Opposition Brief — Sosebee v. Georgia

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In The JOSEPH F. SPANIOL, JR.

J a : CLERK

Supreme Court of the United States

October Term, 1989

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GEARY ALAN SOSEBEE,

Petitioner,

STATE OF GEORGIA,

Respondent.

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On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Georgia :

BRIEF FOR THE RESPONDENT IN OPPOSITION

Please serve:

PAULA K. SMITH

132 State Judicial Bldg.

40 Capitol Square, S.W.

Atlanta, Georgia 30334

(404) 655-3351

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. 4

Pauta K. SMITH

Counsel of Record for

Respondent

Assistant

Attorney General

MIcHAEL J. Bowers

Attorney General

H. Perry MICHAEL

Executive Assistant

Attorney General

WituaM B. Hit, Jr.

Deputy

Attorney General

Susan V. BOLEYN

Senior Assistant

Attorney General

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Should this Court grant certiorari to consider alleged

confrontation violations under the Georgia child hearsay

statute where the child is available at trial and the

reliability of the child’s statements are established prior

to their admission?

II.

Should this Court grant certiorari to consider a fed-

eral question not properly raised below?

Ill.

Should this Court consider an alleged confrontation

abridgement where Petitioner declined to have the trial

court call the child victim to testify?

IV.

Should this Court grant review to consider an alleged

conflict among state statutes on nonconstitutional

matters?

Should this Court grant certiorari to consider an

issue of public policy falling within the legislative realm?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........ccccccccserccces i

SIATEMENT OF THE CASE... .....crcrccsscedecss 1

REASONS FOR NOT GRANTING THE WRIT...... 9

I. THE GEORGIA CHILD HEARSAY STATUTE

DOES NOT VIOLATE THE RIGHT TO CON-

PREPTNREREIIEE cd's vs one Renbens eal bulede os 9

Il. THIS COURT SHOULD DECLINE TO CON-

SIDER A FEDERAL QUESTION NOT PROP-

ERLY RAISED BELOW . .....6.cnscssveses. 13

III. PETITIONER WAS NOT DENIED THE

OPPORTUNITY TO CROSS-EXAMINE THE

CHILD BY THE GEORGIA STATUTE ..... 14

IV. THERE IS NO CONFLICT BETWEEN GEOR-

GIA AND OTHER STATE STATUTES ON

ANY FEDERAL QUESTIONS .............. 16

V. PETITIONER’S POLICY ARGUMENT PRE-

SENTS NO BASIS FOR THE GRANTING OF

(e:.... eeee. 17

(RIO UG AUT Ss ood v ens neues cb aneeNer ceseeeuebenas 18

QR ee Ae ae Oe te ae or Ss ee eee ee Vee Se! To ee Beg

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TABLE OF AUTHORITIES

Page(s)

Cases CITED:

Brady v. Maryland, 373 U.S. 83 (1985)..........--+++- 11

California v. Green, 399 U.S. 149 (1970) .............. 12

Cardinale v. Louisiana, 394 U.S. 437 (1969) ........... 14

Delaware v. Fensterer, 474 U.S. 15 (1985) ............. 12

Dutton v. Evans, 400 U.S. 74 (1970).............-. 10, 12

Martin v. Ohio, __ U.S. __, 107 S.Ct. 1098 (1987) .... 16

McCleskey v. Kemp, __ U.S. __, 107 S.Ct. 1756

ks vin, keel be wa 46 > 17

Pennsylvania v. Ritchie, ___ U.S. ___, 107 S.Ct. 989

Oa rs 12, 14, 15, 16

Ross v. Moffitt, 417 U.S. 600 (1974).................. 14

Sosebee v. State, 190 Ga. App. 746, ___ S.E.2d

a ee ina aw ocben eas 3, 14, 15

Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987) ..2, 10

Ulnited States v. Owens, __ U.S. __, 108 S.Ct. 838

ee arpa etedesaves 12

Statutes CITED:

ck kee ceesernancueweces 2, 3, 10

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No. 89-170

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In The

Supreme Court of the United States

October Term, 1989

GEARY ALAN SOSEBEE,

Petitioner,

STATE OF GEORGIA,

Respondent.

