Cobb v. State

Pope, Chief Judge,

concurring specially.

While I agree defendant’s conviction should be reversed I write separately because my analysis of this case differs from the majority opinion. I concur fully in Divisions 6 and 7 of the majority opinion.

1. Division 1 of this opinion highlights a problem with Court of Appeals Rule 11 (c). That rule provides: “All citations of cases, whenever and wherever they shall appear, shall be by name of the case as well as by volume and page of the Official Report (Harrison or Darby).” The rule does not instruct parties how they should cite to cases that do not yet appear in the Official Report. When a decision does not yet appear in the Official Report, parties should cite the decision as a slip opinion and include the case number and date of decision for easy reference by this court.

The State cited to the Fulton Daily Report for a decision issued in September 8, 1992. The State’s brief was filed on February 22, 1993. The Georgia Advance Sheets containing the decision in question was issued on January 28, 1993. Thus, the Official Report was available for this particular decision approximately one month before the State’s brief was filed.

2. As this court recently held in Riddle v. State, 208 Ga. App. 8 (430 SE2d 153) (1993), before any similar transaction evidence is admissible at trial a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). As the requisite hearing was not conducted in this case, it is not necessary to specifically address the other bases for excluding similar transaction evidence discussed in Divisions 3, 4 and 5 of the majority opinion.

3. I do not agree with the majority’s conclusion that the circumstances surrounding the alleged victim’s statement to her brother about what defendant did to her do not provide sufficient indicia of reliability for the statement to be admitted under the Child Hearsay *712Statute.

Decided July 8, 1993 — Reconsideration denied July 28, 1993 — Hatcher, Johnson & Meaney, James A. Meaney III, for appellant. Ralph L. Van Pelt, Jr., District Attorney, Mary Jane Palumbo, Melodie B. Swartzbaugh, Assistant District Attorneys, for appellee.