Johnson v. State , 231 Ga. App. 823 ( 1998 )

Smith, Judge.

Steven Quinton Johnson was indicted by a Cherokee County grand jury on one count of aggravated child molestation, OCGA § 16-6-4 (c), and one count of child moléstation, OCGA § 16-6-4 (a). He was convicted by a jury, his motion for new trial was denied, and he appeals. At Johnson’s trial, the State introduced a “final protective order” obtained by Johnson’s then wife¹ after his arrest and confinement in jail on these charges. The admission of this document, which was read in its entirety to the jury, was harmful error under the circumstances of this case, and we must reverse.

1. Johnson’s contention that the evidence is insufficient to sustain his conviction is without merit. The victim’s testimony alone was sufficient to sustain the convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hardy v. State, 210 Ga. App. 811, 813 (4) (437 SE2d 790) (1993).

2. At trial, Johnson questioned his wife regarding the divorce petitions she filed against her two previous husbands. According to Johnson, her divorce actions demonstrated a pattern of making false allegations of cruel treatment and child abuse in order to obtain marital assets. In response to this line of questioning, the State offered a document styled “Final Protective Order” obtained by Johnson’s wife pursuant to OCGA § 19-13-1 et seq. The State argued to the trial court on Johnson’s objection, and to the jury in closing argument, that the document constituted an “admission” or “agreement” by Johnson that he had committed “acts of family violence” against his wife and the victim and thus, by implication, the acts charged in the indictment.² The trial court noted that it was a “close call,” but admitted the order and allowed the State to read it to the jury in its entirety.

The State tacitly acknowledges that this order was prejudicial to Johnson and placed his character in evidence; the State argues on appeal that the order was relevant and material and the fact that it incidentally placed Johnson’s character in evidence did not render it inadmissible. We disagree.

It is well established under Georgia law that “ ‘[t]he judgment in a civil action is not admissible in a criminal action to prove any fact determined in the civil action.’ [Cits.]” Flynt v. State, 153 Ga. App. 232, 243 (1) (264 SE2d 669) (1980) (statistics cited in federal court order not admissible in state criminal proceeding). No dispute exists that the petition brought by Johnson’s wife under the Family Violence Act was a civil action; OCGA § 19-13-3 (c) explicitly provides for a preponderance of the evidence standard “as in other civil cases,” and the petition was assigned a civil action number.

While the State characterizes the court order as an “admission” by Johnson, “[a]dmissions by agents or attorneys are not admissible in criminal cases in the sense in which they are admissible in civil cases. They should not be treated as evidence against the accused unless shown to have been authorized by him.” (Citations and punctuation omitted.) Dryer v. State, 205 Ga. App. 671, 672, n. 1 (423 SE2d 297) (1992). This is not a case in which a defendant’s recorded testimony in a civil matter, sworn to and certified by a court reporter, was introduced into his criminal prosecution as an admission. See, e.g., Lam v. State, 208 Ga. App. 324, 325 (2) (430 SE2d 775) (1993) (State introduced into criminal trial transcripts of defendant’s testimony in bankruptcy and civil court proceedings). Nor is this a case in which a defendant was represented by counsel and acquiesced in a stipulation made in open court in the criminal matter itself, as in Dryer, supra at 673.

In contrast, Johnson was brought from the jail in shackles to respond to his wife’s petition. Unlike his wife, he was unrepresented by counsel. The record reveals no transcript of the proceedings or Johnson’s testimony; according to Johnson’s counsel below, Johnson made no admissions and was never afforded an opportunity to review the court’s order. His wife’s counsel, who also represented her in the divorce, drafted the order. “The common practice of directing counsel for the prevailing party to prepare the judgment for the trial court’s signature, although not reversible error, has been greatly disfavored by this court, as well as by the United States Supreme Court. [Cits.] . . . The reasons for this disfavor have been particularly well illustrated in the case at bar.” PDA, Inc. v. Haas Corp., 185 Ga. App. 785, 786 (366 SE2d. 169) (1988). Taking all these circumstances into consideration, the trial court erred in admitting the “final protective order” and allowing it to be read in its entirety to the jury.

Nor can we say that admission of this evidence was harmless in the context of this case. The victim’s testimony was not corroborated by any medical or psychological evidence. The only corroboration of the victim’s testimony was provided by her mother, Johnson’s opponent in an obviously bitter divorce. Evidence also was presented that the 14-year-old victim did not raise the allegations until she encountered disciplinary problems at school and was faced with suspension for misconduct, including falsifying school records. In essence, this case pitted Johnson’s credibility against that of the victim, and we cannot rule out the possibility that the “final protective order,” by improperly giving judicial imprimatur to the victim’s accusations, affected the jury’s verdict.

