Kittles v. State

• Decision Date: 22 September 1983
• Docket Number: No. 66998,66998
• Citation: Kittles v. State, 308 S.E.2d 241, 168 Ga.App. 123 (Ga. App. 1983)
• Parties: KITTLES v. The STATE.
• Court: Georgia Court of Appeals

Page 241

308 S.E.2d 241

168 Ga.App. 123

KITTLES v. The STATE.

No. 66998

Court of Appeals of Georgia.

Sept. 22, 1983.

Stephen H. Harris, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

Defendant appeals his conviction for attempted armed robbery. Held:

1. Error is enumerated because the trial court admitted defendant's juvenile record in evidence. This evidence consisted of a document from the juvenile court which was read into the record. Prior to the document being so read, the prosecutor had cross-examined witnesses testifying to defendant's good character as to whether they were familiar with the specific acts defendant had been involved in as a juvenile. Such an examination to determine the extent of a character witness' knowledge of defendant's reputation is proper. " '[A] witness who has testified to the good character of the accused may be asked on cross-examination if he has not heard of specific charges against him.' May v. State, 185 Ga. 335, 339, 195 S.E. 196" Gibson v. State, 150 Ga.App. 718(5), 258 S.E.2d 537.

Defendant argues that a juvenile record cannot be so used. However, in Davis v. Alaska, 415 U.S. 308, 320, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347, the court held that the "interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness." Following this holding we held that it was permissible to cross-examine a minor victim concerning her juvenile record. Arnold v. State, 163 Ga.App. 10(2), 293 S.E.2d 501. These holdings apply equally as well in this case to the cross-examination of defendant's good character witnesses on their knowledge of defendant's juvenile record.

Accordingly, as we find that the cross-examination of the character witnesses on their knowledge of defendant's juvenile record was proper, which placed that record before the jury, the subsequent reading of that record to the jury was merely cumulative of what was already in evidence, and, if error, was harmless.

2. Contrary to defendant's assertion, the trial court did not refuse to allow defense counsel to interview two prosecution witnesses who agreed to be interviewed. The witnesses were at first apparently willing to talk with counsel, but after talking with their employer, changed their minds and refused to do so. There is nothing in the record to show that the trial court ordered the witnesses not to talk to defense counsel, or he to them. The trial court correctly stated that it had no authority to order witnesses to talk with defense counsel about the case.

" 'Accused and his counsel have the right to interview witnesses before the trial; and the state has no right to deny them access to a witness material to the defense, but a witness cannot be compelled to submit to such interview' " Emmett v. State, 232 Ga. 110(2a), 113, 205 S.E.2d 231. Accord, Rutledge v. State, 245 Ga. 768(2), 267 S.E.2d 199; Dover v. State, 250 Ga. 209(2), 296 S.E.2d 710.

3. The trial court's refusal to give a requested charge on defendant's theory of the case was not error.

The request said that defendant stated and presented evidence that he was not guilty, that he had an alibi, that others committed the crime, and that if the jury believed that he was responsible for the crime or there was any reasonable doubt as to his guilt, he should be acquitted.

The issues raised by the request were adequately covered in the charge of the court....