Willett v. State

• Decision Date: 05 December 1996
• Docket Number: No. A96A1403,A96A1403
• Parties: , 96 FCDR 4339 WILLETT v. The STATE.
• Court: Georgia Court of Appeals

Page 132

479 S.E.2d 132

223 Ga.App. 866, 96 FCDR 4339

WILLETT v. The STATE.

No. A96A1403.

Court of Appeals of Georgia.

Dec. 5, 1996.

Gregory N. Crawford, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

BEASLEY, Chief Judge.

Willett appeals from his jury conviction of two counts each of aggravated sodomy, OCGA § 16-6-2, child molestation, OCGA § 16-6-4, and aggravated sexual battery, OCGA § 16-6-22.2, and the denial of his motion for new trial.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. King v. State, 213 Ga.App. 268, 269, 444 S.E.2d 381 (1994). So viewed, the evidence reveals that Willett, a successful engineer who owned two businesses in Savannah, was divorced and living alone in a one-bedroom apartment with only one bed.

Since August 1988, law enforcement had conducted undercover surveillance of Jake Lynn, whom Willett had known since June 1985. The authorities had suspected Lynn of keeping a place of prostitution. In April 1990, the police raided Lynn's home and arrested him for operating an escort service. Because of Lynn's legal problems relating to this arrest, Willett was named guardian of two of Lynn's children, R. L., a seven-year-old son, and A. L., a younger daughter.

Lynn was the sales manager of a mobile home business, and he talked Willett into providing the capital to purchase the business in exchange for Lynn's sales expertise. In December 1991, the two became partners in the business.

Willett testified he often worked in the warehouse next door to the Lynn residence and felt sorry for R. L. because of the Lynns' "troubled family life." Willett spent a lot of time with R. L., taking him to the mall and to airshows and for rides in his private plane. He also bought gifts for R. L. and often sought Lynn's written permission before taking the child anywhere. R. L. spent the night at Willett's apartment approximately 30 times. Willett acknowledged that occasionally he and R. L. slept in the same bed together during these visits.

Christine Gulley was one of R. L.'s babysitters. Willett often stopped by when Gulley was watching R. L. and left accompanied with R. L. According to Gulley, R. L.'s personality was markedly different on most every occasion he spent with Willett. Gulley's eight-year-old brother D. B. sometimes accompanied her when she babysat for R. L. during the summer of 1992. D. B. and R. L. were friends prior to Gulley's involvement with the Lynn family. Gulley also noticed marked changes in D. B.'s behavior after he had been around Willett. She testified that sometimes after returning from Willett's warehouse, D. B. would sit in the middle of the floor and wet his pants. It was not until December 1992 when D. B. asked Gulley what a "faggot" was that Gulley became suspicious.

Gulley, who was skilled in child care, questioned her brother further and was told that Willett had touched him on his back and stomach. D. B. also disclosed that he had seen Willett touch R. L. inside the back of R. L.'s pants. Gulley immediately got in her car and stopped the first police officer she saw to report her brother's allegations.

Videotaped interviews of R. L. and D. B. were taken by a sex crimes detective trained in interviewing young children. D. B. told the detective that Willett also touched his penis and buttocks, a claim he repeated at trial. R. L. also made incriminating statements about Willett during the interview and repeated them at trial.

Gulley testified that Willett called her on the phone and asked her "what would it take to get you to change your little brother's story?" Gulley agreed to meet Willett at a local restaurant and called the police to inform them of the meeting. The police wired Gulley and conducted surveillance from outside the restaurant. Willett claimed the meeting was set up by Gulley to extort money out of him in exchange for D. B.'s recanted testimony, and he also tape-recorded the conversation. Subsequent to the meeting with Gulley, Willett was indicted for the sex crimes committed against R. L. and D. B.

1. Willett first enumerates as error the trial court's denial of his motion for mistrial following this line of questioning of Willett by the prosecutor during cross-examination: "Q: Because you were so concerned about keeping your family together, you agreed to get counseling and treatment, didn't you? A: That's correct. Q: Because that's what DFCS [Department of Family & Children Services] wanted you to do? A: Right. Q: And your treatment psychologist was Wendy Osee, wasn't she? A: Yes, Sir. Q: She's a licensed psychologist, isn't she? A: I thought she was a psychiatrist. Q: That's an MD, isn't it? A: Yes, Sir. Q: We can't ask Dr. Osee any questions unless you give us permission to ask her questions because she's a licensed psychologist or psychiatrist; did you know that?"

