Ga Court of Appeals: Defense Waived Objection to Child Hearsay

Walker was charged with two counts of rape, four counts of aggravated child molestation, three counts of aggravated sodomy and two counts of child molestation.

At trial, the State informed the court that the alleged victim was available to testify, but did not wish to call her “due to [her] emotional state.” Walker’s defense attorney told the court that they “did not request that she be brought in.” The judge then excused the jury and said that he would call the alleged victim as a witness so that the defense could discern her emotional state, rather than relying on the State’s report. Defense counsel emphasized concern for the child’s emotional well-being and said that Walker did not request she be called to testify.

The court brought the child in so that defense counsel could question her about her emotional state, and call her as a witness if they chose to. Defense counsel asked the child whether she wanted to testify and told her that he had “no intention…to force [her] to testify.” Defense counsel subsequently told the court that due to her “enormous reluctance” the defense was not requesting that the witness testify.

Georgia’s Child Hearsay Statute provides that child hearsay statements may be admissible at trial if (1) the State provides notice of its intent to introduce the statements, and (2) the child testifies at the trial. The statute provides that the defense can forfeit or waive the child’s testimony.

Walker’s defense attorney argued that he was under no obligation to question the witness since the Georgia Supreme Court’s decision in Hatley v. State expressly requires the prosecution to call the child witness to testify at trial. The defense contended that, by failing to do so, the State did not comply with its obligation under the child hearsay statute. However, the Court of Appeals held that since the defense failed to object on Sixth Amendment grounds and affirmatively chose not to question the child witness, Walker waived his confrontation rights and any objection to the admissibility of the child hearsay statements.

Georgia criminal defense attorneys need to pay close attention to this decision. Once the State has put the defense on notice of its intent to introduce child hearsay statements, any actions indicating an intent not to question the witness may be construed as a waiver. Defense attorneys need to be sure that the record is clear that they are not waiving the State’s obligation to call the child witness to the stand at trial. Once the State does, in fact, call the witness to testify, the defense is then free to decide whether to forego cross examination.