However, in the recent case of Stewart v. State, 263 Ga. 843, 844(1), 440 S.E.2d 452, supra, the Georgia Supreme Court stated it was unable to conclude at that time that the error in admitting evidence of prior difficulties without the prior procedural protections of USCR 31.3(B) required a new trial, even though the evidence of guilt was not overwhelming. Instead, the remedy was to "remand the case to the trial court to conduct a post-trial [USCR 31.3(B) ] hearing." Stewart v. State, 263 Ga. 843, 844(1), 845, 440 S.E.2d 452, supra. Likewise, we remand the case sub judice to the trial court to conduct a USCR 31.3(B) hearing. If the trial court determines that the State's evidence of similar transactions does not demonstrate substantial relevancy for a proper purpose under the standards of Williams v. State, 261 Ga. 640, 642(2b), 409 S.E.2d 649, supra, or if such relevancy is substantially outweighed by the danger of unfair prejudice, Brockman v. State, 263 Ga. 637, 436 S.E.2d 316, supra, then a new trial would be warranted. See Riddle v. State, 208 Ga.App. 8, 11(1b), 430 S.E.2d 153, supra. Conversely, if the trial court determines that the State's evidence of similar transactions was admissible pursuant to USCR 31.3(B) and Williams v. State, 261 Ga. 640, 409 S.E.2d 649, supra, then a new trial is unnecessary. Stewart v. State, 263 Ga. 843, 844(1), 845, 440 S.E.2d 452, supra.

2. In his second enumeration of error, defendant urges several instances where the trial court erroneously admitted hearsay evidence, including a videotaped interview of the victim by a caseworker from the Cobb County Department of Family & Children Services. Each of the alleged instances of allegedly inadmissible hearsay has been examined and is found to refer to evidence of an indecent act done by defendant to a minor and admissible through the testimony of adults, pursuant to OCGA § 24-3-16. Each minor victim took the stand, relating the acts referred to by the adults, and each was subject to cross-examination. Although defendant now complains that no showing was made of any indicia of reliability, OCGA § 24-3-16 does not mandate a hearing on the indicia of reliability before such child hearsay evidence is admissible. Reynolds v. State, 257 Ga. 725(2), 726, 363 S.E.2d 249. The record reveals that sufficient indicia of reliability surrounding the circumstances of each child's statements, even though some of the statements were not original outcry but were made during interviews with the child in response to questions posed by adults. Specifically, we find nothing to indicate that the children were coached or were subjected to unduly leading or suggestive interview techniques. Holden v. State, 202 Ga.App. 558, 562(4), 414 S.E.2d 910. The videotaped interview of the victim was introduced and played at trial without objection. The taped interview was transcribed and is part of the record. This videotape was authenticated by the investigating officer who prepared it. As all the requirements for the admission into evidence of a videotape as set forth in Brooks v. State, 141 Ga.App....