The court denied the motion and gave the following curative instruction: "Jurors, the psychiatrist/patient privilege is a strong one. It's different from the doctor/patient privilege. The psychiatrist/patient privilege is a stronger one. What a patient tells his psychiatrist is confidential, as a matter of public policy. You should draw no inferences from the fact that the law keeps confidential communications made to a psychiatrist."

OCGA § 24-9-21(5) provides: "There are certain admissions and communications excluded on grounds of public policy. Among these are ... (5) Communications between psychiatrist and patient." The right to assert the privilege belongs to the patient. Wilson v. Bonner, 166 Ga.App. 9, 16-17(5), 303 S.E.2d 134 (1983).

Willett argues that the prosecutor's reference to Willett's right to have the psychiatrist not testify was equivalent to a prosecutor commenting on a defendant's silence in violation of his right against self-incrimination ¹ by implying he has something to hide, in this case, that the psychiatrist's testimony would have been unfavorable.

The purposes behind the two privileges are quite different. The psychiatrist- /patient privilege is grounded in public policy "to encourage the patient to talk freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient's emotional or mental disorders." Wiles v. Wiles, 264 Ga. 594(1), 448 S.E.2d 681 (1994), citing 1 C. McCormick, McCormick on Evidence § 98, at 369-370 (J. Strong 4th ed. 1992). But the privilege has never been accorded constitutional status. The Constitution protects an accused from being forced to possibly incriminate himself in the face of the coercive power of the State. See Schmerber v. California, 384 U.S. 757, 762(II), 86 S.Ct. 1826, 1831, 16 L.Ed.2d 908 (1966). We do not do so now.

Even if we were to accept Willett's argument that the question was a constitutional affront, the right against self-incrimination is waived if the defendant testifies. Leonard v. State, 146 Ga.App. 439, 442(3), 246 S.E.2d 450 (1978).

The State argues the question was permissible and for support cites Wynn v. State, 168 Ga.App. 132, 134(2), 308 S.E.2d 392 (1983), which held that the prosecutor does not commit harmful error by informing the jury that the State has no power to compel a defendant's spouse to testify. The privilege not to testify belongs to the spouse and is beyond the defendant's control. The court in Wynn determined the State may relate this information in closing only if it makes no reference to the defendant not calling the spouse and does not argue that, from the defendant's failure to call the spouse, the jury may infer the defendant was not telling the truth. Id. at 135(2), 308 S.E.2d 392. The State contends it was doing no more than commenting that it was Willett's right to have his psychiatrist testify. See also James v. State, 223 Ga. 677, 682(5), 157 S.E.2d 471 (1967).

Willett responds that here, unlike Wynn and James, the prosecutor's comment improperly raised a negative inference as to Willett's failure to call a witness whom he could compel to testify. See Wynn, supra at 134(2), 308 S.E.2d 392. He further urges that the manner in which the question was phrased suggests the State had tried to convince Willett to waive the privilege but to no avail. There is no evidence the State requested the waiver.

The State counters that since the issue of Willett seeing a psychiatrist had been raised earlier through the testimony of a DFCS social worker, without objection, the jury would have been left with the mistaken impression that the State, which carried the burden of proof, could have but did not call Willett's psychiatrist because the psychiatrist would have testified favorably for Willett, who had no burden of proof.

Willett did not ask for a ruling on the question's allowability but instead sought the ultimate remedy of mistrial.

The court's curative instruction remedied what the court apparently regarded as an improper question and justified the denial of the motions for mistrial and new trial, especially in light of the overwhelming evidence of Willett's guilt. Willingham v. State, 212 Ga.App. 457, 458, 442 S.E.2d 4 (1994). Thus to the extent the question constituted error, it was harmless. "It is an old and sound rule that error to be reversible must be harmful. [Cit.]" Rutledge v. State, 152 Ga.App. 755, 756(1)(a), 264 S.E.2d 244 (1979).

This ruling moots all other matters raised by Willett within this enumeration.

2. Willett contends the trial court erred in permitting the testimony of victim R. L. in that, although Willett made a timely demand for a list of witnesses pursuant to Ga. Const. Art. I, Sec. I, Par. XIV ² and OCGA § 17-7-110, ³ R. L.'s proper address was not provided to him. Willett maintains that because he could not locate R. L., he had no opportunity to interview...