McBride v. State

• Decision Date: 25 November 1987
• Docket Number: No. 74882,74882
• Citation: 363 S.E.2d 802,185 Ga.App. 271
• Parties: McBRIDE v. The STATE.
• Court: Georgia Court of Appeals

Page 802

363 S.E.2d 802

185 Ga.App. 271

McBRIDE v. The STATE.

No. 74882.

Court of Appeals of Georgia.

Nov. 25, 1987.

Rehearing Denied Dec. 14, 1987.

Certiorari Granted Feb. 5, 1988.

H. Haywood Turner III, Columbus, for appellant.

William J. Smith, Dist. Atty., Michael D. Reynolds, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Defendant was convicted of rape, OCGA § 16-6-1, and aggravated sodomy, OCGA § 16-6-2, and appeals following denial of his motion for new trial.

1. Defendant contends the evidence was not sufficient to support the verdict.

The victim testified that defendant committed acts which constituted the crimes rape and aggravated sodomy. Much of the victim's testimony was corroborated by a physician who examined the victim. Evidence was introduced showing that defendant had raped and assaulted another woman in 1982 under circumstances similar to those alleged by the victim. Defendant testified and admitted being with the victim on the night in question but denied commission of the crimes.

Construing the evidence in favor of the jury's verdict, any rational trier of fact could have found defendant guilty beyond a reasonable doubt of the offenses of rape and aggravated sodomy. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Bentley v. State, 179 Ga.App. 287(1), 346 S.E.2d 98 (1986); Price v. State, 179 Ga.App. 691, 693(2), 347 S.E.2d 365 (1986).

2. Next, defendant contends the trial court erred in permitting testimony from a state's witness whose name had not been provided to him prior to trial pursuant to demand as mandated by OCGA § 17-7-110. Over objection, the state presented evidence showing that defendant had been convicted in 1982 of rape and aggravated assault. The victim of those crimes testified that defendant raped and assaulted her under circumstances similar to the circumstances alleged by the victim here.

Prior to trial, the state gave notice that it intended to introduce evidence of a prior conviction, as required by USCR 31.3, and the notice included a certified copy of the indictment, plea, verdict, and sentence.

It also provided defendant with a list of witnesses, but the name of the victim of the prior incident was not on it.

"[T]he statute 'must be subject to reasonable interpretation' ( Elrod v. State, 128 Ga.App. 250, 252, 196 S.E.2d 360 (1973)) and if, under the circumstances, the purposes of the statute were met, or if the relief sought exceeded the relief sufficient to satisfy those purposes, or if the error was harmless, reversal was not required even though the unlisted witness was allowed to testify in contravention of the statute. [Cits.]" Huff v. State, 141 Ga.App. 66(1), 67, 232 S.E.2d 403 (1977). "The purpose of OCGA § 17-7-110 is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had an opportunity to interview prior to trial. Logan v. State, 170 Ga.App. 809, 810 (318 SE2d 516) (1984)." Bryant v. State, 174 Ga.App. 522, 523(4), 524, 330 S.E.2d 743 (1985).

In addition, the state did not follow the requisites of USCR 30.3. This was not a newly-discovered witness anyway, as the state admitted that it had put her name on a supplemental list of witnesses but had not filed nor served it. The state, but not defendant, knew she would be called if she could be located for trial.

Defendant complained when it became evident at trial that the state would call the victim in that prior case as a witness. The gist of his objection was that the rule and law were violated and that he was not informed by the "similar transaction" notice that Juanita Evans would be a witness because the incident could be evidenced simply by introduction of the documents, copies of which he had been supplied with. The implication that merely this was the nature of the intended evidence was strengthened by the fact that her name was not on the list of witnesses. That being the case, defendant argued, he was deprived of the alert which would prompt him to interview her before trial, which alert would also prompt him to prepare prior to trial for her cross-examination.

The trial court recognized that the law and rule were not complied with but created what it called an exception, ruling that since the name of the victim was included in the notice of intent to present evidence of a similar transaction, the victim could testify even though not included in the list of witnesses. This was clearly error, as the statute and rules heretofore cited provide for no such exception. And for good reason.

Evidence of a prior conviction is frequently, if not mostly, offered in the form of the documents such as those copied to defendant in this case. Defendant should not have to guess that the state also intends to offer live testimony concerning the details of that prior crime. USCR 31.3 serves a different purpose than does USCR 30.3. The latter requires the state to tell defendant who is going to testify. "[T]he transcending purpose of this Code section is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had the opportunity to interview prior to trial." Hicks v. State, 232 Ga. 393, 399, 207 S.E.2d 30 (1974). As explained in that case, the goal is to provide a reasonable time before trial for an adequate preparation of a defense.

The former requires the state to tell defendant that a prior act, which ordinarily would be inadmissible because violative of the prohibition against evidence of bad character (OCGA §§ 24-2-2; 24-9-20(b)), will be offered on the theory that it is an exception because...