Petition for Writ of Certiorari — Sosebee v. Georgia
Supreme Court brief1989
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Supreme Court, US.
FILED
JUL 31 1989
JOSEPH F. SPANIOL, JR.
a —GLERK
Supreme Court of the United States
October Term, 1989
¥
GEARY ALAN SOSEBEE,
Petitioner,
V.
STATE OF GEORGIA,
Respondent.
~
~~
PETITION FOR A WRIT OF CERTIORARI
TO THE GEORGIA COURT OF APPEALS
~
—
Bossy Lee Cook
P.O. Box 370
Summerville, Georgia 30747
(404) 857-342}
JAKE ARBES
(Counsel of Record)
233 Mitchell Street
Suite 500
Atlanta, Georgia 30303
(404) 522-1980
Attomeys for Petitioner
July 28, 1989
Lex Publishing Company, 2161 Monroe Dr., Atlanta, Georgia 30324 (404) 875-5140
Mal)
i
QUESTIONS PRESENTED
1. Whether the Georgia Child Hearsay Statute, as enacted by
the state legislature, and as judicially amended by the Supreme Court
of Georgia, is unconstitutional in that it violates a defendant's right
to a full and fair opportunity for effective cross examination, con-
frontation and due process?
2. Whether the Georgia Supreme Court violated the “Separa-
tion of Powers” doctrine by judicially amending the Georgia Child
Hearsay Statute on interlocutory appeal?
3. Whether, assuming arguendo that the Georgia Child Hear-
say Statute is constitutional, its implementation in this case violated
petitioner’s constitutional rights because: (a) the petitioner was not
given a fair opportunity to prepare to meet the child’s alleged state-
ments introduced through the testimony of third parties since the trial
judge refused to give the petitioner access to either the child declar-
ant, her statements or her doctors prior to trial; (b) the petitioner was
not allowed through an independent psychiatric and psychological
exam to contest the child’s competence at the time she allegedly made
the statements introduced through the statute; and (c) the petitioner
was not allowed a fair opportunity to contest the reliability of the
child’s statements?
ii
LIST OF THE PARTIES
Apart from the party named in the caption of this petition, the
other parties involved in the case were Donald Evans, whose ir.dict-
ment was dismissed, Holly Sosebee, who was the child declarant,
and Leslie Sosebee, Mr. Sosebee’s ex-wife.
TABLE OF CONTENTS
PAGE
QUESTIONS PRESENTED ..........sccsssessscsssssscssssssesssssssecccsssssecesnsn
OT .....-sscsszssescanveesosensvussconvvencartunds i
is. scsccsnononnusabnnsasnsaniansisibin l
ass canscvesecarcessccnntens 2
STATUTORY AND CONSTITUTIONAL PROVISIONS .......... 2
Sse oe. a ee 4
REASONS FOR GRANTING THE WRIT ........-ssssssecssssseeesssseees 11
I. The Georgia Child Hearsay Statute, Both As Ongi-
nally Enacted by the State Legislature, And As
Judicially Amended by the Supreme Court of
Georgia On Interlocutory Appeal,
Tene ais sssunacasnonancscccssees 11
II. The Georgia Supreme Court Violated The “Sepa-
ration of Powers” Doctrine by Judicially Amend-
ing The Georgia Child Hearsay Statute on Inter-
Nee ee Guinness nsassdxcnsasisncescnerecesscrers 15
III. The Georgia Child Hearsay Statute as Implemented
in This Case Violated Petitioner’s Constitutional
Righis to Effective Cross Examination and Due
TIA nh hanhAaninasbbnanstwinescsonensvasaceosenseseues 17
IV. The Georgia Child Hearsay Statute is in Con-
flict With Child Hearsay Statutes in the Substan-
tial Majority of States Which Have Enacted Such
Statutes in that the Georgia Statute Lacks Pre-
Trial Notice Requirements that Would Accom-
modate a Defendant’s Right to Prepare
a acca dcsunnatasnuasnanchucesasssecanconasenen 24
iv
V. The Establishment of Evidentiary Procedures for
Protecting Parents in Child Custody Disputes From
False Allegations of Child Sexual Abuse is a Matter
of Great Concern And Importance to the Public
CNT icicsticees aincienitcnlinatetianiniiiinnatiateerinasevensaseces
APPENDIX A.
Opinion of the Georgia Court of Appeals ..........
APPENDIX B.
Order of the Georgia Court of Appeals Modifying
Its Original Opinion But Denying a Rehearing
APPENDIX C.
Order of the Georgia Supreme Court Deny-
ing Application for a Writ of Certiorani ..............
APPENDIX D.
Order of the Georgia Supreme Court Deny-
ing Motion for Rehearing ..................:.cceeceeees
APPENDIX E.
Notice to the Georgia Court of Appeals of
Intention to Seek a Wnit of Certiorani .................
APPENDIX F.
Order of the United States Supreme Court Grant-
ing Extention of Time in Which to File
I id icckrvawecncacecscsecee
APPENDIX G.
Opinion of the Georgia supreme Court in
Sosebee | on interlocutory appeal .......................
“APPENDIX H.
Other States’ Child Hearsay Statutes...................
sseichdinaaies lla
Sebpiaibinks 13a
iatiatieiiia 15a
Pa NEES 17a
ot 21a
v
TABLE OF AUTHORITIES
CASES PAGES
Allen v. State,
150 Ga. App. 605, 258 S.E.2d 285 (1979) 0.0... cece 22
Barnes v. Carter,
RE ED EE, DED CB WUN OD wecccxtnsncesanscensccdinscsnesabncse 16
California v. Green,
I casepantienteieinane 14, 19
Cartee v. State,
85 Ga. App. 532, 69 S.E.2d 827 (1952) ........ ee ceseeeeeees 18
Coy v. lowa,
a BE a ak, PSE CRIED cccsnncccccesscncccsecsessacene 12
Delaware v. Fensterer,
nea lintinsdinasnilindipnnn 13, 19
Dover v. State,
250 Ga. 209, 196 S.E.2d 710
cert. denied, 459 U.S. 1221 (1982) .............. ccc eeesseeeeeees 18
Dutton v. Evans,
I a ss caacinteianesaniabiomabel aa
Estelle v. Williams,
EE me OO TN ll
Kemp v. Mitcheli Co. Demo. Ex. Com.,
216 Ga. 276, 116 S.E.2d 321 (1960) ............0.... HEART ae 16
Kentucky v. Stincer,
TERT aT TE ER RENN 20
Mattox v. United States,
ET ES Ee RCE Meee TNT 13
Miller v. State,
122 Ga. App. 553, 177 S.E.2d 838 (1970) .........:.eeeee 15
Nelson v. O’ Neil,
Ee i ee Ie EB icnesenenonednennn cinensiitenernsshnnennunacenmenssionn 19
vi
Ohio v. Roberts,
III Listas icchidiccnhsrnnsiinsiinstisebsnncedtecnedes 12,14,19
Pennsylvania v. Ritchie,
thai npn saab bahiansiinnsciadssenesinins 20
Perez v. State,
I ID oi ic Ladicnntnnadiinansoasnsabohibaveneatouwens 13
Rutledge v. State,
245 Ga. 768, 267 S.E.2d 199 (1980) ..........cccccccccscccsccesees 18
Snelling v. State,
176 Ga. App. 192, 335 S.E.2d 475 (1985) ..........ceees 16
Sosebee v. State,
257 Ga. 298, 357 S.E.2d 562 (1987) ................ 2, 11, 15, 19
State v. Butler,
256 Ga. 448, 349 S.E.2d 684 (1986)... ceeceeeeeee 26
State v. Ryan, ~!
103 Wash. 2d 165, 691 P.2d 197 (1984) 200... 14
State v. Wright,
Fare aes Hee GO CORD, WONT BDBE) nnn csseccnccccccsscccccccccccssccccsnes 14
Sullivan v. State,
162 Ga. App. 297, 291 S.E.2d 127 (1982) .......................22
U.S. Life Credit Corporation v. Johnson et al.,
161 Ga. App. 864, 290 S.E. 2d 280 (1982) «0.0... 16
Ward v. State,
186 Ga. App. 503, 368 S.E. 2d 139 (1988) ........... 21
Westbrook v. State,
186 Ga. App. 493, 368 S.E.2d 131 (1988) «00... 21, 22
Wilson v. State,
93 Ga. App. 229, 91 S.E.2d 201 (1956)... cee cess 18
vii
CONSTITUTIONAL AND STATUTORY PROVISIONS
United States Constitution, Fifth Amendment...........................665 3
United States Constitution, Sixth Amendment ...........................06. 3
United States Constitution,
Fourteenth Amendment, Section 1 ...............0..cccccseeseeeeeeeees 3
Georgia Constitution,
AsmGEs 1, Dection 2, Parnagragit 5. .................c.cccccccssccsecscsees 2
2B Ueda Stats COGS SOCUON 1257 .......sccccsccsscccscccscscccsssscssssscesssens 2
Florida Statute Annotated
a ssanensinsuiatinnebaretins 13,15
Official Code of Georgia Annotated
ai scanaanuinadcnnneneanasevinnnndanrabiansiansh 15
Official Code of Georgia Annotated
BT iriicliaiticatiicetenencernnnansovensatnansrviamneiannns passim
Official Code of Georgia Annotated
acco hak cndandecternscansenkntsienichentauiasanenien 21
South Carolina Code Annotated
Dida hs steetchindtahdnnsbnsamnasncnenhisshsabestige tins 26
OTHER AUTHORITIES
Green, A. H., True And False Allegations
Of Sexual Abuse In Child Custody
Disputes, J. Amer. Acad. Child
Psychiat., 25, 4:449-456 (1986) .0........cccccccseeeeeeeeeees 27
Hopkins, E., Fathers on Trial: Trumped Up Charges
of Child Abuse are Divorce’s Ugly New Weapon,
New York (magazine), 21: 42, 44 (January 11, 1988)......28
Kaplan, S. L. & Kaplan, S. J.,
The Child's Accusation of Sexual
Abuse During a Divorce and Custody
Struggle, The Hillside Joumal of
Clinical Psychiatry, 3(1), 81-95 (1981)... 27
viii
Schuman, D. C., Psychodynamics of
Exaggerated Accusations: Positive
Feedback in Family Systems, Psychiatry
Annals., 242-247 (April 4, 1987) .........ccccccceseeseeeeeeeeeeeenees 28
No.
In The
Supreme Court of the United States
October Term, 1989
,
-
GEARY ALAN SOSEBEE,
Petitioner,
v.
STATE OF GEORGIA,
Respondent.
>
~
PETITION FOR A WRIT OF CERTIORARI
TO THE GEORGIA COURT OF APPEALS
”™
> a
Petitioner Geary Alan Sosebee respectfully prays that a writ of
certiorari issue to review the judgment of the Georgia Court of Ap-
peals entered on February 2, 1989.
