Opinion
77408.
DECIDED JANUARY 23, 1990.
Kidnapping. Fulton Superior Court. Before Judge Eldridge.
Herbert Shafer, for appellant.
Lewis R. Slaton, District Attorney, William Fincher, Joseph J. Drolet, R. Andrew Weathers, Assistant District Attorneys, for appellee.
In Johnson v. State, 190 Ga. App. 117 ( 378 S.E.2d 366), we affirmed the judgment of the Superior Court of Fulton County. The Supreme Court of Georgia granted certiorari and in Johnson v. State, 259 Ga. 403 ( 383 S.E.2d 118), considered "whether the law as set forth in Baxter v. State, 254 Ga. 538, 548 ( 331 S.E.2d 561) (1985) was violated when the trial court refused the appellant's motion to allow him to see writings that witnesses for the prosecution used to refresh their memories in the courtroom prior to testifying, but not while actually testifying."
In Division 1 of Johnson v. State, 190 Ga. App. 117, supra, relying on the whole court case of Miller v. State, 189 Ga. App. 587 (1) ( 376 S.E.2d 901), this Court held that since the victim-witness did not use the documents to refresh his recollection while he was on the witness stand but rather used the documents to refresh his recollection before testifying, defendant was not entitled to examine the documents used by the victim-witness. This Court additionally held in Division 1, supra, that "[i]nasmuch as the detective and the fingerprint examiner used documents to refresh their recollections as they were testifying, the trial court erred in refusing to grant defendant access to the documents. Baxter v. State, 254 Ga. 538, 548 (18), supra. However, upon viewing the entire record ... we find that, in all likelihood, the refusal to grant access to the documents used by the detective and the fingerprint examiner did not contribute to defendant's conviction, and therefore, was harmless error. Baxter v. State, 254 Ga. 538, 548, (18) supra." Johnson v. State, 190 Ga. App. 117 (1), 118, supra.
The Supreme Court of Georgia in Johnson v. State, 259 Ga. 403, 404 (2), 405, supra, held that "[i]n Baxter, supra, we held that a criminal defendant has the right, upon request, to examine documents used by witnesses to refresh their recollection. There has been some difficulty in trying to decide where to draw the line between access and non-access. There is confusion about whether the line should be drawn according to where a particular witness is physically located (i.e., on the witness stand, in the courtroom, etc.) or at some specified time relative to the witness (i.e., at the time the witness is testifying, immediately before the witness testifies, etc.). To resolve this, we will fix the right to examine such documents at the commencement of hearing or trial. Accordingly, if a witness uses documents to refresh memory after the inception of a hearing or trial, then during that hearing or trial, the cross-examiner is entitled to examine such documents. To the extent that Miller v. State, supra, conflicts with the above, it is overruled. The trial judge should have granted the appellant's motion to examine the documents; however, the error is not reversible. Our review of the evidence convinces us that it is highly probable that the error committed as a result of the denial of the motion did not contribute to the verdict and is, therefore, harmless. Johnson v. State, 238 Ga. 59, 61 ( 230 S.E.2d 869) (1976)."
While the Supreme Court of Georgia did not reverse defendant's conviction in the case sub judice, the Court did "reverse that part of the Court of Appeals' opinion that limited access to documents used `to refresh ... recollection while ... on the witness stand.' [Emphasis supplied.] Johnson v. State, 190 Ga. App., supra at p. 117." Johnson v. State, 259 Ga. 403, 404 (2), 405, supra.
The judgment of the Superior Court of Fulton County, as was previously affirmed by this Court in Johnson v. State, 190 Ga. App. 117, supra, must remain affirmed. Judgment affirmed. Pope and Beasley, JJ., concur.