The State v. Martinez-Palomino

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, 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/
October 17, 2014
In the Court of Appeals of Georgia
A14A1375. THE STATE v. MARTINEZ-PALOMINO.
MILLER, Judge.
Following a jury trial, Angel Martinez-Palomino was convicted of kidnapping
(OCGA § 16-5-40 (a)), aggravated child molestation (OCGA § 16-6-4 (c)), and child
molestation (OCGA § 16-6-4 (a) (1)).1 The State appeals from the trial court’s grant
of Martinez-Palomino’s motion for new trial, as amended, on the basis that the court
erred in allowing a video recording of the child victim’s forensic interview to be
played during jury deliberations. The State contends that there was no error in
1
The jury also found Martinez-Palomino guilty of aggravated sexual battery
and another count of child molestation, and the trial court merged these counts into
the aggravated child molestation conviction for sentencing purposes. The trial court
also granted a directed verdict as to a third child molestation charge and declared a
mistrial as to the offense of enticing a child for indecent purposes.
allowing the jury to view the video because the recording was properly admitted into
evidence, the child victim and forensic interviewer testified at trial and were available
for cross-examination, and defense counsel agreed to allow the video recording to be
played to the jury during its deliberations.2 For the reasons that follow, we reverse the
trial court’s grant of Martinez-Palomino’s motion for new trial because there was no
error in allowing the jury to view the video.
We review the grant of a motion for new trial on special grounds involving a
question of law de novo and reverse if the trial court committed legal error. State v.
Clements, 289 Ga. 640 (1) (715 SE2d 59) (2011) (motion for new trial based on
failure to dismiss juror); O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009)
(motion for new trial based on prior denial of motion to sever).
2
At the outset, we address Martinez-Palomino’s motion to dismiss the appeal
on the grounds that the State failed to include enumerations of error in its brief, as is
required by Court of Appeals Rule 22 (a) and Rule 25 (a) (2). Notwithstanding the
State’s failure to include an enumeration of errors in its brief, this Court is required
to consider the appeal because we can discern from the State’s brief and the record
the errors that the State is asserting on appeal. See OCGA § 5-6-48 (f). Consequently,
we deny Martinez-Palomino’s motion to dismiss the appeal. See, e.g., Jackson v.
State, 314 Ga. App. 272, n.1 (724 SE2d 9) (2012); State v. Madison, 311 Ga. App.
31, 32 (1) (714 SE2d 714) (2011). We also deny Martinez-Palomino’s motion to
strike the State’s response to his motion to dismiss for failure to include a certificate
of service because the State re-filed its response to include such a certificate.
2
Viewed in the light most favorable to the jury’s verdict,3 the evidence shows
that Martinez-Palomino and his girlfriend, Raquel Magos, were friends with and lived
at the same Gainesville apartment complex as the victim’s family. Martinez-Palomino
was also a maintenance worker at the apartment complex.
On June 23, 2010, the then 12-year-old victim left her apartment and went for
a walk. On her walk, the victim encountered Martinez-Palomino and his co-worker
at the apartment complex mailboxes. Martinez-Palomino asked the victim if she
wanted a cup of water, and the victim responded affirmatively. The victim then went
with Martinez-Palomino and the co-worker to Martinez-Palomino’s apartment.
At the apartment, Martinez-Palomino and his co-worker ate their lunch while
the victim drank her water. At some point, the co-worker went out the front door to
make a phone call. The victim then finished her water, thanked Martinez-Palomino,
and turned to leave out the front door. Before the victim was able to reach the front
door, however, Martinez-Palomino pulled her back by the waist and threw her onto
the couch. Martinez-Palomino started kissing the victim on her mouth and neck and
attempted to bite her mouth and ear. Martinez-Palomino then grabbed the victim by
3
Jackson, supra, 314 Ga. App. at 272.
3
her chest, under her breasts, and forced her down the hall and into the bathroom. The
victim testified that she was scared and wanted to leave.
Inside the bathroom, Martinez-Palomino pulled down the victim’s shorts and
underwear to her knees. Martinez-Palomino then sat the victim down on the sink and
pulled down his pants and underwear. Martinez-Palomino inserted his finger into the
victim’s vagina, causing pain to the victim. Martinez-Palomino then masturbated, and
as he ejaculated, someone knocked on the front door. Martinez-Palomino pulled his
finger out of the victim’s vagina, cleaned himself, and pulled up his pants. When the
victim tried to scream, Martinez-Palomino put his hand over the victim’s mouth and
told her to shut up. Martinez-Palomino then exited the bathroom and went to answer
the door. While Martinez-Palomino was at the front door, the victim pulled up her
pants, fled out the back door, and returned home. The victim did not immediately tell
anyone about the incident.
Later that evening, Magos confronted the victim by the apartment complex
pool regarding the victim’s sexual assault. Magos told the victim that Martinez-
Palomino told her what happened. Magos blamed the victim and threatened her.
When Magos left, the victim began to cry, and a neighbor asked her what was wrong.
The victim told the neighbor that she was sexually assaulted by Martinez-Palomino.
4
The neighbor convinced the victim to tell her mother about the incident, and the
mother reported the incident to the police.
The victim was subsequently taken to the hospital for a sexual assault exam.
The examining nurse found several injuries that were consistent with the sexual
assault reported by the victim. Two weeks after the incident, Dr. Julie Battle
performed a forensic interview of the victim. The videotaped interview was admitted
into evidence in its entirety without objection and a portion of the video was played
for the jury before it was stopped because of poor audio quality. Dr. Battle then
testified that she made a very detailed report of the interview, during which the victim
recounted that she was sexually assaulted by Martinez-Palomino.
