Opinion
A00A2115.
DECIDED: NOVEMBER 6, 2000
Incest, etc. Charlton Superior Court. Before Judge Jackson.
John R. Thigpen, Sr., for appellant.
Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.
Francis Kirton was convicted of incest, statutory rape, and two counts of child molestation based on the following evidence: (i) his ten-year-old stepdaughter stated on the stand and in a videotaped interview that he had repeatedly engaged in sexual intercourse with her over a period of years, (ii) a physician testified that she disclosed the abuse to him and that he examined her and found definite evidence of repeated and prolonged vaginal penetration, (iii) three other witnesses testified that she reported the sexual abuse to them, including an instance of fondling, and (iv) Kirton confessed to police that he had once masturbated in front of the victim. On appeal he contends that the court erred in denying a mistrial when an officer gave improper evidence and in refusing to give jury charges on the voluntariness of his statement and on the need for the State to show he had a "general plan" to use his stepdaughter to satisfy his sexual desires. We hold that since the improper evidence was cumulative, the trial court did not abuse its discretion in denying the mistrial, and that the referenced jury charges were not requested, were incorrect statements of law, or were substantially covered in the jury instructions. Accordingly, we affirm.
1. Since the victim's mother was a co-defendant, the court ordered that under Bruton v. United States, the mother's statement to police (that the victim told her of the molestation by Kirton) was partially inadmissible. The court ruled and the State agreed that the officer could only testify that the mother reported that the victim had told her of being molested, with no identification of Kirton as the molester. Even though the officer was present when the court made this ruling, he nevertheless testified that the mother told him that the victim had told her of being molested by Kirton.
391 U.S. 123 ( 88 S.Ct. 1620, 20 L.Ed.2d 476) (1968) (statement of non-testifying co-defendant which identifies and incriminates defendant is inadmissible).
Kirton moved for a mistrial, and the court immediately gave curative instructions that the jury should completely disregard the mention of Kirton or the stepfather in the statement. The court withheld ruling on the motion for mistrial until it had heard all the evidence, at which time it denied the motion. Kirton argues that this was reversible error.
A trial court has broad discretion in deciding a motion for mistrial, and we will not disturb its ruling absent a manifest abuse of that discretion and a showing that a mistrial was essential to preserve the right to a fair trial. Where the ground for the motion is the placement of inadmissible evidence before the jury, the court has discretion as to the measures necessary to correct the error, which may be curative instructions only.
Wilcox v. State, 229 Ga. App. 192, 193 (2) ( 493 S.E.2d 600) (1997).
Id. at 193-194 (2).
Though a statement is inadmissible under Bruton, its admission may be harmless and thus not necessarily reversible error. For example, if the statement is merely cumulative of other competent evidence, its admission is likely not harmful. Since even uncured Bruton violations may under certain circumstances be harmless, a trial court could reasonably conclude under similar circumstances that a curative instruction is all that is necessary to remove the improper statement from the jury's consideration.
See, e.g., Borders v. State, 270 Ga. 804, 810-811 (4) (b) ( 514 S.E.2d 14) (1999); Hanifa v. State, 269 Ga. 797, 804 (2) ( 505 S.E.2d 731) (1998); Montijo v. State, 238 Ga. App. 696, 701-702 (3) (b) ( 520 S.E.2d 24) (1999); see generally Reddish v. State, 238 Ga. 136, 138 (1) ( 231 S.E.2d 737) (1977), citing Schneble v. Florida, 405 U.S. 427, 430 ( 92 S.Ct. 1056, 31 L.Ed.2d 340) (1972).
Copeland v. State, 266 Ga. 664, 667 (3) (b) ( 469 S.E.2d 672) (1996); Alexander v. State, 236 Ga. App. 142, 145 (1) ( 511 S.E.2d 249) (1999). Compare Rachel v. State, 247 Ga. 130, 135 (4) ( 274 S.E.2d 475) (1981) (Bruton error held harmful where co-defendant's incriminating confession was not merely cumulative).
Cf. Bradley v. State, 234 Ga. 664, 667-668 ( 217 S.E.2d 264) (1975) (no abuse to deny mistrial where alleged Bruton violation did not implicate defendant).
Here the Bruton violation was the mother's statement to police that the victim told the mother Kirton had molested her. This statement was merely cumulative, for (i) the victim herself stated both on the stand and in her videotaped interview that she had told her mother that Kirton had molested her, (ii) the victim reported to several witnesses that Kirton had molested her, and (iii) the victim confirmed at trial that Kirton had molested her. Moreover, Kirton's own custodial statement admitted the substance of Count Four of the indictment. Under the circumstances, the trial court did not manifestly abuse its discretion in deciding that the curative instruction not to consider the officer's improper testimony sufficed, without a mistrial, to correct the alleged Bruton violation.
Copeland, supra, 266 Ga. at 667 (3) (b); Bradley, supra, 234 Ga. at 668.
2. Kirton's second enumeration is that the court erred in not instructing the jury "on the law of voluntary statements given by a defendant while being questioned by law enforcement officials." At the hearing on his motion for new trial, Kirton admitted that he had not requested a charge on this matter. "Under established Georgia law there is no necessity to give a charge on the subject of the voluntariness of a confession unless there is a specific request for it."
See OCGA § 24-3-50.
Blackmon v. State, 197 Ga. App. 133, 134 (2) ( 397 S.E.2d 728) (1990) (citations and punctuation omitted).
Kirton seeks to expand this enumeration by arguing that the court erred in not giving his requested charge on the need for corroboration of a confession under OCGA § 24-3-53. Such an expansion is impermissible. Even if we were to consider the argument, it lacks merit in that, as intimated by Kirton below, the court adequately covered the relevant legal principle in its charge to the jury.
Felix v. State, 271 Ga. 534, 539 fn. 6 ( 523 S.E.2d 1) (1999); Kelly v. State, 238 Ga. App. 691, 696 (2) ( 520 S.E.2d 32) (1999).
See Wright v. State, 199 Ga. App. 718, 721 (3) ( 405 S.E.2d 757) (1991) ("[a] trial court does not err in failing to give a charge in the exact language requested where, as here, the charge given substantially and adequately covered the principles in the request. [Cit.]").
3. Citing Staggers v. State, Kirton's third enumeration contends the court erred in not giving his requested charge that, as an element of the crime of child molestation, the State had to prove he had "a general plan to use the child to gratify his lust or passions or sexual desires." We rejected this same argument in Lewis v. State, where we held that the relevant language from Staggers concerned only the admissibility of similar transactions, not the elements of the offense of child molestation. The court here fully charged the jury on the elements of child molestation. It did not err in refusing to give the incorrect and inapplicable charge requested by Kirton. Judgment affirmed. Pope, P.J., and Mikell, J., concur.
120 Ga. App. 875, 876 (2) ( 172 S.E.2d 462) (1969).
212 Ga. App. 310, 312-313 (5) ( 441 S.E.2d 851) (1994).
Compare OCGA § 16-6-4 (a) (describing the elements of child molestation).
See Kent v. State, ___ Ga. App. ___ (4) (Case No. A00A0984, decided August 11, 2000) (court properly denies giving a charge that is inapt or incorrect or misstates the law); see generallyRegister v. State, 229 Ga. App. 648 (1) ( 494 S.E.2d 555) (1997).
DECIDED NOVEMBER 6, 2000.