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PRICE v. STATE10/15/1996
Charles Price appeals the judgment of conviction entered upon a jury's verdict finding him guilty of three counts of aggravated child molestation and two counts of child molestation for acts committed
upon his six-year-old niece and eight-year-old nephew. He also appeals from the denial of his motion for new trial.
1. Price contends that he was denied due process because no arraignment was held. However, the record shows that Price and his attorney signed a not guilty plea and specifically waived formal arraignment in February 1992. Price does not deny signing the waiver. He simply asserts on appeal that he did not sign the form until January 1993, just before closing arguments. Assuming that Price did sign the waiver and plea during rather than before trial, he has failed to show any harm resulting from the procedure. Moreover, Price voiced no objection at trial either to signing the waiver during trial, or to the fact that no formal arraignment had been held. Therefore, his right to a formal arraignment was waived on that basis as well. See Frazier v. State, 204 Ga. App. 795 (420 S.E.2d 824) (1992).
2. Price complains that he was denied due process because some jurors slept during the trial. There is nothing in the trial transcript indicating that any jurors were sleeping during the proceedings. Even assuming that they were, however, it does not appear that such a matter was brought to the attention of the trial court. "The defendant must bring the misconduct of the jury to the knowledge of the court, if known; and if not brought when known, it will be held in contemplation of the law to have been waived." (Citations and punctuation omitted.) Hand v. State, 205 Ga. App. 467, 468 (1) (422 S.E.2d 316) (1992).
3. Price's complaint that his trial counsel was denied adequate time to investigate newly-discovered evidence is without merit. At issue is a note written by a DFACS caseworker which the prosecutor showed defense counsel during the trial. This note said the female victim claimed to have an imaginary twin sister and that the sexual acts were committed upon this imaginary twin. Upon seeing the note, defense counsel requested a continuance in order to interview the caseworker who authored it. The court denied the request for a continuance, but ordered a recess so that counsel could interview the caseworker that afternoon. Allowing defense counsel an opportunity to interview the newly-discovered witness is a procedure which is permitted as an alternative to a continuance. Lakes v. State, 244 Ga. 217 (259 S.E.2d 469) (1979). At the hearing on the motion for new trial, defense counsel testified that he did in fact interview the caseworker during the recess,
but did not find the information obtained to be significant and therefore needed no additional time to investigate it. Thus, Price was not harmed by the denial of his motion for a continuance. We find no abuse of discretion. See Id. at 218.
4. Price argues that the indictment was defective because it failed to state with sufficient certainty the date of the offenses. The indictment alleged that the offenses occurred between September 1, 1990 and June 12, 1991. This was sufficient because specific dates are alleged and, "in any event, the State was not limited to proving that the offense[s were] committed only on a specific date alleged. (Cits.)" Murphy v. State, 195 Ga. App. 878 (1) (395 S.E.2d 76) (1990). " here the exact date is not stated as a material allegation of the time of the commission of the offense in the indictment, it may be proved as of any time within the statute of limitations. An exception exists where the evidence of the state proving that the offense was committed at a time
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