SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 6, 2015
In the Court of Appeals of Georgia A14A1501. HARRIS v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Loyce D. Harris was convicted of aggravated child
molestation. He appeals, arguing that the state violated his rights by failing to provide
him with a witness’s statement as required by Brady v. Maryland, 373 U. S. 83 (83
SCt 1194, 10 LE2d 215) (1963), and Georgia’s reciprocal discovery statutes; that the
trial court erred by admitting hearsay testimony; and that the trial court erred by
refusing to charge the jury on identification. We hold that Harris’s failure to object
on Brady grounds or to seek relief bars his challenge regarding the witness statement;
that even if the trial court erred by admitting hearsay, any error was harmless beyond
a reasonable doubt; and the that trial court did not err by refusing to give Harris’s
requested charges on identification. We therefore affirm. 1. Facts.
Viewed in the light most favorable to the verdict, the evidence shows that
Harris dated the victim’s grandmother, with whom the victim lived. The five-year-old
victim told her grandmother that, “Cash touched my pie-pie,” which is the name they
used for the vagina. The grandmother testified that the victim referred to Harris as
Cash. At the recommendation of the police, the grandmother took the victim to a child
advocacy center. A forensic interviewer interviewed the victim, who told her that
Cash had touched her vagina with his finger and put his penis in her vagina.
2. Witness statement.
During cross-examination, the victim’s uncle testified that, at the request of the
assistant district attorney, he “wrote [a] statement and turned it in.” Harris’s attorney
then asked the trial court, “may we approach regarding the statement that I never
received?” The assistant district attorney objected to that characterization. The court
responded, “There’s no need to approach,” and defense counsel answered, “Okay.”
She then continued cross-examination. Harris argues that the state’s failure to provide
him with the uncle’s written statement violated his due process rights under the
federal and Georgia constitutions because it was material impeachment evidence
falling under Brady, and violated Georgia’s reciprocal discovery rules.
2 (a) Brady violation.
Harris argues that the state’s failure to provide him with the statement violated
Brady. “No such objection was made at trial, and the defendant has waived his right
to raise this objection on appeal.” Jones v. State, 258 Ga. 249, 250 (6) (368 SE2d
313) (1988) (failure to raise an objection based on Brady at trial waives the issue on
appeal). Further, Harris learned of the statement at trial and “could, had he deemed
it necessary, have sought a continuance to further investigate.” Walker v. State, 282
Ga. 703, 706-707 (4) (653 SE2d 468) (2007).
(b) Violation of reciprocal discovery statutes.
Harris argues that the state’s failure to provide him with the written statement
violated Georgia’s reciprocal discovery statutes and the only just remedy is reversal.
Harris correctly argues that OCGA § 17-16-4 (c) required the state to promptly notify
him of this statement. That statute provides:
If prior to or during trial a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under this article, such party shall promptly notify the other party of the existence of the additional evidence or material and make this additional evidence or material available as provided in this article.
3 OCGA § 17-16-4 (c). As for remedies for the state’s violation, OCGA § 17-16-6
provides that
the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.
However, “[Harris] did not request any of these items of relief, but merely [asked to
approach regarding the statement that counsel never received]. As [Harris] did not
request any relief,” he is not entitled to reversal. Williams v. State, 226 Ga. App. 313,
314 91) (485 SE2d 837) (1997). We observe that Harris concedes that the state did
not purposefully violate the statute.
3. Hearsay testimony.
Harris argues that the trial erred by allowing a former law enforcement officer,
who had investigated a similar transaction introduced against Harris, to testify about
what the similar-transaction victim had told him. In the similar transaction, Harris was
charged with child molestation and pled guilty to statutory rape. At Harris’s trial here,
the former detective who investigated the similar transaction testified:
4 I went to the hospital where I started my investigation. I called DFACS; we notify DFACS anytime a child is involved in a rape. I got some information from the victim. I started my investigation. I interviewed some witnesses, and I also interviewed the victim. She advised me that her and two more juvenile females were riding bicycles and that Alonzo Harris [a name Harris was known by] grabbed her, drug her down into the woods where he attempted to rape her. She stated that he put his finger inside of her private parts; he also gave me a statement hisself that he did put his finger inside of her. He was charged with child molestation.
Harris argues that introduction of the similar-transaction victim’s testimonial
statements violated his confrontation rights and that those statements were
inadmissible hearsay. It is true that out-of-court statements are inadmissible if they
are testimonial in nature:
[t]he confrontation clause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant. . . . [S]tatements made to police officers during an investigation qualify as testimonial.
