Pealor v. State
| Decision Date | 26 January 1983 |
| Docket Number | No. 65335,65335 |
| Citation | 299 S.E.2d 904,165 Ga.App. 387 |
| Parties | PEALOR v. The STATE. |
| Court | Georgia Court of Appeals |
Robert F. Webb, Atlanta, for appellant.
David P. Soulis, Asst. Dist. Atty., Darrell E. Wilson, Dist. Atty., Superior Court of Bartow County, Cartersville, for appellee.
In this appeal from his conviction for burglary, the defendant's primary contention is that the trial court erred in failing to exclude from evidence certain pre-trial statements not provided to him prior to trial in accordance with the provisions of OCGA § 17-7-210 (Code Ann. § 27-1302). The defendant was indicted on August 7, 1981, and arraigned on August 10th, at which time he informed the court of his intention to retain an attorney. Trial was set for August 24th. On August 12th, he informed the court that he had been unable to retain an attorney. The judge then informed him that he would appoint an attorney to represent him; however, the attorney initially selected by the court proved to be unavailable. The counsel ultimately chosen to represent him was notified of his appointment on August 18th and made his demand for discovery the next day. A copy of the defendant's statement was received by him on August 21st. The trial commenced on August 25th. Held:
1. The statute provides that upon request the defendant is entitled to a copy of statements made by him while in custody and that such copies are to be made available to him at least 10 days prior to trial. Failure to comply with a defendant's timely written request for such statements renders those statements inadmissible upon timely objection. OCGA § 17-7-210(c) (Code Ann. § 27-1302) "[I]f the state elects to use a defendant's statement in the prosecution of its case but 10 days have not elapsed from the time defendant was provided a copy thereof, the state's remedy is to announce not ready at the call of the case for trial and request a continuance." Garner v. State, 159 Ga.App. 244, 246, 282 S.E.2d 909 (1981). Of course, as in Garner, the state is entitled to proceed with trial rather than request a continuance if it so desires.
The state contends that the defendant's request was not timely because it was made less than 10 days prior to trial, citing McCannon v. State, 161 Ga.App. 685(2), 288 S.E.2d 663 (1982), as authority for allowing the statements into evidence under such circumstances. However, that holding is inapposite in that the defendant there had been represented by another counsel for some four months prior to the time his newly retained counsel made the request for discovery. We reasoned there that "[w]hile our ruling may make the provisions of [OCGA § 17-7-210 (Code Ann. § 27-1302)] unavailable to a new counsel coming into a case shortly before trial to replace a prior counsel, a contrary ruling would give a defendant an opportunity to delay his trial by a last minute counsel change to obtain a delay under this statute." McCannon v. State, supra at 686, 288 S.E.2d 663. In the present case, of course, the defendant was not represented by counsel at all until less than 10 days prior to his trial.
The Supreme Court has held that the time limit within which a written request for discovery under the statute must be made "obviously must precede the period of 10 days prior to trial." Blanchard v. State, 247 Ga. 415, 419, 276 S.E.2d 593 (1981). This language was reiterated in a subsequent case construing OCGA § 17-7-211 (Code Ann. § 27-1303), a companion statute dealing with the discovery of scientific reports. See State v. Meminger, 249 Ga. 561, 292 S.E.2d 681 (1982). However, in Meminger, appellant's counsel had represented him for months prior to making the request; and in Blanchard, the court was concerned merely with the state's inadvertent failure to provide one page of a multipage statement, which was otherwise made available to the defendant in a timely fashion. At p. 419, 276 S.E.2d 593 of that decision, the court held as follows:
In the case before us now, it was clearly impossible for the defendant to have submitted a timely written ...
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