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Hayes v. State, 261 Ga. 439, 442(4), 405 S.E.2d 660 (1991). The superior court did not err in allowing Deputy Godowns to testify in these circumstances.” McLarty v. State, 238 Ga.App. 27, 516 S.E.2d 818 (April 27, 1999). No witness list violation where defense was fully aware of witness. “ When the identity and involvement of a witness are otherwise disclosed to defendant in discovery provided to him by the State, the purpose of the witness list rule is served and the court may allow the State to call the witness even though he or she was not listed on the State’s formal witness list. Gossett v. State, 199 Ga.App. 286, 288(2), 404 S.E.2d 595 (1991); see State v. McBride, 258 Ga. 321, 368 S.E.2d 758 (1988); Redmond v. State, 252 Ga. 142(2), 312 S.E.2d 315 (1984). Though her name was not on the State’s witness list, the State’s formal disclosure of Scholtz as the confidential informant six weeks prior to trial, combined with (i) the summary of her testimony found in the search warrant affidavit given to McLarty, (ii) McLarty’s admitted knowledge of her identity prior to the formal disclosure, (iii) McLarty’s own pre-trial reference to her as a material witness, and (iv) McLarty’s attempts to interview her prior to trial, fulfills the purpose of the witness list rule in that McLarty could not have been surprised by her appearance as a witness. … McLarty’s inaccurate remark in his opening statement that she would not be testifying was either a tactical ploy or an unjustified assumption. See Redmond, 252 Ga. at 142(2), 312 S.E.2d 315.” Even if defense had been unaware, circumstances would have provided good cause for court to allow testimony, as witness only agreed to testify for State the night before her testimony, and counsel had opportunity to interview before cross-examining. Accord, Wilkins v. State , 291 Ga. 483, 731 S.E.2d 346 (September 10, 2012). Thompson v. State, 237 Ga.App. 91, 514 S.E.2d 870 (March 17, 1999). Trial court properly allowed State to call rebuttal witnesses who were not on witness list: “the prosecutor stated for the record that he did not know the rebuttal witnesses existed until the day before they were called to testify, and that he decided to use them based only on his presumption that Thompson would testify. … The record does not affirmatively establish that the state withheld the identity of witnesses important to the state’s main case in order to lull Thompson into testifying or to deny him the opportunity of preparing a defense relative to such testimony.” Distinguishing Allison v. State, 256 Ga. 851, 853(8), 353 S.E.2d 805 (1987): “In Allison, the Supreme Court reversed the defendant’s child molestation conviction because the state called three expert witnesses in rebuttal whose names had not been provided to the defendant. The Supreme Court found that these witnesses ‘were an important part of the state’s main case, rather than true rebuttal witnesses.’ Id. at 854, 353 S.E.2d 805. It also found that the state had anticipated the defendant’s testimony and, because of this, had engaged in ‘precisely the type of prosecutorial conduct that OCGA § 17-7-110 is designed to prohibit.’ Id. The anticipation of the defendant’s testimony, however, was not the controlling factor in Allison. Rather, the case was reversed because the state purposefully withheld the identity of these important witnesses and thereby effectively deprived the defendant ‘of the opportunity to prepare a defense relative to their testimony .’ Id. at 853(8), 353 S.E.2d 805.” Accord, In re: I.M.W. , 313 Ga.App. 624, 722 S.E.2d 586 (January 20, 2012) (“Whether to allow an unidentified rebuttal witness to testify is a decision within the trial court's discretion.”). Speed v. State, 270 Ga. 688, 512 S.E.2d 896 (March 1, 1999). During sentencing phase of defendant’s death penalty trial, defendant presented witnesses who testified that defendant “was a quiet, nonviolent inmate who did not cause problems. The state presented four rebuttal witnesses, all jailers, who testified about several disruptive incidents, including a fight, that Speed had been involved in awaiting trial. Speed complains that the state did not provide notice of these witnesses under OCGA § 17-10-2(a), but Speed’s cross-examination of the rebuttal witnesses shows that his lawyer was aware of these witnesses and the incidents about which they testified. Since the four witnesses were presented as rebuttal witnesses, and Speed had some notice of their testimony, we find no error. See Hill v. State, 263 Ga. 37, 44(15), 427 S.E.2d 770 (1993).” EE. WITNESS TAMPERING See EVIDENCE – WITNESS TAMPERING, above
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