Pendergrass v. State

• Decision Date: 12 September 1983
• Docket Number: No. 66308,66308
• Citation: 308 S.E.2d 585,168 Ga.App. 190
• Parties: PENDERGRASS v. The STATE.
• Court: Georgia Court of Appeals

Page 585

308 S.E.2d 585

168 Ga.App. 190

PENDERGRASS v. The STATE.

No. 66308.

Court of Appeals of Georgia.

Sept. 12, 1983.

Rehearing Denied Sept. 28, 1983.

Certiorari Denied Nov. 9, 1983.

Christopher A. Townley, Rossville, for appellant.

Darrell E. Wilson, Dist. Atty., for appellee.

SHULMAN, Chief Judge.

Appellant was convicted of molesting his minor stepdaughter. He now appeals, enumerating three errors.

1. The victim was 8 years old at the time of appellant's trial, and the trial court found her competent to testify. Appellant maintains that the trial court abused its discretion in so ruling.

The child testified that she understood what it meant to tell the truth, the consequences of telling a lie, that telling the truth was the right thing to do, and that telling a lie was the wrong thing to do. She told the judge what a promise was and then promised him that she would tell the truth in response to questions put to her by counsel. The examination conducted by the trial court was sufficient to determine that she understood the nature of an oath, and it was not an abuse of discretion to allow her to testify. OCGA § 24-9-5 (Code Ann. § 38-1607); Bearden v. State, 159 Ga.App. 892, 285 S.E.2d 606; Hayes v. State, 152 Ga.App. 858(2), 264 S.E.2d 307; Decker v. State, 139 Ga.App. 707(1), 229 S.E.2d 520. Inconsistency in the child's testimony does not render her incompetent to testify, but goes to her credibility as a witness. Hayes, supra. In Strickland v. State, 164 Ga.App. 845, 297 S.E.2d 491, the child's contradictory and unresponsive answers occurred during the competency determination phase of the trial. In the present case, the contradictory statements were made while the child was testifying in the presence of the jury.

2. Appellant also claims error in the trial court's refusal to grant him a continuance in order that his attorney might interview the victim who was, at that time, in the custody of the Department of Family and Children Services (DFACS). "It is well settled that a motion for continuance for additional time to adequately prepare a defense addresses itself to the discretion of the trial court and the exercise of that discretion will not be disturbed on appeal unless it has been clearly abused. [Cit.]" Babb v. State, 157 Ga.App. 757(3), 278 S.E.2d 495, overruled on other grounds in Motes v. State, 161 Ga.App. 173, 288 S.E.2d 256. As was the case in Babb, we cannot say that the trial court abused its discretion in refusing the continuance. Appellant, however, contends that DFACS' refusal to permit him to interview the child is tantamount to refusal by the state and, citing Wilson v. State, 93 Ga.App. 229, 91 S.E.2d 201, asserts that he was denied his rights to counsel and a fair trial by DFACS' action.

" ' "Accused and his counsel have the right to interview witnesses before the trial; and the state has no right to deny them access to a witness material to the defense, but a witness cannot be compelled to submit to such an interview." ' [Cit.]" Rutledge v. State, 245 Ga. 768(2), 267 S.E.2d 199. "[W]hen the witness is a child the child's guardian may make this decision." Dover v. State, 250 Ga. 209, 212(2), 296 S.E.2d 710. While DFACS, acting as the legal custodian of the child under OCGA § 15-11-34 (Code Ann. § 24A-2301), declined to permit a pre-trial witness interview, that action was not the action of a party to the suit, i.e., the district attorney's office. In fact, the assistant district attorney expressly disavowed any involvement in the difficulty between defense counsel and the child's custodian. Furthermore, the decision of DFACS against allowing the child to be interviewed cannot be put on the same level as the monopolizing action taken by the solicitor general in Wilson v. State, supra. There, the prosecuting attorney refused to allow the defendant access to a material prosecution witness who was incarcerated in the county jail. Whether or not the adult witness in Wilson wished to speak to the defense attorney was irrelevant since the solicitor had already determined to hold the witness incommunicado. Such action was not taken in the case at bar, and no abuse of discretion resulted in the denial of the motion for continuance.

3. In his final...