Opinion
A99A2268.
DECIDED: APRIL 10, 2000.
Child molestation. Dade Superior Court. Before Judge Wood.
Cook Connelly, Bobby L. Cook, Todd M. Johnson, for appellant.
Herbert E. Franklin, Jr., District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.
Following a jury trial, Kenneth R. Wooten appeals his conviction of four counts of child molestation. Wooten contends that the trial court erred (1) in its assignment of cases in violation of Uniform Superior Court Rule (USCR) 3.1, (2) by allowing the admission of the victim's prior consistent statements prior to her testimony, and (3) by removing a juror during the third day of deliberations.
1. In Wooten's initial appeal, he contended that the trial court erred in denying his motion for legal case assignment and in using a party litigant to assign cases in violation of USCR 3.1. This Court remanded the case for a hearing to establish the facts surrounding the Lookout Mountain Judicial Circuit's case assignment system. Upon re-docketing in this Court, the case was transferred to the Georgia Supreme Court because it raised issues regarding the maintenance of a state court system which is within the inherent jurisdictional power of that Court. After such transfer, the Supreme Court decided Cuzzort v. State, 271 Ga. 464 ( 519 S.E.2d 687) (1999), in which it addressed the issue presented herein. Having decided the issue, the Supreme Court remanded the present case for our consideration in light of its opinion in Cuzzort.
In Cuzzort, the Supreme Court reversed Cuzzort's criminal conviction. The Supreme Court found that the case assignment system in effect in the Lookout Mountain Judicial Circuit violates USCR 3.1 because the district attorney makes the case assignments to the judges and sets the trial calendar. Despite the Court's finding that the district attorney conducted himself in a professional and unbiased manner, the Court held that it could not "uphold a system of case assignment and calendaring that allows a party to assign a case and then randomly call the case for trial." Id. at 465 (3). The Court determined that "[s]uch a system fail[ed] to comply with the intent and purpose of the uniform rules and applicable statutes, and thus fail[ed] to serve the administration of justice." Id.
USCR 3.1 provides, in pertinent part,
3.1 Method of Assignment. In multi-judge circuits, unless a majority of the judges in a circuit elect to adopt a different system, all actions, civil and criminal shall be assigned by the clerk of each superior court according to a plan approved by such judges to the end that each judge is allocated an equal number of cases.
In the present case, the parties stipulated, in pertinent part, that the district attorney's office: (1) promulgated the calendar for the criminal court; (2) selected which cases to start the week within each courtroom; (3) selected Wooten's case for trial before Judge Wood; and (4) called the Wooten case to proceed. Under these circumstances, we are bound to follow our Supreme Court's mandate that such a system fails to serve the administration of justice and reverse Wooten's convictions.
Although the State argues that no harm has been shown in this case, a reversal is still required. In Cuzzort, the Supreme Court reversed a criminal conviction even though it acknowledged that the district attorney "used the authority given to his office solely to move cases more efficiently through the courts." Id.
2. Wooten's argument that the child hearsay statute allows a statement made by a child to be admissible, but does not allow more than one such statement to be introduced was decided adversely to him in Patterson v. State, 237 Ga. App. 80 (1) ( 514 S.E.2d 873) (1999). See also OCGA § 24-3-16. Therefore, under the facts of this case, the trial court did not err in allowing the introduction of the victim's prior consistent statements before she testified.
3. Wooten's final enumeration involving the removal of a juror is rendered moot by our decision in Division 1.
Judgment reversed. Eldridge and Barnes, JJ., concur.