Bunn v. State

728 S.E.2d 569, 291 Ga. 183, 2012 Fulton County D. Rep. 1918, 2012 WL 2206885, 2012 Ga. LEXIS 565
Supreme Court of Georgia·Decided June 18, 2012·No. S11G0682·Published·Cited by 41 cases

Opinions

Nahmias, Justice.

We granted certiorari to consider whether the Court of Appeals improperly limited this Court’s holding in Division 3 of Woodard v. State, 269 Ga. 317 (496 SE2d 896) (1998). Woodard struck down, as a violation ofthe equal protection of the law, a 1995 amendment to the Child Hearsay Statute, OCGA § 24-3-16, that expanded the scope of the hearsay exception to allow the admission of out-of-court statements by all children under age 14 who witnessed sexual contact or physical abuse, as opposed to only children who were themselves the [184] victims of such abuse. Having carefully re-examined Woodard’s Division 3, we conclude that its reasoning cannot be sustained. Thus, while it clearly should not be extended to the circumstances of this case, we think it is more appropriate simply to overrule Division 3.1 Accordingly, there is no reversible error, and we affirm the Court of Appeals’ judgment.

1. Appellant Michael Shane Bunn moved in with his step-sister sometime in 2005, becoming the primary after-school care provider for his two nieces, who were ages seven and nine at the time of trial. On January 20, 2006, the girls told their mother that Appellant had put his hand down their pants; they later said that Appellant also licked their private parts and touched his penis to their vaginal areas. The mother contacted law enforcement, and the children were separately interviewed by a forensic therapist at a child advocacy center. The interviews were video recorded.

At trial in May 2006, each girl testified about what Appellant had done to her and what she saw Appellant do to her sister, and Appellant cross-examined the children. The girls’ mother and the forensic therapist also testified against Appellant, and the recording of the children’s forensic interviews was played for the jury. Like the children’s in-court testimony, this evidence included not only each girl’s out-of-court statements about sexual contact Appellant had with her, but also sexual contact she saw Appellant have with her sister. Appellant testified in his own defense, denying any wrongdoing. The jury convicted Appellant of two counts each of cruelty to children in the first degree, aggravated child molestation, and child molestation. He was sentenced to serve a total of 12 years in prison followed by 18 years on probation. The trial court denied Appellant’s motion for new trial, and he timely appealed.

The Court of Appeals affirmed, rejecting Appellant’s claim that his trial counsel was ineffective in failing to make a hearsay objection when the forensic therapist testified about what each child said she saw Appellant do to the other child and when the unredacted recording of the children’s interviews was played for the jury.' See Bunn v. State, 307 Ga. App. 381, 386 (705 SE2d 180) (2010). The court held that Division 3 of Woodard was “inapplicable here, because both girls were victims” and not only witnesses to the other’s molestation. Id. at 386 (emphasis in original). Thus, the Court of Appeals concluded that the children’s out-of-court statements about sexual conduct that [185] happened to each other in their presence were admissible under OCGA § 24-3-16 and not subject to proper objection, thereby defeating Appellant’s ineffective assistance of counsel claim. See Bunn, 307 Ga. App. at 386. We granted certiorari.

2. (a) As originally enacted in 1986, Georgia’s Child Hearsay Statute provided as follows:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

Ga. L. 1986, p. 668, § 1.2 This Court rejected various constitutional challenges to the validity of the statute as originally enacted. See Woodard, 269 Ga. at 318 (“This Court repeatedly has upheld the constitutionality of the Child Hearsay Statute to the extent that it allows the introduction of hearsay statements made by the child victim of sexual or physical abuse, so long as the statutory prerequisites for admitting such statements exist.” (citing cases)).

In 1994, however, we held, as a matter of statutory interpretation, that the Child Hearsay Statute did not apply to out-of-court statements by a child under age 14 describing physical abuse he saw the defendant inflict on two other young children. See Thornton v. State, 264 Ga. 563, 564 (449 SE2d 98) (1994). The original OCGA § 24-3-16 admitted only statements “by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another.” (Emphasis added.) Thus, the statute, “by its own language, except[ed] from the hearsay rule ‘only... such statements as are made by the actual victim of the event being related.’ ” Thornton, 264 Ga. at 565 (citation omitted; emphasis in original).

In response to Thornton, the next year the General Assembly [186] amended OCGA § 24-3-16 to add the phrase italicized below:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

Ga. L. 1995, p. 937, § 1 (emphasis added). See Vicki Lynn Bell, Note, Peach Sheets, Evidence, 12 Ga. St. U. L. Rev. 197, 197-200 (1995). Thus, the hearsay exception was no longer limited to out-of-court statements by the child who was the victim of the defendant’s sexual contact or physical abuse — or to statements about sexual contact or physical abuse committed against children.

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Bunn v. State, 728 S.E.2d 569, 291 Ga. 183, 2012 Fulton County D. Rep. 1918, 2012 WL 2206885, 2012 Ga. LEXIS 565 (Ga. 2012).

728 S.E.2d 569 (Bunn v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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