OPINIONS BELOW
The opinion of the Georgia Court of Appeals affirming peti-
tioner’s conviction appears in the Appendix at page 1a. The order of
the Georgia Court of Appeals modifying its original opinion but denying
a Rehearing appears in the Appendix at page 7a. The order of the
2
Georgia Supreme Court denying application for a writ of certiorari
appears in the Appendix at page 9a. The order of the Georgia Su-
preme Court denying motion for rehearing appears in the Appendix
at page 1la. The opinion of the Georgia Supreme Court modifying
and upholding on interlocutory appeal the Georgia Child Hearsay
Statute, reported as Sosebee v. State, 257 Ga. 298, 357 SE2d 562
(1987), is reprinted in the Appendix beginning at page 17a.
JURISDICTION
The judgment of the Georgia Court of Appeals was entered on
February 2, 1989. A timely petition for rehearing was denied March
14, 1989. The Georgia Supreme Court denied certiorari on April 19,
1989. A timely petition for rehearing was denied on May 3, 1989.
This petition for a writ of certiorari was filed within ninety days of
that date which includes a thirty day extension granted by this Court
on June 19, 1989. This Court’s jurisdiction is invoked under 28 U.S.C.
Section 1257 (a).
CONSTITUTIONAL AND STATUTORY PROVISIONS
The Child Hearsay Statute, Official Code of Georgia Anno-
tated Section 24-3-16:
A Statement made by a child under the age of 14
years describing any act of sexual contact o: 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.
Article 1, Section 2, Paragraph 3 of the Georgia Constitution:
The legislative, judicial, and executive powers shall
forever remain separate and distinct; and no person dis-
charging the duties of one shall at the same time excr-
cise the functions of either of the others except as herein
provided.
3
Fifth Amendment to the United States Constitution:
No person shall be held to answer for a capital, or.
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any
Criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due proc-
ess of law; nor shall private property be taken for public
use, without just compensation.
Sixth Amendment to the United States Constitution:
In all criminal prosecutions, the accused shall en-
joy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have
been committed, which district shall have been previ-
ously ascertained by law, and to be informed of the na-
ture and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the assistance
of counsel for his defense.
Fourteenth Amendment to the United States Constitution, Sec-
tion 1:
All persons bom or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State where-in they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the Untied
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
tO ay person within its jurisdiction the equal protection
of the laws.
4
STATEMENT OF THE CASE
On September 9, 1986, Geary Sosebee was indicted in Fayette
County for various counts of child sexual abuse. (R-18, 19-23)' The
charges of abuse stemmed from events that occurred while Mr. Sose-
bee was involved in a divorce proceeding and an extremely bitter
custody battle for his two daughters.
Fayette County Superior Court Judge Andrew Whalen held a
two day custody hearing on April 11 and 12, 1986. At the close of the
hearing, Judge Whalen indicated that Mr. Sosebee was going to get
custody of both children. However, before awarding custody, Judge
Whalen ordered Mr. Sosebee and his wife to have psychological
evaluations. (T. Vol. VII at 1223-1225) Judge Whalen placed the children
with the Fayette County Department of Family and Children Serv-
ices pending the psychological determinations.
On Monday, April 15, 1986, the Department of Family and Children
Services (DFACS) received a telephone call from a person later iden-
tified as the children’s maternal grandmother, Mrs. Birch. The caller
stated that Holly had made statements to her indicating Mr. Soscbee
had sexually abused Holly. The caller stated that she had made Mr.
Sosebee’s wife aware of Holly’s complaints. Holly was then inter-
viewed by a DFACS caseworker who informed the Fayette County
Sheriff’s office that Holly had been abused. Holly was subsequently
examined by a therapist, a pediatrician, a midwife, a gynecologist, a
caseworker and a juvenile court investigator.
After Mr. Sosebee was indicted, defense counsel timely filed
various pre-trial motions requesting that counsel be allowed to inter-
view Holly and that her entire DFACS file and medical records be
made available to the defense. (R-58, 77, 42) A competency hearing
was also requested. (R-24)
Defense counsel then filed a Motion in Limine requesting that
all of Holly’s out-of-court statements be excluded because O.C.G.A.
Section 24-3-16 (the child hearsay exception) was unconstitutional.
' Citations to “R” refer to the Record of proceedings in the state court. Citations to
“T” refer to the transcript of proceedings in the state court. Citations to “a” refer to
the Appendix to this petition.
5
At the hearing oni the motion, the prosecutor indicated that he in-
tended to rely on the child hearsay exception, and that he could do so
without calling the child as a witness. (Transcript of hearing held 10/
16/86 at p. 10).? The trial judge, the Honorable Ben J. Miller, denied
the Motion in Limine, but granted a Certificate of Immediate Re-
view. (R-89, 90-95)
Defense counsel immediately filed an Application for Discre-
tionary Review which the Georgia Supreme Court granted. (R-96)
After a Notice of Appeal was filed (R-98), the trial judge stayed the
trial until the conistitutionality of O.C.G.A. Section 24-3-16 could be
determined by the Georgia Supreme Court. (R-108)
Instead of taking the bull by the homs and deciding the consti-
tutionality of the statute, the Georgia Supreme Count, with Chief Justice
Marshall dissenting, sidestepped the issue, deciding only that the defense
was not required to bear the “‘onus” of calling the child victim to the
stand. The Supreme Court judicially modified the statute by setting
forth a procedure whereby the ial court, rather than the defense,
would call the child-victim as a witness if either party requested the
court to do so. The Court in its opinion stated: “Our construction of
Section 24-3-16 moots the appellant’s constitutional arguments.” Sosebee
v. State, 257 Ga. 298, 357 S.E.2d 562 (1987). (Appendix G)
Following the Georgia Supreme Court’s decision in June the
Case was set down for trial September 21, 1987. Immediately prior to
trial a motions hearing was held ai which defense counsel reiterated
many of his previously filed motions. Defense counsel again objected
that he had been deprived of any meaningful access to Holly and that
he had not been permitted access “‘to the full medical records, the full
DFACS file.” (T.Vol.I at 15). Defense counsel had sought such ac-
cess for almost a year but had been rebuffed by the guardian ad litem
who had been appointed by the judge. This appointment had been
unsuccessfully challenged ‘through separate legal proceedings. (R-
? This transcript and the transcript of the hearing held 11/12/86 were part of the
record in the interlocutory appeal of this case, Sosebee v. State, 257 Ga. 298, 357
S.E.2d 562 (1987). They were added as a supplement to the Record in the Court of
Appeals on direct appeal.
6
111, 112-184, 201-214, Transcript of Hearing on 3/24/87) Counsel
moved in limine to prevent admission of Holly’s testimony since he
was not provided access to Holly or the records but the motion was
denied. (T.Vol.I at 17)
Defense counsel also sought to exclude any “medical reports,
scientific reports or the results of tests or examinations” that were
not provided earlier pursuant to petitioner’s discovery request. (T. Vol.I
at 33). The trial judge appeared ready to grant that motion but backed
off when the state objected to the motion with regard to “results of
examinations” unless they were exculpatory (T. Vol.I at 34)
Defense counsel then attacked the adequacy of Holly’s earlier
competency hearing and again requested that Holly be examined by
a defense psychiatrist and/or psychologist and that the defense be
allowed access to the complete DFACS file and medical records (T. Voi.I
at 36-38). These motions were denied. (T. Vol.I at 39)
At the close of the hearing the prosecutor stated that in compli-
ance with his responsibilities under Brady he wished io inform the
defense that the previous week he had talked to Holly and that she
was recanting what she had previously said and what she was now
saying was that “‘it was alt a lie, that she made it (allegations of sex-
ual misconduct) up and that she dreamed part of it, and this is allega-
tions that she’s made against her father or anybody else.” (T. Vol.I at
42) Defense counsel then again requested an independent examina-
tion of Holly which was again denied. (T. Vol.I at 43-44)
The evidence showed that on March 6, 1986, Holly had a rou-
tine medical exam which failed to indicate any vaginal injury. (T. Vol. V
at 834)
Approximately March 20, the divorce action was filed. (T. Vol. VIII
at 1452)
Between April 7 and Apnil 12 petitioner’s wife, Leslie, had access
to Holly and Holly’s younger sister.
On April 12 Judge Whalen indicated he was leaning toward
granting custody of the children to petitioner and placed the children
under the care of DFACS pending his custody order in the divorce
proceedings. Angela Stinchcomb was assigned as the children’s case-
worker. (T. Vol. VIII at 1466-1467)
7
On April 14, Mrs. Birch, Holly’s maternal grandmother, called
Ms. Stinchcomb and claimed Holly said a man with a mask got in
bed with her (Holly) and made her bottom hurt. (T. Vol. VI at 1029-
1030) Ms. Birch told Ms. Stinchcomb she suspected her son-in-law
of sexually abusing Holly.
On April 17, Holly was examined by a doctor who detected a
vaginal injury. (T. Vol. V at 832) The doctor’s testimony indicated Holly’s
injury appeared to have occurred within the past 7-10 days, but the
evidence showed that the petitioner had not had recent access to Holly.
(T. Vol. V at 752)
Between April 17th and mid-May petitioner had four or five
visits with Holly lasting an hour or less in Ms. Stinchcomb’s pres-
ence. Soon thereafter his visitation rights were terminated by Ms.
Stinchcomb and he was not allowed to visit with Holly again. Dur-
ing the fifteen month period between the termination of petitioner’s
visitation rights and the trial, Holly’s mother and matemal grandpar-
ents had regular access to Holly. (T. Vol. V at 741-742, 751-753)
Ms. Stinchcomb was the first to interview Holly about the al-
leged sexual abuse initially reported by Holly’s grandmother. (T. Vol.1X
at 1695) Ms. Stinchcomb testified this first interview lasted “a con-
siderable amount of time . . . several hours” (Transcript of Hearing
Held on 11/12/86 at 84).
Ms. Stinchcomb did not videotape or audio-tape this or any of
the other numerous interviews she had with Holly. (T. Vol. VI at 1075)
Ms. Stinchcomb failed to testify at or attend the trial although she
was under subpoena by the state and the defense attempted to sub-
poena her. (T. Vol.III at 276-277) Evidence presented at trial showed
Ms. Stinchcomb resigned prior to trial in lieu of being discharged
from DFACS (T.Vol.IX at 1631), that she had lied under oath in a
pre-trial hearing about her education and credentials (T. Vol.IX at 1654-
1661, 1699-1701, 1704-1707, 1718-1720), and that she was a defen-
dant in a criminal case (T.Vol.[X at 1651) and was represented by
Ms. Sosebee’s divorce attomey in the criminal matter. (T. Vol.IX at
1713-1714)
Ms. Opal McRaney, an investigator and intake officer with the
Juvenile Court of Fayette County, was the second official to talk to
8
Holly about the alleged sexual abuse when she met Holly at DFACS
on April 16, 1986. (T. Vol.ITI at 325) Ms. McRaney testified that in
her discussions with Holly, Holly described sexual misconduct and
demonstrated what she said with anatomically correct dolls. (T. Vol. III
at 392-398) Ms. McRaney did not videotape or audiotape any con-
versations with Holly (T. Vol.III at 420) and had little formal training
in how to non-prejudicially handle interviews with alleged child sex
abuse victims. (T. Vol.III at 425-433, 444-445)
Besides her interviews with Ms. Stinchcomb and Ms. McRa-
ney, Holly had numerous examinations by a psychotherapist’ (T. VolL.I'V
at 615), aclinical psychologist (T. Vol. VI at 964), a pediatrician (T. Vol. V
at 827), a midwife (T. Vol. III at 459-460), and a gynecologist. (T. Vol.III
at 485-486) Everyone who talked with Holly was allowed to testify,
over petitioner’s constant objections, as to what Holly allegedly told
them.
