Bolar v. State
| Decision Date | 01 February 1995 |
| Docket Number | No. A94A2543,A94A2543 |
| Parties | BOLAR v. The STATE. |
| Court | Georgia Court of Appeals |
Peter D. Johnson, Augusta, for appellant.
Daniel J. Craig, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellee.
Earl A. Bolar appeals from his conviction of burglary of a convenience store.
The evidence construed in favor of the verdict shows the following. At approximately 12:45 a.m., a burglar alarm went off at an Amoco convenience store and a call went out over the police radio that a possible burglary was in progress. At the same time, officers patrolling the area saw Bolar and another individual, Charles A. Shine, running down a street two blocks from the store, each carrying a twelve-pack of beer. When the officers identified themselves and asked Bolar and Shine to stop, they dropped the beer and ran away from the officers. After a short pursuit, the officers caught Bolar and Shine and brought them back to the patrol car. When the officers retrieved the beer, they noticed both of the twelve-packs had a price sticker from the Amoco convenience store. Amoco's area supervisor identified the beer as that taken from her store. The officer who chased Bolar identified him and Shine on a surveillance video taken during the burglary of the convenience store.
1. Bolar contends the trial court erred in allowing Shine to testify as a witness for the State because Shine's name was not included on the list of witnesses prepared by the State pursuant to OCGA § 17-7-110. (Citations and punctuation omitted.) Graham v. State, 171 Ga.App. 242, 254(13), 319 S.E.2d 484 (1984). We note further that prior to trial, counsel for Bolar stated to the court that he and the State's attorney had a conversation during the past week "about what may be within the knowledge of Mr. Shine." "Such information reinforces the finding of lack of surprise on the part of [Bolar] at [Shine's] appearance at trial on behalf of the State." Id.
2. Bolar also contends the trial court erred in allowing the State's attorney to examine Shine after he invoked his Fifth Amendment right against self-incrimination.
Upon taking the witness stand, the following exchange took place between the State's attorney and Shine: At this point the State's attorney ceased his questioning, stated he had no further questions and Bolar's attorney stated he had no cross-examination. Bolar argues that by allowing the State's attorney to ask Shine the question regarding his presence at the convenience store, he inferred that Shine had broken into the store but was now refusing to identify his companion.
Bolar relies on Lingerfelt v. State, 235 Ga. 139, 218 S.E.2d 752 (1975), for the proposition that the trial court erred by not conducting a hearing to determine whether the testimony the State sought to elicit would incriminate Shine. However, "in Lingerfelt and its progeny the error harmful to the defendant occurred when the prosecutor continued to ask leading questions he knew the witness would not answer but that implicated the defendant in [the] wrongdoing." Parrott v. State, 206 Ga.App. 829, 832(2), 427 S.E.2d 276 (1992). (Emphasis supplied.) In the instant case, once it became clear that Shine was invoking his Fifth Amendment right, the State's attorney ceased his questioning. Had the State desired to continue with its examination of...
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Smith v. State
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Wilson v. State, A03A0900.
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