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Georgia

—

BRIEF FOR THE RESPONDENT IN OPPOSITION

PART ONE

STATEMENT OF THE CASE

Petitioner, Geary Alan Sosebee, was indicted by the

Fayette County, Georgia, Grand Jury on September 9,

1986, under 3 separate indictments involving sexual

abuse upon his 5 year old daughter, Holly Sosebee. (R. ..

18-23; 24). Specifically, indictment number 86R-224

charged Petitioner with one count of child molestation

and one count of aggravated assault upon Holly Sosebee

on April 12, 1986. Indictment number 86R-225 charged

Petitioner with one count of aggravated child molesta-

tion, one count of aggravated sodomy, and one count of

rape upon Holly Sosebee between the period September

1, 1985 — April 12, 1986. Indictment number 86R-226

charged Petitioner with one count of incest upon his

daughter Holly Sosebee during the period September 1,

1985 — April 12, 1986.

On September 22, 1986, Petitioner filed a pre-trial

motion in limine, seeking to bar the state from eliciting

from state witnesses under O.C.G.A. § 24-3-16 any state-

ments made by the victim describing the sexual acts. (R.

70). The constitutional challenge to this statute was

denied by the trial court on October 17, 1986. (R. 83).

Petitioner successfully sought an interlocutory review of

this decision, with the Georgia Supreme Court granting

the application for such an appeal on November 4, 1986.

(R. 96).

On June 19, 1987, the Supreme Court of Georgia

adopted a construction of this statute, requiring that

before the completion of the state’s evidence, the trial

court shall, at the request of either party, call the child-

victim to the stand, inform the jury that the court was

calling the victim, and then permit examination of the

victim. Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987).

The court further held that the construction given the

statute mooted any constitutional argument. Id. Rehear-

ing was denied July 29, 1987.

Upon a jury trial on September 21 — October 6, 1987,

the jury found the Petitioner guilty on all counts under all

three indictments. (R. 235-38). Under indictment number

86R-224, Petitioner was sentenced to twenty years to

serve for child molestation and to a consecutive twenty

year sentence for aggravated sodomy. (R2-39). Under

indictment number 86R-225, Petitioner was sentenced to

concurrent twenty year sentences on the counts of aggra-

vated child molestation and aggravated sodomy and a

consecutive twenty year sentence for rape to follow the

sentences under the first indictment. (R. 240). Under

indictment number 86R-226, Petitioner was sentenced to

a concurrent twenty year sentence for incest. (R. 2-41).

On direct appeal, the Petitioner reasserted his consti-

tutional challenge to O.C.G.A. § 24-3-16 as well as addi-

tional errors. The Georgia Court of Appeals found these

allegations to be without merit and affirmed the Peti-

tioner’s convictions and sentences on February 2, 1989.

Sosebee v. State, 190 Ga. App. 746, __ S.E.2d ___ (1989).

The opinion was amended when the motion for rehearing

was simultaneously denied on July 29, 1987. The Georgia

Supreme Court subsequently denied certiorari.

A review of the facts presented at the Petitioner’s

trial is necessary for this Court’s determination of

whether this petition should be granted. Therefore, a

summary of the evidence submitted at the Petitioner’s

trial is presented as follows.

On April 12, 1986, Petitioner and his wife appeared at

a divorce hearing concerning temporary custody of their

two children. (Trial transcript 1462) (hereinafter desig-

nated “T.”). The presiding judge ordered that the children

be temporarily placed in the custody of the Fayette

County, Georgia, Department of Family and Children

Services, (hereinafter referred to as DFACS). (T. 1466-67).

After the hearing, the children’s mother, Leslie Sosebee,

and two of her friends picked up the children from the

babysitter and took them immediately to DFACS. (T.

1731). No one said anything to the children about Peti-

tioner. (T. 1732).

On April 16, 1986, Fayette County Sheriff Juvenile

Investigator Opal McRaney met with the Petitioner’s five-

year old daughter, Holly Sosebee, at the request of

DFACS child protection services worker Angela Stinch-

comb regarding possible sexual abuse. (T. 321-22). Ms.

