Miles v. State

• Decision Date: 22 October 1991
• Docket Number: No. A91A1159,A91A1159
• Citation: 411 S.E.2d 566,201 Ga.App. 568
• Parties: MILES v. The STATE.
• Court: Georgia Court of Appeals

Page 566

411 S.E.2d 566

201 Ga.App. 568

MILES v. The STATE.

No. A91A1159.

Court of Appeals of Georgia.

Oct. 22, 1991.

John W. Knapp, Jr., Jackson, for appellant.

J. David McDade, Dist. Atty., David R. York, Asst. Dist. Atty., for appellee.

SOGNIER, Chief Judge.

James Matthew Miles was convicted of aggravated sodomy and child molestation of his 11-year-old niece. He appeals from the denial of his motion for new trial.

1. Appellant first contends the trial court erred by concluding that certain evidence introduced by the State--two audio tapes of interviews with the victim, one audio tape of appellant's statement to detectives, and a medical report--was not subject to his pretrial discovery motions. Contrary to his assertions, the record reveals that the medical report was provided by the State in its discovery responses. The trial court correctly held that the interview tapes, which the court reviewed in camera, were not required to be produced under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) because they contained no exculpatory material. Castell v. State, 250 Ga. 776, 781(2)(a), 301 S.E.2d 234 (1983). With regard to the tape of appellant's statement, the State was not precluded from introducing it into evidence because the prosecutor complied with the requirements of OCGA § 17-7-210(d) by providing a written summary of the incriminating and inculpatory portions to appellant prior to trial. Golden v. State, 163 Ga.App. 629, 632(3), 295 S.E.2d 144 (1982). Moreover, appellant waived his right to object on appeal to the playing of any of the tapes for the jury because counsel expressly stated at trial that he had no objection to their presentation even after being invited by the trial judge to register an objection. See Hight v. State, 195 Ga.App. 727, 730(6), 394 S.E.2d 636 (1990). Accordingly, we find no error.

2. Appellant's objection to the court's ruling concerning allegedly untimely discovery responses served by the State is similarly without merit. Pretermitting the question whether the responses were filed within the requisite time periods, the record reveals the medical reports were made available to appellant as soon as the prosecutor received them, thereby complying with OCGA § 17-7-211(b), and appellant was afforded a ten-day period within which to interview the two additional witnesses, which satisfied the purpose of OCGA § 17-7-110. See Williams v. State, 242 Ga. 757-758(1), 251 S.E.2d 254 (1978).

3. Appellant's enumeration concerning the trial court's refusal to give his proposed pre-evidentiary charge is controlled adversely to him by Cagle v. State, 160 Ga.App. 803(1), 287 S.E.2d 660 (1982).

4. We find no error in the trial court's decision to restrict appellant's cross-examination of Judy Haralson, the Department of Family & Children's Services investigator, as to the issues appellant listed in enumerations 5 and 6. As to enumeration 5, while evidence tending to establish that someone else committed the crime at issue is admissible under certain circumstances, Butler v. State, 254 Ga. 637, 640, 332 S.E.2d 654 (1985), we find no abuse of discretion in the trial court's conclusion that evidence suggesting that the victim's mother's boyfriend had slapped the victim several weeks after the molestation at issue occurred was not relevant to the question whether appellant molested the victim. With regard to enumeration 6, the information sought from Haralson was purely conjectural. " 'The right of cross-examination is not abridged where cross-examination of a witness is not permitted as to irrelevant matters or as to relevant matters but by improper questions. The trial court has a discretion to control the right of cross-examination within reasonable grounds, and the exercise of this discretion will not be controlled unless abused. (Cits.)' [Cit.]" Owens v. State, 178 Ga.App. 750, 751-752(4), 344 S.E.2d 722 (1986).

5. Appellant next contends the trial court erred by allowing the county victim-witness coordinator to sit near the victim while she testified. This situation is analogous to the circumstances dealt with in cases such as Walker v. State, 132 Ga.App. 476, 208 S.E.2d 350 (1974) and Nunnally v. State, 235 Ga. 693, 699-700(2), 221 S.E.2d 547 (1975) in which our courts have addressed the propriety of allowing a relative of a crime victim to sit at counsel table with the prosecutor. Here, as in Nunnally, the State established that the coordinator's presence was needed for the orderly presentation of the case (the victim had asked that the coordinator sit with her), and the coordinator's answers to voir dire questions demonstrated that she had not coached the victim or otherwise influenced her testimony. Moreover, as in Nunnally, no evidence of improper conduct by the coordinator was brought to the trial court's attention. In addition, we cannot consider appellant's argument based on OCGA § 17-8-54 because it was not raised or ruled upon in the trial court. Evans v. State, 191 Ga.App. 364, 365(2), 381 S.E.2d 760 (1989). Accordingly, we find no deprivation of appellant's right to a fair trial.

6. Appellant next enumerates as error the trial court's failure to "requir[e] on its own motion the attendance of [his] subpoenaed witness, Bo Parsons." Appellant's characterization of the events is belied by the record, which reveals that appellant did not follow up on the service of the subpoena to ensure that the witness had been served and would attend the trial. Indeed, he did not even raise the issue of Parsons' appearance until the third day of trial despite being offered several opportunities to present the matter to the court. The record further reveals that appellant never requested or made the proper showing for a continuance under OCGA § 17-8-33 or for any other relief despite the court's repeated invitations. We find no authority for appellant's theory that the trial court should have ordered relief he specifically declined to request. Thus, there is nothing for this court to review.

7. We find no error in the court's refusal to charge the jury on the provisions of former OCGA § 19-7-5(e), which classified as a misdemeanor the willful failure of certain officials to report a suspected case of child abuse. Appellant was not charged with a violation of that provision, and any effect this statutory requirement had on the victim's teacher's decision to report the abuse the victim had described was wholly irrelevant to the issues in the case. See generally Elrod v. State, 195 Ga.App. 571, 573(6), 394 S.E.2d 548 (1990) (no error when court denies request to charge on matter not in issue).

8. After charging the jury on the elements of aggravated sodomy and child molestation, the trial court...