According to the people who spoke with Holly, she at first de-
nied her father had done anything of a sexual nature to her and in fact
gave statements of affection for her father. Then she began making
vague dreamlike statements about monsters and people with masks
hurting her. After being unduly influenced by her interviewers and
their methods she identified her father as the monster she claimed
was abusing her. (T. VolL.III at 412-413, T. Vol. VI at 1024-1025) She
also claimed three other men including Donald Evans abused her
and that the abuse was videotaped. (T. Vol.III at 403-404) In fact no
videotape was ever found (T. Vol.III at 421, 447) and although charges
against Evans were brought they were later dismissed. (T. Vol. VI at
1139, 1141) Mr. Evans testified that he was a friend of Holly’s father
and saw Holly often but that he had never abused her. (T. Vol. VI at
1137-1139)
Testimony from defense witnesses indicated that Holly was an
emotionally disturbed child who might be mentally ill. (T. Vol. VI at
1053) She was coy and manipulative and lied. (T.Vol.V at 781-783)
On one occasion she even told her therapist that the petitioner had
told her she could not tell the therapist something (T. Vol. VI at 1002)
> Holly was seen 46 times just by Nancy Aldridge, the state’s testifying psycho-
therapist. (T. Vol. IV at 625)
> G
<a
Gg
when, in fact, the evidence clearly showed the petitioner had not
even seen or spoken with Holly since she began going to the thera-—
pist. (T. Voi.V at 755, T. Vol. VI at 1013)
More than a year after she first began describing the alleged
abuse under the influence of the people to whom she spoke, she re-
canted her allegations. (T.Voi.IV at 654) The state attempted to ex-
plain this away as part of the child sexual abuse accommodation syndrome.
(T.Vol.IV at 663)
The medical evidence showed that in fact Holly’s vaginal open-
ing was larger than normal for a girl her age. (T- Vol.III at 462) However,
the evidence indicated Holly masturbated a great deal (T.Vol.IV at
690) and inserted pencils and other foreign objects into her vagina
which could cause her vaginal area to become red and inflamed (T. Vol. V
at 927). The evidence also indicated Holly had bruised her vaginal
area when she fell off her bicycle. (T.Vol.V at 935)
The evidence further indicated that Holly had contracted a sexually
transmittable disease, hemophilus or vaginitis. (T. Vol.III at 464, 490)
Upon hearing Holly was so infected the petitioner immediately
and voluntarily submitted to a battery of tests which confirmed that
he did not have any sexual disease including the one somehow trans-
mitted to his daughter. (T. Vol. VII at 1364-1366; T. Vol. VIII at 1484-
1485) In fact a medical expert testified that hemophilus is not even
always transmitted by sexual contact (T. Vol. VII at 1277-1278)
The petitioner introduced evidence of a penile plethysmogra-
phy, similar to a blood pressure test, showing he was aroused by
adult females but not by children. (T. Vol. VIII at 1599-1610) He admitted
to having affairs with adult women outside marriage (T. Vol. VIII at
1434) which also was inconsistent with the profile of a pedophile.
Mr. Sosebee was put through a standard battery of psychological
tests — the Minnesota Multiphasic Personality Inventory, the Ror-
schach Inkblot Test, the Jackson Personality Test, the Sentence Completion
Test, the Draw a Person Test, the Bender Gestalt Tests (T. Vol. VIII at
1549-1563) — .he results of which were inconsistent with his being
a pedophile or child sexual offender. (T. Vol. VII at 1244-1254; T. Vol. VIII
at 1546-1563)
10
The evidence indicated that Holly was frequently left with babysitters
(T. Vol. VI at 1100-1106; T. Vol. VIII at 1409-1410) and on at least two
occasions became hysterical when babysitters arrived. (T.Vol.V at
797, T.Vol. VIII at 1496; T. Vol.IX at 1666-1667) Holly had access to
the Playboy Channel (T. Vol.III at 445) and her mother engaged in an
openly adulterous relationship with another man in Holly’s home.
(T.Vol.V at 795; T. Vol. VIII at 1436)
The state’s expert psychotherapist admitted that false allega-
tions of child molestation frequently arise in bitterly disputed child
custody and divorce cases (T.Vol.IV at 702-703; T.Vol.VI at 1032),
and that in cases where children make false claims of attribution of
sex abuse, particularly arising out of heated custody cases, there are
cases where children have actually been molested but name the wrong
person or persons (T.Vol.VI at 1044). There was no evidence from
Holly’s pediatrician during her regular checkups or anyone else of
child abuse up to the time of the custody dispute. (T.Vol.IV at 704-
710, 715-716)
The jury retumed verdicts of guilty on all counts (R-235, 236,
238) and Mr. Sosebee was sentenced tc sixty (60) years in the cus-
tody of the Attomey General. (R-239, 240, 241) A Motion for New
Trial was filed (R-242) and later supplemented. (R-260) The Motion
for New Tnal was denied (R-303) and a timely Notice of Appeal was
filed. (R-1)
The Court of Appeals affirmed the conviction (Appendix A),
then modified its decision but denied a rehearing. (Appendix B) Mr.
Sosebee’s application for a writ of certiorari was denied by the Geor-
gia Supreme Court with one Justice dissenting on April 19, 1989.
(Appendix C). The petition for rehearing was denied with another
Justice dissenting on May 3, 1989 (Appendix D). A Notice of Intent
to seek certiorari to the U.S. Supreme Court was timely filed on May
18, 1989 (Appendix E).
ll
REASONS FOR GRANTING THE WRIT
I. The Georgia Child Hearsay Statute, Both As Originally
Enacted by the State Legislature, And as Judicially
Amended by the Supreme Court of Georgia on Inter-
locutory Appeal, Is Unconstitutional.
In Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987), the
Georgia Supreme Court attempted to avoid petitioner’s arguments
attacking the Child Hearsay Statute, OCGA Section 24-3-16, as violating
the Sixth Amendment right-to-confront witnesses clause by judicially
amencing the statute to require an implementing procedure in which
the court could make the child available in front of the jury for both
the state and defendant “to examine and cross-examine as though the
Child Hearsay Statute has not been invoked [by the state].” /d. at
299. (Appendix G)
Petitioner contends that even with this new implementation
procedure the statute still does not pass constitutional muster.
In the first place the statute continues to deny a defendant state
and federal due process by altering the essential faimess of his trial.
Estelle v. Williams, 425 U.S. 501 (1975). A trial procedure that re-
quires a defendant to request that the court call his accuser as a wit-
ness if he wants to question the witness places the defendant in the
proverbial Catch-22: have the court call the complainant and be abic
to question the witness without preparing the witness or, alternatively,
decline to call the witness thereby waiving the opportunity for cross-
examination. Either way the defendant is placed at a distinct and un-
due disadvantage. Conversely the prosecution is placed in the unique
and substantially advantageous position of being able to, in essence,
present its evidence including the hearsay statements of the child,
then wait for the defendant to either call the complainant, thereby
allowing the state to repeat the hearsay statements, or to not call the
witness and fail to controvert the hearsay statements. Nowhere in
Anglo-American jurisprudence has an accused ever been required to
request that the court call his accuser as a witness in order to enjoy
the fundamental right of cross-examination.
Furthermore, even as modified in the Georgia Supreme Court
12
decision, the statute violates defendant’s constitutional rights of face-
to-face confrontation and opportunity for effective cross-examitia-
tion.
In Coy v. lowa, 487 U.S. __, 108 S Ct 2798 (1988), this Court
recently held that the Confrontation Clause by its terms provides a
criminal defendant the right to confront face-to-face the witnesses
giving evidence against him at trial. In Coy the Court found that appellant’s
right to face-to-fave confrontation was violated by a statutorily sanc-
tioned procedure whereby a screen was used to separate the com-
plaining child witness from the accused during the child's testimony
against the accused. The Court rejected the potential “trauma” to the
child witness from having to face the accused as insufficient justifi-
cation for denying face-to-face confrontation:
[Face-to-face presence may, unfortunately, upset the truth-
ful rape victim or abused child; but by the same ioken it
may confound and undo the false accuser, or reveal the
child coached by a malevolent adult. It is a truism that
constitutional protections have costs.
Coy v. lowa, 108 S Ct at 2802.
The Georgia Child Hearsay Statute violates a defendant's right
to face-to-face confrontation in those cases where, as here, neither
the state nor the defense calls the child to testify but the child’s testi-
mony comes in through a third party. In such a situation the third
party effectively becomes the “screen” found objectionable in Coy.
In fact the procedural application of the Georgia Child Hearsay
Statute is even more constitutionally objectionable than the Iowa screening
procedure because at least the screening procedure allowed an op-
portunity for effective cross-examination. Here, when the cornplain-
ing child witness is not called by either side, there is simply no op-
portunity for amy cross-examination of the child whose statements
nevertheless come in through third parties as admissible hearsay.
Ohio v. Roberts, 448 U.S. 56 (1980) teaches that hearsay is
admissible only in the case of necessity — usually construed as the
unavailability of the witness — and when the hearsay has indicia of
reliability. If, however, the witness is available, irrespective of the
“indicia of reliability” otherwise present in her statements, there is
no necessity requiring admission of the hearsay.
13
The statute at issue, OCGA Section 24-3-16, specifically re-
quires that “the child is available to testify in the proceedings” before
the hearsay is admitted. Thus the statute effectively tums the hearsay
tule on its head since it allows hearsay only when there is no neces-
sity for hearsay.
The statute pays lip service to the Confrontation Clause by requiring
the child’s availability for cross-examination should either party desire
to have the court put the child on the stand. However, this case demonstrates
the problems inherent in such a twisted statutory scheme. The guard-
ian ad litem claims it is not in the best interests of the child to talk to
defense counsel so counsel is unable to interview the witness. De-
fense counsel is also denied pretrial access to medical records of the
child and any other information that might be of importance in pre-
paring to cross-examine the child.
Under the circumstances counsel can either ineffectively cross-
examine the complainant or, as in the present case, not cross-exam-
ine her at all. Regardless of what choice counsel makes, defendant's
Sixth Amendment right to confrontation is violated since he is not
given a full and fair opportunity to effectively cross-examine the child.
See, e.g. Mattox v. United States, 156 U.S. 237, 242-243 (1895); Dela-
ware v. Fensterer, 474 U.S. 15 (1985).
Certainly there is a compelling state interest to protect chil-
dren. However, prior to taking the massive step of grossly diminish-
ing, if not suspending, a constitutional right en a compelling state
interest there must be evidence that interest outweighs the established
constitutional right. Unquestionably in specific cases a compelling
State interest will exist to a degree sufficient to create a necessity that
requires a diminution of ihe defendant’s right of confrontation. But
this necessity must be the equivalent of a witness’ unavailability.
