*1 271 in or near a plaintiff was not showed that undisputed Code 81-1104 injured. was “While crosswalk at the time she § [now intimating prohibits judge a trial OCGA 9-10-7 and 17-8-55] yet proved, or has not been any opinion as to what has expressing where, finding a judice], the evidence demands the case sub [in In Imperial for reversal. opinion expressed, there is no cause Co., App. 96 Ga. 385 vestment Co. v. Modernization Construction (140 40); Karr, 107); App. SE2d SE2d Goldstein 111).” Georgia Shanahan, Rauch v. Mozingo, Power Co. v. contrary to defendant’s assertions that this instruction
confusing misleading, nothing prejudiced and we find therein which cause, thereby requiring a new trial. Sognier Beasley, affirmed. Decided December
Terry Dillard, East, A. Joseph E. Sr., Thigpen, Edgar, John R. M. Theodore Solomon II, THE
74882. McBRIDE v. STATE. 802) Judge.
Beasley, 16-6-1, Defendant was rape, aggravated convicted of OCGA § sodomy, appeals following denial of his motion for new trial.
1. Defendant contends support the evidence was not sufficient to the verdict.
The victim testified that defendant committed acts which consti- tuted the rape sodomy. crimes and aggravated Much of the victim’s testimony physician corroborated a who examined the victim. Evidence was showing introduced that defendant had saulted another in woman 1982 under circumstances similar to those alleged by the victim. Defendant testified and admitted with the victim on night question but denied commission of the crimes.
Construing
any
the evidence
favor of the
ra-
jury’s
tional
trier of
beyond
fact could
a rea-
guilty
have found defendant
sonable doubt
rape
sodomy.
of the offenses of
Jack-
aggravated
Virginia,
560)
son v.
Prior to the state it intended to notice prior conviction, 31.3, required by USCR and the indictment, copy plea, notice included a certified sentence. witnesses, also the name defendant with a list of but prior the victim of the incident was not on it. statute ‘must be to reasonable
“[T]he State, v. under the purposes the statute were or if sought relief pur- exceeded the relief sufficient those poses, if harmless, the error required reversal was not even though the unlisted witness was allowed to in contravention of State, (1), statute. v. [Cits.]” Huff 403) (1977). purpose “The of OCGA 17-7-110 is to insure that an accused is not him testimony against confronted at trial with witnesses whom he has opportunity prior not had an to interview State, Logan 516) (1984).” trial. Bryant addition,
In requisites did not follow the of USCR 30.3. This was newly-discovered not a anyway, witness as the state admit- ted that put had her name on a supplemental of witnesses but defendant, had not filed nor served it. The knew she but not would be called she could be located for trial. complained
Defendant when it became evident at trial that prior would call the victim in gist case as a witness. The objection his was that the rule and law were violated and that he was not informed the “similar transaction” notice that Juanita Evans simply by be a witness because the incident could be evidenced documents, introduction of the copies supplied of which he had been with. The implication merely this was the nature of the intended evidence was strengthened by the fact that her name was not on the case, list of witnesses. That argued, defendant prived of the prompt alert which would him to interview her before trial, which alert him prompt prepare prior would also to trial for her cross-examination.
The recognized trial court and rule were not com- law plied with but exception, ruling created what it called an that since the name of the present victim was included in the of intent to transaction, evidence of a though the victim could even not error, included in clearly the list of witnesses. This was statute and provide rules heretofore exception. cited for no such And good reason. mostly,
Evidence of a frequently, conviction is if not in the form of the documents such copied this case. guess Defendant in- should have to the state also tends to offer testimony concerning live the details of that crime. purpose USCR 31.3 serves a different than does USCR 30.3. requires latter is testify. state to tell defendant who going transcending purpose of this Code section to insure that an “[T]he accused is not against confronted at trial with him from witnesses whom he has not had to interview trial.” Hicks v. As ex- plained case, in that goal provide is to a reasonable time before trial for an adequate preparation of a defense.
The former requires prior act, the state to tell defendant that a which ordinarily prohi- would be inadmissible because violative of against (OCGA bition 24-2-2; bad character 24-9-20 *3 (b)), will be on theory exception the it is that an because con- way nected some to the crime being prosecuted. This relates to the of evidence, substance the not the means which it will be con- veyed. below,
As point tried to important out it was for him to know that the rely only state intended to call victim the and not on the conviction, documents of the only for sup- the documents would ply the parameters similarity broadest of the between two incidents. Tbe similarity critical of details have would to be fleshed the out supplementing testimony of knowledgeable a witness about that ear- lier incident. It arguably would be an easier burden to thwart the in- or troduction at least the significance of the “similar transaction” evi- dence if documentary all that was the offered was evidence. having required, notified defendant as cannot these circumstances show its that omission was harmless. J., Birdsong, Banke, J., reversed. Carley, Pope, C. P. Benham, Been, J., J., McMurray, P. P. J.,
Sognier, dissent. Judge, Presiding dissenting. McMurray, consistently mandatory This court give has refused to “a con- struction” to rather the “holding that statute ‘must be to reasonable Ga. circumstances, under the the sought exceeded or if the relief purposes of statute were harmless, re- or error purposes, to relief sufficient allowed witness was though the unlisted required even versal was not State, of the statute. to contravention [Cits.]” Huff 403). App. Ga. previous similar victim the although the judice,
In the case sub State by the provided included of witnesses crimes was not on defendant’s trial, prior to the State to defendant trial, counsel, of its intention prior to over two months for the convictions State. testified on behalf of the unlisted witness who assault testimony of trial, objected counsel at after defense vic- witness, acknowledged this unlisted only way that State’s previous tim the crimes “would be [the cir- prove attorney] an would have on appeal in his argument cumstance.” is also observed appear- surprise by the unlisted witness’ fendant no claim of makes circumstances, apparent at trial. Under these ance in that defendant purpose of was satisfied OCGA 17-7-110 aware, unlisted witness over two months traditionally ap- analysis Consequently, following at trial. failure plied by the State’s this court under similar of witnesses was harmless. include the name on the list witness’ Felker v. Ga. Judge Deen Presiding Judge
I am authorized Sognier join in this dissent. Decided November Haywood III,
H. Turner Smith, Reynolds, D. As- Attorney, Michael District Attorney,
sistant District *4 THE STATE.
75124. KICKERY v.
Deen, Presiding Judge. co-defendant, Moore, Kickery, Carl Keith and his appellant, appeal, rape. Kickery brings this jointly were tried and convicted of support his convic- contending that was insufficient simi- improperly trial admitted evidence tion court by Kickery Moore. allegedly lar offense committed 29, 1986, sixteen-year-old victim July evening Late