Alday v. the State , 336 Ga. App. 508 ( 2016 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days oft5 the date of decision to be deemed timely
filed.
http://www.gaappeals.us/rules
March 29, 2016
In the Court of Appeals of Georgia
A15A2236. ALDAY v. THE STATE.
MCFADDEN, Judge.
Faron Alday was tried before a jury and convicted of two counts of child
molestation for touching the vaginal area and buttocks of minor child L. A. Alday
appeals, asserting that the trial judge improperly expressed his opinion as to what had
been proven in violation of OCGA § 17-8-57. Because we find that the trial judge
violated OCGA § 17-8-57 by improperly intimating his opinion as to what had been
proven in the case, we must reverse the convictions. However, there was sufficient
evidence to support the convictions and therefore, despite the trial errors, Alday may
be retried on the charges. See Green v. State, 291 Ga. 287, 288-289 (1) (728 SE2d
668) (2012); Williams v. State, 268 Ga. 488, 489 (491 SE2d 377) (1997). Alday’s
further contention that the trial court erred in excluding testimony concerning prior
feuds between him and his son, the father of L. A., presents nothing for review
because Alday did not perfect the record with a sufficient proffer of the expected
testimony.
1. Sufficiency of the evidence.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation
omitted). We do not weigh the evidence or judge the credibility of witnesses, but
determine only whether a rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Owens v. State, 334 Ga. App. 203 (778 SE2d
830) (2015).
So viewed, the evidence shows that Alday is the grandfather of L. A. On June
28, 2012, L. A.’s father, who is Alday’s son, entered Alday’s house and saw him
sitting on the couch with six-year-old L. A. The child’s father testified that as he
entered the house, Alday jumped up and got off the couch as if he had done
something bad. The father took L. A. outside and asked if she and Alday had a secret.
The father testified that L. A. immediately started crying and said that she did not
want Alday to go to jail. The father asked L. A. if Alday had touched her and she said
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that he had, although she did not describe the touching. The father reported the
incident to his wife, L. A.’s mother, who was at work. The following day, the mother
of L. A. asked her if anyone had touched her “no-no” spots, and L. A. said that Alday
had done so on her clothes. A week later, a forensic interview of L. A. was conducted.
L. A. initially told the forensic interviewer that she had not been touched on her
private parts, but subsequently said that Alday had used his hand to massage her
vaginal area and touch her buttocks. At trial, L. A. testified that Alday had massaged
her on “the girl’s part,” but not on her “booty.”
Based on the foregoing evidence, we “conclude that there was sufficient
evidence from which the jury was authorized to find [Alday] guilty beyond a
reasonable doubt of [the two counts] of child molestation.” Harris v. State, 333 Ga.
App. 118, 119 (1) (a) (775 SE2d 602) (2015) (citations omitted). Any “issues of
consistency and credibility were for the jury to decide.” Jackson v. State, 334 Ga.
App. 469, 473 (2) (779 SE2d 700) (2015) (citations omitted).
2. Violations of OCGA § 17-8-57.
Alday asserts that the trial judge violated OCGA § 17-8-57 by making several
improper comments that expressed his opinion about what had been proved in the
case. We agree.
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The version of OCGA § 17-8-57 that was in effect at the time of Alday’s
November 2013 trial provided:
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. Should any judge
violate this [c]ode section, the violation shall be held by the Supreme
Court or Court of Appeals to be error and the decision in the case
reversed, and a new trial granted in the court below with such directions
as the Supreme Court or Court of Appeals may lawfully give.1
Comments by the trial judge “that include expressions of opinion as to what has been
proven, the credibility of a witness, or on a disputed issue of material fact are clearly
improper under OCGA § 17-8-57. [Cits.]” Huff v. State, 334 Ga. App. 254, 257 (1)
(779 SE2d 29) (2015) (applying same version of statute that was in effect during the
trial in this case).
a. Comment outside jury’s presence.
After an objection during Alday’s cross-examination of the state’s first witness,
L. A.’s father, the trial court excused the jury and conferred with the attorneys outside
the jury’s presence. During the conference, defense counsel explained that he wanted
1
The current version of this code section became effective July 1, 2015, and
similarly provides that “[i]t is error for any judge, during any phase of any criminal
case, to express or intimate to the jury the judge’s opinion as to whether a fact at issue
has or has not been proved or as to the guilt of the accused.” OCGA § 17-8-57 (a) (1).
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to ask the father about how he had threatened and been aggressive toward Alday. The
judge refused to allow such questioning, stating, “You know, [counselor], I believe
if my father molested my daughter I believe I might be aggressive too.”
Even outside the jury’s presence, a judge “must be alert to avoid [comments]
that may be perceived as prejudicial.” Phillips v. State, 275 Ga. 595, 599 (571 S.E.2d
361 (2002) (citations and punctuation omitted) (comments after imposing sentence).
Nevertheless, because the judge’s comment was made outside the jury’s presence, it
does not constitute a violation of OCGA § 17-8-57. “That [c]ode section’s scope
. . . is confined to matters occurring before the jury. [Cit.]” Ingram v. State, 286 Ga.
App. 662, 663 (2) (650 SE2d 743) (2007). “Hence, standing alone, [the judge’s
comment does] not mandate that appellant’s convictions be reversed.” Johnson v.
State, 278 Ga. 344, 346 (2) (602 SE2d 623) (2004).
b. Comments during cross-examination of forensic interviewer.
There was no physical evidence in the instant case. The state’s case rested
almost entirely on the statements of L. A., including the forensic interview of L. A.,
which was introduced during the testimony of the forensic interviewer. The defense,
through cross-examination of the forensic interviewer and presentation of testimony
from its own forensic expert, sought to show that the forensic interview of L. A. was
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unreliable because of biases and flaws in the interview. During defense counsel’s
cross-examination of the forensic interviewer, the trial judge interjected questions and
comments.
