Mize v. State, 76196
| Decision Date | 03 June 1988 |
| Docket Number | No. 76196,76196 |
| Parties | MIZE v. The STATE. |
| Court | Georgia Court of Appeals |
Morton M. Wiggins III, Edward D. Tolley, Athens, for appellant.
Robert F. Mumford, Dist. Atty., for appellee.
Defendant appeals his conviction of two counts of the offense of arson in the first degree and one count of influencing a witness. Held:
1. The arson charges arose from the destruction by fire of defendant's residence. At trial one of the State's witnesses was an eight-year-old child who testified that she had seen defendant at his residence on the day of the fire. Defendant's first three enumerations of error involve defendant's attempts to present evidence of prior contradictory statements of the young witness.
The evidence which defendant sought to present was recorded on a video cassette tape. On the date of the trial, defendant moved for an order to provide for courtroom use of a video cassette recorder ("VCR"). The trial court did not err in denying defendant's motion as untimely filed. See Rule 31.1 of the Uniform Rules for the Superior Courts; Tillman v. State, 184 Ga.App. 210, 211(3), 361 S.E.2d 66. Moreover, there was no denial of due process since defendant was afforded an opportunity to prepare a transcript of the video tape, which was used by defendant at trial.
Following direct and cross-examination of the child, the trial court permitted defendant to reserve the right to recall the child for continuation of cross-examination after a transcript of the video cassette tape could be obtained. During a colloquy with counsel, which preceded recalling the child, the trial court stated: (Emphasis supplied.) Defendant contends that the emphasized language was error in that it was in direct contradiction of the ruling in Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717, which would permit use of the child's prior contradictory statement as substantive evidence as well as for impeachment purposes. However, we find no error in the trial court's direction to defense counsel. Contrary to defendant's contention the trial court did not admonish defense counsel that the witness' prior statements could be used for impeachment only. The trial court's direction related to the scope of inquiry on the recall of the witness for a continuation of cross-examination following preparation of the transcript of the video tape. The trial court's direction did not address the effect of any evidence.
Defendant also contends the trial court erred in not allowing defense counsel to read the transcript of the video tape to the jury or allowing defense counsel to show the video tape to the jury. However, while defense counsel was permitted to use the transcript in an attempt to impeach the witness, defendant never attempted to establish proper authentication by foundation in regard to either the video tape or transcript. Consequently, the trial court did not err in refusing to admit into evidence the video tape and transcript thereof. Compare Smith v. State, 171 Ga.App. 758, 761(5), 321 S.E.2d 213; Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207, 211(3), 212, 88 S.E.2d 167; Elliott v. State, 168 Ga.App. 781, 784(3), 310 S.E.2d 758; King v. State, 168 Ga.App. 291, 292(3), 308 S.E.2d 612.
2. The count of the indictment charging defendant with the offense of influencing a witness charged that defendant committed the offense of...
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