Boatright v. State

385 S.E.2d 298, 192 Ga. App. 112, 1989 Ga. App. LEXIS 1213
CourtCourt of Appeals of Georgia
DecidedJune 27, 1989
DocketA89A0157, A89A0158, A89A0159
StatusPublished
Cited by86 cases

This text of 385 S.E.2d 298 (Boatright v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boatright v. State, 385 S.E.2d 298, 192 Ga. App. 112, 1989 Ga. App. LEXIS 1213 (Ga. Ct. App. 1989).

Opinions

Birdsong, Judge.

Appellant Holder Boatright was convicted of two counts of aggravated child molestation; appellant Frank O’Berry was convicted of two counts of enticing a child for indecent purposes; and, appellant Donna O’Berry was convicted of two counts of enticing a child for indecent purposes. Each appellant has appealed.

The children of appellants O’Berry, a girl age 9 and a boy age 8, testified that their parents and an uncle, Wayne Sims, took them on certain occasions to the garage of appellant Boatright who sexually abused each child in various ways; the abuse occurred in the presence of the parents on at least one occasion.

I. A89A0157, A89A0158 & A89A0159

1. Review of the transcript of these three companion cases in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that each appellant was guilty of the offenses of which he or she has been convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

II. A89A0157. Boatright v. The State

2. Appellant Boatright asserts the trial court erred in refusing to allow appellant to hear certain recorded tapes of prior statements made by the children which would be exculpatory or mitigating. The [113]*113tapes consist of certain video tapes made of an interview of the two children conducted by the Pierce County Family & Children Services’ Department. Appellant asserted rights under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215), to the production of the tapes or in the alternative for the trial court to conduct an in camera inspection thereof. The trial court denied the motion as it had reviewed a transcript of the tapes and the prosecutor’s entire file previously during the case of the co-defendant Wayne Sims. The trial court determined and expressly stated on the record that his inspection of the State’s file, which included the tapes transcript, disclosed nothing that is “exculpatory, mitigating or impeaching.”

Appellants moved to have the video tape transcript and State’s file attached to the record so these items would be available for appellate review. The record does not contain these items, and appellants have not made a timely motion to this court requesting that we order these matters forwarded for review. As a general rule, “ ‘(w)e will not call up the state’s files for review unless the appellant can show cause, by showing that particular evidence was suppressed which was material.’ ” Upshaw v. State, 172 Ga. App. 671, 672 (324 SE2d 529). We see no need to depart from this rule in this case. Moreover, appellants have now waived any right they may have had to assert as error the trial court’s failure to seal and forward the video tape transcript and State’s files with the trial record. Durham v. State, 239 Ga. 697, 700 (3) (b) (238 SE2d 334).

“Georgia law does not provide that statements given prior to trial by key prosecution witnesses be generally made available for discovery by the defendant in a criminal case.” Walter v. State, 256 Ga. 666, 668 (352 SE2d 570). It is well-recognized that “Brady does not require the prosecution to open its file for general inspection by the defense or for pre-trial discovery.” Hicks v. State, 232 Ga. 393, 396 (207 SE2d 30); Julian v. State, 134 Ga. App. 592 (3) (215 SE2d 496). Accordingly, appellant’s complaint that he was not provided with a copy of the video tapes for his own inspection is without merit; “ ‘this is not required under the holding in Brady or its progeny.’ ” See Hill v. State, 248 Ga. 304, 305 (283 SE2d 252).

Under the attendant circumstances the trial court’s prior examination in camera of the State’s entire file, including a copy of the video tape transcript, was an adequate in camera inspection to satisfy the requirements of Brady and its progeny.

Appellant specifically asserts that the video tape if reviewed by the court in lieu of the transcript thereof might reveal a demeanor on the part of the children during pre-trial interviews which could detract from their credibility if presented to the jury. This is entirely speculative. The defense is not entitled under Brady to engage in a mere fishing expedition into the files of the State. See Hicks v. State, [114]*114supra at 396. “ ‘There is no general constitutional right to discovery in a criminal case, and Brady did not create one. . . .’ [Cit.] Brady cannot be read as requiring that ‘as a matter of constitutional law everything must be disclosed which might influence a jury.’ ” Castell v. State, 250 Ga. 776, 782 (301 SE2d 234); Massengale v. State, 189 Ga. App. 877 (377 SE2d 882).

Further, appellant has failed to carry his burden to show either that any type of Brady violation occurred, see generally Cromer, supra, or, that assuming error had occurred, he was prejudiced thereby. See generally Rogers v. State, 257 Ga. 590, 592 (361 SE2d 814); see also Parks v. State, 254 Ga. 403, 407 (330 SE2d 686). Accordingly, this enumeration of error is without merit.

3. Appellant Boatright asserts that the trial court erred in denying appellant’s motion to suppress evidence obtained through an improper and illegal search warrant. The evidence in question concerns certain sexually oriented materials found in the home of appellants Donna and Frank O’Berry. Appellant Boatright did not reside in that home, apparently was not present in the home when the materials were seized, and has not claimed any right of ownership or possession of said evidence.

We find that appellant Boatright has no reasonable expectation of privacy in the premises searched, neither has he asserted any valid right of ownership or possession in the property seized. See generally United States v. Salvucci, 448 U. S. 83 (100 SC 2547, 65 LE2d 619). Clearly, appellant Boatright has no standing to assert either a Fourth Amendment or a state constitutional challenge to this search and seizure. See generally Rich v. State, 188 Ga. App. 287, 288-289 (372 SE2d 670), citing Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387); Todd v. State, 184 Ga. App. 750 (2) (362 SE2d 400); Sanders v. State, 181 Ga. App. 117 (1) (351 SE2d 666). See also Section III, Division 8 below.

III. A89A0158. Frank O’Berry v. The State

4. Appellant Frank O’Berry asserts on general grounds that the trial court erred in denying his motion for new trial. We disagree. See Division 1, above.

5.

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Bluebook (online)
385 S.E.2d 298, 192 Ga. App. 112, 1989 Ga. App. LEXIS 1213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boatright-v-state-gactapp-1989.