McRaney had been an investigator for over nine years

and had received special training in investigating child

abuse and sex crimes. (T. 323-24). Following a hearing

outside the presence of the jury (T. 332-81), the investiga-

tor then testified as to the substance of the interview. The

investigator testified that upon her initial arrival at the

department, she overhead Holly tell the Petitioner that

she would not tell the DFACS worker their special secret.

(T. 385). In the subsequent interview, Holly indicated that

She liked her father and that she was “his special girl,”

while describing her mother as evil. (T. 389). The child

agreed to discuss her special secret if the DFACS worker

would leave the room. (T. 390). The child then related that

her secret was a nasty secret involving a monster wearing

an ugly mask and making her bottom hurt; the monster

would not do anything to her sister because the monster

did not like the sister. (T. 391-92). The child then identi-

fied the Petitioner as the monster and described how the

Petitioner touched her vaginal area with his hand and put

his tongue in her mouth. (T. 393). Using anatomically

correct dolls, the child demonstrated how the Petitioner

would put his face in her genital area and later placed the

doll she had identified as her father upon the doll she

Se a en

identified as herself and simulated up and down move-

ments. (T. 398). Throughout this interview, the

investigator observed the child rubbing herself occa-

sionally between her legs; when asked why, the child

responded that it was nasty and felt good. (T. 399).

In a second interview several days later, Holly told

the investigator that three other men, along with her

father, had done sexual things to her, describing how her

father went first, how she had been picked up and placed

on his “peed.” (T. 403-404). The child told the investigator

that pictures were made of her as the men took turns

doing this. Id.

The child’s pediatrician, Dr. Joel Goldstein, examined

Hoily on April 17, 1986. (T. 830). The pediatrician had last

seen Holly on March 6, 1986, and a general vaginal exam-

ination indicated it to be in a normal condition for a five-

year old. (T. 833-34). However, on April 17, the child’s

vagina visibly appeared different, with the size of the

vaginal opening resembling that of an adult women more

than that of a child. (T. 832). The pediatrician then

referred the child to an obstetrician/gynecologist, Dr.

Darrell Martin. (T. 832).

The gynecologist, assisted by nurse/midwife Terry

Gillenwaters, examined Holly. (T. 487). To obtain a vagi-

na! culture, the nurse used a speculum normally used on

females teenaged or older; ordinarily, the nurse would

have used a Q-tip on a child of Holly’s age to obtain such

a culture. (T. 487; 461-62). The child’s vaginal opening

was two to three centimeters in size, approximately the

width of one and one-half fingers, and the hymen was

not intact. (T. 463). The child had a vaginal infection,

hemophilus, which is generally associated with sexual

abuse in pre-pubertal girls. (T. 465-66; 494). The gynecolo-

gist pointed out that it was not uncommon for a man to

transmit this infection while exhibiting no symptoms

himself. (T. 494).

The gynecologist also examined the child one month

later at a hospital while she was anesthetized. (T. 491-92).

Holly’s vaginal opening measured 1.7 by 1.7 by 1.8 centi-

meters, closer to the size of a teenaged or older female as

the average size of a vaginal opening for an eight-year

old girl was under five millimeters or one-half centimeter.

(T. 491-93).

The pediatrician testified that hemophilus is rarely

found in non-sexually active children and usually found

in sexually-active adult women. (T. 830-36). A finding of

hemophilus in a small child generally indicates penile

. transmittal, and a combination of the hemophilus bacteria

and stretching of the vagina as seen in Holly indicated

some “ongoing sexual activity involving penile insertion

in the child.” (T. 836-37).

In June 1986, clinical psychologist James Stark inter-

viewed Holly twice. (T. 964). The child appeared to be

traumatized by something having to do with her father.

