Whatley v. State

326 Ga.App. 81

755 S.E.2d 885

WHATLEY

v.The STATE.

No. A13A2246.

Court of Appeals of Georgia.

March 10, 2014.

Matthew J. Karzen, Athens, for Appellant.

Layla Hinton Zon, Dist. Atty., Ronald Victor McNease, Jr., Asst. Dist. Atty., for Appellee.

BRANCH, Judge.

Horance W. Whatley appeals from orders of the Walton County Superior Court denying his plea in bar on double jeopardy grounds and his plea in bar based on an alleged violation of his constitutional right to a speedy trial. Whatley contends that the trial court erred in denying his double jeopardy claim because the evidence showed that the prosecutor intentionally provoked a mistrial for the purpose of having the opportunity to retry Whatley under more favorable circumstances. He contends that the trial court erred in denying his speedy trial claim because when ruling on this claim, the trial court considered only the amount of time that had elapsed since Whatley's first trial ended in a mistrial, rather than the entire amount of time that had elapsed since Whatley's arrest on the charges at issue. We find no error and affirm.

The record shows that Whatley was arrested on May 20, 2008, on charges of sexual battery, enticing a child for indecent purposes, child molestation, cruelty to a child, and sexual assault. The victim of Whatley's alleged acts was his then seven-year-old daughter, B.W. Whatley was released on bond within two days of his arrest, and has remained free on bond since that time. On December 18, 2009, Whatley was indicted on one count of child molestation, one count of sexual battery, and one count on enticing a child for indecent purposes. He thereafter appeared at calendar calls and announced ready for trial on November 15, 2010, February 7, 2011, and August 8, 2011.

In February 2011, Walton County hired a new prosecutor, who had considerable experience prosecuting crimes against children, and this prosecutor was assigned Whatley's case. Believing that there were some problems with the wording of Whatley's original indictment, the prosecutor re-indicted the case. The new indictment, which was filed on October 28, 2011, charged Whatley with three counts of child molestation and one count of enticing a child for indecent purposes. Following his second indictment, Whatley appeared at calendar calls and announced ready for trial on November 7, 2011, March 26, 2012, and August 13, 2012. Whatley's case was called for trial on October 15, 2012.

At the outset of his case, Whatley had opted for reciprocal discovery under OCGA § 17–16–1, et seq., and was therefore given access to the prosecution's evidentiary file. When reviewing that file, defense counsel noted that law enforcement had advised B.W.'s mother (who was Whatley's ex-wife) to take the child to Children's Healthcare of Atlanta (“CHOA”) for a medical exam. Additionally, the file showed that one detective had taken steps to assist the mother in scheduling such an exam. No copy of any medical report appeared in the prosecution's file or was otherwise provided to defense counsel pursuant to the State's continuing discovery obligations. Accordingly, defense counsel assumed that the mother had never taken B.W. for the recommended medical exam.

During opening argument, defense counsel asserted that the case against Whatley was the result of a vendetta by Whatley's ex-wife, who had raised the allegations at issue after Whatley filed a motion to reduce his child support payments. As part of this argument, defense counsel emphasized that despite being advised by law enforcement to take her daughter for a medical exam, the mother had never done so.

The mother was the second witness called at trial. During direct examination, the mother testified that after becoming concerned about B.W.'s behavior, she took the child to a therapist. B.W. made her outcry statement to the therapist, who then reported the child's allegations to the appropriate authorities. Immediately after this testimony, the following exchange took place between the mother and the prosecutor:

[Prosecutor]: What was the next contact you had after meeting with [the therapist] [and learning about B.W.'s allegations of sexual abuse by her father]? ...

[Mother]: Well, we, I kept her [B.W.] going to [the therapist] ... and I had to take her [B.W.] to Children's Hospital in Atlanta.

[Prosecutor]: Okay. And was that for an interview, for a medical exam, or what was that for?

[Mother]: Medical exam.

