Hendrix v. State
Decision Date | 26 October 2021 |
Docket Number | A21A0920 |
Parties | HENDRIX v. The STATE. |
Court | Georgia Court of Appeals |
David Timothy Douds, for Appellant.
Carroll Rudolph Chisholm Jr., Kellen Michelle Beegle, for Appellee.
Deiage Hendrix was tried by a jury and convicted of violating a family violence order by having contact with his former girlfriend.1 On appeal, Hendrix contends that the trial court erred when it allowed a witness not included on the State's witness list to testify, and that without that testimony, the evidence was insufficient to convict him of violating the family violence order. For reasons that follow, we affirm.
Viewed in the light most favorable to the verdict,2 the evidence presented at trial showed that Hendrix was subject to certain bond conditions that precluded him from having contact of any form with his former girlfriend. Hendrix's former girlfriend testified that she was not having contact with Hendrix in February 2019 and that she did not recall telling another witness that she had an incoming call from Hendrix while they were having a telephone conversation. The other witness testified that she had a telephone conversation with Hendrix's former girlfriend on February 15, 2019, and that, during that call, the former girlfriend said, and then "clicked over" to talk to Hendrix. Based on that contact, the jury found Hendrix guilty of violating a family violence order.3
Hendrix filed a motion for new trial in which he asserted the general grounds and argued that the trial court erred in allowing his former girlfriend to testify over objection. The trial court denied the motion on all grounds.
1. Hendrix contends that the trial court erred in allowing his former girlfriend to testify, over objection, when she was not included on the list of witnesses the State provided to the defense.
When the State called Hendrix's former girlfriend to testify, Hendrix objected on the ground that she was not on the State's witness list. The State acknowledged that it had inadvertently left her name off of its witness list, but noted that she was named in the accusation. To remedy the situation, the court allowed Hendrix's counsel to interview her prior to her testimony.
The purpose of this type of statute is to avoid surprise. See Mowery v. State , 234 Ga. App. 801, 802 (2), 507 S.E.2d 821 (1998).
Hendrix cannot validly claim that he was surprised when the State called his former girlfriend as a witness – she was named as a victim in the accusation. See Byrd v. State , 216 Ga. App. 510, 512 (4), 455 S.E.2d 318 (1995) ( ). In addition, "the testimony of a witness whose name was not supplied to the defendant does not have to be excluded if other means of protecting the defendant and effectuating the intent of the statute can be found." White v. State , 253 Ga. 106, 109 (3), 317 S.E.2d 196 (1984).4 Here, the trial court allowed Hendrix's counsel to interview the witness prior to her testimony. Under the circumstances, the purpose of OCGA § 17-16-21 was satisfied, and the trial court properly allowed the witness to testify. See White , 253 Ga. at 110 (3), 317 S.E.2d 196 ().
2. Hendrix contends that, without the testimony of his former girlfriend, the testimony of the other witness about his alleged contact with his former girlfriend would have been inadmissible and the evidence would have been insufficient to convict him of violating the family violence order.5 Because we have determined that his former girlfriend was properly allowed to testify, we need not consider this enumeration of error.
Judgment affirmed.
Senior Appellate Judge Herbert E. Phipps concurs and McFadden, P. J., concurs fully and specially.
The majority opinion correctly applies White v. State , 253 Ga. 106, 109-110 (3), 317 S.E.2d 196 (1984). White is a decision of our Supreme Court, and it is on point and controlling. So I fully concur.
But White is part of a line of cases from the Supreme Court and this court that substituted the appellate courts’ views of the "intent" or "purpose" of the statute for the statute's plain text. See White , supra ; Simmons v. State , 249 Ga. 860, 861 (4), 295 S.E.2d 84 (1982) ; Cates v. State , 245 Ga. 30, 34 (3), 262 S.E.2d 796 (1980) ; Hicks v. State , 232 Ga. 393, 398-399, 207 S.E.2d 30 (1974) ; Butler v. State , 139 Ga. App. 92, 93 (1), 227 S.E.2d 889 (1976).
The statute before us, OCGA § 17-16-21, directs that defendants be provided "on demand, with a list of the witnesses[.]" It goes on to specify a severe remedy: "no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses." Id. White and the other cases in its line declined to administer the severe remedy specified in the text of the statute and held instead that "other means of protecting the defendant and effectuating the intent of the statute" can be substituted. White , supra at 109 (3), 317 S.E.2d 196.
It is true that the appellate courts are to consider the purpose of statutes. See OCGA § 1-3-1 (a) ( ...
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