Gay v. State, 279 Ga. 180, 181-182 (2) (611 SE2d 31) (2005) (citations and
punctuation omitted). But see Hatley v. State, 290 Ga. 480, 484 (II) (722 SE2d 67)
(2012) (“Statements are nontestimonial when made in the course of police
5 interrogation under circumstances objectively indicating that the primary purpose of
the interrogation is to enable police assistance to meet an ongoing emergency.”)
(citation omitted). We conclude, however, that any confrontation-clause error was
harmless beyond a reasonable doubt. See Griffin v. State, 292 Ga. 321, 324 (5) (737
SE2d 682) (2013).
The detective’s testimony that the victim said she was riding her bicycle does
not implicate Harris whatsoever. See Bell v. State, 294 Ga. 443, 448 (3) (754 SE2d
Free access — add to your briefcase to read the full text and ask questions with AI
SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 6, 2015
In the Court of Appeals of Georgia A14A1501. HARRIS v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Loyce D. Harris was convicted of aggravated child
molestation. He appeals, arguing that the state violated his rights by failing to provide
him with a witness’s statement as required by Brady v. Maryland, 373 U. S. 83 (83
SCt 1194, 10 LE2d 215) (1963), and Georgia’s reciprocal discovery statutes; that the
trial court erred by admitting hearsay testimony; and that the trial court erred by
refusing to charge the jury on identification. We hold that Harris’s failure to object
on Brady grounds or to seek relief bars his challenge regarding the witness statement;
that even if the trial court erred by admitting hearsay, any error was harmless beyond
a reasonable doubt; and the that trial court did not err by refusing to give Harris’s
requested charges on identification. We therefore affirm. 1. Facts.
Viewed in the light most favorable to the verdict, the evidence shows that
Harris dated the victim’s grandmother, with whom the victim lived. The five-year-old
victim told her grandmother that, “Cash touched my pie-pie,” which is the name they
used for the vagina. The grandmother testified that the victim referred to Harris as
Cash. At the recommendation of the police, the grandmother took the victim to a child
advocacy center. A forensic interviewer interviewed the victim, who told her that
Cash had touched her vagina with his finger and put his penis in her vagina.
2. Witness statement.
During cross-examination, the victim’s uncle testified that, at the request of the
assistant district attorney, he “wrote [a] statement and turned it in.” Harris’s attorney
then asked the trial court, “may we approach regarding the statement that I never
received?” The assistant district attorney objected to that characterization. The court
responded, “There’s no need to approach,” and defense counsel answered, “Okay.”
She then continued cross-examination. Harris argues that the state’s failure to provide
him with the uncle’s written statement violated his due process rights under the
federal and Georgia constitutions because it was material impeachment evidence
falling under Brady, and violated Georgia’s reciprocal discovery rules.
2 (a) Brady violation.
Harris argues that the state’s failure to provide him with the statement violated
Brady. “No such objection was made at trial, and the defendant has waived his right
to raise this objection on appeal.” Jones v. State, 258 Ga. 249, 250 (6) (368 SE2d
313) (1988) (failure to raise an objection based on Brady at trial waives the issue on
appeal). Further, Harris learned of the statement at trial and “could, had he deemed
it necessary, have sought a continuance to further investigate.” Walker v. State, 282
Ga. 703, 706-707 (4) (653 SE2d 468) (2007).
(b) Violation of reciprocal discovery statutes.
Harris argues that the state’s failure to provide him with the written statement
violated Georgia’s reciprocal discovery statutes and the only just remedy is reversal.
Harris correctly argues that OCGA § 17-16-4 (c) required the state to promptly notify
him of this statement. That statute provides:
If prior to or during trial a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under this article, such party shall promptly notify the other party of the existence of the additional evidence or material and make this additional evidence or material available as provided in this article.
3 OCGA § 17-16-4 (c). As for remedies for the state’s violation, OCGA § 17-16-6
provides that
the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.
However, “[Harris] did not request any of these items of relief, but merely [asked to
approach regarding the statement that counsel never received]. As [Harris] did not
request any relief,” he is not entitled to reversal. Williams v. State, 226 Ga. App. 313,
314 91) (485 SE2d 837) (1997). We observe that Harris concedes that the state did
not purposefully violate the statute.
