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Dixon v. State11/9/2001
admitting Dixon's statement. OCGA § 17-16-4 (a) (1) requires the state to disclose any "relevant . . . oral statement made by the defendant while in custody, whether or not in response to interrogation" no later than ten days prior to trial. OCGA § 17-16-6 provides:
If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may . . . upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed . . . or may enter such other order as it deems just under the circumstances.
In this case, Dixon failed to demonstrate that the state acted in bad faith in failing to comply with OCGA § 17-16-4 (a) (1). Therefore, the court did not err in refusing to exclude the newly discovered evidence. Bell v. State, 224 Ga. App. 191, 192 (480 SE2d 241) (1997) (court did not have authority to exclude defendant's incriminating statement to police officer because the defendant failed to show bad faith or prejudice). Furthermore, in Broomall v. State, 260 Ga. 220, 222 (2) (391 SE2d 918) (1990), the Supreme Court held that a trial court did not err in admitting an incriminating statement made to an insurance agent while the defendant was in custody, because the evidence was "newly discovered and was revealed as soon as practicable after its discovery."
The case sub judice is distinguishable from our decision in Marshall v. State, 230 Ga. App. 116 (495 SE2d 585) (1998). In Marshall, we held that a trial court erred in allowing the admission of an incriminating in-custody statement the defendant made to the detention technician who fingerprinted him. Despite the fact that the technician informed the prosecutor of the statement only ten minutes before the state sought to introduce it, we concluded that it was not newly discovered because evidence garnered by any law enforcement agency is deemed to be in the prosecution's possession from the time it is communicated. Id. at 118 (2). In the case sub judice, however, Dixon's statement was not made to a law enforcement officer; rather, it was made in the presence of another inmate who coincidentally happened to be the confidential informant involved in the investigation of Dixon. Furthermore, in Marshall the incriminating statement "provided the only direct evidence of [the defendant's] guilt." Id. at 119 (2). Here, there was substantial evidence of Dixon's guilt in the absence of his statement that Lane "busted him." Accordingly, the trial court did not err in admitting evidence of Dixon's statement.
4. Finally, Dixon argues that his indictment was defective because it failed to allege the county in which the offense was committed. This argument is without merit.
The indictment states the county of the offense, Gordon County, at the top of the document. In Thomas v. State, 71 Ga. 44 (1883), the Supreme Court held that when an indictment began "State of Georgia, Campbell County," and no other county was mentioned, a subsequent allegation in the indictment that the crime was committed in "the county aforesaid" sufficiently stated the venue. Similarly, the indictment in this case states that the offenses were committed in "the County aforesaid," clearly referring to Gordon County. Thus the indictment was not defective.
Judgment affirmed.
Blackburn, C. J., and Pope, P. J., concur.
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