This need for unavailability before hearsay is admissible in a
child sex abuse case was most recently recognized by the Florida
Supreme Court in Perez v. State, 536 So.2d 206 (Fla. 1988) where it
upheld Florida’s Child Hearsay Statute, Section 90.803 (23), Fla. Stats.
(1985). The Florida statute provides that a statement relating to cer-
tain specified sex offenses and made by a child under the age of 11
years is admissible if: (1)-the court finds in a hearing that the time,
14
content, and circumstances of the statement provide sufficient indi-
cia of reliability, and (2) the child either (a) testifies or (b) is unavail-
able as a witness, provided there is other corroborative evidence of
the abuse or offense. The Florida statute is totally consistent with
Ohio v. Roberts, 448 U.S. 56 (1980) whereas the Georgia statute is
not since the Florida statute requires unavailability before admission
of the hearsay statements whereas the Georgia statute requires availa-
bility which negates the only justification for the admission of the
hearsay in the first place. See also State v. Wright, 751 S.W.2d 48
(Mo. banc 1988) and State v. Ryan, 103 Wash. 2d 165, 171, 691 P.2d
197, 203 (1984) (upholding statutes similar to the Florida statute).
Petitioner further contends that the statute is unconstitutional
because it fails to satisfy the second prong of the Ohio v. Raberts test,
reliability, since the child is not required to underge cross examina-
tion at the time the statement was given. In California v. Green, 399
U.S. 149, 157-164 (1970) the Supreme Court found no constitutional
violation in the admission of testimony that had been given at a pre-
liminary hearing where the defendant had the opportunity to cross-
examine the witness contemporancously with his statement. The Court
in Green observed that the preliminary hearing testimony was ad-
missible “wholly apart from the question of whether respondent had
an effective opportunity for confrontation at the subsequent tral.”
The preliminary hearing testimony, the Court explained, had been
given under circumstances approximating those at trial: the witness
was under oath, the defendant was represented by counsel, and the
proceedings were conducted before a judicial tribunal, equipped to
provide a judicial record.
The Child Hearsay Statute appears in theory to recognize the
necessity of complying with the reliability requirement in Ohio v.
Roberts by requiring a finding by the court that the circumstances of
the statement provide sufficient indicia of reliability. However, at
least in its application in the present case, the statute is not deemed to
require contemporaneous cross-examination for the statement later
to be admissible. Petitioner contends that unless there is contempo-
raneous cross-examination, under Green there is not sufficient indi-
cia of reliability for the admission of the statements.
Petitioner also contends the statute is void for vagueness. Nei-
15
ther the statute nor the Georgia Supreme Court opinion sets forth any
criteria for determining how the competence of the declarant or the
reliability of her statements is determined. The Statute thus fails to
protect a defendant's constitutional rights. Compare Section 90.803
(23), Fla.Stats. (1985) which sets forth specific factors to be consid-
ered in determining reliability: time, content and circumstances.
Finally, petitioner contends the implementing mn rae with
which the Georgia Supreme Court amended the statute on interlocu-
tory appeal is unconstitutional in that it violates a defendant's duc
process rights by allowing a irial judge to bolster the credibility of
the child victim by himself calling the child as a witness. Such a
procedure, in effect, puts the trial court’s seal of approval on the tes-
timony of the child since the Court obviously would npt call a wit-
ness that it did not believe was telling the truth. See Miller v. State,
122 Ga. App. 553, 554, 177 S.E.2d 838 (1970) and cases cited therein.
The entire procedure appears to be contrary to O.C.G\A. § 17-8-57
which forbids even an intimation of an opinion by the judge as to
matters proved or the guilt of the accused.
II. The Georgia Supreme Court Violated the “Separation
of Powers” Doctrine by Judicially Amending the Geor-
gia Child Hearsay Statute on Interlocutory Appeal.
In its original opinion, the Georgia Supreme Court attempted
to save the Child Hearsay Statute by amending it as follows:
We therefore hold that if the prosecution invokes
the Child Hearsay Statute to introduce out-of-court dec-
larations by the alleged victim, the court shall do as fol-
lows: Before the state rests, the court shall, at the re-
quest of either party, cause the alleged victim to take the
stand. The court shall then inform the jury that it is the
court who has called the child as a witness, and that
both parties have the opportunity to examine the child.
The court shall then allow both parties to examine and
cross-examine the child as though the Child Hearsay
Statute has not been invoked. Sosebee v. State, 257 Ga
at 299. (Appendix G)
16
Mr. Sosebee contends that the Georgia Supreme Court’s amend- —
ment of the statute violates the Separation of Powers doctrine and is
an unconstitutional usurpation of legislative power by the judiciary.
In Snelling v. State, 176 Ga.App. 192, 194, 335 SE2d 475 (1985)
the Court of Appeals reiterated the well known rule:
We are not authorized to impose additional require-
ments to those delineated by our legislature, which are
contained in the Code. Our constitution demands that
the legislative and judicial powers shall forever remain
separate and distinct. Art.1, Sec. 2, Par. 3. Legislation is
the domain of the legislature and only interpretation of
such codified legislation lies within the province of the
courts. Modern Homes Constr. Co. v. Burke, 219 Ga.
710, 714-715 (135 SE2d 383); Pearle Opticai v. State
Bd of Examiners in Optometry, 219 Ga. 364, 373 (133
SE2d 374)...
Id. at 194 (Emphasis added). See also Kemp v. Mitchell Co. Demo.
Ex. Com., 216 Ga. 276, 283, 116 S.E.2d 321 (1960) (“This court has
no power to modify, amend or repeal a valid constitutional statute en-
acted by the General Assembly of this State” (emphasis added); Barnes
v. Carter, 120 Ga. 895, 48 S.E. 387 (1904); U.S. Life Credit Corpo-
ration v. Johnson et al., 161 Ga. App. 864, 865, 290 S.E.2d 280 (1982)
(“This court cannot add language to a statute by judicial decree’’).
The Georgia Supreme Court went far beyond its legitimate authority
of interpretation when it amended the statute in an attempt to save it
from constitutional attack.
If the Georgia Supreme Court believed “judicial surgery’’ was
needed to save the statute,‘ it should have established a procedure for
the implementation of the statute that would have protected a defen-
dant’s constitutional rights to effective cross-examination, confron-
tation and due process.
The judicial amendment by the Georgia Supreme Court simply
made an unconstitutional statute even less constitutional through
unconstitutional means.
‘ See Insurance Co. of North America v. Russell, 246 Ga. 269, 271 S.E.2d 178 (1980).
17
Ill. The Georgia Child Hearsay Statute as Implemented
in This Case Violated Petitioner’s Constitutional Rights
to Effective Cross-Examination and Due Process.
a) No Opportunity for Effective Cross-Examination — Trial
counsel in pre-trial motions (R-58, 77, 42), pre-trial hearings and at
trial (T. Vol.I at 15) repeatedly requested that he be allowed to inter-
view Holly Sosebee and examine her medical records.
The prosecutor claimed he had no objection to defense counsel
meeting with Holly or her medical experts but was powerless to force
DFACS, temporary custodian of the child, to allow the interview or
release the records. DFACS claimed the interviews would not be in
the best interests of the child. When it later appeared that DFACS,
under a federal court consent order formalized in an internal agency
letter, would be required to release medical records from the DFACS
files, the court sua sponte appointed a guardian ad litem for Holly.
(Transcript of Hearing on 11/12/86 at p. 99) The guardian ad litem
refused to permit the release of the records despite the fact that ear-
lier the DFACS representatives, Mr. Dabbs and Mrs. Wyatt, both stated
they were not aware of any information in the medical records “that
would be detrimental to the best interest of this child.” (Transcript of
Hearing on 11/12/86 at pp. 89, 94).-Although Mr. Dabbs answered
affirmatively when the judge asked him if he felt that releasing the
medical records placed the interests of DFACS adversely to that of
the child, he could articulate no reason why releasing the records
was not in the best interest of the child.
Also instructive is the comment by the trial judge in explaining
why he was appointing a guardian ad litem:
The obligation that I feel that supersedes every other
obligation in this case is to make sure the interest of this
child is protected and that nobody play mind games with
her, that nobody do anything to her or in her presence
that would cause any future detriment to this five-year
old child, either physical or mental. That is the way I
view my duties. (Transcript of Hearing on 11/12/86 at
p.100) (emphasis added)
There was no evidence that Holly would have been harmed in
18
any way by being interviewed by defense counsel or an independent
doctor. She had already been interviewed many times by various doctors
and members of the prosecution team. Nor would she have been harmed
if defense counsel had been given her medical records and been al-
lowed to speak with her doctors. The DFACS representatives con-
_ceded as much. By pledging allegiance to Holly’s interests which
were never threatened by defense counsel’s requests, the rights of
the petitioner were trampled underfoot.
The court stated it was powerless to require DFACS or the guardian
ad litem to allow petitioner’s counsel or other medical experts to
interview Holly even if Holly did not object to the interview.’ The
court relied on Dover v. State, 250 Ga. 209, 212, 296 S.E.2d 710,
cert. denied 459 U.S. 1221 (1982) ana Rutledge v. State, 245 Ga.
768, 267 S.E.2d 199 (1980) to support its decision.
Petitioner submits that Dover and Rutledge are distinguishable
from the present case because they were decided prior to the Child
Hearsay Statute. In Dover and Rutledge the witnesses sought to be
interviewed were considered adverse witnesses. Under the Child Hearsay
Statute as interpreted in the Sosebee decision the child witness may
~~ be called through the court as defendant’s own witness. In Wilson v.
State, 93 Ga. App. 229, 91 S.E.2d 201 (1956) the Georgia Court of
Appeals held that:
[A] defendant cannot be required to call a person to the
stand as his own witness without knowing in advance
what his testimony will be . . . Counsel for the defen-
dant not only had the right, but it was his plain duty
toward his client to fully investigate the case and to inter-
view any persons who might be able to assist him in as-
certaining the truth conceming the event in controversy.
Id. (Emphasis added.)
As the Georgia Court of Appeals stated in Cartee v. State, 85
> It is ironic that only minutes after claiming he had no control over whether the
child spoke to defense attorneys the judge asserted his control over the child by
transferring custody of Holly from DFACS to a guardian ad litem, thereby prevent-
ing the defense from obtaining Holly's medical records which DFACS was prepared
to turn over to defense counsel.
wit
19
Ga. App. 532, 69 S.E.2d 827 (1952):
An intellectual giant, prescient in and informed upon
every abstract principle of law, familiar with every de-
cided case upon the subject is little better than a fool on
the trial of a case if he is to be kept in ignorance of the
facts of his client’s case and denied [access to] witnesses
who might substantiate his client’s defense. /d. at 536.
