Timothy Palmer v. State , 330 Ga. App. 870 ( 2015 )

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
March 3, 2015
In the Court of Appeals of Georgia
A14A1941. PALMER v. THE STATE.
BARNES, Presiding Judge.
A jury found Timothy Palmer guilty of two counts of aggravated child
molestation and one count of statutory rape,1 and the trial court denied his motion for
a new trial. On appeal, Palmer contends that the trial court committed reversible error
in violation of OCGA § 17-8-57 by giving a jury instruction on statements by a child
describing sexual contact or physical abuse in which the court expressed an opinion
regarding the reliability of the child’s statements. Because we determined in Rolland
v. State, 296 Ga. App. 889, 891 (676 SE2d 296) (2009), and Starr v. State, 269 Ga.
App. 466, 467-468 (1) (604 SE2d 297) (2004),2 that virtually the same jury
1
The jury acquitted Palmer of aggravated sexual battery and child molestation.
2
Starr subsequently was overruled in part on other grounds by Hatley v. State,
290 Ga. 480, 483 (I) (722 SE2d 67) (2012).
instruction violated OCGA § 17-8-57 and required reversal, Palmer’s convictions
must be reversed and the case remanded for a new trial.
1. At trial, in addition to the testimony of the child victim, the State introduced
into evidence and played for the jury a video recording of the victim’s forensic
interview. The victim’s mother and the lead detective assigned to the case also
testified regarding the victim’s disclosures of sexual abuse to them. Subsequently,
during its charge to the jury, the trial court gave the following instruction on
statements made by a child describing sexual contact or physical abuse:
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 shall be admissible in evidence by the testimony of the person
to whom made if the child is available to testify in the proceedings and
if the court finds that the circumstances of the statement provide
sufficient indicia of reliability.
(Emphasis supplied.) See OCGA § 24-8-820 (Supp. 2012).3
3
This charge mirrors the language of OCGA § 24-8-820 (Supp. 2012), which
governed Palmer’s trial in March 2013. See Ga. Laws 2011, Act 52, § 101. With
respect to offenses occurring on or after July 1, 2013, a new version of the child
hearsay statute applies that, among other things, omits the statutory requirement that
the trial court determine whether the circumstances of the statement provide sufficient
indicia of reliability before admitting the hearsay evidence. See OCGA § 24-8-820
(2013); Ga. L. 2013, p. 222, §§ 13, 21/HB 349.
2
Palmer contends that the trial court’s instruction, in light of the language
informing the jury that the court found that the circumstances of the child’s
statements had “sufficient indicia of reliability,” constituted an improper comment on
the evidence in violation of OCGA § 17-8-57. We agree.
“It is error for any judge in any criminal case, during its progress or in his
charge to the jury, to express or intimate his opinion as to what has or has not been
proved or as to the guilt of the accused.” OCGA § 17-8-57. “Even if defense counsel
fails to raise an objection, if the trial court violates this statutory provision, we are
required to order a new trial, and there can be no finding of harmless error.”
(Citations and punctuation omitted.) Booker v. State, 322 Ga. App. 257, 259 (1) (744
SE2d 429) (2013). See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010);
Sauerwein v. State, 280 Ga. 438, 439 (2) (629 SE2d 235) (2006).
In Rolland, 296 Ga. App. at 890-891, and Starr, 269 Ga. App. at 466-468 (1),
the trial court gave virtually the same jury instruction on statements of a child
describing sexual contact or physical abuse, and we considered a similar claim that
the instruction violated OCGA § 17-8-57. We concluded in both cases that the jury
instruction violated OCGA § 17-8-57 and required reversal because the jurors could
have reasonably taken the instruction to be an expression or intimation of the trial
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court’s opinion that the child’s statements were reliable or true. See Rolland, 296 Ga.
App. at 891; Starr, 269 Ga. App. at 467-468 (1).
Based on this binding precedent, we conclude that the trial court’s jury
instruction violated OCGA § 17-8-57. “Given the mandatory nature of OCGA §
17-8-57 and the case law interpreting it, we must reverse [Palmer’s] conviction[s] and
remand the case to the trial court for a new trial.” Murphy v. State, 290 Ga. 459, 461
(2) (722 SE2d 51) (2012). See Gardner, 286 Ga. at 634; Sauerwein, 280 Ga. at 439
(2).
2. Given our decision in Division 1, we need not address Palmer’s claim that
the State failed to prove venue for one of the aggravated child molestation counts.4
The remedy for the failure to prove venue is to reverse and remand for a new trial if
the State otherwise presented sufficient evidence to prove that the defendant
committed the crime. See Powers v. State, 309 Ga. App. 262, 264 (1) (709 SE2d 821)
(2011). Here, the evidence was sufficient to prove that Palmer committed the alleged
act of aggravated child molestation; therefore, retrial is not barred by Double
Jeopardy considerations. See Jones v. State, 272 Ga. 900, 905 (4) (537 SE2d 80)
4
We likewise need not address Palmer’s claim of ineffective assistance of
counsel.
4
(2000). And because the remedy for failing to prove venue would be a retrial, which
we already held in Division 1 must occur in this case, we need not resolve the venue
question raised by Palmer in this enumeration of error.
Judgment reversed and case remanded. Boggs and Branch, JJ., concur.
5