(T. 988). The psychologist also observed numerous behav-

ioral problems generally associated with child sexual

abuse. (T. 987-94). Following a hearing outside the pres-

ence of the jury (T. 599-611), the psychologist related the

child’s description of sexual acts between Holly az.d her

father, including oral-anal acts, oral-vaginal acts, sexual

intercourse, kissing in which her father put her tongue in

her mouth, and the father putting his mouth on her

breasts and touching her vagina with his hand. (T. 995,

997-98). The child stated that she had been told by her

father not to tell because if she told, he might get in

trouble. (T. 998). The child also described a group sex

scene involving her father and three other men taking

turns having intercourse and various forms of oral sod-

omy with the child. (T. 1001-1005).

The psychologist referred Holly to Nancy Copeland

Aldridge, a psychotherapist and licensed clinical social

worker, for additional evaluation and therapy. (T. 615,

622-23). The psychotherapist had approximately 46 ses-

sions with the child. (T. 626). The child disclosed that she

had secrets and that she would die if she told them and

wouid not see Jesus. (T. 627). The child Jater described the

secrets as invc:ving her father touching her anus with his

tongue and her vagina with his tongue, his hand and his

penis. (T. 635-36). Petitioner would kiss her on the mouth,

put his tongue in her mouth, and put his penis in her

vagina which the child claimed hurt. (T. 638-40). The

child indicated that the father would put something

sticky on his penis and that something would come out of

it when he put it in her vagina. (T. 639). Holly indicated

that these incidents occurred in her father’s bedroom

about once a week and that she had been told by her

father not to tell. (T. 639). Holly described these events as

occurring in their new house, both when her parents

lived together and after her father moved out. Id. The

child also described a group sex incident involving her

father and three other men named Don, Scott, and Mic-

hael, during which the child said she had been made to

drink something which made her sleepy and that movies

were made of what they did. (T. 648-49). On January 3,

1987, Holly denied that her father or anyone else had

ever bothered her or sexually abused her. (T. 654-58). The

child then began to fluctuate as to what happened and

her memory faded as to details. Id. Finally, on May 6,

1987, the child would only tell the psychotherapist that

her father did bad things to her but that she could not

remember what they were. (T. 658). The psychotherapist

concluded that Holly exhibited many of the general

behavorial indicators associated with the child abuse syn-

drome and that Holly fitted into the syndrome, including

the recantation. (T. 664, 687).

In his defense, Petitioner presented a neighbor who

had seen the child left with babysitters (T. 1095); Donald

Evans who had been accused by the child of molesting

her (T. 1115); two individuals in an attempt to impeach

the juvenile investigator (T. 1153, 1179); a psychiatrist

who examined the Petitioner and concluded that he was

not a pedophile (T. 1202); two good character witnesses

(T. 1331, 1337); a gynecologist who treated Petitioner’s

wife for vaginitis and discussed how certain infections

could be transmitted through non-sexual activity (T.

1345); a urologist who treated the Petitioner and found no

sexually transmitted disease (T. 1361); a clinical psycholo-

gist who had dealt with ten sex offenders and opined that

the Petitioner did not fit their criteria (T. 1523); a clinical

psychologist who conducted a penile plethysmograph

and concluded the Petitioner did not appear to be a

pedophile (T. 1578); two witnesses in an attempt to

impeach the credibility of the DFACS worker (T. 1620;

1718); a day care sitter describing one incident in which

the child refused to leave with a particular babysitter (T.

1661); and two witnesses who stated that the juvenile

investigator had a bad reputation. (T. 1722; 1725). Peti-

tioner also testified in his defense, denied the accusa-

tions, and described how his daughter had sexually

abused herself. (T. 1376).

The jury found the Petitioner guilty on all counts. (T.

1905-1906).

PART TWO

REASONS FOR NOT GRANTING THE WRIT

I. THE GEORGIA CHILD HEARSAY STATUTE

DOES NOT VIOLATE THE RIGHT TO CON-

FRONTATION.

