Horne v. State

385 S.E.2d 704, 192 Ga. App. 528, 1989 Ga. App. LEXIS 1089, 1989 WL 140522
CourtCourt of Appeals of Georgia
DecidedJuly 14, 1989
DocketA89A0619
StatusPublished
Cited by48 cases

This text of 385 S.E.2d 704 (Horne 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
Horne v. State, 385 S.E.2d 704, 192 Ga. App. 528, 1989 Ga. App. LEXIS 1089, 1989 WL 140522 (Ga. Ct. App. 1989).

Opinions

Benham, Judge.

Tried under a four-count indictment, appellants, husband and wife, were jointly convicted of one count of child molestation and one count of enticing a child for indecent purposes; Mr. Horne was also convicted of an additional count of child molestation and one count of sodomy.

1. Appellants assert that the trial court erred in refusing to allow them to have their own expert examine the child or her treatment records for the purpose of rebutting the State’s expert’s testimony concerning the victim’s exhibition of symptoms of child sexual abuse accommodation syndrome. Whether to permit such an examination is within the trial court’s discretion (J. B. v. State, 171 Ga. App. 373 (4) (319 SE2d 465) (1984)), and under the circumstances here, including the fact that the request was filed the day before trial began, we find no abuse of discretion in the denial.

2. Appellants assert that the trial court erred in allowing “golden rule” arguments. During closing argument, the prosecuting attorney said: “Think about it, how would you like to walk over here, walk up these stairs and sit in this chair and have this microphone in your face and talk to twelve grownups, twelve people you’d never met before about the last time that you had sex.” Appellants objected on the specific ground that this constituted a “golden rule” argument. The trial judge overruled the objection. The prosecution thereafter argued, without immediate objection from appellants, as follows: “Think about what it would be like to sit in this chair and talk about the last time that you had sex. Is that an easy thing to do? Is that something that you would want to do, just want to do it for no reason?” Subsequently, while suggesting why another young girl might deny being molested, the State made the following argument without [529]*529immediate objection by appellants. “Well, ladies and gentlemen, look at it from the children’s eyes. The right thing to do? It ruins their lives to tell. It ruins their lives to live through it, but look what happens to them when they tell about it. Nobody believes them. . .

After the State’s closing argument, appellants moved for a mistrial based on the prosecuting attorney’s statements which led to appellants’ “golden rule” objection and on another statement made thereafter. The trial court denied both the motion and appellant’s request for curative instructions. The State’s argument does not fit neatly within the category of so-called “golden rule” arguments. In a classic “golden rule” argument, jurors are invited to place themselves in the victim’s place in regard to the crime itself. See generally Wolke v. State, 181 Ga. App. 635 (3) (353 SE2d 827) (1987). However, any argument, regardless of nomenclature, which importunes the jury to place itself in the position of the victim for any purpose must be carefully scrutinized to ensure that no infringement of the accused’s fair trial rights has occurred.

“A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb a court’s ruling in the absence of a manifest abuse of discretion, and a mistrial is essential to preserve a defendant’s right to a fair trial. [Cit.]” Id. at 637. We are satisfied, after having carefully examined the closing argument in its entirety and the basis for and timing of appellants’ objections and mistrial motion, that the trial court did not manifestly abuse its discretion in denying the motion for mistrial. We also find that a mistrial was not essential to preserve appellants’ right to a fair trial. More-Iover, assuming arguendo that the prosecuting attorney’s argument was improper and that it was error not to grant appellants’ request for a curative instruction, consideration of the entire record satisfies us that it is highly probable that the argument did not contribute to the verdict. Blanchard v. State, 247 Ga. 415 (2) (276 SE2d 593) (1981).

3. Appellants assert that the trial court erred in allowing the State to present a witness to testify in rebuttal and to permit that witness to prove by testimony the contents of regulations of the Department of Corrections.

After the defense has rested, it is within the discretion of the trial judge whether to allow the State to introduce additional evidence. Payne v. State, 168 Ga. App. 485 (2) (309 SE2d 667) (1983). The trial judge may allow introduction of additional evidence even though it is not strictly in rebuttal of presented defense evidence. Cooper v. State, 103 Ga. 63 (1) (29 SE 439) (1897). We find the trial court did not err in allowing the rebuttal witness to be called as a witness after the defense rested.

Appellants raised a best evidence objection to testimony concern[530]*530ing the contents of correctional institution regulations. Mr. Horne had testified on direct examination that sexually-oriented materials introduced into evidence by the State had come into his possession as a result of inmate “shakedowns” while he was a Ware County corrections officer. On cross-examination, he was questioned about the existence of a policy concerning the seizure and disposition of contraband during shakedowns. He responded that it depended upon the “seriousness of the contraband.” Further, in response to a question regarding the propriety of taking contraband items home, Mr. Horne testified to the “policy of our state corrections” regarding the handling of seized contraband. This and other testimony by him regarding the discretion that guards exercised in determining whether to initiate disciplinary actions against inmates were introduced without objections.

Assuming without deciding that it was error to allow the witness to testify to the contents of the correctional institution’s regulations in the face of a best evidence objection, we find the error harmless. The question of how Mr. Horne came into possession of the contraband and the propriety of that possession had no bearing on the real issues to be decided at trial, the guilt or innocence of the defendants. Considering that the testimony concerning correctional department regulations was at best collateral, if not completely irrelevant, to the issues at hand, we find it highly probable that the error did not contribute to the verdict. See Jackson v. State, 187 Ga. App. 449, 450 (370 SE2d 633) (1988).

4. Appellants assert that the trial court erred in refusing to allow defense counsel to take possession of medical records prepared by State’s witnesses and demanded and subponeaed by defense counsel before trial. Appellants argue that the trial court erred in allowing a medical doctor and certain social science witnesses to testify without their records first having been produced pursuant to OCGA § 17-7-211; that the trial court erred by failing to review the medical records prior to trial and to provide them to defense counsel; and that the j trial court erred in refusing to review scientific reports and records under appellant’s specific Brady request. I

(a) At trial appellants asserted they had been denied access to certain scientific reports (“records from the [D.A.I.S.Y.] Youth Clinic . . . including the records of Doctor Butler . . . Ms. Bernice Gordon and Ms. Donna McClain”) in contravention of OCGA § 17-7-211.

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Bluebook (online)
385 S.E.2d 704, 192 Ga. App. 528, 1989 Ga. App. LEXIS 1089, 1989 WL 140522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horne-v-state-gactapp-1989.