Chambers v. State

421 S.E.2d 326, 205 Ga. App. 78, 92 Fulton County D. Rep. 1313, 1992 Ga. App. LEXIS 1073
Court of Appeals of Georgia·Decided July 1, 1992·No. A92A0454·Published·Cited by 12 cases

Opinion

Andrews, Judge.

Chambers appeals his conviction for incest and child molestation.

1. In his first enumeration of error, Chambers contends that the trial court erred in allowing the victim/witness director of the county district attorney’s office to testify regarding the contents of a conversation she had with the victim. Chambers claims that the prosecution was barred from calling this witness because in doing so the prosecution essentially vouched for the credibility of one of its own staff members.

Pretermitting the issue of whether the objection was properly preserved, we find this argument without merit. We find no error in the trial court’s decision allowing the victim/witness director to testify. See generally OCGA § 24-3-16. Chambers’ argument that Timberlake v. State, 246 Ga. 488 (7) (271 SE2d 792) (1980), bars this testimony is without merit. See generally Ware v. State, 191 Ga. App. 896 (383 SE2d 368) (1989).

2. In his second enumeration, Chambers claims that the trial court erred in refusing to allow testimony from four witnesses regarding the victim’s prior accusations of molestation by persons other *79 than Chambers and her subsequent retractions of those other accusations.

Chambers’ argument is without merit. During the trial, the State introduced into evidence a videotape in which the victim admitted that she made a false accusation regarding sexual activity by a male other than Chambers, which accusation she subsequently retracted. During the videotape, the victim discussed both the false accusation and its retraction.

After the introduction of this testimony, Chambers sought to introduce testimony of witnesses who would testify to identical accusations by the victim regarding the same alleged sexual activity by the same male. Outside the presence of the jury, one of the witnesses was examined with regard to the alleged pattern of false accusations. The testimony which was presented was essentially a repetition of the victim’s earlier videotaped admission of her false accusation.

Pretermitting the question of whether Chambers perfected the record for our review with respect to the expected testimony of three of the witnesses, see Thompson v. State, 187 Ga. App. 152 (369 SE2d 523) (1988), we find that the requirements of Smith v. State, 259 Ga. 135 (1) (377 SE2d 158) (1989), were satisfied by the admitted videotape of the prior accusation and retraction. Although Smith held that the rape shield protection of OCGA § 24-2-3 does not prohibit testimony of previous false allegations by the victim after a determination by the court of the falsity of such allegations, we do not read Smith as mandating the admission of this duplicate testimony. Here, the proffered testimony contained no additional information regarding the false accusations, the State had already impeached its own witness by presenting the evidence and there was no harmful error in the trial court’s decision to exclude the testimony. See generally Gibbs v. State, 196 Ga. App. 140 (1) (395 SE2d 387) (1990).

3. Chambers argues that the trial court erred in excluding from evidence the contents of telephone conversations between the victim and her mother, which he sought to introduce through the testimony of several witnesses. Chambers claims that the conversations would have established a motive for the victim to falsely accuse Chambers. Chambers was allowed to pursue the issue of motive and does not cite any authority for allowing this hearsay evidence. We find no error in the trial court’s exclusion of this evidence. See generally OCGA § 24-3-1; Martin v. State, 196 Ga. App. 145 (3) (395 SE2d 391) (1990).

4. In his fourth enumeration of error, Chambers contends that the trial court erred in refusing to allow him to introduce medical evidence of a sexually transmitted disease, gardnella vaginalis, for which the victim had tested positive. Chambers claims that the evidence would have indicated that he had not molested the victim and that he should have been permitted to introduce the evidence, not to *80 prove that the victim had engaged in sexual intercourse with other men, but to exclude the possibility that he had had intercourse with her.

There was medical testimony at trial that after the victim reported the acts of molestation, she was examined by a Dr. Connor in October 1990. The victim told Connor that she had been molested from approximately August 1989 until August 1990. Dr. Connor did not perform the clinical tests regarding gardnella vaginalis, because he did not see “clue cells” which would have indicated that the disease was present. He stated that pus cells, which could have been suggestive of the disease were present. He testified that at the time of his examination, he did not make -a conclusive diagnosis regarding the disease. Connor testified that the condition can be cured within one to two weeks by antibiotics or by the application of a cream.

Although Chamber’s argument is somewhat unclear, it appears that he contends that the trial court erred in excluding from the jury’s consideration additional testimony regarding the disease. The testimony he claims was erroneously excluded was that of a Dr. Johnson and that of a third doctor regarding the disease. Pursuant to OCGA § 24-2-3 (b) the court held a hearing outside the presence of the jury and concluded that the doctors’ testimony was inadmissible.

In Dr. Johnson’s statement, which Chambers proffered, she swore as follows: “On March 19, 1991,1 conducted a physical examination of [the victim]. One of my findings was that [the victim] had Gardnella vaginalis. Gardnella vaginalis is a bacteria which is most probably transmitted by sexual intercourse. Gardnella vaginalis can be clinically diagnosed for a female, however, it cannot be clinically diagnosed for a male. If untreated, gardnella vaginalis can remain with a person for an indefinite period of time. If treated, gardnella vaginalis can be cured. Also, it is possible for a person to have this bacteria and for it to go away without treatment.” This document is labeled “stipulation” since the parties agreed that it was the substance of Dr. Johnson’s testimony, although they disagreed over its admissibility.

Chambers also argues that the trial court erred in excluding the testimony of a third doctor regarding the disease. Defense counsel proffered the affidavit of the third doctor which stated that gardnella vaginalis is a very infectious, sexually transmitted bacteria, for which both males and females can be tested. The affidavit stated that the doctor examined Chambers and his wife in August 1991, and that at that time, neither Chambers nor his wife showed signs of the disease, nor did they report that they had taken antibiotics during the previous 12 months.

Free access — add to your briefcase to read the full text and ask questions with AI

Chambers v. State, 421 S.E.2d 326, 205 Ga. App. 78, 92 Fulton County D. Rep. 1313, 1992 Ga. App. LEXIS 1073 (Ga. Ct. App. 1992).

421 S.E.2d 326 (Chambers v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Burns
306 Ga. 117 (Supreme Court of Georgia, 2019)
Tidwell v. State
701 S.E.2d 920 (Court of Appeals of Georgia, 2010)
Murrell v. Ricks
627 S.E.2d 546 (Supreme Court of Georgia, 2006)
Warner v. State
626 S.E.2d 620 (Court of Appeals of Georgia, 2006)
State v. Pena-Rojas
822 A.2d 921 (Supreme Court of Rhode Island, 2003)
Ricks v. State
546 S.E.2d 919 (Court of Appeals of Georgia, 2001)
Green v. State
532 S.E.2d 111 (Court of Appeals of Georgia, 2000)
Brooks v. State
500 S.E.2d 11 (Court of Appeals of Georgia, 1998)
Pickens v. State
484 S.E.2d 731 (Court of Appeals of Georgia, 1997)
Chambers v. State
454 S.E.2d 567 (Court of Appeals of Georgia, 1995)