Petitioner contends that the Georgia Child Hearsay

Statute is unconstitutional, contending that it allegedly

denies a defendant the opportunity for “face-to-face”

confrontation, despite the requirement that the declar-

ant/chilc’ be available at the trial. Petitioner also con-

tends that the statute does not permit “effective” cross-

examination of the child and also complains of the lack of

contemporaneous cross-examination when the child

made statements, such as in this case for purposes of

investigation, evaluation and treatment. Respondent sub-

mits that the construction adopted by the Georgia

Supreme Court, and as applied in this case, does not

violate the right to confrontation as the statute requires

the child/declarant to be available at trial and that indicia

of reliability of the child’s statements be shown prior to

their admission so that this allegation provides no basis

for the grant of certiorari.

In 1986, the Georgia Legislature enacted the follow-

ing statute, effective July 1, 1986:

A statement made by a child under the age of 14

years describing any act of sexual contact or

physical abuse performed with or on the child

by another is admissible in evidence by the tes-

timony of the person or persons to whom made

if the child is available to testify in the proceed-

ings and the court finds that the circumstances

of the statement provide sufficient indicia of

reliability.

O.C.G.A. § 24-3-16. Petitioner challenged the constitu-

tionality of this statute on an interlocutory appeal. The

Georgia Supreme Court construed the term “if the child is

available to testify in the proceedings” as requiring the

child to be present and requiring the trial court to call the

child as the court’s witness if either party asks. Sosebee,

257 Ga. at 299. By having the trial court call the child as a

witness, any potential adverse implication arising to the

defendant by calling the child is avoided. Id.

Here, the trial court conducted hearings outside the

presence of the jury to establish the indicia of reliability

of the child’s statements to juvenile investigator

McCraney (T. 332-81); to psychotherapist Aldridge (T.

518-97); and to clinical psychologist Stark (T. 599-611),

prior to the admission of the child’s statements to these

three individuals. The trial court found as fact that the

child was available to testify. (T. 379). Relying upon

Dutton v. Evans, 400 U.S. 74 (1970), the trial court then

found that the statements of the 5 year old victim had

sufficient indicia of reliability to warrant their admission.

(T. 378-81; 596-97; 611). Specifically, following the hearing

on the statements to juvenile investigator McCraney, the

trial court ruled that the child was met by the investigator

who was in sheriff’s uniform, and that the child’s verbal

and non-verbal statements through the use of dolls “cov-

ers a subject matter that a 5 or 6-year old child would not

know, the sexual nature not being information that a

child of that age would have.” (T. 380-81). The court

further found that the statements of the victim were “the

type of story that a child of this age would not make up

even if she had knowledge of these sexual matters.” Id.

The court based these findings on the fact that the child

of that age was in a strange building for the first time, in

the company of an unknown lady who was in uniform.

Id. The court found these facts evidenced reliability of the

statements.

Similarly, as to psychotherapist Aldridge, the trial

court relied in part upon its earlier rulings and noted that

a child of that age was not “ordinarily mentally capable

of making up” such details. (T. 596-97). The court also

found that the demeanor of the psychotherapist con-

vinced the judge that words had not been put in the

victim’s mouth. (T. 596-97). As to the clinical psycholo-

gist, the trial court relied in part upon the two previous

rulings and found sufficient indicia of reliability. (T. 611).

In addition, the trial court conducted an in camera

inspection of the files of the psychotherapist and investi-

gator (T. 597, 611) and gave any exculpatory evidence to

Petitioner. The trial court also conducted an in camera

inspection of the DFACS file and gave Petitioner the

Brady v. Maryland, 373 U.S. 83 (1985), material. (T. 5).

Further, after the prosecutor informed Petitioner under

Brady on the first day of trial that the child had recanted

all her statements in a meeting the previous week with

the prosecutor (T. 42), the trial court granted Petitioner’s

request for adjournment for the afternoon so that Peti-

tioner could follow up on this information. (T. 44). Nei-

ther the-prosecutor nor Petitioner asked that the child be

called as a witness. (T. 1050; 1085-88).

Under these facts, Respondent submits that no viola-

tion of the right to confrontation has been shown. Peti-

tioner contends that the statute is unconstitutional

because it permits the statement of the child to be utilized

even though the child is available. Petitioner claims such

out-of-court declarations cannot per se be utilized unless

the unavailability of the declarant is established. This

Court has previously rejected such assertions. Dutton v.

