☢ test - Í

Johnson v. State, 272 Ga. 468, 532 S.E.2d 377 (June 12, 2000). In murder prosecution, trial court erred by holding that OCGA § 17-16-5(a) requires defendant to reveal, as part of pre-trial discovery, the substance of his own testimony where he raises an alibi defense. “The term ‘witness,’ as it is used in OCGA § 17–16–5(a), is defined by OCGA § 17– 16–1(3). That subsection states that the term ‘“[w]itness” does not include the defendant.’ Thus, it is clear that the legislature intended that a defendant should not be treated as a witness under Code Chapter 17–16–1 et seq. For that reason, the trial court's ruling that OCGA § 17–16–5(a) requires Johnson to give notice to the State of any alibi testimony he might give at trial on his own behalf was erroneous and must be reversed. To the extent that Todd v. State, 230 Ga.App. 849, 498 S.E.2d 142 (1998), held that ‘when it is the defendant who will establish the alibi defense, he is a witness within the ambit of [OCGA § 17–16–5(a) ],’ it is hereby overruled.” Likewise, “a defendant is not required by OCGA § 17–16–5(a) to give notice to the State of the anticipated testimony of a witness who would testify merely that the defendant was not present at the crime scene at the relevant time, when such testimony will not also assert that the defendant was at a specified location other than the crime scene at the time of the crime.” White v. State, 271 Ga. 130, 518 S.E.2d 113 (May 3, 1999). Reversing 233 Ga.App. 24, 503 S.E.2d 26 (1998); where defense gives notice of alibi evidence pursuant to OCGA § 17-16-5(b), State can’t rest on general witness list but “‘shall serve upon the defendant ... a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses ... upon whom the state intends to rely to rebut the defendant’s evidence of alibi unless previously supplied.’ The use of the word ‘shall’ indicates clearly that the state is required to file a rebuttal to the defendant’s notification.” “The state contends that it satisfied its obligation under OCGA § 17-16-5 because it had previously supplied a list of witnesses and the rebuttal witnesses were named on that list. The statute, however, is concerned not with witnesses generally, but with witnesses who will testify regarding the alibi defense. Requiring specific disclosure of the witnesses upon whom the state will rely to rebut the alibi furthers the act’s purpose of preventing surprise and promoting fairness. Furthermore, a defendant who knows which witnesses will testify to rebut an alibi can more accurately assess the strength of his case prior to trial and may consider avoiding a trial through a plea bargain.” F. BATTERED PERSON SYNDROME See also EVIDENCE – BATTERED PERSON SYNDROME , below Johnson v. State, 283 Ga.App. 99, 640 S.E.2d 644 (December 1, 2006). Dicta: defendant, convicted as a party to the crime of rape of her daughter by a man living in her house, contends that her attorney should have raised battered woman syndrome as a defense. Court of Appeals finds no ineffective assistance because defendant never raised the defense with her attorney, but adds this comment: “assuming counsel had sought to present a battered woman’s syndrome defense, we question whether the trial court could have allowed it. Such a defense is a justification defense, in which the defendant admits the underlying conduct but seeks to explain it; See McBrayer v. State, 259 Ga. 513, 515(3)(c) (383 S.E.2d 879) (1989), yet Johnson denied knowing about the rapes and therefore denied participating in them. See Olarte v. State, 273 Ga.App. 96, 102(2)(e) (614 S.E.2d 213) (2005) (counsel was not ineffective for failing to present expert testimony that client suffered from PTSD and battered woman syndrome where client did not admit participation in crimes).” Bishop v. State, 271 Ga. 291, 519 S.E.2d 206 (July 6, 1999). At defendant’s felony murder trial, trial court properly declined defendant’s requested charge on battered person syndrome defense; defense must be raised by expert testimony. “Evidence of the battered person syndrome “is admissible to show ‘that the defendant had a mental state necessary for the defense of justification although the actual threat of harm does not immediately precede the homicide.’” (Emphasis supplied.) Smith v. State, [268 Ga. 196, 199, 486 S.E.2d 819 (1997)]. … The battered person syndrome is a ‘complex area of human response and behavior.’ Johnson v. State, 266 Ga. 624, 627(2), 469 S.E.2d 152 (1996). Therefore, expert testimony must be admitted because it supplies an interpretation of the facts which differs from the ordinary lay perception. Johnson v. State, supra at 626(2), 469 S.E.2d 152. An opinion regarding the battered person syndrome, like the child sexual abuse accommodation syndrome, can ‘only be based on something more than mere observation.’ Carr v. State, 267 Ga. 701, 703(1), 482 S.E.2d 314 (1997). Thus, a defendant who relies upon the battered person syndrome should have an expert witness describe the syndrome, apply that model to the facts shown by the evidence, and opine that the defendant falls within the profile. Johnson v. State, supra at 626(2), 469 S.E.2d 152; Sanders v. State, 251 Ga. 70, 74(3), 303 S.E.2d 13 (1983). To make a prima facie showing of self-defense based upon the battered person syndrome, a defendant should present the opinion testimony of an expert as well as independent testimony regarding the historical facts upon which the expert relies. Chapman v. State, 258 Ga. 214, 216(2), 367 S.E.2d 541 (1988). See also Mobley v. State, 269 Ga. 738, 740(1), 505 S.E.2d 722 (1998). Although Bishop offered testimony that the victim had shot him in the past, he presented no expert testimony whatsoever. Therefore, he failed to make a prima facie showing of the battered person syndrome, and the trial court correctly refused to give the requested instructions on that syndrome.”