Roman v. State
| Decision Date | 20 November 1987 |
| Docket Number | No. 74579,74579 |
| Citation | 185 Ga.App. 32,363 S.E.2d 329 |
| Parties | ROMAN v. The STATE. |
| Court | Georgia Court of Appeals |
Jennifer McLeod, Douglasville, for appellant.
Frank C. Winn, Dist. Atty., J. David McDade, Asst. Dist. Atty., for appellee.
Appellant was convicted of aggravated sodomy and child molestation, and he appeals.
1. Appellant contends the trial court erred by allowing the State to present evidence of two similar offenses or occurrences because the State did not notify appellant of its intention to present such evidence at least ten days prior to trial, as required by Rule 31.1, Uniform Superior Court Rules. 253 Ga. 853. At a hearing on appellant's objection to the presentation of such evidence it was established that the prosecution notified appellant eight days prior to trial that it intended to present evidence of a prior conviction of appellant in 1979 for the offense of enticing a child for indecent purposes. Four days prior to trial the State gave appellant an amended notice that included an incident in 1985 similar to the offenses charged here.
Rule 31.1, supra, provides that notice of the State's intention to present evidence of similar transactions or occurrences shall be given and filed at least ten days before trial "unless the time is shortened or lengthened by the judge." At the hearing on appellant's objection the prosecuting attorney stated that in regard to appellant's conviction in 1979, he had directed his secretary to mail the notice to appellant and file a copy of it in court in sufficient time to meet the ten-day requirement, but she apparently did not do so. Further, the prosecuting attorney and appellant's counsel had discussed the State's intention to introduce such evidence prior to the actual mailing of the notice. After hearing arguments on this issue from both parties, the trial court ruled it would shorten the required time of notice to eight days under the authority set forth in Rule 31.1. We find no error in that ruling, since appellant's counsel was aware of the State's intention to present evidence of the prior conviction before counsel received the State's formal, written notice. Reducing the time period for notice is a matter within the court's discretion which will not be disturbed by this court absent abuse of that discretion. Hall v. State, 181 Ga.App. 92, 93(1)(b), 351 S.E.2d 236 (1986). We find no abuse of discretion here.
As to evidence of the similar occurrence in 1985, the prosecuting attorney did not learn of such evidence until four days prior to trial. The defense counsel was present in the prosecuting attorney's office when the report was received, and appellant's counsel actually read the report before the prosecuting attorney read it. Thus, evidence of the State's intention to present such evidence was given to appellant as soon as the State learned of the incident. Further, at the hearing the State agreed to a continuance, if necessary, to allow appellant time to interview witnesses who would testify about the similar occurrence. Under such circumstances we find no error in overruling appellant's objection to the presentation of such evidence. Common sense dictates that the State cannot give notice of its intention to introduce evidence ten days prior to trial when it is not aware of the existence of such evidence until four days prior to trial.
In regard to appellant's complaint that the court did not hold a hearing on the issue of notice prior to the date of trial, it was brought out at that hearing that at an earlier motion hearing several days prior to trial, appellant's counsel agreed to take up the issue of notice of evidence of similar offenses at a hearing on the day trial commenced. Further, there is nothing in Rule 31.2, Uniform Superior Court Rules, 253 Ga. 853-854, which requires the judge to hold a hearing prior to the date scheduled for trial. Nolan v. State, 183 Ga.App. 52, 53(2), 357 S.E.2d 873 (1987). In fact, the rule provides that the hearing will be held at a time designated by the judge. The hearing was held prior to the presentation of any evidence, outside the presence of the jury, and thus, there was no error. Nolan, supra at 54, 357 S.E.2d 873.