‘
Even the trial judge in the present case unwittingly agreed with
this proposition when he stated:
It’s obvious to me that no attomey that’s worth his salt,
and I’m sure both of you are, ever put witnesses on a
witness stand that you haven’t talked to. You have an
obligation, obviously Mr. Catts, to interview witnesses
for the defense . . . (T.Vol.I at 55)
This Court has repeatedly affirmed that the right of confronta-
tion ensures “‘an opportunity for effective cross-examination.” Dela-
ware v. Fensterer, 474 U.S. 15,20 (1985) (emphasis added); see also
Nelson v. O’ Neil, 402 U.S. 622, 629 (1971) (Confrontation Clause
does not bar admission of out-of-court statement where defendant
has the benefit of full and effective cross-examination of [declarant]”’
(emphasis added); California v. Green, 399 U.S. 149, 159 (1970)
(introduction of out-of-court statement does not violate Confronta-
tion Clause “‘as long as the defendant is assured of full and effective
cross-examination at the time of trial”) (emphasis added)
Effectiveness is not measured in terms of the defendant’s ulti-
mate success, but rather by the performance of the attomey which
must be sufficient to afford “the trier of fact . . . a satisfactory basis
for evaluating the truth of the prior statement.” California v. Green,
399 US. at 161. See also Ohio v. Roberis, 448 U.S. 56, 73 (1980).
In the present case, without being allowed access to Holly pre-
trial, petitioner’s counsel could not hope to effectively cross examine
her at trial. Rather than ineffectively examine a critical witness who
with one unexpected response could devastate petitioner’s case, counsel
had no choice but to not examine her at all. This rendered totally
illusory the “opportunity to examine the child” which the Georgia
Supreme Court in Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562
20
(1987) (Appendix G) supposedly guaranteed the petitioner in its
construction of the Child Hearsay Statute.®
The trial judge here erred when he relied on Dover and Rut-
ledge to deny access to potentially the most important witness in the
entire trial when there was no objective evidence that the witness
would have been harmed by talking to petitioner’s counsel under the
carefully controlled conditions counsel was willing to accept. (T. Vol.III
at p.376) As Justice Blackmun recently stated in Kentucky v. Stincer,
482 U.S. 730, 738, n.9 (1987), a state rule precluding access to cer-
tain information before trial “may hinder [the] defendant’s opportu-
nity for effective cross examination at trial, and thus . . . may violate
the Confrontation Clause.” (emphasis in original)
In overruling this enumeration of error on appeal (Appendix
A), the Court of Appeals panel misconstrued Pennsylvania v. Ritchie,
480 U.S. 39 (1987). In Ritchie this Court held that full disclosure of
a DFACS file was not constitutionally required. The Court’s deci-
sion was based on the state’s compelling interest in protecting its
child abuse information. In the present case the DFACS representa-
tives specifically stated that there was nothing in the file the disclo-
sure of which would have been detrimental to the child (Transcript
of Hearing on 11/12/86 at pp. 89, 94). Thus here there was no com-
. pelling state interest in failing to disclose any or all of the informa-
tion in the file.
Ritchie is further distinguishable from the present case in that
Ritchie involved access only to a DFACS file, not, as here, access to
a Critical witness. Furthermore, Pennsylvania did not have a Child
Hearsay Statute similar to Georgia’s that allowed the defendant to
call the alleged child victim.
b) No Opportunity To Test Competency — Petitioner filed a
Motion For Pre-Trial Hearing to Determine the Competency of Holly
Ann Sosebee (R-24) and a Motion to Cause Witnesses to Corifer
with Defense Counsel. (R-58)
® By failing to allow petitioner's counsel access to complainant and her records the
court was in effect making her unavailable to the defense which should have made
the Child Hearsay Statute inapplicable.
nae rceenneaena cantante
RT Ey he oe 0
Le TS
ob AA
21
In the motions hearing immediately prior to trial, counsel re-
newed these motions requesting that an independent psychiatric and
psychological examination of Holly be conducted to determine her
competency. (T. Vol.I at 36-38) The motions were denied (T. Vol.I at
39)
It is important to note that the purpose for the requested compe-
tency hearing was not to determine Holly’s competency just at the
time of the trial, but rather her competency at the time she made the
hearsay statements later introduced through the Child Hearsay Stat-
ute. Furthermore, the basis for the hearing was not just Holly’s age,
but also her mental condition. There was considerable evidence in
the files, particularly from Dr. Kleemeier, indicating that the child
was substantially disturbed and perhaps mentally ill. (T. Vol.I at 36)
Shortly after the pre-trial motions were filed but well before
the trial the trial judge held a brief competency hearing during which
the prosecutor and judge, but not the petitioner, examined Holly. The
court ruled that Holly “would be competent to take an oath and tes-
tify in a trial in the Superior Court of the State of Georgia.” (Tran-
script of Hearing on 10/16/86 at pp. 2-4).
Petitioner contends that the trial judge erred in allowing Holly’s
hearsay statements into evidence through the Child Hearsay Statute
without determining her competenicy at the time she made the State-
ments. Petitioner also contends that the competency hearing that was
conducted was legally inadequate.
In Westbrook v. State, 186 Ga. App. 493, 368 S.E.2d 131 (1988),
the Georgia Court of Appeals implicitly held that the phrase ‘‘avail-
able to testify” in the Child Hearsay Statute means competent to tes-
tify as well as present to testify. See also Ward v. State, 186 Ga. App.
503, 368 S.E.2d 139 (1988).
This seems to be the proper interpretation of the statute in view
of the Sosebee decision wherein the Georgia Supreme Court required
that the child be made available in front of the jury for both the state
and defendant “to examine and cross-examine as though the Child
Hearsay Statute has not been invoked.” (emphasis added) On its face
this would require that as a threshold matter the child be competent
under OCGA Section 24-9-5 which provides:
22
Persons who do not have the use of reason, such as idi-
ots, lunatics during lunacy, and children who do not under-
stand the nature of an oath, shall be incompetent wit-
nesses.
In Westbrook the defendant called the child as a witness. Here
Holly was not called as a witness by either party. However, her state-
ments came in just as if she had testified to them live at the trial
except there was no cross-examination.
Petitioner contends that if competency is required for her live
testimony competency also must be required for her hearsay state-
ments. Certainly the public policy is the same in-both cases — to
ensure truthfulness in the evidence. It would be violative of a defen-
dant’s due process rights to prevent the admission of live testimony
from an incompetent witness while allowing the admission of hear-
say evidence from an incompetent witness.
Furthermore, if the declarant was incompetent at the time the
hearsay statements were made the hearsay statements would not have
the requisite “indicia of reliability” for admissibility under the Child
Hearsay Statute.
Only after competency is “thoroughly tested in court’”’ may the
trial judge determine competency. Sullivan v. State, 162 Ga. App.
297, 291 S.E.2d 127 (1982); Allen v. State, 150 Ga. App. 605, 258
S.E.2d 285 (1979).
In a situation where hearsay is admitted the need for thorough
testing is even greater since the jury does not have an opportunity to
independently determine the declarant’s credibility as a matter of fact.
In the present case the court declined to hold a competency
hearing to determine whether Holly was competent when she made
her statements despite the fact that there was ample evidence that
Holly had mental problems and that many of her statements were
unconfirmed, contradictory and made under circumstances where she
could have been influenced by others. Even the competency hearing
that was held did not allow a “thorough testing” of competency. The
hearing was woefully inadequate and there was not even any cross-
examination by the defense. Compare Westbrook v. State, supra (victim
subjected to “thorough and sifting” cross-examination by defense
:
4
4
23
counsel as well as questions propounded by the court and the state’s ~
_ attomey).
Since Holly was not shown to be competent at the time she
made her statements, which were admitted as if she had testified to
them in open court, petitioner’s conviction should be vacated on due
process grounds.
c) No Opportunity to Contest Reliability of Statements — Under
the Child Hearsay Statute in order for the child’s hearsay statements
to be admissible the court must find that “the circumstances of the
statement provide sufficient indicia of reliability.” OCGA Section
24-3-16.
In Dutton v. Evans, 400 U.S. 74, 88 (1970) this Court stated:
The indicia of reliability required for admissibility are
that the statements be non-narrative; that the declarant
is shown by the evidence to know whereof he speaks;
that the witness is not apt to be proceeding on faulty
recollection; and that the circumstances show that the
declarant had no apparent reason to lie to the witness.
In the present case, as trial counsel pointed out in his objec-
tions, the court did not give petitioner sufficient opportunity to con-
test the indicia of reliability of the statements before admitting them.
(T.VoL.I'V at 591-596) The failure of the court to provide petitioner
access to the entire DFACS file and Holly’s medical records and
Statements destroyed his ~ uility to effectively cross-examine the wit-
nesses on the reliability of the statements. Also the court declined to
allow the petitioner to call witnesses that could have contested the
reliability of the statements before their admission. Thus when the
court ruled the statements admissible there had not been a thorough
sifting of the evidence to determine whether the circumstances of the
statements were in fact reliable.
Even assuming the court used the proper procedures in deter-
mining reliability, the court’s conclusion of reliability was not sup-
ported by the evidence.
First, many of the statements admitted were narrative. Second,
the evidence as to whether Holly knew “whereof [she] speaks,”” was
contradictory at best. Many of her statements were not supported by
24
any evidence and made no sense. She changed her story as time went
on and the evidence showed that there were outside sources from
which she could have gained her sexual information such as the Play-
boy Channel and her mother’s sexually promiscuous lifestyle. The
evidence showed that the people who questioned Holly frequently
used suggestive leading questions (T.Vol.VI at 1024) and that her
first interview concerning the alleged sex abuse was with Angela St-
inchcomb who was shown to have lied under oath about her creden-
tials and who was inadequately trained and biased in favor of peti-
tioner’s wife.
Most importantly, the circumstances showed that Holly had a
reason to lie to the people to whom she made her statements. Holly
was locked in the center of a ferocious custody battle in a bitter di-
vorce between her parents. The first we hear of any alleged sexuai
abuse is soon after a custody hearing in the divorce proceeding when
the judge states he is leaning towards giving Holly’s father, the peti-
tioner, custody of the children. Holly is taken away by her mother
and maternal grandparents and then within two days her matemal
grandmother claims Holly has indicated she was abused. Clearly there
was ample opportunity for Holly to have been influenced by her mother’s
side of the family to lie about her father’s involvement in the alleged
abuse. Even the state’s medical experts conceded that Holly had reason
to lie regardless of whether they themselves believed she was lying.
(T.VoL.IV at 577-579)
IV. The Georgia Child Hearsay Statute is in Conflict With
Child Hearsay Statutes in the Substantial Majority of
States Which Have Enacted Such Statutes in that the
Georgia Statute Lacks Pre-Trial Notice Requirements
that Would Accommodate a Defendant’s Right to Pre-
pare his Defense.
In both the statute as written and in its judicially amended form,
there is an absence of the following rights to a defendant: (1) Pre-
trial notice to a defendant by the state of its intention to use the child’s
hearsay statements; (2) Pre-trial production by the state to the defen-
dant of a copy of the hearsay statements; (3) Pre-trial notice by the
State to the defendant of the person to whom the statements were
made; (4) Pre-trial notice by the state to the defendant of the circum-
stances surrounding the giving of the hearsay statements which pro-
vides “sufficient indicia of reliability.”
a a eee ee
25
Without the above rights being recognized in the statute itself
or in its application as pronounced by the Georgia Supreme Court, a
defendant in Georgia is denied the opportunity to effectively cross-
examine the witnesses to whom the alleged hearsay statements were
made as well as the child who allegedly made the statements. Peti-
tioner contends that the hearsay statements of the child, along with
the circumstances surrounding the giving of the hearsay statements,
be provided to a defendant prior to trial.
