Hollis v. State, A89A0029
Decision Date | 27 April 1989 |
Docket Number | No. A89A0029,A89A0029 |
Citation | 191 Ga.App. 525,382 S.E.2d 145 |
Parties | HOLLIS v. The STATE. |
Court | Georgia Court of Appeals |
Scott Walters, Jr., East Point, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Carole E. Wall, Asst. Dist. Attys., for appellee.
Defendant filed this appeal after being convicted of robbery. Held :
1. Defendant first contends that there was an improper communication between the deputy sheriff, who was apparently acting as a bailiff, and the jury. During jury deliberations, Deputy Sheriff McIver gave to the court a note containing two questions by the jury. The note read as follows:
After the jury returned its verdict and before sentencing, the following colloquy transpired: From this record, defendant argues that it was inappropriate for the deputy sheriff to convey the message to the jury.
Mercer v. State, 169 Ga.App. 723, 728(6), 729, 314 S.E.2d 729. However, where the bailiff's communication with the jury is by leave of court, there is no presumption of harm absent a showing that the trial court abused its discretion in directing the bailiff. Recoba v. State, 179 Ga.App. 31, 32(3), 345 S.E.2d 81.
In the case sub judice, Deputy Sheriff McIver's contact with the jury was at the direction of the trial court, " Recoba v. State, 179 Ga.App. 31, 32(3), 345 S.E.2d 81, supra. Consequently, there remained no presumption of misconduct. Nonetheless, Deputy Sheriff McIver's communication with the jury was, in effect, a supplemental charge which should have been made in open court in the presence of defendant and his counsel. See Berryhill v. State, 235 Ga. 549, 554(12), 221 S.E.2d 185. However, " ' Recoba v. State, 179 Ga.App. 31, 32(3), 33, 345 S.E.2d 81, supra.
Under the circumstances of the case sub judice, we find no harmful error since there is nothing in the record to indicate that a timely objection was made to the trial court's procedure in responding to the jury's question; since both the State's attorney and defense counsel agreed as to what the response would be; and since the response was of a character which was unlikely to undermine the integrity of the jury's choice of verdict. See Nelson v. Smith, 228 Ga. 117, 118(2), 184 S.E.2d 150; Berryhill v. State, 235 Ga. 549, 554(12), 221 S.E.2d 185, supra, and Recoba v. State, 179 Ga.App. 31, 33(3), 34, 345 S.E.2d 81, supra.
2. In his second and third enumerations of error, defendant contends the trial court erred in permitting the testimony of a State's witness, Ms. Spence Williams.
(a) Defendant first argues that Ms. Williams' testimony should have been excluded because the State failed to accurately provide him with the witness' address as is required by Rule 30.3 of the Uniform Rules for the Superior Courts.
"Upon request of defense counsel, the district attorney shall furnish to defense counsel as an officer of the court, in confidence, the addresses and telephone numbers of the state's witnesses to the extent such are within the knowledge of the district attorney, unless for good cause the judge allows an exception to this requirement, in which event defense counsel shall be afforded an opportunity to interview such witnesses prior to the witness being called to testify." (Emphasis supplied.) Rule 30.3 of the Uniform Rules for the Superior Courts. 253 Ga. 801, 853. The purpose of this rule and Kickery v. State, 185 Ga.App. 274, 276(1), 363 S.E.2d 805.
In the case sub judice, the State's attorney stated that she provided defense counsel with the only address she had for Ms. Williams before trial. The State's attorney further stated that the address she provided defense counsel was the same address the State used to subpoena Ms. Williams for trial. Under these circumstances, we find no violation of Rule 30.3 of the Uniform Rules for the Superior Courts, supra, since the assistant district attorney provided defense counsel with the only address she had for Ms. Williams. However, assuming the contrary, we find no error in allowing Ms. Williams' testimony since the trial court provided defense counsel with an opportunity to interview Ms. Williams prior to the witness' testimony. White v. State, 253 Ga. 106, 109, 317 S.E.2d 196.
(b) Next, defendant contends Ms. Williams' testimony should have been excluded because the State's attorney prevented his attorney from conducting an effective interview of Ms. Williams prior to the witness' testimony.
The record shows that the State's attorney attended Ms. Williams during the interview period provided to defense counsel by the trial judge and that the State's attorney informed Ms. Williams that "if she wanted to talk to [defense counsel], she could, [but] if she didn't want to, she didn't have to." Ms....
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...in the presence of the defendant and defense counsel. See Morris v. State, supra, 257 Ga. 781(4), 364 S.E.2d 571; Hollis v. State, 191 Ga.App. 525(1), 382 S.E.2d 145 (1989). The very nature of the bailiff's position serves to heighten the prejudicial potential a bailiff's communication may ......
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