Allison v. State , 256 Ga. 851 ( 1987 )

Hunt, Justice

dissenting.

I respectfully dissent to the dicta in Division 6 of the opinion. In my view, the expert’s opinion — that the victim in this case had been abused — is admissible for the reasons set forth by a majority of this court in State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986).

I also dissent as to Division 8. I agree with the defendant’s contention that the state’s use of unlisted expert witnesses in rebuttal raises serious questions of fairness. Nonetheless, whether a witness may be offered in rebuttal lies within the sound discretion of the trial judge, and we have held on numerous occasions that calling an unlisted witness in rebuttal is not prohibited by OCGA § 17-7-110. Forney v. State, 255 Ga. 316, 317-318 (2) (338 SE2d 252) (1985); Gibbons v. State, 248 Ga. 858, 865 (286 SE2d 717) (1982).

Moreover, the underlying purpose of OCGA § 17-7-110 was satisfied by the trial court in this instance. The defendant was afforded an opportunity to interview the experts and to obtain experts on his behalf. He interviewed these experts but at no point requested a continuance in order to obtain expert testimony on behalf of the defendant. Under these circumstances, the state’s conduct does not reach the level of a deprivation of due process and should not, in my view, require a reversal.¹ Buie v. State, 254 Ga. 167, 168 (2) (326 SE2d 458) (1985); White v. State, 253 Ga. 106, 109 (3) (317 SE2d 196) (1984).

Decided March 17, 1987 Reconsideration denied April 1, 1987. William T. Hankins III, for appellant. Robert E. Wilson, District Attorney, J. Thomas Morgan III, Assistant District Attorney, for appellee.

I am authorized to state that Chief Justice Marshall joins in this dissent.

1 Requiring the state (or either party for that matter) to reveal on request the existence and identity of each expert connected with the case would solve this particular problem. An amendment to OCGA § 17-7-110 would be necessary.