Hamilton v. State

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 3, 4, 5 and 6 of the majority opinion and all that is said therein. However, I must respectfully dissent as to Divisions 1 and 2 of the majority opinion as in my view the case sub judice should be affirmed in its entirety.

Defendant argues that the cross-examination of the victim as to her juvenile record was necessary to establish a motive, interest and bias of the victim to testify favorably for the State, in that such testimony also exonerated the victim from any wrongful conduct. According to defendant the victim fabricated her testimony due to concern that she would be “locked up” by the juvenile court.

The defendant may have been entitled to a reasonable cross-examination of the victim on this topic so that the trial court’s decision to cut off in limine all inquiry on the subject was error. See Hines v. State, 249 Ga. 257, 260 (290 SE2d 911). However, under the facts and circumstances of the case sub judice any such error by the trial court was harmless since during trial defendant was allowed to elicit cross-examination testimony from the victim which disclosed that she was on probation and refuted defendant’s hypothesis as to her motives. Contrary to defendant’s hypothesis (that the victim was motivated by a desire to avoid being “locked up” by the juvenile court), the victim testified on cross-examination that she had called her probation officer, after the events which gave rise to the charges against defendant, and requested that she be “locked up” to get her away from defendant. The victim’s testimony in this regard was corroborated by her probation officer. Thus, there was no impermissible restriction of defendant’s cross-examination and confrontation rights under the circumstances of the case sub judice. Williams v. State, 172 Ga. App. 87 (2) (322 SE2d 98).

Next, defendant contends that the trial court’s consideration of the State’s motion in limine predicated upon the rape shield statute was improperly handled in that the trial court failed to conduct an in camera hearing. See OCGA § 24-2-3 (c). “ ‘Before a trial court can be faulted for refusing an in-camera heating required by the Code, the court must be placed on notice as to the intent of the defense to seek to introduce such evidence, and the defense must specifically notify the court of the need for an in-camera hearing for its offer of proof.’ Tucker v. State, 173 Ga. App. 742, 744 (3) (327 SE2d 852). In the case *541sub judice, while defendant argued in opposition to the State’s motion at no time did he specifically notify the trial court of the need for an in-camera hearing for his offer of proof. Consequently, the record fails to show any prejudice to defendant from the grant of the State’s first motion in limine.” Evans v. State, 180 Ga. App. 1 (1) (348 SE2d 561). See also Tucker v. State, 173 Ga. App. 742, 744 (3) (327 SE2d 852).

Decided December 18, 1987 Rehearing dismissed January 14, 1988 William David Hentz, William R. Hill, Jr., for appellant. David L. Lomenick, Jr., District Attorney, James D. Franklin, Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge Banke and Judge Sognier join in this dissent.