Painful Lesson for Attorney Who Failed to Preserve Issue for Appeal

In Green v. State, the Georgia Court of Appeals held that trial counsel failed to preserve an objection to the introduction of hearsay evidence related to statements made by the alleged victim to her mother. As a result, the Court affirmed the defendant’s child molestation conviction.

The defendant was indicted for the offenses of child molestation and aggravated child molestation based on allegations made by his two stepdaughters. He was convicted following a jury trial and he appealed. He contended on appeal that the trial court erred in allowing the State to introduce hearsay statements made by one of the alleged victims who did not testify at the trial. The trial court denied the defendant’s motion for new trial.

The Hearsay Statements at Issue

When the mother of the alleged victims testified, defense counsel objected to testimony concerning statements made to her by one of the stepdaughters. The prosecutor represented to the trial court that the stepdaughter was present and available to testify. Thus, the objection was overruled and the testimony was permitted under Georgia’s Child Hearsay Statute.

When the stepdaughter, who was six years old, later took the stand, she was questioned about whether she knew the difference between the truth and a lie. The child was unable to take the oath, stating “I don’t know” when asked whether she could swear to tell the truth.

After a bench conference with the judge, it was acknowledged that the girl could not take the oath and did not appear to understand the difference between the truth and a lie. Neither party asked the girl any further questions and she left the witness stand. No further objection was made by trial counsel concerning the previous hearsay testimony given by the girl’s mother.

Child Hearsay Statute

Under Georgia law, statements made by children regarding alleged acts of sexual abuse are admissible as an exception to the hearsay rule as long as the child testifies at the trial. However, such statements may be admitted even if the child does not testify if the defense does not object to the hearsay or waives the requirement of the child’s testimony.

While the defense attorney here did timely object to the hearsay statements at the time of the mother’s testimony, the question is whether the attorney may have waived the defendant’s right to the child’s testimony.

Waiver of the Right to the Child’s Testimony

The defendant argued that because the child was unable to take the oath, she was essentially “unavailable to testify” which would have rendered the mother’s hearsay testimony inadmissible. However, the Court of Appeals held that trial counsel failed to renew his hearsay objection when the child left the witness stand. The Court concluded that, by not renewing the objection, counsel failed to preserve the issue for appeal.

Thus, the attorney’s failure to renew the objection was considered a waiver or acquiescence to the requirement that the child testify in order for her statements to be admitted under the Child Hearsay Statute.

Consequences of Failing to Renew the Objection

The Court found that based on the mother’s testimony, the evidence was sufficient to support the convictions. This was because it was held that her hearsay testimony was properly admitted in the absence of a renewed objection by counsel at the time the child took the stand.

The unfortunate result of this is that the defendant’s conviction with regards to that child was based entirely on hearsay evidence and could not be overturned. This conviction was for the aggravated child molestation charge which carries a mandatory minimum sentence of 25 years in prison.

So, had trial counsel properly renewed the objection to the hearsay testimony, the outcome here would likely have been different. It would have saved his client from a conviction for the aggravated child molestation charge resulting in a substantially lower sentence.

This is a great lesson for trial attorneys – especially those who are defending clients in child molestation cases. In order to properly object to child hearsay evidence, the attorney must make his or her objections clear on the record and must be sure to properly renew the objections so as not to waive the client’s right to require the child’s testimony in order for such hearsay to be admitted.