Park v. State
| Decision Date | 21 January 1998 |
| Docket Number | No. A97A2412,A97A2412 |
| Parties | , 98 FCDR 421 PARK v. The STATE. |
| Court | Georgia Court of Appeals |
Elizabeth L. Rankin, Law Offices of Drew Findling, Atlanta, Thomas Y. Choi & Associates, Thomas Y. Choi, Doraville, for appellant.
J. Tom Morgan, District Attorney, Barbara B. Conroy, Gregory K. Schwarz, Assistant District Attorneys, for appellee.
Dong Jin Park was convicted of aggravated battery (OCGA § 16-5-24) for repeatedly striking Eung Chul Lee and rendering his left eye useless. The issues are whether the trial court erred by (i) declining to order Lee to undergo an independent eye exam, (ii) allowing the testimony of an officer who was not on the State's witness list and who testified to a statement made by Park to another officer, (iii) failing to charge the jury on justification, (iv) allowing the State to present impeaching testimony as to statements of Park's wife, the State's witness, and (v) allowing the State to call unlisted rebuttal witnesses.
During dinner at a restaurant one evening, Lee informed his employer Park he was quitting. Hours later, after the two men had drunk substantial amounts of alcohol, Park's wife intended to drive them home in her van. Lee declined, stating he wanted to take a taxi, and when Park tried to force Lee into the van, Lee resisted. Park struck Lee in the left eye, and he collapsed. Park then bit him on the back, kicked him in the head, and beat him. Lee's testimony that he has permanently lost sight in his eye was corroborated by his ophthalmologist. Park testified he did not strike Lee but merely wrestled with him when the two fell to the ground following Lee's refusal to enter the van.
1. Two months prior to trial Park moved unsuccessfully to compel Lee to undergo an independent medical examination of his eye, claiming Lee's eye injuries were pre-existing or did not deprive him of his eye nor render it useless. Following conviction, Park sought a new trial because of the refusal of an independent eye exam, but the court denied the motion.
Citing Sabel v. State, 1 Patterson v. State, 2 and three federal cases, 3 Park contends he was entitled to the examination because the condition of the eye was critical to his defense, for aggravated battery requires proof that the victim was deprived of a body member or that the body member was rendered useless. 4 Sabel held due process requires that a "criminal defendant on trial for his liberty is entitled on motion timely made to have an expert of his choosing, bound by appropriate safeguards imposed by the court, examine critical evidence whose nature is subject to varying expert opinion." 5 Sabel concluded the defendant was entitled to have paint samples examined that linked him to the crime. Patterson held the defendant could have his expert examine the contraband on which his possession charge was based.
Park did not want to examine contraband or paint samples; he wanted to examine a person. Persons are protected by the Fourth Amendment from unreasonable searches and seizures, and surgical procedures on or medical examinations of a person's body cannot be compelled unless the state has good reason to believe the person has committed a crime. 6 7
"We are aware of no statutory authority nor case law in this state that mandates the involuntary examination of a ... victim." 8 "The Fourth Amendment right of the victim to be secure against an unreasonable search must prevail over the right of the accused to obtain evidence for his defense." 9 Just as victims may decline to be interviewed by defense counsel, they may also decline to be examined by defendant's experts. 10
Park's rights as to the ascertainment of truth concerning the eye condition were adequately protected inasmuch as Lee and his ophthalmologist were subjected to extensive cross-examination. 11 The court did not err.
2. Park enumerates as error the allowance of Officer Putnam's testimony even though he was not on the State's witness list. Park complains further that although the State did not provide him prior notice of a "custodial" statement, the court allowed Officer Putnam to testify that he overheard Park say to the investigating officer "he was trying to teach [Lee] a lesson."
(a) Park was not entitled to a list of the State's witnesses, so he may not complain of the omission of Officer Putnam's name from the list. In October 1996, Park demanded a list of the State's witnesses pursuant to OCGA § 17-7-110. But OCGA § 17-7-110 had been repealed as of January 1, 1995 and replaced with the new criminal discovery statute, OCGA § 17-16-1 ET SEQ. ARTICLE 1 OF CHAPTER 16 OF TITLE 1712 applies to felony cases indicted or docketed after January 1, 1995, and requires the disclosure of trial witness lists only if the defendant elects by written notice to have the article apply to him. 13 Park was indicted in September 1996 and did not opt to have the discovery statute (with its corresponding obligations on him) apply. Accordingly, the State was not required to provide a trial witness list.
