Campbell v. State

• Decision Date: 25 April 1979
• Docket Number: No. 57082,57082
• Citation: Campbell v. State, 254 S.E.2d 389, 149 Ga.App. 299 (Ga. App. 1979)
• Parties: CAMPBELL v. The STATE.
• Court: Georgia Court of Appeals

Page 389

254 S.E.2d 389

149 Ga.App. 299

CAMPBELL v. The STATE.

No. 57082.

Court of Appeals of Georgia.

Argued Jan. 15, 1979.

Decided Feb. 15, 1979.

Rehearing Denied March 13, 1979.

Certiorari Denied April 25, 1979.

Eric G. Kocher, Waycross, for appellant.

Glenn Thomas, Jr., Dist. Atty., John J. Ossick, Jr., Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Willie J. Campbell was convicted of armed robbery and sentenced to serve ten years. Following the denial of his motion for a new trial, Campbell brought this appeal enumerating six alleged errors by the trial court, three dealing with evidentiary matters, two with the failure to furnish the defense with the addresses of the witnesses called by the state, and one dealing with the charge of the court. Held :

1. In his first two enumerations of error, Campbell complains that the trial court improperly curtailed appellant's attempts to impeach the co-accused who testified against Campbell. The co-accused had testified that he was not aware of the ramifications of a pretrial agreement in which the co-accused testified against Campbell in exchange for a recommendation by the state that the co-accused receive six years, with four to be served. In an attempt to impeach the witness and to show bias and motive, counsel for Campbell sought to inquire into the discussions between the co-accused and his counsel concerning the pre-trial negotiations, both in questions to the co-accused and his attorney. Neither the co-accused nor the counsel waived the privilege of the confidential communications.

The trial court did not err in denying Campbell the right to inquire into matters discussed between the co-accused and his counsel. Testimony of a client as to advice given to him by his counsel is incompetent and properly excluded. Communications between attorney and client, except in circumstances not here pertinent, are excluded as a matter of public policy, both in criminal and civil matters. Braxley v. State, 17 Ga.App. 196(14) at pp. 202-205, 86 S.E. 425. See Peek & Sullivan v. Boone, 90 Ga. 767, 17 S.E. 66; Security Life Ins. Co. v. Newsome, 122 Ga.App. 137, 140-141, 176 S.E.2d 463. This enumeration is without foundation.

2. Appellant bases his third enumeration of error on the trial court's refusal to allow what appeared upon its face to be hearsay testimony. Campbell urged the admission of the testimony, not for the truth of its contents, but to show that another witness for the state had uttered self-impeaching statements. Upon objection by the state that it would constitute hearsay, appellant did not pursue the matter but moved on to new areas of inquiry. At no time did counsel offer to show what the content of the proffered testimony might be. He now brings the refusal to permit the inquiry as an enumeration of error.

No matter how competent evidence might be, a new trial will not be granted merely because evidence has been excluded. It must appear that the excluded testimony was material and the substance of what the material evidence is must be called to the attention of the trial court at the time of its exclusion. Money v. State, 137 Ga.App. 779, 780, 224 S.E.2d 783. This enumeration presents nothing for review.

3. In his fourth and fifth enumerations of error, Campbell contends that it was error for the trial court to deny his motion to discover the addresses in addition to the names of the witnesses that had previously been furnished him by the state. Appellant premised this...