Sheppard v. State

684 S.E.2d 397 (2009) 300 Ga. App. 261

SHEPPARD
v.
The STATE.

No. A09A0993.

Court of Appeals of Georgia.

September 29, 2009.

McNeill Stokes, Atlanta, for appellant.

Fredric D. Bright, Dist. Atty., Dawn M. Baskin, Asst. Dist. Atty., for appellee.

ADAMS, Judge.

This is the second appearance of this case in the Court of Appeals. Myron Wendell Sheppard was convicted on two counts of child molestation and sentenced to twenty years with ten to serve. His motion for new trial was denied and he appealed. This Court held that the evidence was sufficient to support the convictions and that Sheppard had waived his assertions that the Georgia Child Hearsay Statute is unconstitutional in light of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and that the same statute was unconstitutionally applied in his case. Sheppard v. State, 294 Ga.App. 270, 271-272(1), (2), 669 S.E.2d 152 (2008).

Sheppard also asserted that "the trial court erred when it admitted similar transaction evidence without holding a Uniform Superior Court Rule 31.3(B) hearing pursuant to Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991)." Sheppard, 294 Ga. App. at 270, 669 S.E.2d 152. On that point, this Court vacated the trial court's judgment of conviction and remanded the case "with direction that it determine whether a Rule 31.3(B) hearing has already been held and, if not, to hold such a hearing." Id. at 273, 669 S.E.2d 152. On remand, the trial court determined that a proper hearing as required by Rule 31.3(B) had been held on June 14, 2004, and a transcript of that hearing has been provided to this Court. The trial court concluded that "the proffer made by the State's Attorney established the requirements for the admission of the similar transactions pursuant to Williams v. State . . . ." Accordingly, the court reinstated the judgment.

1. Sheppard contends the trial court erred because, at the hearing, the prosecutor only made a proffer of the similar transaction evidence rather than introducing the actual evidence of those events. Therefore, Sheppard contends, the State did not carry its burden of proof and, furthermore, he was deprived of an opportunity to confront and cross-examine the similar transaction witnesses. He argues that because he had no prior convictions associated with any of the alleged similar transactions and that the State did not have certified copies of prior convictions or pleas, the State was required to produce actual evidence of the prior occurrences at the Rule 31.3(B) hearing.

This Court has already addressed the question raised herein and held that where the defendant has the opportunity to cross-examine the relevant witnesses during trial, he or she has not been deprived of any substantial rights:

We have repeatedly approved of such a procedure; the question is "whether defendant was deprived of any substantial rights" by the proffer. (Emphasis omitted.) Houston v. State, 187 Ga.App. 335, 338(2), 370 S.E.2d 178 (1988); Harris v. State, 210 Ga.App. 366, 367(2), 436 S.E.2d 231 (1993). The recent decision of the United States Supreme Court limiting the hearsay exceptions to the Confrontation Clause to those "firmly rooted" in the common law do not persuade us otherwise, as the State introduced no hearsay evidence during trial, and Ellis had ample opportunity to cross-examine the similar transaction witness then. See Crawford v. Washington, 541 U.S. [at 41,] 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

Ellis v. State, 282 Ga.App. 17, 23-24(3)(b), 637 S.E.2d 729 (2006). See also Hinton v. State, 290 Ga.App. 479, 481(2), 659 S.E.2d 841 (2008). In this case, as Sheppard admits, the similar transaction witnesses testified and were, therefore, subject to cross-examination. We find no error.

2. Sheppard's next two enumerations are identical to the first two enumerations raised in his initial appeal, and this Court already has determined that those assertions of error have been waived. Sheppard, 294 Ga.App. at 271-272(2), 669 S.E.2d 152. Accordingly, they represent the law of the case. OCGA § 9-11-60(d).

Judgment affirmed.

BLACKBURN, P.J., and DOYLE, J., concur.