Baine v. State , 181 Ga. App. 856 ( 1987 )

Banke, Presiding Judge,

concurring specially.

I concur in the affirmance of the appellant’s conviction; however, with respect to the introduction of the video tape, my concurrence is based on certain additional facts not set forth in the majority’s opinion.

From an examination of the colloquy between the trial court and defense counsel concerning the admissibility of the tape, it is apparent that it was the defense which desired to make an issue of the tape’s contents, albeit without actually permitting the jury to see and hear those contents. During the course of this colloquy, the trial court noted that in cross-examining the state’s witnesses defense counsel had established that it was shortly after the tape was played to the victims and their classmates at school that the victims came forth with the disclosures which resulted in this prosecution. The court further noted that in a previous trial of the case, which had resulted in a hung jury, the defense counsel had argued to the jury that these disclosures were based on the video tape presentation rather than on reality. Only after defense counsel, upon inquiry by the court, indicated that he intended to make this same argument in the present trial did the court rule that the state would be permitted to play certain portions of the tape to the jury. Because the issue of the tape’s contents was raised by the defense itself as an integral part of its case, and because the trial court specifically excluded those portions of the tape dealing with the veracity of child witnesses, I believe the court’s handling of the matter was eminently reasonable and correct.

Decided February 9, 1987 Rehearings denied February 24, 1987. Rickie L. Brown, William T. Elsey, for appellant. Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

I am authorized to state that Judge Sognier joins in this special concurrence.