The substantial majority of states which have enacted child hearsay
Statutes have accommodated the right of a defendant to prepare his
defense. A substantial majority of the states which have enacted child
hearsay statutes provide for the furnishing of the content or substance
of the child’s statements to defense counsel sufficiently in advance
of trial to prepare a defense. Arizona, Arkansas, Florida, Iowa, Indi-
ana, Maryland, Minnesota, Missouri, Oklahoma, South Dakota, Texas,
Utah, Virginia, and Washington’ have tempered the far reaching
ramifications of their child hearsay statutes with procedures for the
implementation of the statutes which gives a defendant in those states -
a fair opportunity to defend himself against the charges. These states
enable the defendant to prepare pre-trial for the cross-examination of
the child declarant as weli as for the cross-examination of the third
party that testifies to the hearsay statement in court.
This Court should grant certioran in order to bring Georgia into
line with those states set forth above that protect the constitutional
rights of their citizens by requiring in their child hearsay statutes that
defendants be given copies of the child’s statements in advance so
that the defendant might have a fair opportunity to defend himself
against the charges.
V. The Establishment of Evidentiary Procedures for Pro-
tecting Parents in Child Custody Disputes From False
Allegations of Child Sexual Abuse is a Matter of Great
Concern And Importance to the Public.
There is a growing awareness of the increase in the incidence
of false allegations of child sexual abuse, especially in the context of
divorce and custody cases, which create strong public policy reasons
7 The text of the relevant portions of these statutes are reprinted in Appendix H.
—
26
for this Court to grant certiorari in this case and remedy the present
diminution of a defendant's right to defend himself against allega-
tions of child sexual abuse.
In State v. Butler, 256 Ga. 448, 454 at fn. 4, 349 S.E.2d 684
(1986), Justice Smith in a dissent joined by Justices Weltner and Bell!
stated:
We must proceed slowly and carefully in this era of public
awareness. We cannot allow our revulsion of sexual abuse
or molestation to tum our courts into a forum in which
the accusation becomes the conviction and affirmance.
According to a recent newspaper article some studies
show that there has been an increase in accusations of
sexual abuse of children in custody battles. This is an
area in which we need to carefully weigh the conflict- .
ing findings and studies of the experts before we change
the law.
Some experts who delivered papers at the annual meet-
ing of the American Academy of Child and Adolescent
Psychiatry asserted that “many social workers and fam-
ily counselors who interview alleged molestation vic-
tims lack adequate training for the task, . . . Too many
counselors believe they can determine if molestation
occurred by relying solely on how alleged victims play
with anatomically correct dolls.”
“A study of 15 children who played with such dolls showed
‘children with a history of sexual abuse could not be
discriminated’ from those who weren't molested, wrote
Dr. Jonathan Jensen, author of the University of Minne-
sota study.”
Fathers In Custody Fights Face Sex Abuse Charges, The
Adanta Joumal and Constitution, Oct. 19, 1986.
ee ae
ee ee ee
The South Carolina Child Hearsay Statute reflects these con-
cems in prohibiting child hearsay statements made in the context of
divorce proceedings: South Carolina Code Ann. § 19-1-180(G) (Lawyers
Co-op 1988) (effective June 3, 1988) provides:
27
If the parents of the child are separated or divorced, the |
hearsay statement shall be inadmissible if (1) one of the
parents is the alleged perpetrator of the alleged abuse or
neglect and (2) the allegation was made after the parties
separated or divorced.
Fabrication of a child’s statement of sexual abuse by persons
who have an interest in prosecuting the defendant have been increas-
ingly recognized in the literature:
More frequent false allegations of sexual abuse are made
by parents during court litigation involving custody and/
or visitation. Benedek and Schetky (1984) failed to docu-
ment charges of sexual abuse in 10 of 18 children evalu-
ated during disputes over custody and visitation. This
strikingly high (55%) incidence of false allegations is
somewhat comparable to this author's documentation
of 4 false allegations in 11 children reported to be sexu-
ally abused by the noncustodial parent in the context of
child custody and visitation disputes (36%).
Green, A. H. (1986), True And False Allegations Of Sexual Abuse In
Child Custody Disputes, J. Amer. Acad. Child Psychiat., 25, 4:449-
456.
According to another article:
The problem arises during divorce and custody proceed-
ings when a child, for the first time, accuses the parent
with whom he/she is not residing, of sexual abuse. This
raises the possibility that the parent with whom the child
is residing has prompted the child to make the accusa-
tion of sexual abuse against the alienated spouse and
non-custodial parent.
In cases where the initial accusation of sex abuse occurs
after parental separation, and refers to a time when the
parents were living together, the possibility that the custodial
parent has prompted the accusation toward the non-custodia!
pavent must be considered. (emphasis in original)
Kaplan, S. L. & Kaplan, S. J., The Child’s Accusation of Sexual Abuse
28
During A Divorce and Custody Struggle, The Hillside Journal of Clinical
Psychiatry, 3(1), 81-95 (1981).
Also, according to a recent article published in Psychiatry Annals:
[Children] are also exquisitely sensitive to their parents’
emotions, thus setting the stage for an intense, rapidly-
oscillating feedback loop that usually operates within
the privacy of the family, isolated from outer visibility.
* * *
A child confronted with sequential “evaluations” begins
to demonstrate increasing accommodation of memory
as well as of affect. In adults, memory function can be
said to comprise conviction along with historical verifi-
cation by retrospection within one’s own data bank. Child-
ren younger than puberty seem to “remember” differ-
ently, using an amalgam of conviction along with veri-
fication by “check-in” with an extemal, trusted ally.
* * *
“Positive” feedback thus operates on both affective and
cognitive axes. Both operations stem from children’s
alliances with, and dependency on, powerful caretakers
at times of loss and anxiety. Affectively, they affiliate
with a frightened, dependent parent. Cognitively, their
perceptions can be “shaped” inadvertently but with exquis-
ite detail by selective, positive reinforcement.” (Foot-
note omitted)
___. Schuman, D. C., Psychodynamics of Exaggerated Accusations: Posi-
tive Feedback In Family Systems, Psychiatry Annals. 242-247 (April
4, 1987).
The extent of the problem posed by false reports of child abuse
by a divorcing spouse are reflected in estimates that 30% of all con-
tested-custody cases in New York involve sex abuse charges. Hopkins,
E., Fathers on Trial, New York (magazine), 21: 42, 44 (January 11,
1988). Hopkins noted:
The Brooklyn Society for the Prevention of Cruelty to
29
Children went even further in its vindication [of a father
who was accused of molesting his five-year-old daugh- —
ter]. It recommended that all charges against the father
be dropped and a petition of neglect be filed against the
mother.
“For all practical purposes,” states the report to the judge,
“(The child has] suffered as if [she were an] actual vic-
tim of child sexual abuse.”
“The real abuse in this case,”’ says Robert Dobrish, [the
father’s] lawyer, “was the brain-washing done on this
child. Imagine what it took to persuade her that her fa-
ther did these terrible things. (Child abuse] charges are
the latest tactic in a nasty divorce. If you wanted to hurt
your ex-husband before, what would you say? He has
affairs? He cheats on his income tax? He’s a homosex-
ual? Big deal. Who even cares about that stuff anymore?
But this is the ultimate weapon. I don’t care how liberal
society gets, it will never be okay to molest your own
children.”
30
CONCLUSION
For the foregoing reasons, a writ of certiorari should issue to
review the judgment of the Georgia Court of Appeals.
Respectfully submitted,
Bossy Lee Cook
P. O. Box 370
Summerville, Georgia 30747
(404) 857-3421
JAKE ARBES
(Counsel of Record)
233 Mitchell Street
Suite 500
Adanta, Georgia 30303
(404) 522-1980
Attomeys for Petitioner
July 28, 1989
APPENDICES
AS A gO
la
Appendix A
Opinion of Georgia Court of Appeals
In the Court of Appeals of Georgia
77282. SOSEBEE v. THE STATE.
POPE, Judge.
In 1986, defendant Geary Sosebee was a party to a divorce
proceeding and custody dispute regarding his two children. The court,
in the divorce proceeding, placed the two children in the custody of
Department of Family and Children Services pending a determina-
tion of custody. While the court was considering the custody issue,
defendant’s mother-in-law reported to DFACS her suspicion that defen-
dant had sexually abused one of the children. Following an investi-
gation of the complaint, defendant was indicted for multiple counts
of child molestation. Defendant appeals his convictions.
1. At trial, defendant raised the issue that others, including the
child’s babysitters, had had the opportunity to commit the acts com-
plained of by the child. In closing argument, the prosecuting attomey
stated: “I could have called every babysitter that’s ever been around
that child, and what would they have said? If I asked every one of
those babysitters, have you ever touched this child, what would they
have said? No? Does that surprise you? Did I have to put them up
here to prove that to you?” Defendant’s attomey objected on the ground
the prosecutor was arguing matters not in evidence, but the objection
was overruled. On appeal, defendant argues this portion of the state’s
closing argument constitutes reversible error.
A prosecutor may not inject in his final argument matters which
were not proven in evidence. Williams v. State, 254 Ga. 508 (3) (330
SE2d 353) (1985). However, even an improper statement, when taken
in context, may not constitute reversible error. Smith v. State, 141
Ga. App. 529 (2) (233 SE2d 841) (1977). A review of the transcript
shows the objectionable statement concerning the expected testimony
of witnesses not actually called to testify was made in context of
explaining to the jury why such witnesses were not called. The prose-
cuting attomey went on to state: “I could have brought every man
that has ever been around this child in here, and what would you
2a
expect them to say if they were asked [whether they had touched the
child] . . . .” When considered in the context of the entire closing
argument, it is obvious that the prosecuting attomey was not stating
as a fact what the unpresented testimony would have been but was
posing a rhetorical question to the jury as to whether they would
have expected any given witness to admit they had molested the child.
We find no reversible error in this portion of the closing argument.
Defendant also argues the prosecuting attomey improperly
questioned the defendant’s failure to call his wife as a witness. De-
fendant maintains such argument constitutes reversible error because
the defendant could not compel his wife to testify. In fact, spousal
immunity does not apply to proceedings in which one spouse is charged
with a crime against a minor child. OCGA § 24-9-23(b). Thus, de-
fendant’s wife could have been compelled to testify and we find no
reversible error in the state’s remarks on defendant’s failure to call
her as a witness.
Defendant also argues the prosecuting attomey committed revers-
ible error in appealing to the passions or prejudices of the jury by
asking the jury to convict defendant in order to protect the victim
from further harm. The prosecuting attomey may make a rhetorical
argument about what acts the defendant could be expected to com-
mit in the future so long as it is a reasonable deduction from the
evidence. See Brand v. Wafford, 230 Ga. 750 (9) (199 SE2d 231)
(1973); Davis v. State, 178 Ga. App. 357 (3) (343 SE2d 140) (1986).