3. We address those remaining enumerations of error likely to recur at trial. In one enumeration of error, Johnson contends the trial court erred in denying his motion to suppress a number of adult magazines and an adult videotape. These items were provided to the State by his wife after she met with a police detective and assistant district attorney. According to her testimony at trial, they asked her if there were any “dirty magazines” in the house, and she responded that there were not. The detective told her it would be “helpful” if the State had books or magazines to corroborate her daughter’s allegations. The assistant district attorney asked her to search the house and call him if she found anything. She testified that she then located the items which form the basis of Johnson’s motion to suppress.

It is well established that no illegal search and seizure occurs when a private citizen independently discovers contraband or other evidence of illegal conduct and then brings it to the attention of law enforcement. Hester v. State, 187 Ga. App. 46, 47 (1) (369 SE2d 278) (1988) (mechanic discovered drugs hidden in car and informed police); see also Williams v. State, 257 Ga. 788, 789 (3) (364 SE2d 569) (1988) (hospital removed bullet from defendant and gave to police; officers testifed they never asked or told hospital to remove bullet).

It is also well established that the State cannot avoid a Fourth Amendment challenge to a search and seizure by asking a private citizen to act on its behalf and seek out evidence. Such a search would be “conducted in concert with law enforcement authorities, thus triggering the safeguards of the Fourth Amendment. [Cits.]” Pervis v. State, 181 Ga. App. 613, 614 (1) (353 SE2d 200) (1987). “The test is whether the private individual, in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the government when he produced the evidence.” (Citations and punctuation omitted.) Marks v. State, 174 Ga. App. 711, 714 (330 SE2d 900) (1985).

Although it is apparent that the State became involved in the search and seizure of the items at issue here by requesting or directing the participation of a private citizen, we nevertheless find no error because Johnson’s wife also lived in the marital residence and had common authority over it and its contents. Johnson v. State, 266 Ga. 140, 141 (464 SE2d 806) (1996). She had the right to grant the State permission to search her own residence, and she had the right to lead officers of the State to items located there. Id. It follows that she could search her own residence for items requested by officers of the State.

We recognize the risk pointed out by Johnson, that an interested party might fabricate rather than discover items already suggested by the State as favorable to the prosecution. But, as noted in Division 4 below, this goes to the weight of the evidence, not its admissibility. The trial court did not err in denying Johnson’s motion to suppress.

4. In another enumeration of error, Johnson contends that the magazines and videotape should not have been admitted as evidence at trial. He argues that the State did not sufficiently establish the origin or ownership of the items, and that the items produced at trial did not conform to the detailed descriptions given by the victim of magazines and tapes Johnson allegedly showed her. Johnson’s first argument is without merit because no chain of custody requirement exists for a distinct physical object such as a videotape. Gadson v. State, 263 Ga. 626, 627 (2) (437 SE2d 313) (1993); see also Ingram v. State, 211 Ga. App. 252, 256 (438 SE2d 708) (1993). Second, the inconsistencies in the identification of the magazines and videotape go to weight rather than admissibility. Johnson brought out these points on cross-examination, including testimony that the items produced by Johnson’s wife did not match the description of the items identified by the victim, and that some of the items belonged to Johnson’s wife rather than to Johnson. Regardless of whether these materials corroborated the victim’s testimony, they were admissible to show Johnson’s “state of mind and lustful disposition.” King v. State, 209 Ga. App. 529, 530-531 (2) (433 SE2d 722) (1993).

Judgment reversed.

McMurray, P. J, Birdsong, P. J., Ruffin and Eldridge, JJ, concur. Andrews, C. J., and Beasley, J., dissent.

1 Johnson’s wife’s petition for divorce was pending at the time of trial.

2 The State also argued that Johnson had “opened the door” to questions regarding the divorce proceedings between him and his wife. Even assuming that Johnson “opened the door” to questions regarding the divorce proceedings, the “final protective order” was not part of the divorce proceedings. It was a petition brought by his wife pursuant to OCGA § 19-13-1 et seq. before the divorce action had been filed; it was a separate proceeding and assigned a separate civil action number. More importantly, this argument does not address the underlying relevance or admissibility of the order.