Byrd v. State, 31392

• Decision Date: 20 October 1976
• Docket Number: No. 31392,31392
• Citation: 229 S.E.2d 631,237 Ga. 781
• Parties: Edward BYRD v. The STATE.
• Court: Georgia Supreme Court

Page 631

229 S.E.2d 631

237 Ga. 781

Edward BYRD v. The STATE.

No. 31392.

Supreme Court of Georgia.

Oct. 20, 1976.

Hendrix, Shea & Oldfield, John H. Oldfield, Jr., Savannah, for appellant.

Andrew J. Ryan, Jr., Dist. Atty., Joseph D. Newman, Asst. Dist. Atty., Savannah, Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Atlanta, for appellee.

HALL, Justice.

In 1975 in Chatham County, Byrd was convicted of rape and sentenced to 15 years imprisonment. This is his appeal.

1. Byrd's main contention is that the trial court erred with respect to the replaying to the jury of certain taped testimony after they had retired to deliberate. The jury asked to hear again a certain part of the prosecutrix' identification evidence. The transcript reveals the transaction as follows: 'Note: (the jury returned to the courtroom.) The Court: I understand you want to hear some of . . . (prosecutrix's) testimony, is that right? Juror: Yes, sir. The Court: She was on the stand for a little more than an hour, so if you will give me what part of that testimony you would like to hear, we will see if we can locate it here on the tape. What particular part? Was it cross-examination, or direct examination, or do you want to hear it all? Juror: No, we wanted to hear that part where she testified as to identifying the defendant. Where she first-gave us information that she identified the-The Court: Well, as I recall that was towards the first part of her testimony. All right, so we can start her testimony at the very beginning. Note: (Testimony of (prosecutrix) . . . played for the jury at their request.) Note: (The jury returned to the jury room.)'

Following the jury's departure, defense counsel moved the court to require that the prosecutrix' cross-examination also be replayed to the jury or alternatively that they be instructed to disregard what they had just reheard. The motion was denied, and error is enumerated on both of the court's actions in allowing replay of the direct examination and not of the cross-examination.

It has been recognized for more than 100 years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations. Allen v. State, 187 Ga. 178, 183, 200 S.E. 109 (1938); Green v. State, 122 Ga. 169, 50 S.E. 53 (1905); Green v. State, 43 Ga. 368, 373 (1871). "A trial judge may, in his discretion, on request from the jury, recall a witness and allow him to restate what he swore when he was previously on the stand, or he may require the official court stenographer to read the testimony of a witness. (Cits.)" Person v. State, 235 Ga. 814, 816, 221 S.E.2d 587, 588 (1976). The court may also, in its discretion, refuse such a request. Compton v. State, 179 Ga. 560, 176 S.E. 764 (1934); Hill v. State, 114 Ga.App. 527, 151 S.E.2d 818 (1966).

Thus, plainly the trial court did not err in allowing the jury to hear a playback of the requested portion of her testimony.

The further question raised by appellant is whether defense counsel's request for a replay of the witness' cross-examination should have been granted although the jury specifically indicated no desire to hear cross-examination. On the facts here, as answer this question no.

Our previous decision have indicated, and we now make plain, that the jury should be permitted to limit...