The record shows the prosecuting attomey repeatedly stated that if
they did not believe the evidence against defendant, the jury should
acquit him. However, if the jury believed the defendant was guilty,
the attomey asked them not to “put [the victim] back into this trap . .
. .” We find no error in the closing argument.
2. Prior to the trial of the case, defendant challenged the con-
Stitutionality of the Child Hearsay Statute, OCGA § 24-3-16. The
Georgia Supreme Court granted interlocutory review of this issue
and, in Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), upheld
the constitutionality of the statute by holding that where the statute is
implemented it inust be accompanied by the night of either party to
examine or cross-examine the child witness by requesting the court
to call the child as a witness. On appeal of the guilty verdict, defen-
3a
dant again challenges the constitutionality of the statute, arguing that
its constitutionality should be reconsidered in light of the more re-
cent prouncement of the United States Supreme Court in Coy v. Jowa,
487 U.S. __ (108 SC 2798, 101 LE2d 857) (1988). We find no merit
to defendant’s argument and therefore are not required to transfer the
appeal to the supreme court pursuant to Rule 21(b) of the Rules of
the Court of Appeals of Georgia.
3. Defendant argues his constitutional rights pursuant to the
Sixth Amendment Confrontation Clause were violated by the court’s
denial of his motion to compel access to the witness and examination
of the child’s medical records. The state may not deny defendant
access tO a witness material to the defense, but a witness can not be
compelled to submit to a pre-trial interview. See Rutledge v. State,
245 Ga. 768 (2) (267 SE2d 199) (1980); Emmett v. State, 232 Ga.
110 (2a) (205 SE2d 231) (1974). The child witness in this case was
in the custody of the state acting through DFACS. In an effort to
eliminate the conflict of interest between the state as prosecutor and
the state’s role in supervising the child, the court appointed a guard-
ian ad litem to represent the legal interests of the child. The guardian
refused to make the child available to defendant and refused to con-
sent to the release of confidential medical records. “A witness may
refuse to be interviewed prior to trial [cit.]; and when the witness is a
child, the child’s guardian may make this decision.” Dover v. State,
250 Ga. 209, 211-212 (296 SE2d 710) (1982), cert. denied, 459 U.S.
1221 (1983).
Defendant’s constitutional argument has been decided adversely
to him by the United States Supreme Court. In Pennsylvania v. Ritchie,
480 U.S. 39 (_SC__, _ LE2d__ ) (1987), the criminal defendant,
charged with sexual child abuse, similarly argued that by denying
him access to information necessary to prepare his defense, the trial
court interfered with his right of “effective” cross-examination of
witnesses. The United States Supreme Court rejected this argument.
“If we were to accept this broad interpretation . . . the effect would be
to transform the Confrontation Clause into a constitutionally-cora-
pelled rule of pretrial discovery. Nothing in the case law supports
such a view. The opinions of this Court show that the nght to con-
frontation is a trial right. . . . In short, the Confrontation Clause only
4a
guarantees ‘an opportunity for effective cross-examination, not ‘cross-
examination that is effective in whatever way, and to whatever ex-
tent, the defense might wish.’ [citing Delaware v. Fensterer, 474 U.S.
15, 20 (106 SC 292, 88 LE2d 15) (1985)].” Pennsylvania v. Ritchie
at 52-53. According to Pennsylvania v. Ritchie, the defendant is en-
titled to an in camera inspection by the trial judge to determine what,
if any, material information should be released as useful to the de-
fense. The record of the case now before us shows the court con-
ducted such an inspection in response to defendant’s request.
Defendant also maintains he was denied the right of effective
cross-examination by the court’s denial of his motion for an inde-
pendent psychiatric evaluation of the child to determine her compe-
tence at the time her out-of-court statements were made. The statu-
tory test for determining the competency of a child to testify as a
witness in a judicial proceeding is that he understand the nature of an
oath. OCGA § 24-9-5. See generally Smith v. State, 247 Ga. 511 (277
SE2d 53) (1981). Therefore, the concept of “competency” at the time
an out-of-court statement was made is meaningless and irrelevant.
OCGA § 24-9-7 contemplates only that a small child be found com-
petent to testify at trial; the code section has no applicability to out-
of-court statements and does not require that the court determine the
child’s competency at the time the out-of-court statements were made.
Newberry v. State, 184 Ga. App. 356 (4) (361 SE2d 499) (1987).
Thus, defendant had no right, at the competency hearing, to present
evidence conceming the child’s competency at the time the out-of-
court statements were made.
Defendant also argues he was denied a sufficient opportunity
to contest the indicia of reliability as to the out-of-court statements of
the child. The record shows defendant conducted extensive cross-
examination of the witness who testified conceming the out-of-court
statemenis during a hearing on reliability outside the presence of the
jury. Under the circumstances of this case, we find no requirement
for expert testimony to establish the reliability of the child’s out-of-
court statements. Cf. Godfrey v. State, 258 Ga. 28 (9365 SE2d 93)
(1988) (in which the out of court statements consisted of “sleep talk’”’,
which the court held to be a phenomenon requiring expert testimony
to establish its reliability).
5a
4. Defendant had no constitutional right to examine all materi-
als in the file maintained on this case by DFACS. The record reflects
that the trial court inspected the DFACS file on several occasions in
response to defendant’s motion to examine the records. Thus, defen-
dant’s right to obtain material information from the state’s files was
protected. See Pennsylvania v. Ritchie, supra.
5. Defendant argues the trial court erred in failing to require
the state to produce “all” scientific reports gathered in the case. The
State is not required to disclose all reports but, upon a proper written
request, the state is required to disclose those scientific reports which
will be used as evidence at trial. OCGA § 17-7-211. Defendant does
not identify which reports were improperly admitted pursuant to said
code section and our review of the record reveals no improperly admitted
scientific evidence. .
6. An investigator employed by the Fayette County Juvenile
Court testified that she observed the child victim in a waiting room
of the DFACS offices saying to her father, who was visiting her there,
“T won’t tell [the DFACS officer] our special secret.”” Defendant objected
to the statement as inadmissible hearsay. “‘A witness may testify as to
what he saw and heard in the defendant’s presence.” Moore v. State,
240 GA. 210, 212 (240 SE2d 68) (1977); accord Broome v. State,
141 Ga. App. 538 (2) (233 SE2d 833) (1977). Defendant argues the
overheard statement would not be admissible as an exception to hearsay
because the witness stated she was not in the room with the child and
defendant but observed them and heard the statement through an open
doorway. The necessary element for this exception is that the out-of-
court statement was made in defendant’s presence. See Green v. State,
175 Ga. App. 849 (335 SE2d 4) (1985). The witness need only be in
a position to hear what was said in defendant’s presence.
7. Defendant argues he was entitled to a continuance in order
to secure the attendance of a former DFACS caseworker who was
out of state at the time defendant attempted to serve her with a sub-
poena to appear at trial. A defendant is not entitled to a2 continuance
to secure the attendance of a witness when it wa’ within his power to
subpoena the witness but he failed to do so. OCGA § 17-7-192; see
Parrish v. State, 125 Ga. App. 97 (186 SE2d 541) (1971). Defendant
6a
admits he was aware of the caseworker’s involvement in the case at
least as early as November 1986. Trial commenced in September
1987. It appears from colloquy on the record that no effort was made
to subpoena the case worker until after trial had commenced. Where
defendant could have served a subpoena on a witness at an earlier
date but failed to do so, the court does not err in denying a continu-
ance because at the time of trial the witness was outside the sub-
poena power of the court. Coker v. State, 87 Ga. App. 411 (1) (74
SE2d 12) (1953).
8. Defendant argues the court erred in excluding the testimony
of a witness that she had been told by a friend of the child’s mother,
at the child custody hearing prior to the report of child molestation,
“It’s not over yet, we’ve got our bag of tricks.” Hearsay evidence is
admitted only from necessity. OCGA § 24-3-1(b). In ruling to ex-
clude the testimony, the trial court noted that the declarant of the out-
of-court statement had been present at trial and was obviously avail-
able to testify. We agree that the statement was not admissible to
impeach an earlier witness who had denied hearing the statement
because the witness offering the hearsay testimony admitted she did
not know if the other witness had heard the statement. We find no
error in excluding the hearsay testimony.
9. Prior to trial, the prosecuting attomey revealed, in response
to defendant’s Brady motion, that the child witness had recanted her
earlier statements against defendant. Defendant argues the court improperly
denied his motion to disqualify the prosecuting attomey because he
would be called as a witness at trial. First, the prosecuting attomey’s
testimony was not necessary to establish that the child had recanted
her statements since the attomey identified two other persons who
witnessed the recantation. Secondly, although the prosecuting attor-
ney was subpoenaed as a witness, he was never called to testify. Thus,
the court was not required, nor was it necessary, to disqualify the
prosecuting attomey.
10. Finally, a review of the record shows sufficient evidence
was presented to enable a rational trier of fact to find defendant guilty
beyond a reasonable doubt of the crimes charged.
Judgment affirmed. McMurray, P. J., and Benham, J., concur.
7a
Appendix B
Order of Georgia Court of Appeals
Upon Motion for Reconsideration
Court of Appeals
of the State of Georgia
Adanta, March 14, 1989
The Honorable Court of Appeals met pursuant to adjoumment.
The following order was passed:
77282. GEARY ALAN SOSEBEE v. THE STATE
Upon consideration of the motion for rehearing filed on behalf
of appellant in the above styled case, it is hereby ordered that new
page 2 attached hereto be substituted for old page 2 of the original
opinion dated February 2, 1989. Motion for rehearing is hereby denied.
8a
commit the acts complained of by the child. In closing
argument, the prosecuting attomey stated: “I could have
called every babysitter that’s ever been around that child,
and what would they have said? If I asked every one of
those babysitters, have you ever touched this child, what
would they have said? No. Does that surprise you? Did
I have to put them up here to prove that to you?” Defen-
dant’s attomey objected on the ground the prosecutor
was arguing matters not in evidence, but the objection
was overruled. On appeal, defendant argues this portion
of the state’s closing argument constitutes reversible error.
A prosecutor may not inject in his final argument mat-
ters which were not proven in evidence. Williams v. State,
254 Ga. 508 (3) (330 SE2d 353) (1985). However, even
an improper statement, when taken in context, may not
constitute reversible error. Smith v. State, 141 Ga. App.
529 (2) (233 SE2d 841) (1977). A review of the tran-
script shows the objectionable statement conceming the
expected testimony of witnesses not actually called to
testify was made in the context of explaining to the jury
why such witnesses were not called. The prosecuting
attomey went on to state: “I could have
9a
Appendix C
Order of the Georgia Supreme Court Denying
Application for a Writ of Certiorari
Clerk’s Office, Supreme Court of Georgia
ATLANTA, April 19, 1989
Case No. 46869, Geary Alan Sosebee v. The State
(C/A #77282
The Supreme Court today denied the writ of certiorari in this case.
All the justices concur, except Smith, J. dissents.
Yours very truly,
MRS. JOLINE B. WILLIAMS, Clerk
~
lla
Appendix D
Order of the Georgia Supreme Court
Denying Motion for Rehearing
Clerk’s Office, Supreme Court of Georgia
ATLANTA, May 03, 1989
The motion for a rehearing was denied today:
Case No. 46869, Sosebee v. The State
Bell, J. dissents.
