Roberson v. State

526 S.E.2d 428, 241 Ga. App. 226, 2000 Fulton County D. Rep. 163, 1999 Ga. App. LEXIS 1588
Court of Appeals of Georgia·Decided December 2, 1999·No. A99A1442·Published·Cited by 18 cases

Opinions

Smith, Judge.

Lucious Roberson appeals his conviction for child molestation and denial of his motion for new trial. The State acknowledges that the prosecutor “was laying a foundation as to the credibility and veracity of the victim” and that such bolstering testimony is generally improper, but contends the testimony was permissible because it was introduced to show the reliability of a witness under OCGA § 24-3-16, the child hearsay statute. We have previously rejected the State’s position in Buice v. State, 239 Ga. App. 52, 56 (2) (520 SE2d 258) (1999).1 Here, the State attempted to elicit credibility evidence before the jury instead of in a separate hearing pursuant to OCGA § 24-3-16, and this occurred as a direct result of the State’s opposition to a separate hearing. This conduct was improper, and in allowing it the trial court erred. But because the witness’s response to the State’s question was relatively innocuous and ambiguous, we find this error to be harmless in the context of the evidence presented at [227] trial, and we affirm.

1. The objectionable testimony occurred during the State’s direct examination of the child’s mother. In response to the prosecutor’s questioning, the mother testified that she had taught the victim the difference between right and wrong and that she had taught her to tell the truth. Asked if she “ever had any problem with her lying to you,” she responded, ‘You know, normal things that children lie about.” At this point, Roberson’s counsel approached the bench and objected that the State was using one witness to bolster the credibility of another. The State responded that it was nevertheless entitled to explore the child’s credibility under OCGA § 24-3-16, and the trial court overruled the objection. The prosecutor then abandoned this line of questioning.

It is significant that Roberson requested a separate hearing to determine the “reliability” of the victim’s testimony under OCGA § 24-3-16 but was opposed by the State. The State relied then and relies now on such decisions as Gregg v. State, 201 Ga. App. 238 (411 SE2d 65) (1991). Gregg and similar cases hold that a hearing is not required prior to receiving the victim’s testimony, but the State uses them to argue that a separate hearing is never necessary. Cases decided by the appellate courts of this state make clear, however, that when evidentiary rules conflict with the provisions of the child hearsay statute, a separate hearing may be necessary to avoid the presentation of inadmissible matter to the jury. That is precisely what occurred here, as a direct result of the State’s opposition to Roberson’s timely request for a hearing.

A fundamental principle of Georgia evidentiary law, established as long ago as 1860, provides: “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80, derived from Strozier v. Carroll, 31 Ga. 557, 563-564 (1860). “In no circumstance may a witnesses] credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” (Citations and punctuation omitted.) Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994). Testimony that another witness believes the victim — for example, testimony that the witness has not had a problem with the victim telling lies — impermissibly bolsters the credibility of the victim. Lagana v. State, 219 Ga. App. 220, 221 (464 SE2d 625) (1995). “ ‘(I)t is not the function of witnesses to determine the veracity of other witnesses.’ [Cit.]” Golden v. State, 233 Ga. App. 703 (505 SE2d 242) (1998).

The State concedes that it is generally improper to bolster the testimony of a witness. Yet, while acknowledging this well-established prohibition, the State claims that testimony about a child victim’s truthfulness is nevertheless permissible under OCGA § 24-3-[228]*22816. This is plainly wrong. Otherwise, a prosecutor could present an endless succession of witnesses praising the witness’s impeccable veracity and admirable credibility. OCGA § 24-3-16 imposes a dual burden on the trial court and the proponent of child hearsay testimony. The State must present evidence proving the child’s reliability, and the court must assess that evidence. But this statute does not authorize the State to eviscerate the rule against improper bolstering.

In both Tucker v. State, 208 Ga. App. 441 (430 SE2d 811) (1993), and Gregg v. State, supra, relied upon by the State, the trial court held a separate hearing outside the presence of the jury to determine the sufficiency of the “indicia of reliability” of child hearsay testimony under OCGA § 24-3-16. A separate hearing before the trial court on a threshold determination, such as a motion to suppress or motion in limine, often involves testimony that would be improper for the jury to hear. The Supreme Court of Georgia has recognized that when considering child hearsay testimony under OCGA § 24-3-16, “it may be advisable in some situations to hold such a hearing outside the presence of the jury.” Reynolds v. State, 257 Ga. 725, 726 (2) (363 SE2d 249) (1988). In Reynolds, the Supreme Court concluded that a separate hearing before introduction of the testimony was not required under the facts of that case, noting that the trial court “ultimately found the statements reliable and admitted them and obviously would have done the same following a separate hearing.” Id. The only objection raised by Reynolds was a hearsay objection to allowing a teacher and social worker to testify to the child victim’s statements without first holding a hearing on the indicia of reliability under OCGA § 24-3-16. The decision does not indicate that the victim’s believability, credibility, or veracity was ever testified to or raised as an issue.

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Roberson v. State, 526 S.E.2d 428, 241 Ga. App. 226, 2000 Fulton County D. Rep. 163, 1999 Ga. App. LEXIS 1588 (Ga. Ct. App. 1999).

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Roberson v. State
526 S.E.2d 428 (Court of Appeals of Georgia, 1999)