Putnam v. State

Beasley, Judge,

concurring specially.

I concur in the judgment but not in all that is written. I find it necessary to explain. .

First, we are in effect shortcutting the normal process by using the “plain error” rule which the United States Supreme Court created in United States v. Atkinson, 297 U. S. 157, 160 (56 SC 391, 80 LE 555) (1936), to address certain types of issues in exceptional circumstances, despite the absence of exception being taken in the trial court.

I do not find the application of this rule in any prior Georgia case where inadmissible opinion is given by a witness on an ultimate issue to be decided by the factfinder. Thus, this case would set a new precedent but for the fact that the opinion is non-precedential. Court of Appeals Rule 33 (a). Were it to become precedent, it would apply to other such cases, at least where the witness’ opinion is that the act of victimization did occur and that the witness believed the victim’s description of it and identification of the perpetrator, as in this case.

Putnam did not object to admission of the evidence which this Court deems rendered the trial fundamentally unfair. We are reaching the issue despite the lack of request for the trial court to rule. Normally, the affected party would by silence waive the objection and the appellate court would not address it, for the reasons given by the Supreme Court in Atkinson, supra. The well-settled rule of procedure *195was repeated and applied in, for example, Kitchens v. State, 198 Ga. App. 284, 286 (5) (401 SE2d 552) (1991): “An enumeration of error complaining of admission of evidence or of documents going out with the jury presents nothing for decision by this court where no objection was made at the trial.” (Citations and punctuation omitted.) The question was not even raised in the motion for new trial, which was argued by appellate counsel without amendment to the motion filed by trial counsel on the general grounds alone. Compare Stidem v. State, 246 Ga. 637, 639 (3) (272 SE2d 338) (1980): even where a concededly reversible error is made (allowing defendant’s written statement to the police and a transcript of his preliminary hearing testimony to go out with the jury), the judgment was affirmed because no timely objection was made.

Thus, in this instance, we take the position in effect that if we do not address the issue on this direct appeal, there likely would be a habeas corpus brought on the ground of ineffective assistance of counsel. Failure to object would, given the ruling on the substantive issue here, constitute deficient performance so prejudicial to the defense that a reasonable probability exists that the trial result otherwise would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Deciding the question on this direct appeal avoids that process and the resultant delay of a new trial.

Although I agree that the repeated instances of inadmissible opinion evidence which invaded the province of the jury resulted in an unfair trial, I do not find the law as clear-cut as the majority presents it. In State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986), a four-to-three decision, the Supreme Court held that it was not error to allow the witness to testify that in her opinion the child had been molested, “which was an ultimate issue to be decided by the jury.” The court’s rationale was two-fold: 1) that the witness had laid a foundation of professional expertise and fact-gathering upon which to base the opinion; 2) the opinion was a factual conclusion “ ‘which jurors would not ordinarily be able to draw for themselves.’ ” Id. at 450. The majority’s view was that the opinion was not merely an opinion as to the child’s credibility but rather was a medical opinion.

A few months later the Supreme Court decided Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987). In it the court discussed the difference between an ultimate issue and an ultimate fact and restated the rule that “an expert may not testify as to his opinion as to the existence vel non of a fact (in this [Allison] case whether the child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference *196for themselves.” Id. at 853 (5).

The Supreme Court applied the rule in Smith v. State, 259 Ga. 135,138 (2) (377 SE2d 158) (1989), a child rape and molestation case, and held that it was reversible error to allow the witness, who had been qualified as a child-abuse expert, to testify over objection that in her opinion, the victim told the truth about the matter, is telling the truth, and will not go back on it. The basis for the ruling was that the credibility of the victim was not beyond the ken of the jurors. One justice made a distinction between this evidence, which he agreed was inadmissible because it related to the truthfulness of this particular victim, and expert opinion regarding “the general propensity for victims of child abuse to be truthful about the abuse.” Id. at 138-139.

In 1990 this Court reversed a conviction of child molestation in Coxwell v. State, 195 Ga. App. 751, 752 (3) (395 SE2d 38) (1990), because the trial court allowed a DFACS social worker who had related her experience and training with respect to child abuse to state her opinion on “the ultimate issue of whether the child had been sexually molested.” This Court pointed out, not for the first time, that there is conflicting authority as to whether such expert testimony is admissible, cited several cases, and applied what it understood as the current law.

The next year all the justices concurred in Sims v. State, 260 Ga. 782, 784 (4) (399 SE2d 924) (1991), which held that it was reversible error to allow a DFACS caseworker to express her opinion that the child had been molested. The reason was that the opinion was not based on expertise in the field of child sexual abuse, so as to be outside the jury’s ken. Thus it was inadmissible because it lacked a proper foundation for expert opinion and constituted nothing more than the witness’ opinion about an ultimate fact which the jury could itself decide without her opinion.]

Our decision in Harris v. State, 198 Ga. App. 503 (402 SE2d 62) (1991), was reversed by the Supreme Court in Harris v. State, 261 Ga. 386 (405 SE2d 482) (1991). We understood the holding in Allison, supra, to allow the physician to state his expert opinion, based on the foundation of his physical examination of the victim, that the child had been sexually molested. This Court reasoned that the jury was not capable of deciding this issue itself. The Supreme Court held, in effect and without explanation, that this Court misinterpreted Allison. Three justices dissented, pointing out what they regarded as a fine line, “a semantical distinction” which the Court was making, between what was admissible and what was not. The author of the Court of Appeals decision is now a justice on the Supreme Court.

We soon had call to address the issue again. In Remine v. State, 203 Ga. App. 30 (2) (416 SE2d 326) (1992), the Court applied Allison without citing Harris and held that the qualified expert was not per*197mitted to testify, over objection, that “in his opinion the victim had suffered ‘extensive pain and emotional abuse.’ ” The reason given was that the jury did not need it, as it had extensive evidence from which it could draw its own conclusion regarding this fact. The Court distinguished, without explanation, instances where the expert offers his opinion that the victim has exhibited behavioral characteristics con- . sistent with those of a sexually abused child.

Decided March 13, 1998 Peter D. Johnson, for appellant. Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

These cases demonstrate that the law on the subject is still evolving. In sum, it appears that an expert’s opinion with respect to whether the child in fact suffered the act which defendant is charged with committing, i.e., an ultimate fact, is inadmissible where 1) a proper foundation is not laid for reaching the opinion, that is, an adequate base of expertise in the field and knowledge of this particular victim is absent, and 2) the fact is determinable by the jury without the opinion of the expert, that is, the evidence is sufficient for the jury to reach its own conclusion directly. When that evidence is the same as that upon which the expert bases his or her opinion, and is not the type of evidence that needs expert deciphering in order for its meaning to be understood, then the expert’s opinion is inadmissible for fear that that jury will substitute it for its own.

2. I do not join in the majority’s challenge to the credibility of witnesses. It is a matter for the factfinder, and we have ruled that the evidence of guilt was sufficient.