Opinion
A07A0734
DECIDED: JULY 9, 2007
Grady Levon Slade, Jr. was convicted by a jury of three counts of aggravated sodomy, two counts of aggravated child molestation, and two counts of child molestation arising out of various acts involving R. R. F., his wife's grandson. After the trial judge merged three of the counts for sentencing purposes, Slade was sentenced to a total of 30 years to serve. Slade now appeals his conviction on a number of evidentiary grounds and on the ground that he received ineffective assistance of counsel.
1. At trial, the State presented similar transaction evidence of earlier incidents of reported abuse involving Slade's son, when the son was around ten years old. Slade was never prosecuted in connection with those incidents. The State presented testimony from the son, the son's mother and Becky Haley, a child protective services worker, concerning the reported abuse. The State also showed the jury a video-taped interview with the son when he was ten years old. At the time of the trial, Slade's son was 19 years old. Slade contends that the mother's testimony and the videotape were inadmissible hearsay. He argues that the admission of such evidence was error because the Child Hearsay Statute, OCGA § 24-3-16, should not apply where a former child victim is an adult at the time of trial. But Slade raised no contemporaneous objection to this evidence, and thus failed to preserve this argument for appeal. Nelson v. State, 279 Ga. App. 859, 864 (1) (b) ( 632 SE2d 749) (2006).
We acknowledge that Slade's attorney made some reference to an objection to child hearsay before the trial began. The State announced in a pretrial motion hearing that it intended to rely upon the Child Hearsay Statute but noted that "the child" was available and present at the hearing. It is unclear from this statement whether the prosecutor was referring to the child victim, Slade's 19-year-old son, or both. Slade's attorney replied,
We would be objecting officially for the record but we understand that because the child is present, the court would overrule that objection, typically allow the testimony to be entered. As long as the child is, in fact, — or does, in fact, remain available, we don't anticipate that would be a problem. It's my understanding the child will be called. If not, we will be requesting that the court call the child.
But it is well settled that
a general objection is too vague and indefinite to present any question for decision either by the trial court or by the appellate courts. To preserve a ground for error, the objecting party must state the specific ground upon which the objection is based; the objecting party must do more than merely state that he objects.
(Punctuation and footnote omitted.) Maxwell v. State, 267 Ga. App. 227, 229 (2) ( 599 SE2d 228) (2004). No reference was ever made to an objection based upon the age of Slade's son, and we do not view his attorney's generalized pre-trial objection as sufficient to notify the trial court of the legal ground at issue here "so that its applicability could be measured and error avoided." Id. In any event, Slade's attorney sought no ruling from the court on such an objection.
Even if Slade's attorney had objected to the evidence, however, we find no error. "The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court's ruling on the admissibility of statements under OCGA § 24-3-16 only if the trial court abused its discretion." (Punctuation and footnote omitted.) Phillips v. State, 284 Ga. App. 224, 227 (1) (b) ( 644 SE2d 153) (2007). And this Court has held that "[i]t is plain from the face of that statute that the age of the child at the time the witness testifies is irrelevant as long as the child's statement about which the witness testifies was made while the child was under 14 years of age." Greer v. State, 201 Ga. App. 775, 776 (4) ( 412 SE2d 843) (1991) (statute applied to statements by 7-year-old victim who was 15 at time of trial). See also Darden v. State, 206 Ga. App. 400, 401 (1) ( 425 SE2d 409) (1992) (statute applied to statements of 13-year-old victim, who was 14 at trial). Compare Foster v. State, 216 Ga. App. 26, 28 (2) ( 453 SE2d 482) (1994) (child hearsay statute applies to child whose chronological age, not mental age, was under 14 years at time of statement). Slade's son was 10 at the time he made the statements at issue, and thus they fall within the provisions of the Child Hearsay Statute. We see no reason to alter the application of the statute in this case simply because the witness was 19 years old at the time of trial.
2. Slade next asserts that the trial court abused its discretion in excluding evidence about the demeanor of R. R. F., the victim in this case, during the time of his reported incidents of abuse. Slade's wife, Billie Slade, testified that her grandson R. R. F.'s behavior and mannerisms changed "towards everybody" at that time, especially when he came from his other grandmother's house. But when Slade's trial counsel asked her to testify as to specific instances of conduct, the state objected, stating only "that would be improper," and the trial court sustained the objection. Slade contends that this ruling deprived him of a thorough and sifting cross-examination, and prevented him from showing that the child's abuse allegations could have been the result of his other grandmother's influence. Billie Slade and the other grandmother shared custody of R. R. F. for a time and they were engaged in a custody dispute in juvenile court over the child at the time of the reported abuse. Slade apparently hoped to show that R. F. F.'s behavior and demeanor changed after visiting the other grandmother, thus raising the inference that R. R. F.'s allegations of abuse were an attempt by the other grandmother to influence the outcome of the custody dispute.
