Zachery v. State, A99A0835.

• Decision Date: 29 April 1999
• Docket Number: No. A99A0835.,A99A0835.
• Citation: 238 Ga. App. 191,517 S.E.2d 71
• Parties: ZACHERY v. The STATE.
• Court: Georgia Court of Appeals

517 S.E.2d 71

238 Ga. App. 191

ZACHERY v. The STATE.

No. A99A0835.

Court of Appeals of Georgia.

April 29, 1999.

Reconsideration Dismissed May 21, 1999.

Thomason & Blackmon, Dennis T. Blackmon, Anthony B. Williams, Carrollton, for appellant.

Peter J. Skandalakis, District Attorney, Stephanie Duncan-Brent, Assistant District Attorney, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

Convicted of burglary, aggravated sexual battery, simple battery, false imprisonment, and two counts of aggravated sodomy, Rayford Zachery appeals on four grounds: (i) the court erred in denying his motion for mistrial; (ii) the court erred in admitting the victim's pre-trial and in-court visual identifications of him; (iii) the court erred in allowing the victim, in rebuttal, to re-identify Zachery through his voice; and (iv) absent the identification testimony, the evidence was insufficient to sustain the convictions. Held:

1. The first two alleged errors concern the victim's visual identifications of Zachery as her attacker. She testified that while he was waiting outside the courtroom for his preliminary hearing, she had visually identified him as her attacker to an employee of the prosecutor's office. She also identified Zachery at trial. Zachery immediately moved for a mistrial, arguing that although the prosecutor had orally informed him of the pre-trial identification, (i) he had received nothing in writing about it in the discovery materials received from the State, and (ii) he was not aware the State intended to have her make a visual identification in court. The court denied the motion.

Absent a manifest abuse of discretion, we will not disturb a trial court's ruling on a motion for mistrial. Milton v. State, 232 Ga.App. 672, 676(3), 503 S.E.2d 566 (1998). We discern no abuse here for two reasons.

First, because the pre-trial identification was not recorded or summarized in a writing or on tape, the State was not required to disclose it in the written discovery material. Forehand v. State, 267 Ga. 254, 255(3), 477 S.E.2d 560 (1996). Thus, the fact that the State's voluntary oral disclosure of it was not reduced to writing and placed in the materials given in discovery is of no consequence.

Second, the disclosure of the pre-trial visual identification put Zachery on notice that the victim would likely identify him at trial, even though no law obligated the State to formally announce such to a defendant.

2. Zachery contends that admitting the pre-trial and in-court visual identifications violated his rights to counsel and to due process and constituted reversible error. His arguments, however, were not tested at the trial level. At no point did he object to the admission of the victim's visual identifications of him, whether on these grounds or otherwise. He accordingly waived the opportunity to raise these issues on appeal. Pickstock v. State, 235 Ga.App. 451, 458-459(5)(b), 509 S.E.2d 717 (1998).

Zachery points to his motion for mistrial as an objection. But the motion did not ask that the evidence be excluded; it simply asked the court to declare a mistrial. Even if it could be construed as an objection, the motion only complained of the State's alleged failure in discovery to notify him that the victim would visually identify him at trial. It did not argue the lack of counsel, lack of due process, and impermissible suggestiveness grounds now raised on appeal. A trial objection on a specific ground waives appellate review of other grounds. McGee v. State, 205 Ga.App. 722, 726(9), 423 S.E.2d 666 (1992); see Campbell v. State, 228 Ga. App. 258, 263(3)(b), 491 S.E.2d 477 (1997).

3. Zachery claims the court erred in allowing the victim, in rebuttal, to bolster her testimony by re-identifying him, this time based on his voice from his trial testimony.

During Zachery's testimony, he denied he was the attacker. The State had the right to call rebuttal witnesses to refute this evidence. Watkins v. State, 206 Ga.App. 701, 705(5), 426 S.E.2d 238 (1992). After the defendant has testified, a victim's in-court identification based on the sound of defendant's voice is generally admissible in rebuttal. See Hornsby v. State, 210 Ga.App. 571, 573(2), 436 S.E.2d 767 (1993). Even if rebuttal evidence tends to bolster the State's case more than to directly impeach defense evidence, the trial court has the discretion to admit it. Evans v. State, 225 Ga.App. 589, 591(3) 484 S.E.2d 320 (1997); see Watkins, supra, 206 Ga.App. at 705-706(5), 426 S.E.2d 238.

Zachery attempts to distinguish the circumstances here on the ground that the in-court voice identification was tainted by an impermissibly suggestive voice identification conducted by the State on the eve of trial. The victim had described her attacker's voice to police as higher pitched with a fast cadence. While being prepared on the day before trial, she reminded the prosecutor that she could readily identify the attacker's distinctive voice. The prosecutor then played a videotape (with the monitor facing the wall) of an interview with Zachery, and the victim immediately identified the voice as that of her attacker. The prosecutor notified Zachery of the identification.

Zachery successfully moved the court to exclude the pre-trial voice identification because it was impermissibly suggestive and...