Yours very truly,
MRS. JOLINE B. WILLIAMS, Clerk
13a
Appendix E
Notice to the Georgia Court of Appeals of
Intention to Seek a Writ of Certiorari
In the Court of Appeals State of Georgia
GEARY ALAN SOSEBEE,
Applicant for Certiorari,
Vv.
THE STATE,
Respondent.
COURT OF APPEALS
NO. 77282
SUPREME COURT
NO. 46869
OO OO
NOTICE OF INTENT
TO PETITION FOR CERTIORARI
The applicant, Geary Alan Sosebee (hereinafter referred to as
applicant or Sosebee), by and through his undersigned counsel, pur-:
suant to Court of Appeals Rule 16(b) respectfully gives this Court
notice of his intention to petition to the United States Supreme Coun
for the writ of certiorari.
Respectfully submitted,
BOBBY LEE COOK
Attomey for the Applicant
P. O. Box 370
Summerville, GA 30747
(404) 857-3421
JAKE ARBES
Attomey for the Applicant
233 Mitchell Street
Suite 500
Atlanta, GA 30303
(404) 522-1980
15a
Appendix F
Order of the United States Supreme Court Granting
Extension of Time in Which to File Petition for Certiorari
Supreme Court of the United States
No. A-999
Geary Alan Sosebee,
Petitioner
v.
Georgia
ORDER
UPON CONSIDERATION of the application of counsel for
the petitioner,
IT IS ORDERED that the time for filing a petition for a writ of
certiorari in the above-entitled case, be and the same is hereby, ex-
tended to and including August 1, 1989.
(s/ Anthony M, Kennedy
Associate Justice of the Supreme
Court of the United States
Dated this 19th
day of June, 1989.
17a
Appendix G
Opinion of the Georgia Supreme Court
In Sosebee I on Interlocutory Appeal
Docket No. 44131
STATE OF GEORGIA,
Appellee,
Vv.
GEARY ALAN SOSEBEE,
Appellant.
Before:
BELL, Justice:
The Appellant, Geary Alan Sosebee, was indicted on charges
of sexually abusing his five-year-old daughter.' He moved in limine
to exclude incriminating hearsay statements which had been made
by his daughter, but the trial court denied his motion. We granted
Sosebee’s interlocutory application. On appeal, the issue is whether
the Child Hearsay Statute, OCGA § 24-3-16 (eff. July 1, 1986), which
allows the state to use a child’s out-of-court statements without re-
quiring the state to call the child as a witness, unconstitutionally in-
fringes upon a defendant’s Sixth Amendment right to confront wit-
nesses.
OCGA § 24-3-16 provides that “[a] statement made by a child
under the age of 14 years describing any act of sexual contact or
' The state alleges that the appellant committed the crimes for which he has been
indicted between September 1, 1985, and April 12, 1986. Three indictments were
returned on September 9, 1986. They charge appellant with one count of child mo-
lestation; two counts of aggravated sodomy; one count of rape; and one count of
incest. Appellant filed his motion in limine on September 22, 1986. The motion was
heard on October 16, 1986, and was denied on October 17. On October 17 the supe-
rior court granted a certificate of immediate review, and on November 4, 1986, we
granted the application for interlocutory review. On November 12, 1986, appellant
filed his notice of appeal, and on December 2 the record was docketed in this court.
The appeal was orally argued on February 9, 1987.
18a
physical abuse performed with or on the child by another is admis-
sible in evidence by the testimony of the person or persons to whom
made if the chiid is available to testify in the proceedings and the
court finds that the circumstances of the statement provide sufficient
indicia of reliability.” By its terms, this statute allows the prosecu-
tion to satisfy its burden of proof under certain circumstances by
introducing the alleged victim’s hearsay declarations without putting
the victim on the stand. The statute does not, however, specify all the
implications of the phrase, “if the child is availabie to testify in the
proceedings.” More particularly, it is unclear whether the legislature
intended to require the defendant to call the child as a defense wit-
ness in order to exercise his right of confrontation. We think it is
unlikely that this was the legislative intent, since it is possible that
jurors could resent the defendant for forcing the child to take the
stand and undergo cross-examination. Absent a clear directive from
the legislature, we are reluctant to require the defendant to bear this
onus, especially since a reasonable alternative construction of the
Statute exists.
We therefore hold that if the prosecution invokes the Child Hearsay
Statute to introduce out-of-court declarations by the alleged victim,
the court shall do as follows: Before the state rests, the court shall, at
the request of either party, cause the alleged victim to take the stand.
The court shall then inform the jury that it is the court who has called
the child as a witness, and that both parties have the opportunity to
examine the child. The court shall then allow both parties to examine
and cross-examine the child as though the Child Hearsay Statute has
not been invoked.
Our construction of § 24-3-16 moots the appellant’s constitu-
tional arguments. Accordingly, we find that the trial court correctly
denied the motion in limine. On remand, the court is directed to conduct
the trial in a manner consistent with OCGA § 24-3-16, as interpreted
by this court.
Judgment affirmed with directions. All the Justices concur, except
Marshall, C_J., who dissents.
DECIDED JUNE 19, 1987 —
RECONSIDERATION DENIED JULY 19, 1987.
19a
Interlocutory appeal. Fayette Superior Court. Before Judge Miller.
Austin E. Catts, Robert G. Rubin, for appellant.
Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, J.
Thomas Morgan, Assistant District Attorneys, for appellee.
21a
Appendix H
Other States’ Child Hearsay Statutes
Arizona
A statement may not be admitted under this section unless the propo-
nent of the statement makes known to the adverse party his intention
to offer the statement and the particulars of the statement sufficiently
in advance of the proceedings to provide the adverse party with a fair
Opportunity to prepare to meet the statement. Ariz. Rev. Stat. Ann.
§ 13-416.B (Supp. 1988)
Arkansas
2. The proponent of the statement shall give to the adverse party
reasonable notice of his intention to offer the statement and the par-
ticulars of the statement. Ark. Rules of Evid. Rule 803(25)(A) 2 (1988)
Florida
In a criminal action, the defendant shall be notified no later than 10
days before trial that a statement which qualifies as a hearsay excep-
tion pursuant to this subsection w ll be offered as evidence at trial.
The notice shall include a written statement of the content of the
Child’s statement, the time at which the statement was made, the
circumstances surrounding the statement which indicate its reliabil-
ity, and such other particulars as necessary to provide full disclosure
of the statement. Fla. Stat. Ann. § 90.803 (23)(b)(West Supp. 1989)
(effective July 1, 1985)
Idaho
Statements may not be admitted unless the proponent of the state-
ments notifies the adverse party of his intention to offer the state-
ments and the particulars of the statements sufficiently in advance of
the proceedings to provide the adverse party with a fair opportunity
to prepare to meet the statements. /daho Code § 19-3024 2 (1987)
22a
Indiana
(e€) A statement or videotape may not be admitted in evidence under
this section unless the prosecuting attomey informs the defendant
and the defendant’s attomey of:
(1) His intention to introduce the siatement or videotape
in evidence; and
(2) The content of the statement or videotape; within a
time that will give the defendant a fair opportunity to
prepare a response to the statement or videotape before
the trial. 35-4-6 (e) /nd. Code Ann. § 35-37-4-6(2)(e)(Bums
Supp. 1988) .
Maryland
(3) In order to provide the defendant with an opportunity to prepare
a response to the statement, the prosecutor shall give to the defen-
dant and the defendant’s attomey, at least 20 days before the criminal
proceeding in which the statement is to be offered into evidence,
notice of: (i) The prosecution’s intention to introduce the statement;
and, (ii) The content of the Statement. Md. Cts. & Jud. Proc. Code
Ann. § 9-103.1 (c)(3) (Supp. 1988) (effective July 1, 1988)
Minnesota
The proponent of the statement notifies the adverse party of the pro-
ponent’s intention to offer the statement and the particulars of the
statement sufficiently in advance of the proceeding at which the proponent
intends to offer the statement into evidence to provide the adverse
party with a fair opportunity to prepare to meet the statement. Minn.
Stat. Ann. § 595.02 Subd. 3 (c) (West Supp. 1989)
Missouri
A statement may not be admitted under this section unless the prose-
cuting attomey makes known to the accused or his counsel his inten-
tion to offer the statement and the particulars of the statement suffi-
23a
ciently in advance of the proceedings to provide the accused or his
counsel with a fair opportunity to prepare to meet the statement. Mo.
Ann. Stat. § 491.075 3 (Vernon Supp. 1989)
Oklahoma
B. A statement may not be admitted under this section unless the
proponent of the statement makes known to the adverse party his
intention to offer the statement and the particulars of the statement at
least ten (10) days in advance of the proceedings to provide the ad-
verse party with an opportunity to prepare to answer the statement.
Okla. Stat. Ann. 12, § 2803.1 B (Supp. 1989)
South Carolina*
(C) The proponent of the statement shall inform the adverse party of
the proponent’s intention to offer the statement and the content of the
statement sufficiently in advance of the proceeding to provide the
defendant with a fair opportunity to prepare a response to the state-
ment before the proceeding at which it is offered. S.C. Code Ann.
§ 19-1-180 (C) (Law. Co-op. 1988)
South Dakota
No statement may be admitted under this section unless the propo-
nent of the statement makes known his intention to offer the state-
ment and the particulars of it, including the name and address of the
declarant to the adverse party sufficiently in advance of the trial or
hearing to provide the adverse party with a fair opportunity to pre-
pare to meet the statement. S.D. Codified Laws Ann. § 19-16-38 (1987)
* South Carolina's additional prohibition against any use of child hearsay state-
ments arising in the context of divorce proceedings is discussed at page 26, infra.
24a
Texas
(1) On or before the 14th day before the date the proceeding begins,
the party intending to offer the statement:
(A) Notifies the adverse party of its intention to do so;
(B) Provides the adverse party with the name of the witness through
whom it intends to offer the statement; and,
(C) Provides the adverse party with a written summary of the statement.
Tex. Code Crim. Proc. Ann. art. 38.08 (1) (Vernon Supp. 1989)
Utah
(3) A statement admitted under this section shall be made available
to the adverse party sufficiently in advance of the trial or proceeding,
to provide him with an opportunity to prepare to meet it. Utah Code
Ann. §76-5-411 (3) (Supp. 1988)
Virginia
C. A statement may not be admitted under this section unless the
proponent of the statement notifies the adverse party of his intention
to offer the statement and the substance of the statement sufficiently
in advance of the proceedings to provide the adverse party with a
reasonable opportunity to prepare to meet the statement, including
the opportunity to subpoena witnesses. Va. Code Ann. § 63.1-248.13:2
C (Supp. 1988) :
Washnigton
A Statement may not be admitted under this section unless the propo-
nent of the statement makes known to the adverse party his intention
to offer the statement and the particulars of the statement sufficiently
in advance of the proceedings to provide the adverse party with a fair
Opportunity to prepare to meet the statement. Wash. Rev. Code § 9A.120
(1988)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.