Bradshaw v. State, No. 63478

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: POPE; DEEN, P. J., and SOGNIER
• Citation: 293 S.E.2d 360,162 Ga.App. 750
• Parties: BRADSHAW v. The STATE.
• Decision Date: 29 June 1982
• Docket Number: No. 63478

Page 360

293 S.E.2d 360 162 Ga.App. 750 BRADSHAW
v.
The STATE. No. 63478. Court of Appeals of Georgia. June 29, 1982.

Page 361

[162 Ga.App. 753] H. G. Bozeman, Dublin, for appellant.

Beverly B. Hayes, Dist. Atty., H. Jeff Lanier, Asst. Dist. Atty., Dublin, for appellee.

[162 Ga.App. 750] POPE, Judge.

Billy Ray Bradshaw was convicted of motor vehicle theft, arson in the second degree and burglary. He was sentenced as a recidivist and brings this appeal following the denial of his motion for new trial. Held :

1. The record shows that appellant and several members of his family were the subjects of a warrantless "mass arrest" conducted by the Laurens County Sheriff's Department. Appellant moved the trial court to suppress "... all evidence obtained from [him] or from parties arrested with [him] ... due to [their] illegal arrests and ... [their] being detained on illegal warrants..." The trial court granted the motion as to evidence obtained from appellant but denied it as to evidence obtained from the others. Appellant enumerates this ruling as error, contending that he had standing to object to evidence admitted against him which was derived from the illegal arrests of the others. This contention is without merit. The sanction for an illegal arrest is exclusion of the evidence obtained as a result of that arrest. Lackey v. State, 246 Ga. 331 (2), 271 S.E.2d 478 (1980); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, the exclusionary rule may be invoked only by those whose rights are infringed by the arrest itself and not by those who are merely aggrieved by the introduction

Page 362

of evidence so obtained. United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); see Gilbert v. State, 159 Ga.App. 326 (1), 283 S.E.2d 361 (1981).

2. During a break in the trial, a deputy sheriff asked one Rogers, a state's witness, whether Rogers would like to review again a written statement Rogers had made. Citing the sequestration rule of Code Ann. § 38-1703, appellant object to the admissibility of Rogers' testimony and then moved for a mistrial after the testimony had been admitted.

"The court shall take proper care to administer the law of sequestration, so far as is practicable and convenient. Any mere irregularity shall not exclude the witness... The particular circumstances of each case shall control, under the discretion of the court." Stuart v. State, 123 Ga.App. 311, 312, 180 S.E.2d 581 (1971). In our view, the trial court did not abuse its discretion in the case at bar. See Blanchard v. State, 247 Ga. 415 (1), 276 S.E.2d 593 (1981). [162 Ga.App. 751] Compare Rozier v. State, 124 Ga.App. 481 (2), 184 S.E.2d 203 (1971), wherein this court granted a new trial in part because there had been a conference between certain witnesses who had already testified, two witnesses who had not yet testified and the district attorney, at which conference testimony that had already been delivered was discussed.

3. The transcript shows that state's witness Rogers was unable to remember much of what had transpired on the night the subject crimes were alleged to have occurred. However, shortly after the night in question Rogers gave a statement to a deputy sheriff who reduced it to writing. The statement was admitted into evidence, read into the record, but not sent out with the jury. Appellant objected to the admission of this statement into evidence.

"A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he finally shall speak from his recollection thus refreshed, or shall be willing to swear positively from the paper." (Emphasis supplied.) Code Ann. § 38-1707. The district attorney questioned Rogers as follows: "Q. Mr. Rogers, did you have an opportunity to read that statement? A. Yes sir. Q. Do you recall the events ... as they are in that statement? A. No sir. Q. Was that statement true at the time that you made it? A. Yes sir. Q. Was it accurately reported when you made? A. Yes sir. Q. And did you sign it at the time it was made? A. Yes sir. Q. That is the statement that you...