Evans; California v. Green, 399 U.S. 149 (1970) (prior incon-

sistent statements admitted as substantive evidence

where declarant available at trial). Further, the confronta-

tion clause is satisfied by the “opportunity” for cross-

examination, not cross-examination “effective” in what-

ever way and to whatever extent a defendant might wish.

United States v. Owens, __ U.S. __, 108 S.Ct. 838 (1988);

Pennsylvania v. Ritchie, U.S. __, 107 S.Ct. 989 (1987);

Delaware v. Fensterer, 474 U.S. 15 (1985) (per curiam).

Finally, as this Court recently noted, confrontation is a

trial right. Ritchie, 107 S.Ct. at 999. This Court has also

declined to require contemporaneous cross-examination

as a constitutional matter, noting that an inability to

cross-examine a witness at the time a prior statement was

made is not of crucial significance where the defendant is

assured of cross-examination at trial. California v. Green,

399 US. at 158.

Here, Petitioner had the opportunity to cross-exam-

ine the child/declarant but declined to do so. Further, the

reliability of any statements the declarant made out of

court were established prior to their admission. Petitioner

was further given wide latitude in conducting full and

sifting cross-examinations of these three individuals as to

what they had heard, including inquiry before the jury as

to the potential for their having influenced the statements

of the child. (T. 407-54; 694-798, 816-827; 1005-1080). The

_trial court also permitted Petitioner to attack the cred-

ibility of the DFACS worker although this individual was

not present and did not testify at trial about her inter-

views with the child. (T. 1695-96). Respondent submits

that the jury had a sufficient basis for evaluating the truth

of any prior statement of the child so that the objectives

of the confrontation clause were achieved in this case.

Accordingly, Respondent submits that this Court should

decline to grant certiorari to consider questions previ-

ously resolved by this Court.

Ii. THIS COURT SHOULD DECLINE TO CONSIDER

A FEDERAL QUESTION NOT PROPERLY RAISED

BELOW.

Petitioner contends before this Court that the con-

struction given by the Georgia Supreme Court of one

phrase of the child hearsay statute, as discussed above,

violates the separation of powers doctrine. This question

was not raised in the motion for rehearing in the inter-

locutory appeal in the Georgia Supreme Court or as error’

on direct appeal to the Georgia Court of Appeals follow-

ing trial. Instead, Petitioner raised this issue for the first

time in the certiorari petition to the Georgia Supreme

Court after trial. Thus, this Court should decline to con-

sider a federal question improperly raised and not

decided below. Cardinale v. Louisiana, 394 U.S. 437 (1969).

Accordingly, Respondent submits this Court should

decline to grant certiorari upon this basis.

Ill. PETITIONER WAS NOT DENIED THE OPPOR-

TUNITY TO CROSS-EXAMINE THE CHILD BY

THE GEORGIA STATUTE.

Petitioner contends that the statute as applied in this

case denied him his constitutional right to “effective”

cross-examination and due process. Petitioner urges that

many of the rulings of the state courts in this case are

erroneous under state law and asks this Court to sit as a

“super” appellate court. Respondent submits that this

Court’s decision to grant certiorari is motivated by many

reasons other than the perceived correctness of the judg-

ment below. Ross v. Moffitt, 417 U.S. 600 616-17 (1974).

Petitioner complains of the decision of the child’s

guardian ad litem who denied Petitioner’s request prior

to trial to interview the child. The Georgia Court of

Appeals noted on direct appeal that under Georgia law,

the “state may not deny defendant access to a witness

material to the defense, but a witness cannot be com-

pelled to submit to a pre-trial interview.” Sosebee, 190 Ga.

App. at 748. The state appellate court further relied upon

Pennsylvania v. Ritchie regarding Petitioner’s assertion

that the denial of the request by the guardian ad litem

denied him the right to “effective” cross-examination.

Sosebee, 190 Ga. App. at 748-49. The state appellate court

quoted language from Ritchie wherein this Court noted

that the confrontation clause was not a pre-trial rule of

discovery. Id. The court also noted that the trial court had

conducted an in camera inspection of the state files for

material information as required by Ritchie.