At trial, while the jury deliberated, it requested to see the video recording of the
forensic interview. Martinez-Palomino, who had earlier indicated that he would agree
to allow the jury to see the video if requested, did not object to the playing of the
video during jury deliberations. The video was then played in open court, and the jury
returned to their deliberations after the video concluded.
Following the jury’s verdict, Martinez-Palomino filed a motion for new trial
asserting, inter alia, that the trial court erred in allowing the jury to view the video of
the forensic interview during jury deliberations. The motion for new trial was heard
5
by a different judge who did not preside over the original trial. This new judge
granted Martinez-Palomino’s motion for new trial on the special ground that the
original judge erred by allowing the entire video recording of the child victim’s
forensic interview to be played during jury deliberations. The State now appeals.
The State contends that the trial court erred in granting Martinez-Palomino’s
motion for new trial because there was no error in allowing the jury to view the video
in its entirety during jury deliberations. We agree.
As a preliminary matter, Martinez-Palomino did not object to the playing of the
video during deliberations at the jury’s request. In fact, when the trial court stopped
playing the recording at trial because of poor audio quality, Martinez-Palomino
expressly indicated that he would not object to playing the video at a later time if the
jury requested it. “A defendant will not be allowed to induce an asserted error, sit
silently hoping for acquittal, and obtain a new trial when that tactic fails.” (Footnote
omitted.) Buchanan v. State, 254 Ga. App. 249, 251 (2) (562 SE2d 216) (2002); see
also Westmoreland v. State, 192 Ga. App. 173, 176-177 (2) (b) (384 SE2d 249)
(1989) (“[a] party cannot claim error where he himself committed or invited the
error.”) (punctuation omitted).
6
Nevertheless, even assuming Martinez-Palomino did not invite the alleged
error, it is well-established that it is permissible for the trial judge, in his discretion,
to permit the jury at their instigation to rehear requested parts of the evidence after
they have retired and begun deliberations, so long as it is done in open court. Lopez
v. State, 291 Ga. App. 210, 214 (3) (661 SE2d 618) (2008); Summage v. State, 248
Ga. App. 559, 561 (1) (546 SE2d 910) (2001). In this case, the trial court followed
“the standard practice, [which] is to bring the jury back into open court to rehear
recorded evidence[.]” Bridges v. State, 279 Ga. 351, 353 (2) (613 SE2d 621) (2005).
To show that the trial court’s actions were an abuse of discretion, Martinez-
Palomino was required to show that there were “special circumstances” that would
make it unjust to allow the jury to view the video. See Watkins v. State, 273 Ga. 307,
310 (3) (540 SE2d 199) (2001); Martin v. State, 240 Ga. App. 901, 904 (2) (525 SE2d
728) (1999). He failed to make such a showing. The jury already heard the victim’s
testimony about the sexual abuse, as well as Dr. Battle’s testimony regarding the
forensic interview. While Martinez-Palomino argues that the jury heard improper
character evidence regarding his proclivity for violence and sexual promiscuousness
that it did not initially hear upon the initial playing of the video, the jury was entitled
to consider the victim’s out-of-court statements as substantive evidence under the
7
Child Hearsay Statute, former OCGA § 24-3-16.4 See Lopez, supra, 291 Ga. App. at
212 (1). This “material evidence [did] not become inadmissible simply because it
incidentally place[d] [Martinez-Palomino’s] character in issue.” (Punctuation and
footnote omitted.) Johnson v. State, 268 Ga. App. 1, 6 (1) (d) (601 SE2d 392) (2004).
Moreover, trial counsel testified at the motion for new trial hearing that he did
not object to the playing of the tape because there were some inconsistencies between
the victim’s trial testimony and her interview statements and the victim did not appear
credible during her interview, factors that trial counsel believed would be beneficial
to Martinez-Palomino’s defense. Additionally, the victim testified at trial and was
subject to extensive cross-examination. Therefore, Martinez-Palomino had a full
opportunity to confront the victim and his right to a fair trial was safeguarded. See
4
Former OCGA § 24-3-16 provided that
[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 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.
There was no challenge, much less evidence presented, that the taped interview
lacked an indicia of reliability, and, as indicated above, Martinez-Palomino did not
object to its admission.
8
Phillips v. State, 284 Ga. App. 224, 227-228 (1) (b) (644 SE2d 153) (2007) (affirming
admission of videotaped interview of child victim into evidence and concluding that
defendant’s confrontation rights were not violated since the victim testified at trial).
Consequently, Martinez-Palomino failed to establish the existence of special
circumstances making it unjust for the jury to view the video during deliberations.
Even if the trial court erred in playing the video during deliberations, “error
alone is not automatically grounds for a new trial but is subject to scrutiny for
harmless error.” (Citations and punctuation omitted.) Tanner v. State, 243 Ga. App.
640, 643 (2) (533 SE2d 794) (2000). Where there is strong evidence of the
defendant’s guilt, the admission of improper evidence is harmless error when it is
highly unlikely that such evidence contributed to the verdict. Holden v. State, 314 Ga.
App. 36, 39 (2) (722 SE2d 873) (2012). Here, the victim testified that Martinez-
Palomino sexually assaulted her and the physical examination of the victim
corroborated her testimony. Therefore, it is highly unlikely that the playing of the
videotape that contained bad character evidence contributed to the verdict, and any
error that may have occurred in playing the video during deliberations was harmless.
Accordingly, the trial judge erred in concluding that Martinez-Palomino was entitled
to a new trial.
9
Judgment reversed. Doyle, P. J., and Dillard, J., concur.
10