(i) The evidence showed that during the forensic interview, L. A. initially
indicated, in four separate responses to the interviewer’s questions, that she had not
been touched on her private part. But she subsequently stated that Alday had
massaged her private area. At trial, during direct examination by the state, the
forensic interviewer opined that the apparent inconsistency in L. A.’s statements
could have been due to her not using the word “touch” and instead using the word
“massage” to refer to any touching of her vaginal area. The interviewer further
testified that Alday might have used that terminology as part of his “grooming
process” of the child.
On cross-examination, defense counsel asked the forensic interviewer if her
goal was to confirm the state’s allegations of abuse, noting that during the forensic
interview she had consulted with a law enforcement investigator who told her to ask
certain questions of the child. After the forensic interviewer denied that confirming
the allegations of abuse was her goal, defense counsel sought to challenge that
response by pointing out that she had continued questioning L. A. even after she had
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said “no” four times when asked about being touched. When counsel began asking
the witness about those initial denials, the state objected as to the lack of a question,
and the trial judge responded: “Well, I think he’s reading toward a question. But I
think that was the distinction they made between touching and a massage, but keep
going, [defense counsel].”
The judge’s comment referenced the forensic interviewer’s earlier testimony
that the inconsistency between L. A.’s initial responses that she had not been
“touched” and her subsequent responses that she had been “massaged” could be
explained by the terminology used by the child: the forensic interviewer had opined
that Alday might have introduced the term “massage” in the course of “grooming” L.
A., that is of teaching her to tolerate molestation. Prior to the judge’s comment, the
touch/massage distinction had not come up in defense counsel’s questions or the
forensic interviewer’s responses.
“The purpose of OCGA § 17-8-57, at least in part, is to prevent the jury from
being influenced by any disclosure of the trial court’s opinion regarding the
credibility of a witness. The determination of the credibility of a witness is soundly
within the province of the jury and is a material fact in every case.” Murphy v. State,
290 Ga. 459, 460 (2) (722 SE2d 51) (2012) (citations omitted). Here, the jury could
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have interpreted the trial court’s comment as expressing his favorable opinion of the
credibility and reliability of the forensic interviewer’s explanation of the distinction
between the “touch” and “massage.” “Therefore, the trial court erred in making
statements that could have been interpreted as offering an opinion on [the forensic
interviewer’s] credibility.” Id. at 461 (2).
(ii) Alday’s attorney also asked the forensic interviewer if a statement by the
child that she had been touched was different from a statement by the child that she
had told someone that she had been touched. The court intervened, interrupting the
defense’s cross-examination to pose the following question to the witness: “Are we
dealing here with a matter of semantics with . . . a little child[?] I mean, it would be
like taking one page out of a hundred page book and isolating it. You’ve got to get
the whole thing together basically; is that what you’re trying to do?” The forensic
interviewer responded that the distinction raised by the defense question was indeed
“a matter of semantics.”
It is arguable whether defense counsel’s question was about a matter of
semantics or about a substantive distinction – between a child saying she had been
touched and saying she had told someone she had been touched. The characterization
of defense counsel’s question as merely a “matter of semantics” could have been
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construed by a juror as an intimation of the judge’s opinion that the defense was
attempting to draw a meaningless distinction. “The reason for OCGA § 17-8-57
prohibiting the judge from intimating his opinion as to what has been proved is to
keep the jury from being influenced.” Chumley v. State, 282 Ga. 855, 857 (2) (655
SE2d 813) (2008) (citations and punctuation omitted).
We note that the lack of any objections to the trial court’s comments is of no
consequence because under the version of the statute then in effect, a “violation of
OCGA § 17-8-57 was always ‘plain error’ and failure to object [would] not preclude
appellate review. Given the mandatory nature of that version of OCGA § 17-8-57 and
the case law interpreting it, we must reverse [Alday’s] conviction[s] and remand the
case to the trial court for a new trial.” Murphy, supra at 461 (2) (citations omitted).
3. Evidence of prior feuds between witness and defendant.
Alday contends that the trial court erred in excluding testimony of prior feuds,
apparently concerning financial dealings, between him and his son, L. A.’s father.
Alday correctly notes that “[t]he state of a witness’s feelings toward the parties and
his relationship to them may always be proved for the consideration of the jury, and
a defendant has the right to make a thorough and sifting cross-examination of the
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witnesses against him.” Miceli v. State, 308 Ga. App. 225, 227 (2) (707 SE2d 141)
(2011) (citations and punctuation omitted).
However, because [Alday] did not perfect the record with a sufficient
proffer of the [expected] testimony, we are unable to reach the merits of
his claim. Where the error alleged is that certain evidence has been
wrongfully excluded, the rule is well settled that there must have been
a proffer or offer of a definite sort so that both the trial court and the
appellate court can know whether the evidence really exists. In the
absence of such a proffer, the assignment of error is so incomplete as to
preclude its consideration by this (c)ourt.
Miceli v. State, 308 Ga. App. 225, 228 (2) (707 SE2d 141) (2011) (citations and
punctuation omitted).
4. Remaining claims of error.
Having reversed the judgments of conviction and determined that Alday is
entitled to a new trial, we need not address his additional claims of error as they are
moot or unlikely to recur on retrial. Willingham v. State, 279 Ga. 886, 889 (3) (622
SE2d 343) (3) (2005).
Judgment reversed. Ellington, P. J., and Dillard, J., concur in the judgment
only.
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