2. Appellant asserts error in allowing Detective Scott Cosper to testify as to a statement appellant made to him (Cosper) because the State did not comply with the requirements of OCGA § 17-7-210. That statute provides that at least ten days prior to trial the defendant shall be entitled to have a copy of any statement made by him while in police custody; if the statement is oral, the prosecution shall furnish, in writing, all relevant and material portions of the defendant's statement. Further, if the statement is oral, no relevant and material (incriminating or inculpatory) portion of the statement may be used against the defendant unless a summary of it has been previously furnished to him. Appellant made a timely, written request for copies of all written statements made by him while in custody, and a summary of all oral statements made by him while in custody. At a Jackson-Denno hearing ( jacksoN v. denno, 378 u.S. 368, 84 S.CT. 1774, 12 l.ed.2D 908), it was established that appellant made two statements, one to Cosper when he first came to the sheriff's office for questioning, and a second statement to Sheriff Earl Lee about twelve hours later. Both statements were tape-recorded, but the recording of appellant's initial statement to Cosper was lost. Therefore, the State gave appellant a verbatim transcript of his statement to Lee, and a brief summary of the incriminating portion of his statement to Cosper.
Appellant does not dispute the fact that the statements were provided at least ten days prior to trial, but argues that the testimony of Cosper as to appellant's statement to him (Cosper) was inadmissible because appellant did not know that the summary and the verbatim transcript provided related to two different statements. This argument is without merit.
There is nothing in OCGA § 17-7-210 which requires the State to inform a defendant of the name of the person to whom he made a statement while in custody, and appellant has cited no authority to support his argument that failure to do so renders the statement inadmissible. Cosper's name was on the list of witnesses provided appellant, and he was well aware that he had made two statements, one to Cosper and one to Lee. The purpose of the statute is to inform the defendant in writing of all relevant and material portions of his own statements that the State intends to use to his disadvantage. White v. State, 253 Ga. 106, 109(2), 317 S.E.2d 196 (1984). In White the State gave the defendant one summary of statements to two different officers, and the court held that the purpose of the statute was satisfied because the defendant was notified of the substance of the statement(s) the State anticipated using against him. Appellant here was also advised of the substance of the statements to be used against him, and thus, the purpose of the statute was satisfied. Accordingly, we find no error in allowing Cosper to testify as to the statement made to him by appellant.
3. Appellant contends the trial court erred by denying his request to charge on aggravated child molestation, which appellant argues was a lesser included offense under the facts of this case. We do not agree. The State presented evidence that appellant committed aggravated anal sodomy on the victim, his ten-year old grandson, by holding his arms behind his back and forcing himself upon the victim. Appellant testified and repudiated his confessions to attempting to commit sodomy and child molestation, and swore that he did not molest his grandson at all. Where the evidence shows either the completed offenses as charged, or no offense at all, such evidence will not support a verdict for one of the lesser grades of the offense, and the court should not charge on the lesser grade of the offense. Hardy v. State, 159 Ga.App. 854, 859, 285 S.E.2d 547 (1981). See also Hambrick v. State, 174 Ga.App. 444, 447(2), 330 S.E.2d 383 (1985). Hence, the trial court did not err by denying appellant's request to charge on aggravated child molestation.
Judgment affirmed.
I concur fully in Divisions 1 and 2 of the majority opinion. With regard to Division 3, I agree that there was no error in failing to give the appellant's request to charge on aggravated child molestation. However, the failure to give the charge was not error simply because aggravated child molestation requires proof that the victim was under the age of 14, an element not required in the offense of aggravated sodomy. Accordingly, aggravated child molestation is not a lesser included offense of aggravated sodomy. Hill v. State, 246 Ga. 402, 405(III), 271 S.E.2d 802 (1980). There was no error in failing to give the requested charge.
I am authorized to state that Judge BEASLEY joins in this special concurrence.
I respectfully dissent with respect to Divisions 1 and 2 of the majority opinion and concur with Judge Carley insofar as Division 3 is concerned.
1. There were two violations of USCR 31.1, and with respect to at least the latter one involving the four-day notice, it should be held that there was an abuse of discretion in shortening the time from ten days and thereby paving the way for introduction of the evidence of an alleged February 1985 incident.
In considering the admission of evidence of similar incidents, the underlying principle which must be served is the fundamental one "in our system of jurisprudence, intended to protect the individual who is charged with crime, and to insure him of a fair and impartial...
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