Whether Ms. Wright's prior testimony "is admissible as a matter of Georgia evidence law, and whether it is admissible as a matter of federal constitutional law, are two distinct questions." Prater v. State, 148 Ga. App. 831, 834 (5) ( 253 SE2d 223) (1979) (citing California v. Green, 399 U. S. 149, 155 ( 90 SC 1930, 26 LE2d 489) (1970) for the proposition that, while hearsay rules and the Confrontation Clause are designed to protect similar values and may "overlap," they are not congruent). While Wright's testimony must pass both tests in order to be admissible, [i]n keeping with the well-established principle that this Court will not decide a constitutional question if the appeal can be decided upon other grounds [cit.], we first address the [evidentiary] issue[] raised by the appeal.
It was not an officially orchestrated identification procedure conducted by the police or the prosecutor for the primary purpose of identification. Prater v. State, 148 Ga. App. 831 (7) ( 253 S.E.2d 223); McClesky v. State, 245 Ga. 108, 110 ( 263 S.E.2d 146). Secondly, it apparently was an arraignment as counsel was present โ even though it was stated that she was "in-and-out" of the courtroom. It is highly probable that counsel was present when the judge called the defendant's name at arraignment.
There is no question under the Wade decision that the appellant was entitled to counsel at the pre-trial identification procedure which was arranged and conducted by the assistant district attorney in this case. The state cites Prater v. State, 148 Ga. App. 831 (7) ( 253 S.E.2d 223) (1979) as authority to the contrary; however, that case is clearly distinguishable on its facts. There, neither the police, the district attorney, nor any other law enforcement official took any part in arranging the setting for the pre-trial identification.
See generally Paul S. Milich, Georgia Rules of Evidence ยง 19.27 (1995); D. Lake Rumsey, Agnor's Georgia Evidence ยงยง 11-27 to 11-31 (3d ed. 1993).Prater v. State, 148 Ga. App. 831, 836 ( 253 S.E.2d 223) (1979); see Barnes v. State, 256 Ga. 370 ( 349 S.E.2d 387) (1986).Prater, 148 Ga. App. at 836-837.
Id. at 102. Accord, Woods v. State, 233 Ga. 495, 497, 498 ( 212 S.E.2d 322) (1975); Prater v. State, 148 Ga. App. 831, 833 ( 253 S.E.2d 223) (1979) (the defendant's character put in issue by reference to criminal reputation). Appellant relies on Boyd v. State, 146 Ga. App. 359 ( 246 S.E.2d 396) (1976) in which it was stated that "this court must go on record as opposing inadmissible testimony `volunteered' by people who should know better," the witness in that case being a law enforcement officer.
Hence, the parties and the issues both can properly be viewed as substantially the same wherever the party against whom the former testimony is now offered had the opportunity, at the former trial, to cross examine the witness fully as to the matter in issue at the second trial. [Cit.]" Prater v. State, 148 Ga. App. 831, 836 ( 253 S.E.2d 223) (1979). We believe that Prater states the outside limits of the concept of "substantially the same parties" as that phrase is used in Code Ann. ยง 38-314 and that the statute requires at the minimum that "the party against whom the former testimony is offered is the same . . . `[I]t is only the party against whom the former testimony is now offered, whose presence as a party in the previous suit is significant . . .' [Cit.] . . . `The sole question is whether [the party against whom the former testimony is now offered] had an adequate opportunity by cross-examination to sift this testimony . . .' [Cit.]" Prater, 148 Ga. App. at 836-837, supra.
As Barnes notes, this requirement often serves to ensure that the party against whom the testimony is offered "had an opportunity adequately to cross-examine the witness at the previous proceeding." Prater v. State, 148 Ga. App. 831, 836 ( 253 S.E.2d 223) (1979). However, where the issues and parties are identical, and the party against whom the testimony is offered called the witness to the stand at the previous hearing or trial, the need for cross-examination is basically satisfied, and the requirement is met.
LaCount v. State, 237 Ga. 181 (1) ( 227 S.E.2d 31) (1976); Rini v. State, 236 Ga. 715 (1)(a) ( 225 S.E.2d 234) (1976); Littles v. State, 236 Ga. 651 ( 224 S.E.2d 918) (1976). For an excellent discussion of the question see Judge Smith's opinion in the recent case of Prater v. State, 148 Ga. App. 831 (5) ( 253 S.E.2d 223) (1979). Appellant also urges that Dr. Sullenger was not qualified as an expert and for this reason the opinions given in his testimony should not have been allowed.
The sheriff's recounting of the victim's preliminary hearing testimony which had been given subject to cross examination by the defendant's attorney did not violate the defendant's right of confrontation. California v. Green, supra; Prater v. State, 148 Ga. App. 831 (5B) ( 253 S.E.2d 223) (1979). Judgment affirmed. All the Justices concur, except Hill, J., who dissents.
Therefore, no illegal post-indictment lineup occurred. See Prater v. State, 148 Ga. App. 831 ( 253 S.E.2d 223) (1979). Appellant argues further that the four witnesses viewing him in the jury box as he awaited trial along with police identification procedures impermissibly tainted the witnesses' in-court identification of the appellant.