Tyson v. State
| Decision Date | 04 January 1983 |
| Docket Number | No. 64868,64868 |
| Parties | TYSON v. The STATE. |
| Court | Georgia Court of Appeals |
B. Keith Rollins, Douglasville, for appellant.
William A. Foster, III, Dist. Atty., Frank C. Winn, Asst. Dist. Atty., Douglasville, for appellee.
1. This is the second trial of the defendant on a burglary indictment. See Tyson v. State, 157 Ga.App. 569, 278 S.E.2d 150 (1981). Prior to the present trial written demand was made of the state for discovery of any relevant and material statements made by the defendant while in police custody, as required by Code § 27-1302. At a subsequent hearing the district attorney admitted not furnishing a statement for the reason that he planned to use nothing other than testimony offered on the former trial. A transcript of such testimony was admittedly in the possession of the defense attorney who conducted the second trial, although different lawyers handled the first trial and subsequent appeals.
Tanner v. State, 160 Ga.App. 266, 268, 287 S.E.2d 268 (1981).
Here, the discovery request was made at a reasonable time between the first and second trials, and the district attorney contends that because there was no substantial difference in the testimony of the witnesses on the second trial, the defendant's possession of the earlier transcript released him from compliance with the statute. Defendant also admits that he had a copy of the transcript of the first trial and he does not contend that the state offered any additional evidence in the second trial. Absent a showing that the substance of a defendant's statement made available to him (here the transcript of the first trial) fell short of adequately forewarning him of the testimony offered at trial pertaining to that statement, there is no cause for reversal. There appears to be in this case a substantial compliance with the statute. "This object is satisfied in this case." McCarty v. State, 161 Ga.App. 444, 446, 288 S.E.2d 249 (1982) appears to be binding authority although affirmed on a different point of law in McCarty v. State, 249 Ga. 618, 292 S.E.2d 700 (1982).
2. The defendant further urges that any statements of an inculpatory nature made while in custody were made with an expectation of benefit to himself, and were consequently inadmissible under Code § 38-411. It is clear from the...
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