At that point, defense counsel requested a bench conference, at which he objected to the mother's testimony regarding taking B.W. for a medical exam, noting that the defense had never been provided with a copy of a report of any such exam. In response, the prosecutor stated that he had only recently contacted CHOA to confirm that such an exam had been done and to request a copy of any report that existed, and that a copy of a report was being faxed to the State, but they did not yet have it.¹ The prosecutor further noted that he knew he could not use the exam findings at trial, as the report had not been in the State's possession and therefore had not been produced to the defense prior to trial. He believed, however, that the mother could testify as to the fact that an exam was performed.

The defense moved for a mistrial, based on the fact that the State had failed to inform Whatley's attorney that B.W. had undergone a medical exam and, as a result, defense counsel's credibility had been compromised by his opening statement. The trial court granted the motion but specifically refrained from making a finding as to whether the prosecutor had acted deliberately, for the purpose of goading a mistrial.

A copy of the report of B.W.'s medical exam was subsequently filed with the trial court. The report contains nothing that obviously inculpates or exculpates Whatley. All findings are “normal,” and the exam showed no signs of sexual penetration or other activity. The examiner noted, however, that because B.W. reported it had been more than six weeks since she had seen her father, any possible signs of sexual abuse would have likely healed prior to the exam.

Following the mistrial, Whatley filed two plea in bar motions: one based on the State's alleged misconduct in causing the mistrial and one based on an alleged violation of Whatley's constitutional right to a speedy trial. The trial court held a hearing on these motions on February 21, 2013, at which both the prosecutor and defense counsel testified. The prosecutor testified that after striking a jury on the first day of trial, he returned to his office after 3:00 p.m. and reviewed the file. During that review, he noticed for the first time that the police had advised the mother to take B.W. for a medical exam. The prosecutor then directed his investigator to contact CHOA to see if it had a record of any such exam. That same day, the investigator phoned CHOA and sent a follow-up email at 4:50 p.m., asking whether an exam had been performed. In her email, the investigator also stated that if such an exam had been performed, the State was requesting a copy of the report.

The following day, the prosecutor reported to court at approximately 8:15 a.m. for a motions hearing in the case. Trial began at approximately 9:00 a.m., with the giving of opening statements. At 10:01 a.m., a representative of CHOA responded to the investigator's email, stating that B.W. “was seen on May 8, 2008 [²] for a medical exam at the Child Protection Center,” and asking for a fax number to which CHOA could send a copy of the report of that exam. The prosecutor was copied on that email, which came to his cell phone while he was conducting his direct examination of B.W., the first witness at trial. At some point after coming to court that morning but before putting the mother on the stand as his second witness, the prosecutor confirmed with the mother that she had taken B.W. for the medical exam.

When asked why he had not revealed the fact of the medical exam to defense counsel before trial began that day, the prosecutor stated that prior to reviewing the case file following jury selection, he had never even asked whether an exam had been performed because, based on his discussions with the mother, he believed that no exam had been done. He then explained:

And it made sense to me that [the mother] wouldn't have [taken B.W. for a physical exam] because of the disclosure. The disclosure was kissing on the mouth, ... the defendant putting his penis between [B.W.'s] legs, and ... touching her buttocks with his penis, ... on the outside of [her] clothes. There definitely wasn't any indication of penetration ... so it didn't surprise me that there wouldn't be [a physical exam] in that case ... because I wouldn't have expected there to be any findings one way or the other.

The prosecutor further explained that prior to B.W.'s testimony, he did not even have written confirmation that a medical exam had occurred or that a written report of that exam existed. Rather, all he had was an oral statement from the mother that the exam had occurred, and he was not required to disclose oral witness statements. Specifically, the prosecutor stated:

I didn't have any intent about ... hiding or not disclosing. It [the fact of the exam] was information that [the mother] told me, and so I asked her about it on the stand.... [T]hat's honestly how it was. It wasn't some tactical means to try to get a[n] improper angle on things. It was information she had provided to me in an oral statement and I didn't have anything to turn over at that time, so I went forward with what I had.

During his testimony, defense counsel admitted that he had never asked the mother if she had taken B.W. for a medical exam, even though he had spoken with her in person about the case three days before trial began. He also acknowledged that he had never asked the prosecutor's office whether a medical exam had been performed on B.W., nor had he made an inquiry to...