Gary v. State, 61031
| Decision Date | 19 December 1980 |
| Docket Number | No. 61031,61031 |
| Citation | 156 Ga.App. 856,275 S.E.2d 830 |
| Parties | GARY v. The STATE. |
| Court | Georgia Court of Appeals |
Harold E. Martin, Barnesville, for appellant.
Sharon Thames, Willis B. Sparks, III, Asst. Dist. Attys., for appellee.
The appellant was tried for burglary upon a joint indictment charging that he and Jimmy Glover unlawfully entered the New Directions Disco and Lounge with intent to commit a theft. He was originally tried in August 1979. A new trial was granted, and he was again tried and convicted in May of 1980. The principal enumerations of error concern the admissibility of the testimony of the co-defendant, Glover, who had previously pled guilty.
During the first trial the co-defendant was called as a witness for the state and gave testimony which was generally consistent with the appellant's defense that the two of them had seen two individuals running from the establishment, that the owner was an acquaintance of appellant, and that their presence there when apprehended was in the owner's interest. The state pled surprise and entrapment and was allowed to present as evidence two previous inculpatory statements of the witness, which implicated the appellant as a participant in the crime.
At the second trial, the state again called Glover as its witness; and when it appeared his testimony would be consistent with that given at the previous trial, the state again claimed entrapment and requested permission to cross examine its witness to reveal his previous inconsistent statements. This request was denied based on the trial court's observation that the state was on notice of the witness' earlier repudiation of statements helpful to the state's case, and thus that the plea of entrapment was not viable. Thereafter, the trial court stated that it would reconsider the state's request to impeach the witness depending upon the nature and extent of the testimony brought out by the appellant's counsel on his questioning of Glover. Appellant's counsel then conducted a lengthy cross examination of Glover, which brought out the version of the night's activities favorable to the appellant, and which was consistent with appellant's own testimony later in the trial. The state was then permitted over objection to examine the witness regarding his prior statements. The appellant contends that the trial court impermissibly limited his cross examination of Glover with the threat that the impeaching testimony would be allowed. Held :
1. Counsel for appellant was permitted an unfettered examination of the witness Glover, and in fact brought out all of the favorable testimony to his client which was presented at the first trial. What appellant characterizes as an attempt to inhibit his advocacy was merely a decision of the trial court to hold its ruling on the impeachment evidence in abeyance until a later time and had no apparent inhibitory effect on the cross examination. This enumeration of error is without merit.
2. Appellant next enumerates as error the admission over objection of Glover's testimony regarding his prior inconsistent statements.
The general rule is that "A party may not impeach a witness voluntarily called by him, except where he can show to the court that he had been entrapped by said witness by a previous contradictory statement." Code Ann. § 38-1801. The nature and extent of the surprise required have been the subject of scrutiny in recent decisions of both the Supreme Court and this court. See Wilson v. State, 235 Ga. 470(1), 219 S.E.2d 756 (1975), and Wofford v. State, 152 Ga.App. 739(1), 263 S.E.2d 707 (1979). In the case before us, the appellant clearly adopted the witness as his own, and the evidence of contradictory statements was admissible for the purpose of impeachment. ...
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Foster v. State
...136 Ga.App. 917(1), 222 S.E.2d 686 (1975); Neal v. State, 160 Ga.App. 834, 837(3), 288 S.E.2d 241 (1982). Compare Gary v. State, 156 Ga.App. 856, 858(3), 275 S.E.2d 830 (1980) (Evidence of guilty plea admissible on credibility of testifying co-indictee). But see Golden v. State, 163 Ga.App.......
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Golden v. State, 63981
...523, 524(3), 216 S.E.2d 819 (1975); Rice v. State, 159 Ga.App. 641, 642(3), 284 S.E.2d 657 (1981). The decision of Gary v. State, 156 Ga.App. 856(3), 275 S.E.2d 830 (1980) relied upon by appellant is distinguishable on its facts inasmuch as it deals with the trial court's submission to the ......
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Conyers v. State
...§ 38-1803. Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975); Wisdom v. State, 234 Ga. 650, 217 S.E.2d 244 (1975); Gary v. State, 156 Ga.App. 856, 275 S.E.2d 830 (1980)." Foster v. State, 248 Ga. 409, 410 (283 S.E.2d 873) Witness Parks' statement to the police was to the effect that, afte......
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Foster v. State
...§ 38-1803. Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975); Wisdom v. State, 234 Ga. 650, 217 S.E.2d 244 (1975); Gary v. State, 156 Ga.App. 856, 275 S.E.2d 830 (1980). The hearsay testimony of the G.B.I. agent as to McKinney's prior statements was not harmful to appellant because the co......