Eberhardt v. State, 44657
| Decision Date | 10 September 1987 |
| Docket Number | No. 44657,44657 |
| Parties | EBERHARDT v. STATE. |
| Court | Georgia Supreme Court |
Edward D. Tolley, Cook, Noell, Tolley & Aldridge, Athens, for David eberhardt.
Dennis C. Sanders, Dist. Atty., Harold W. Wallace III, Margaret E. McCann, Asst. Dist. Attys., Thomson, for the State.
Appellant was convicted of child molestation in Wilkes County on August 8, 1986, and sentenced to twenty years in prison. The evidence at trial showed that appellant began molesting his daughter when she was five or six years of age and continued until she was twelve or thirteen and began to resist.
1. Appellant contends that the trial court erred in admitting hearsay evidence pursuant to OCGA § 24-3-16 in that the statute violates appellant's right of confrontation of witnesses pursuant to the sixth amendment. He argues that even if the statute is constitutional, the testimony should not have been admitted because it did not meet the res gestae exception to the hearsay rule and did not have sufficient indicia of reliability.
We have recently held in Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987), that the statute is not constitutionally deficient. We construed that statute to provide that the defendant not be placed in the position of calling the alleged victim to the stand in order to exercise his rights under the sixth amendment. Rather, the court will call the alleged victim at the request of either party, informing the jury that it is the court which has called the child and that both parties will have an opportunity to examine the child.
We hold that this procedure will be required prospectively. However, in the present case, which was tried before Sosebee, the appellant was not placed in the position of having to call the child to the stand. The witness whose testimony is complained of was the first witness at trial. The child was called to the stand by the state after this witness had testified. The child was thus available for cross-examination by the appellant without the appellant's having to call her to the stand.
2. Appellant contends that the trial court erred in denying his motion for production of additional dates of alleged offenses and for time to prepare an additional alibi defense as to these alleged offenses. He insists that under Edgehill v. State, 253 Ga. 343, 320 S.E.2d 176 (1984), he was entitled to a continuance in order to have sufficient time to prepare his alibi defense. In Edgehill v. State, supra, we held that "the general rule is that when the exact date of the commission of the crime is not a material allegation of the indictment, the commission of the offense may be proved to have occurred any time within the statute of limitations." Id. at 345, 320 S.E.2d 176. However, "where the variance between the allegata and probata surprises and prejudices the defendant by effectively barring an alibi defense he intends to assert" he is entitled to a continuance to enable him to prepare his defense. Id. The evidence in the present case showed a pattern of sexual molestation which lasted over a period of years and beginning when the victim was a small child. Keri v. State, 179 Ga.App. 664, 668, 347 S.E.2d 236 (1986). Here the appellant was on notice well in advance of trial that while the indictment alleged only the date of the last occurrence, the state intended to show a pattern of ongoing occurrence. Under these circumstances, he cannot claim surprise that every date of alleged abuse was not specified in the indictment. Further, under the circumstances there was no error in the court's refusing to grant him a continuance.
3. Appellant contends that the court erred in failing to grant a mistrial when the district attorney referred to God when examining a witness and again when, in closing argument, he referred to God in connection with the oath...
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Westbrook v. State
...has been found because the child testified, and no issue was made on appeal as to competency. See, e.g., Eberhardt v. State, 257 Ga. 420(1), 359 S.E.2d 908 (1987). And while the opinion in Sanders v. State, 182 Ga.App. 581, 356 S.E.2d 537 (1987), does not show whether the four-year-old vict......
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State v. Wyatt, S14A0317.
...367 S.E.2d 805 (1988)) (punctuation omitted). “ ‘The state cannot be more specific than the evidence permits.’ ” Eberhardt v. State, 257 Ga. 420, 421, 359 S.E.2d 908 (1987) (citation omitted). Wyatt suggests that the first indictment's allegation that he caused Andrea's injuries by striking......
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State v. Oliver, 75893
...the jury had not yet been impaneled and sworn. See Hughey v. State, 180 Ga.App. 375(2), 348 S.E.2d 901 (1986).2 Eberhardt v. State, 257 Ga. 420(4), 359 S.E.2d 908 (1987), in which a psychiatrist was permitted to testify that the alleged victim was capable of "knowing truth from nontruth," i......
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Patterson v. State, A05A2100.
...this case to suggest that the determination of the victim's credibility was beyond the ken of the jurors. Compare Eberhardt v. State, 257 Ga. 420, 422(4), 359 S.E.2d 908 (1987), in which a psychiatrist was permitted to testify that the alleged victim, who was suffering from a mental illness......