The state appellate court also rejected Petitioner’s

assertion that he was denied an effective opportunity to

test the competency of the child. The gist of the Peti-

tioner’s argument below was that he precluded from

presenting extraneous information regarding the compe-

tency of the child not at the time of the pre-trial compe-

tency hearing but, rather, information allegedly relating

to her competency at the time the child made statements

to relevant authorities. Sosebee, 190 Ga. App. at 749. The

state court noted that there was no such requirement

under state law, particularly where competency is deter-

mined by whether the child understands the nature of the

oath and is not tied to any mental state. Id. Indeed,

Petitioner’s argument on this issue before this Court

addresses solely the propriety of this holding under state

law so that Respondent submits no federal question is

presented by this argument.

Finally, contrary to the Petitioner’s assertions, Peti-

tioner was given the opportunity to contest the reliability

of the child’s statements. Petitioner again complains of

the lack of pre-trial disclosure of the “entire” DFACS file

and the child’s medical records. Petitioner ignores the

fact that he was given ample opportunity to test these

three witnesses on what they had heard. Respondent

submits no abridgement of the confrontation clause is

presented under these facts.

hintaan eel

In conclusion, Respondent submits that no federal

question not previously decided by this Court is pre-

sented by this allegation. Accordingly, Respondent would

urge this Court to decline to grant certiorari for these

reasons.

IV. THERE IS NO CONFLICT BETWEEN GEORGIA

AND OTHER STATES STATUTES ON ANY FED-

ERAL QUESTIONS.

In the fourth issue before this Court, the Petitioner

contends that the Georgia statute impermissibly conflicts

with other state statutes, which, according to the Peti-

tioner, allegedly require pre-trial disclosure by the state

»f certain materials. Respondent submits that pretermit-

ting the question of any conflict, no federal question is

presented by this claim as there is no federal right to

zeneral discovery im a criminal case. Pennsylvania v.

Ritchee. 107 S.Ct. at 003; Weatherford v. Bursey, 429 US.

545, 559 (1977). That a majority of states may follow a

particular criminal procedure does not in and of itself

oresemt a federal question, nor is a federal question

nswered by cataloging the practices of other States.”

artie ov. Ole US. __, 107 S.Ct. 1098, 1103 (1987).

etitiomer im effect asks this Court to rewrite the Georgia

stute to require pre-trial discovery for a defendant.

Respondent submits that such a request provides no basis

he erarmting of certiorari

V. PETITIONER’S POLICY ARGUMENT PRESENTS

NO BASIS FOR THE GRANTING OF

CERTIORARI.

In his final issue before this Court, Petitioner con-

tends that evidentiary procedures need to be established

to protect parents from allegedly false child abuse allega-

tions in custody battles. Petitioner asks this Court as a

matter of public policy to grant certiorari in this case to

consider what measures, if any, may be afforded parents

in divorce proceedings in the face of allegedly false sex-

ual abuse allegations. Respondent submits that such con-

siderations, regardless of their merit, fail to identify a

federal question for review by this Court and are more

properly left to legislatures. McCleskey v. Kemp, __ U.S.

__, 107 S.Ct. 1756, 1781 (1987).

CONCLUSION

This Court should refuse to grant a writ of certiorari

to the Court of Appeals of Ceorgia as it is manifest that

the federal questions presented to this Court for review

were correctly decided under precedent of this Court and

that no federal questions not previously decided by this

Court are presented.

Respectfully submitted,

Micuaet J. Bowers 071650

Attorney General

H. Perry Micnwaert 504000

Executive Assistant

Attorney General!

Wituam B. Hint, Jr. 354725

Deputy Attorney General

Susan V. Boteyn 065850

Senior Assistant Attorney General

PAuLA K. SmitH 662100

Assistant Attorney General

Please serve:

Pauta K. SMITH

132 State Judicial Building

40 Capitol Square

Atlanta, Georgia 30334

(404) 656-3351

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.