3. Hearsay testimony.
Harris argues that the trial erred by allowing a former law enforcement officer,
who had investigated a similar transaction introduced against Harris, to testify about
what the similar-transaction victim had told him. In the similar transaction, Harris was
charged with child molestation and pled guilty to statutory rape. At Harris’s trial here,
the former detective who investigated the similar transaction testified:
4 I went to the hospital where I started my investigation. I called DFACS; we notify DFACS anytime a child is involved in a rape. I got some information from the victim. I started my investigation. I interviewed some witnesses, and I also interviewed the victim. She advised me that her and two more juvenile females were riding bicycles and that Alonzo Harris [a name Harris was known by] grabbed her, drug her down into the woods where he attempted to rape her. She stated that he put his finger inside of her private parts; he also gave me a statement hisself that he did put his finger inside of her. He was charged with child molestation.
Harris argues that introduction of the similar-transaction victim’s testimonial
statements violated his confrontation rights and that those statements were
inadmissible hearsay. It is true that out-of-court statements are inadmissible if they
are testimonial in nature:
[t]he confrontation clause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant. . . . [S]tatements made to police officers during an investigation qualify as testimonial.
Gay v. State, 279 Ga. 180, 181-182 (2) (611 SE2d 31) (2005) (citations and
punctuation omitted). But see Hatley v. State, 290 Ga. 480, 484 (II) (722 SE2d 67)
(2012) (“Statements are nontestimonial when made in the course of police
5 interrogation under circumstances objectively indicating that the primary purpose of
the interrogation is to enable police assistance to meet an ongoing emergency.”)
(citation omitted). We conclude, however, that any confrontation-clause error was
harmless beyond a reasonable doubt. See Griffin v. State, 292 Ga. 321, 324 (5) (737
SE2d 682) (2013).
The detective’s testimony that the victim said she was riding her bicycle does
not implicate Harris whatsoever. See Bell v. State, 294 Ga. 443, 448 (3) (754 SE2d
327) (2014) (officer’s hearsay testimony regarding witness’s statement was harmless
beyond a reasonable doubt because it was cumulative of other admissible evidence
and did not establish any fact related to defendant’s guilt). The testimony that the
victim said Harris attempted to rape her is cumulative of his guilty plea to statutory
rape. See Gay, supra, 279 Ga. at 182 (2) (admission of hearsay statement violated
confrontation clause but was harmless beyond a reasonable doubt because it was
cumulative of other admissible evidence). The testimony that the victim said Harris
“put his finger inside of her private parts” is cumulative of Harris’s admission to that
act. Id. The testimony that the victim said Harris grabbed her and dragged her into the
woods added nothing material and was merely incidental to the properly admitted
evidence of the statutory rape conviction. See Horne v. State, 281 Ga. 799, 808-809
6 (5) (642 SE2d 659) (2007) (any confrontation clause violation caused by state’s
leading questions in the presence of the jury to a co-indictee who had been granted
immunity but refused to testify was harmless beyond a reasonable doubt because
questions were not evidence and added nothing of material value that had not
otherwise been properly admitted).
Harris also argues that the admission of the victim’s statements violated the
Georgia statutory prohibitions against hearsay evidence. Assuming for purposes of
appeal that there was error in this regard, any such error was harmless as detailed
above.
4. Jury instruction.
Harris argues that the trial court erred by refusing to give two requested
charges on identification. One of the charges concerned the reliability of
identification and the other concerned the state’s burden to prove beyond a reasonable
doubt the identity of Harris as the person who committed the crime. Harris argues that
the victim was never reported to have identified Harris as the person she referred to
as Cash regarding this incident But the grandmother testified that the victim called
Harris by the name “Cash,” and said that Cash had touched her.
7 “There is no requirement of our law that a trial judge warn the jury against the
possible dangers of mistaken identification of an accused as the person committing
a crime.” McLean v. State, 291 Ga. 873, 878 (5) (b) (738 SE2d 267) (2012) (citation
and punctuation omitted) (ineffective assistance of counsel claim). The trial court
charged the jury on the state’s burden of proof, the presumption of innocence,
reasonable doubt, credibility of witnesses, and impeachment of witnesses. “Thus, the
jury was instructed on the general principles of law underlying a defense of
misidentification.” Id. See also Sullivan v. State, 242 Ga. App. 613, 615 (4) (530
SE2d 521) (2000) (trial court’s failure to instruct jury that state must prove identity
beyond a reasonable doubt not error because court gave instruction that jurors must
find beyond a reasonable doubt that the defendant committed the offenses charged in
the indictment).
Judgment affirmed. Andrews, P. J., concurs; Ray, J., concurs in Divisions 1,
2 and 4, and in the judgment in Division 3.