O'Dillon v. State
| Decision Date | 27 February 1980 |
| Docket Number | No. 35646,35646 |
| Citation | 245 Ga. 342,265 S.E.2d 18 |
| Parties | O'DILLON v. The STATE. |
| Court | Georgia Supreme Court |
Cook, Noell, Bates & Warnes, Edward D. Tolley, Athens, for appellant.
Nat Hancock, Dist. Atty., Richard J. Burkett, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., for appellee.
O'Dillon was convicted of the murder-for-hire of Betty Parsons in Barrow County and sentenced to life imprisonment. He appeals, enumerating three errors. We affirm.
The facts upon which this appeal is based are fully set out in Gunter v. State, 243 Ga. 651, 256 S.E.2d 341 (1979).
1. The trial court did not abuse its discretion in permitting the sheriff, a state's witness, to remain in the courtroom upon its own motion after the sequestration rule was invoked and testify after eleven state's witnesses following timely objection by appellant.
Appellant invoked the "rule" at the commencement of trial and the state mentioned the sheriff would be a witness. 1 Before the district attorney could offer support for his request to except the sheriff, the court instructed the parties: "I'm going to require that the sheriff remain in the courtroom to assist the court and for security reasons." Appellant objected to the sheriff's presence after the district attorney confirmed he would use the sheriff as a witness and to the denial of his demand that the sheriff be required to testify first. These objections were overruled. The district attorney did not request the sheriff be permitted to testify later or offer any reason upon which the trial court could base its decision to overrule appellant's objection. 2 Following the testimony of eleven state's witnesses, the sheriff was called to the stand over objection that he had heard all the testimony of the previous witnesses and testified. Later, following testimony by the defendant from the stand in his own defense, the sheriff was recalled as a rebuttal witness.
Appellant argues that the sheriff's testimony as a "summarizing witness" and later as a "rebuttal witness" was inherently unfair as violative of the rule of sequestration and due process.
(a) The trial court did not abuse its discretion in permitting the sheriff to remain upon its own motion. The court's reasons for making the exception, i. e., to "assist the court and for security reasons," were sufficient to support a conclusion the judge exercised his discretion "to prevent the impairment of the efficiency of the court." Code Ann. § 38-1703; Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 (1946). Accord, Cornett v. State, 218 Ga. 405(2), 407, 128 S.E.2d 317 (1962); see also Askew v. State, 3 Ga.App. 79(3), 59 S.E. 311 (1907).
(b) Pretermitting the question of whether the court erred in permitting the sheriff to testify at a later time during the trial and to be used as a rebuttal witness, we conclude after a careful review of the evidence failure to have the sheriff testify first was harmless. We also find the evidence was sufficient to support a conclusion that a rational trier of fact could have found defendant guilty beyond a reasonable doubt of the murder-for-hire of Betty Parsons. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Wayne Self was approached by O'Dillon and Whitehead to procure a high-powered rifle for them to use in the murder. He called police instead. To obtain more explicit information about the identity of the proposed victim, police placed a "body-bug" on Self. No warrant was obtained to authorize the electronic surveillance. Twice, Self met with the co-conspirators but was unsuccessful in getting O'Dillon or Whitehead to name the victim. These conversations were transmitted to remote police officers and recorded portions of this evidence were introduced at trial.
Appellant complains this electronic surveillance constituted an illegal search and seizure in violation of the Fourth Amendment to the Federal Constitution and was not authorized under Code Ann. § 26-3001 et seq. He concedes the holdings in Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509 (1977); Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976); and Cross v. State, 128 Ga.App. 837, 198 S.E.2d 338 (1973), are contrary to his contentions, but he suggests we reconsider those decisions because they were "erroneously" based upon an incorrect interpretation of United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). We conclude White, supra, is properly applied in the cases, and we decline to reconsider them. 3
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