Greenwood v. State
| Decision Date | 10 April 1992 |
| Docket Number | No. A92A0514,A92A0514 |
| Citation | 203 Ga.App. 901,418 S.E.2d 160 |
| Parties | GREENWOOD v. The STATE. |
| Court | Georgia Court of Appeals |
Frank J. Petrella, Atlanta, for appellant.
Roger G. Queen, Dist. Atty., J. Roger Thompson, Asst. Dist. Atty., for appellee.
Defendant Greenwood appeals his conviction of the offenses of criminal attempt to commit burglary, possession of tools for the commission of crime, and theft by receiving stolen property. Held:
1. Immediately prior to trial, Stevens, a co-indictee, was called to testify outside the presence of the jury in order that the trial court and counsel might determine whether he intended to testify in the case against defendant or to avail himself of the Fifth Amendment right not to incriminate himself. Stevens, who had been previously tried and convicted on the three counts of the indictment announced his intention to "plead the Fifth from here on." Over defendant's objection, the court then granted the State's motion for a grant of immunity from information received from such testimony and ordered Stevens to testify truthfully in defendant's trial.
When Stevens was called to testify at trial by the State, some doubt remained as to whether he would obey the trial court's order that he testify. In the absence of the jury, the prosecuting attorney attempted to elicit testimony from Stevens, who continued to insist that he was not going to testify. Stevens refused to comply with the order of the trial court to answer the questions put to him and was held to be in direct criminal contempt and punishment ordered, including incarceration and a fine. Nonetheless, no response to any substantive question was forthcoming following Stevens' statement of his name, age, and residence. Stevens also stated that he would not answer any of defense counsel's questions on cross-examination.
Over defendant's objections claiming a violation of his Fourth and Sixth Amendment rights, particularly his right to confront witnesses against him, the State was allowed to question Stevens before the jury. After stating his name and age before the jury, the following exchange occurred between Assistant District Attorney Thompson and Stevens: Subsequently, Stevens testified that he would not answer any questions posed by defense counsel on cross-examination.
Defendant moved for mistrial on the basis of the areas gone into by the prosecuting attorney's questions, the inferences which would arise therefrom with the jury, and the denial of cross-examination. The trial court denied the defendant's motion for mistrial and instructed the jury not to consider the testimony of Stevens in reaching a verdict.
On appeal, defendant relies upon the cases of Lingerfelt v. State, 235 Ga. 139, 218 S.E.2d 752 and Lawrence v. State, 257 Ga. 423, 360 S.E.2d 716. As in those cases, the trial court permitted the State to call a witness who had notified the court and counsel that he would not answer any question and ask leading questions, predicated on the witness' prior statements, which suggested the defendant's guilt of the crimes charged. Under the circumstances of those cases, the procedure whereby the prosecutor was allowed, in effect, to testify for the witness and circumvent meaningful cross-examination as to obvious inferences was soundly condemned. See Lawrence at p. 425 (fn. 3), 360 S.E.2d 716.
The issue before this Court is whether the holdings in Lingerfelt and Lawrence are applicable, or are they distinguishable as the State argues, due to the grant of immunity to the witness in the case sub judice. Since the witness' clearly stated refusal to testify was not altered by the grant of immunity, the trial court's order, or the adjudication of contempt, we fail to discern any manner in which the grant of immunity can be said to have altered the circumstances in ...
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...139, 218 S.E.2d 752 (1975) and Lawrence v. State, 257 Ga. 423, 424-425(3), 360 S.E.2d 716 (1987) and applied in Greenwood v. State, 203 Ga.App. 901-902(1), 418 S.E.2d 160 (1992), is as follows: When the witness manifests his intention to claim Fifth Amendment protection, the court must cond......
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...inferences, is clearly unacceptable and was harmful to the defendant." Id. at 425, fn. 3, 360 S.E.2d 716. In Greenwood v. State, 203 Ga.App. 901(1), 418 S.E.2d 160 (1992), our Court of Appeals applied the rationale of Lingerfelt II and Lawrence in circumstances almost identical to this appe......
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Alexander v. State
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...involves a grant of immunity under OCGA § 24-9-28(a). We note, although appellants do not, that the decision of Greenwood v. State, 203 Ga.App. 901, 418 S.E.2d 160 (1992), applied the rationale of Lingerfelt and its progeny to a case in which a witness refused to testify despite a grant of ......