Further, the omission of the officer's name from the list was unintentional, for the prosecuting attorney did not learn of his identity until the night before trial. Park's counsel was afforded the opportunity to interview the officer before he testified. Thus, even if the statute applied, its purpose was fulfilled. 14 15
Park cites but does not support with argument Art. I, Sec. I, Par. XIV of the 1983 Georgia Constitution, which requires the State to furnish an accused "on demand, with a list of the witnesses on whose testimony such charge is founded." " 16 Even if we did consider it, this constitutional provision does not require the State to provide a list of trial witnesses, but only a list of witnesses on whose testimony the charge was founded. 17
(b) Park's argument on the "custodial" statement fails on similar grounds. Assuming the statement was custodial, the State was not required to provide it to Park. Citing OCGA § 17-7-210, Park demanded a copy of all custodial statements taken by police. OCGA § 17-7-210 was also repealed as of January 1, 1995, and replaced with the same discovery statute. 18 Since Park did not opt in under the statute, the State was not obliged to disclose statements Park made to the police. 19
Park contends that OCGA § 17-16-22 of the new discovery statute requires this disclosure on demand. This section is a part of Article 2 of Chapter 16 of Title 17, which article applies only to misdemeanor cases or to felony cases indicted or docketed prior to January 1, 1995. 20 It does not apply to Park's 1996 felony indictment.
3. Park charges that counsel was ineffective in citing the wrong Code section in his demand for the "custodial" statement and in failing to object to hearsay by Officer Putnam. Following an evidentiary hearing on the motion for new trial, the court rejected the charge.
" 21
(a) It was not the citing to OCGA § 17-7-210 that caused the demand for custodial statements to be unavailing; it was the decision not to opt in under the new discovery statute. As a benefit of this decision, Park did not incur the obligation to provide discovery to the State. 22 This was a tactic or stratagem that will not be second-guessed, particularly where Park did not even query trial counsel about this decision during the evidentiary hearing on the motion for new trial.
(b) Nor was there ineffective assistance in trial counsel's failure to object to Officer Putnam testifying to two instances of alleged hearsay. The first instance occurred during cross-examination, when Park's counsel intimated Officer Putnam may not have understood Park at the time he said he was trying to teach Lee a lesson. Counsel queried Officer Putnam as to the quality of Park's English, and he responded: This is not inadmissible hearsay. Putnam did not testify to any statement other than what Park himself said. 23 His comment that the other officer also understood Park was likely based on his observations at the time. Thus, Park's counsel had sound reason not to object.
The second instance occurred when Officer Putnam testified Lee was advised he could take out a warrant against Park. This was in the context of explaining why the officers arrested Park only for public drunkenness (OCGA § 16-11-41), i.e., the victim was advised that he, not the officers, would be responsible for filing any...
To continue reading
Request your trial
-
Black v. State, A03A0454.
...finished testifying. 22. See Yang v. Washington, 256 Ga.App. 239, 243(2)(c), 568 S.E.2d 140 (2002). 23. See Park v. State, 230 Ga.App. 274, 280(6), 495 S.E.2d 886 (1998). 24. (Punctuation omitted.) Id. 25. See id.; Morris v. State, 228 Ga.App. 90-91(1), 491 S.E.2d 190 (1997). 26. See Walker......
-
Boutier v. State
...where uncontroverted evidence showed that defendant was initial aggressor and did not communicate a withdrawal); Park v. State, 230 Ga.App. 274, 278(4), 495 S.E.2d 886 (1998) (same).2. Boutier also contends that his trial counsel was ineffective in several respects. To prevail on his claim ......
-
Pollard v. State
...time to the stabbing that the witnesses' testimony was admissible under the doctrine of res gestae. Basu, supra; Park v. State, 230 Ga.App. 274, 278(5), 495 S.E.2d 886 (1998). OCGA § 24-3-3 provides that "[d]eclarations accompanying an act, or so nearly connected therewith in time as to be ......
-
Patel v. State, No. S04A0829
...Thus, it was part of the res gestae, OCGA § 24-3-3, and it precludes the idea of deliberation or fabrication. See Park v. State, 230 Ga.App. 274, 279, 495 S.E.2d 886 (1998) (statements made by defendant's wife to victim and victim's parents less than eight hours after incident were properly......
-
Evidence - Marc T. Treadwell
...338 (1991). 72. 261 Ga. App. 263, 582 S.E.2d 213 (2003). 73. Id. at 268, 582 S.E.2d at 218. 74. Id. 75. Id. (quoting Park v. State, 230 Ga. App. 274, 280, 495 S.E.2d 886, 893 (1998)). 76. 276 Ga. 263, 577 S.E.2d 548 (2003). 77. Id. at 264, 577 S.E.2d at 549. 78. Love v. State, 199 Ga. App. ......