"The defendant in a child molestation case is entitled to a thorough and sifting cross-examination of the State's witnesses. However, the scope of cross-examination is within the sound discretion of the trial court and will not cause reversal unless the discretion is abused." (Punctuation and citations omitted.) In re M.G., 239 Ga. App. 787, 788 ( 521 SE2d 918) (1999). Here, the sole basis for the state's objection was that the defense attorney's line of questioning "would be improper." This Court has held an objection merely stating that something is "improper" to be "so vague and general that it did not present any precise question for determination by the trial court. . . ." Hunt v. State, 268 Ga. App. 568, 575 (5) ( 602 SE2d 312) (2004). And no error occurs where a trial judge chooses to overrule such a vague and general objection. Croom v. State, 165 Ga. App. 676 (3) ( 302 SE2d 598) (1983).
We are now presented with the opposite case, where a trial court has sustained a vague objection without explanation. The State argues on appeal that the trial court correctly sustained the objection because neither the victim's mannerisms toward "everybody," nor specific instances of conduct toward "everybody" were relevant. That explanation was not articulated at trial, however, and we cannot consider it. "A reason why evidence should not be admitted will not be considered on appeal unless the reason was urged below." (Punctuation and citations omitted). Croom v. State, 165 Ga. App. at 676 (3). Moreover, the State's failure to articulate the basis for the objection denied Slade's attorney the opportunity to rephrase his question in response to the objection.
We could find nothing else in the record to elucidate the reasons behind the State's objection. This precise issue was not addressed in other bench conferences discussing potential limits to Slade's cross-examination. And while counsel held an off-the-record bench conference immediately prior to Billy Slade's testimony, there is no indication that the conference addressed any substantive issue.
But even if the State had articulated this reasoning in the trial below, we are unpersuaded by it. Billie Slade testified that R. R. F.'s behavior changed when he came over to her house after visiting the other grandmother. It is apparent that her use of the word "everybody" could have referred only to the people staying in her house, including Slade. And information demonstrating that after returning from the other grandmother, R. R. F. acted differently toward Slade or toward the family as a whole could be relevant to Slade's defense that R. R. F. was influenced by his other grandmother into making the accusations against him. Thus, the trial court erred in sustaining the State's objection.
We cannot say that this error was harmless under the circumstances of this case. Slade denied committing the acts with which he was charged, and presented evidence intended to contradict the child's description of some of these events. His defense of improper influence by the grandmother was an attempt to show a reason or motivation for the child to fabricate his reports of abuse. Although the defendant was allowed to elicit testimony about the existence of the custody battle and the fact that the child's behavior changed after visiting his other grandmother, he was denied the right to establish how that behavior changed. Testimony regarding the child's behavioral changes following visits with the other grandmother may have provided the only available evidence as to whether or how the other grandmother may have influenced the child's relations with the other members of the family, including Slade.
We find, therefore, that it was reversible error for the trial court to deny Slade the opportunity to question Billie Slade about the changes she noted in R. R. F.'s behavior after visiting his other grandmother.
The purpose of cross-examination is to provide a searching test of the intelligence, memory, accuracy, and veracity of the witnesses, and it is better for cross-examination to be too free than too much restricted. Wherever the purpose is to impeach or discredit the witness, great latitude should be allowed by the court in cross examinations.
(Citation omitted.) In re M.G., 239 Ga. App. at 790. See also Vogleson v. State, 250 Ga. App. 555, 558 (1) ( 552 SE2d 513) (2001) ("Because the exposure of a witness's motivation in testifying is an important function of the constitutionally protected right of cross-examination, the potential bias or partiality of a witness may always be explored at trial.").
3. Slade also contends that the trial court abused its discretion in limiting his cross-examination of Becky Haley, the child protective services worker involved with his son's case. Slade attempted to question Haley about whether in deciding to place a child in a particular home, the Department of Family and Children Services considered the criminal background of those residing in the home. The State objected to the question on the ground of relevancy. Slade's attorney explained that he wanted to show that DFACS allowed R. R. F. to be placed in Slade's home even though he had previously been charged with child molestation. He argued the evidence went to the issue of Slade's credibility because the State had determined that he was an appropriate individual to host children in his home. After an extensive discussion, the trial court sustained the State's objection stating that DFACS' placement procedures and decisions had no relevance to the issue of whether Slade had committed the crimes charged.
"The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion." Brown v. State, 280 Ga. App. 884, 887 (1) ( 635 SE2d 240) (2006). We find no abuse of discretion. While this line of questioning may have addressed the actions of DFACS employees, it had no bearing on the issue of whether Slade committed the acts of which he was accused.
4. Slade also argues that a remand is necessary to develop a record on his claim that his trial counsel rendered ineffective assistance in the trial below. We need not address Slade's arguments regarding his trial counsel's performance, however, given our reversal of his conviction in Division 2 of this opinion.
Judgment reversed. Andrews, P. J., and Ellington, J., concur.