☢ test - Í

Y. REFRESHING RECOLLECTION See new OCGA § 24-6-612

Welch v. State, 298 Ga. 320, 781 S.E.2d 768 (January 19, 2016). Malice murder conviction affirmed. Under pre-2013 Evidence Code, trial court properly allowed witness to testify after refreshing his recollection from reading his prior statements. “Bell was not permitted to read from his prior statements aloud. He read the prior statements to himself, claimed he had no recollection of having made the statements, and subsequently testified from memory as to what he witnessed on the night in question. There was no error. See Williams v. State, 257 Ga. 788, 789(6), 364 S.E.2d 569 (1988) (it is not error to permit witness to read document to refresh his memory as long as he testifies from his memory).” Bianchi v. State, 327 Ga.App. 440, 759 S.E.2d 536 (June 2, 2014). Armed robbery conviction affirmed; trial court erred, but harmless, in refusing to allow witness time to refresh her recollection from recorded telephone conversation. Defendant sought to test detective’s recollection of what she was told by another witness, to show that the detective failed to follow up on a lead pointing to different perpetrators; the detective testified that she didn’t remember the details of the witness’s report. “The State concedes in this case that the trial court erred in refusing to allow Bianchi time for the detective to review the recorded phone conversation, but argues that the error was harmless. We agree,” based on otherwise-thorough cross-examination of the detective. “‘A witness may use any source to refresh his memory, so long as he testified from his memory thus refreshed. Agnor's Ga. Evidence, § 4–10. As long as the witness is willing to swear from his memory as refreshed, his memory may be refreshed by any kind of stimulus, “a song, or a face, or a newspaper item.”’ (Citation and punctuation omitted.) Green v. State, 242 Ga. 261, 265(5), 249 S.E.2d 1 (1978), rev'd on other grounds, Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979).” Ashmid v. State, 316 Ga.App. 550, 730 S.E.2d 37 (July 2, 2012). Child molestation conviction affirmed; no error in allowing prosecutor to show the four-year old victim “an anatomical picture of a naked female child after J.S. repeatedly answered that Ashmid hurt her on the leg, the arm, and nowhere else.” At the time of the incident, the child repeatedly told several people that defendant hurt her “pee-pee” by rubbing it with his hand. After seeing the diagram, the child testified that defendant hurt her pee-pee. “Despite Ashmid's contention that this incident amounted to an improper instance of refreshing a witness's recollection, it is clear from the record that the diagram was instead used as relevant demonstrative evidence. [fn] … Because J.S. was four years old when she testified at trial, her ability to properly identify body parts and indicate which parts were involved in the alleged molestation would be relevant to the jury's determination of Ashmid's guilt. [fn]” In re: H.A., 308 Ga.App. 111, 706 S.E.2d 615 (February 28, 2011). Adjudication of delinquency affirmed; trial court erred, but harmless is refusing to allow officer to refresh his recollection about contents of dispatch by listening to recording. “The Supreme Court of Georgia has held that, ‘[a]s long as the witness is willing to swear from his memory as refreshed, his memory may be refreshed by any kind of stimulus.’ Green v. State, 242 Ga. 261, 265(5) (249 S.E.2d 1) (1978) (citation and punctuation omitted), rev'd on other grounds, Green v. Georgia, 442 U.S. 95, 97 (99 S.Ct. 2150, 60 L.Ed.2d 738) (1979). The officer testified that he was present when the later BOLO dispatch was received but could not recall whether that dispatch contained a vehicle description; he further stated that a recording of that dispatch might refresh his recollection on the issue. Under these circumstances, the court's refusal to permit the officer to refresh his recollection was error. See Woods v. State, 269 Ga. 60, 62-63(3) (495 S.E.2d 282) (1998) (court's refusal to allow witness to refresh recollection was error); Green v. State, supra (discussing holding in Smith v. Morning News, 99 Ga.App. 547, 548-549(1) (109 S.E.2d 639) (1959) that court erred in refusing to allow witness to refresh his recollection with x-ray photographs). Compare Gibson v. State, 150 Ga.App. 718(4) (258 S.E.2d 537) (1979) (court did not err in refusing to allow witness to refresh recollection with audio-recording, where witness did not state that playing of recording would have helped to refresh her recollection).” Keller v. State, 286 Ga.App. 292, 648 S.E.2d 714 (June 28, 2007). Officer was properly allowed to refresh his recollection from the traffic citation he wrote defendant. “While we agree that the Uniform Traffic Citation cannot be used as evidence of Keller’s guilt, see Buckley v. State, 246 Ga.App. 342 (540 S.E.2d 292) (2000), ‘[a] witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper.” OCGA § 24-9-69. Thus, an officer’s sworn testimony after refreshing his recollection with a police report or other document is admissible as evidence. See Ford v. State, 285 Ga.App. 106, 645 S.E.2d 590 (April 13, 2007); Becker v. State, 280 Ga.App. 97, 99(2) (633 S.E.2d 436) (2006).”