☢ test - Í
tending to prove that the instant offense did not occur. However, before evidence of a prior false accusation can be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists. Defendants have the burden of coming forward with evidence at the hearing to establish a reasonable probability that the victim had made a prior false accusation of [sexual misconduct]. Finally, a trial court’s ruling upon the admissibility of such evidence will not be overturned absent an abuse of discretion,’” quoting Kelley v. State , 233 Ga. App 244, 251(5) (503 S.E.2d 881) (1998). “As in Allen v. State, 210 Ga.App. 447, 448(1), 436 S.E.2d 559 (1993), ‘defense counsel asked ... the question without first requesting the trial court to determine the admissibility of the line of inquiry outside the jury’s presence.’ Furthermore, Trusty made no claim below that any prior molestation allegations by the victim were false. Not only did he fail to proffer evidence of their falsity, but the evidence was undisputed that the accusations against her brother (the only other allegations she made) were true. See Hicks v. State, 222 Ga.App. 828, 830(1), 476 S.E.2d 101 (1996).” Accord, Weldy v. State , 239 Ga.App. 849, 521 S.E.2d 858 (August 27, 1999) (no showing that prior allegation was false; Holmes v. State , 263 Ga.App. 644, 588 S.E.2d 825 (October 16, 2003). Patterson v. State, 237 Ga.App. 80, 514 S.E.2d 873 (March 17, 1999). Trial court did not abuse its discretion in determining that prior accusation by child molestation victim against another man was not likely false; only evidence of falsity presented by defendant was DFCS caseworker’s “equivocal testimony as to what the mother may have said,” which “does not establish a reasonable probability that the child’s allegation … is false. … Nor does the fact that there was no physical evidence of penetration require a finding that A.P.'s prior allegation was false. See generally Eason v. State, 215 Ga.App. 614, 615(1), 451 S.E.2d 820 (1994).” 7. GENERALLY Merritt v. State, 329 Ga.App. 871, 766 S.E.2d 217 (November 20, 2014). Conviction for possession of cocaine with intent to distribute affirmed; no ineffective assistance of counsel shown. “Although Merritt claims that counsel could have impeached [Officer] Gonzales with the March 2013 Use of Force report [written by Officer Yount], the Supreme Court of Georgia has noted that an attorney cannot properly ‘impeach’ a witness with a document prepared by another witness , see Woods v. State, 269 Ga. 60, 63(3), 495 S.E.2d 282 (1998), let alone one prepared years after the testimony at issue.” James v. State, 316 Ga.App. 406, 730 S.E.2d 20 (June 26, 2012). Armed robbery and related convictions affirmed; method used to impeach co-conspirator J.G. wasn’t improper. “J.G. testified that the day before he testified at trial he had listened to the tape-recorded statement he had made to the police. Therefore, the time, place, person, and circumstances attending the former statement were called to J.G.'s mind.” Sherman v. State, 302 Ga.App. 312, 690 S.E.2d 915 (February 11, 2010). Trial court properly ruled that defense counsel couldn’t cross-examine State’s witness by asking “What is the maximum penalty for perjury?” “The State objected, and the court sustained the objection on the ground that it called for a legal opinion. Sherman's counsel then was allowed to ask ‘Do you want to be convicted of or punished for perjury?’ as well as other questions about whether she had changed her story. The trial court did not abuse its discretion by prohibiting the witness from testifying as to what the law is. Cheesman v. State, 230 Ga.App. 525, 527-528(4) (497 S.E.2d 40) (1998); Taylor v. State, 204 Ga.App. 489(3) (419 S.E.2d 745) (1992). Furthermore, the mere fact that Sherman was unable to question [witness] about the punishment for perjury did not diminish his effort to suggest that she had a motive to keep her testimony consistent with earlier statements that she had made. See, e.g., Hodo v. State, 272 Ga. 272, 275(4) (528 S.E.2d 250) (2000). The case of State v. Vogleson, 275 Ga. 637 (571 S.E.2d 752) (2002), is not on point. That case concerns the right to cross-examine a co-indictee on the scope of the deal he negotiated with the State in exchange for his testimony against the defendant.” Smith v. State, 297 Ga.App. 300, 676 S.E.2d 750 (March 16, 2009), affirmed on other grounds , Hawkins v. State , 302 Ga.App. 84, 690 S.E.2d 440 (January 21, 2010). At defendant’s trial for false writings (based on fraudulent time records kept as police officer), trial court properly allowed impeachment of defense witness/city councilman with evidence of witness’s improper trip expense reimbursement requests (for souvenirs such as “shirts and a pair of ‘Hello Kitty’ shoes). “The State's cross-examination was relevant to challenge the competency and credibility of [witness] Whittaker's testimony on direct examination that Smith's dual employment in Unadilla and Fort Valley was not problematic and Whittaker's assertions on cross-examination that he was a careful steward of city money and, further, that he did not believe Smith did anything wrong.” Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (November 5, 2007). On habeas petition following murder conviction and death sentence, finding that defendant wasn’t mentally retarded affirmed. “Although ‘a witness may not be impeached
Made with FlippingBook Ebook Creator