O'Kelley v. State, 69900

• Decision Date: 17 June 1985
• Docket Number: No. 69900,69900
• Citation: 333 S.E.2d 838,175 Ga.App. 503
• Parties: O'KELLEY v. The STATE.
• Court: Georgia Court of Appeals

Page 838

333 S.E.2d 838

175 Ga.App. 503

O'KELLEY v. The STATE.

No. 69900.

Court of Appeals of Georgia.

June 17, 1985.

Rehearing Denied July 16, 1985.

Mark E. Layng, Steven A. Westby, Robert G. Fierer, Atlanta, for appellant.

Thomas C. Lawler, Dist. Atty., Stephen E. Franzen, Robert V. Rodatus, Daniel J. Porter, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

O'Kelley was charged, tried and convicted of three counts of child molestation, five counts of aggravated sodomy and one count of rape. He appeals from the judgments of conviction and the procedure employed in sentencing.

1. Appellant maintains that the court erred in instructing the jury that defense witnesses and the appellant had violated the rule of sequestration and that the jury should weigh that fact when evaluating the witnesses' (defendant's two children) credibility.

First of all, the judge's instruction, given in the course of the daughter's testimony, related only to her testimony and not that of the son. It was given after it was brought to light, during the court's inquiry of the witness in the absence of the jury, that she had talked to her father the night before about the proceedings of that day and that he had told her what had been testified to in court. As a result, she volunteered to come and testify in his behalf to challenge what had been said by a state's witness. The inquiry was made because her name had not been given when, at the beginning of the trial, the state invoked the rule of sequestration and ordered that the defense reveal its witnesses, presumably so they could be properly instructed by the court. Defendant's counsel said he had none. ¹ Thus there was no reason for the court to instruct defendant, or his daughter who was not even in court, that they should not discuss the case during any recess or overnight or at any other time until the evidence was concluded or the witness was excused from further appearance. So it should be of no surprise that defendant went home and had some discussion of his day's events with his sixteen-year-old daughter.

This apparently innocent relaying of information was the precise catalyst that brought the witness to court to testify otherwise and thus constituted the very evil which the law seeks to avoid by the rule of sequestration, i.e., one witness' testimony being colored by knowledge of another's. See, e.g., Lackey v. State, 246 Ga. 331, 334(5), 271 S.E.2d 478 (1980). The rule, of course, merely literally prohibits witnesses from being examined in the hearing of each other. OCGA § 24-9-61. Boyd v. State, 168 Ga.App. 246, 250(5), 308 S.E.2d 626 (1983). But obviously, if the purpose of the rule is to be adequately served, witnesses may not be told what prior witnesses have said either. Otherwise the same undesired influence can result to impurify their testimony and thereby render its credibility questionable. The clear import of the statute is to preserve the integrity of testimony, with the ultimate goal of arriving at the truth. Thus, "the rule extends to communications, direct and indirect, between witnesses outside the courtroom, ...." Lackey, supra 246 Ga. at 335, 271 S.E.2d 478. Consequently, when the rule is invoked, the court will usually, and should, instruct all witnesses not only to remain outside of the courtroom but also to not discuss the case with the other witnesses or parties until the evidence is concluded or both have been excused from further appearance. ² This would be a fulfillment of the facilitating portion of the statute, which commands: "The court shall take proper care to effect this object as far as practicable and convenient, ...." OCGA § 24-9-61. Of course, that was not done in this case because defendant presented the court with no witnesses to instruct, and there was no reason to instruct them.

When the court gave the now-challenged instruction to the jury, after bringing the jury back and just before the daughter's testimony continued, defendant failed to object. Although he asked to make a motion outside the presence of the jury, he agreed with the court's direction that it be reserved; he never articulated the motion or raised it again or perfected it in any way. Thus, he waived it. Where a defendant makes no motion for mistrial, either at the time of his objection or after the court's curative instruction, there is nothing for us to review. Miller v. State, 169 Ga.App. 668, 669(1), 314 S.E.2d 684 (1984); see also Williams v. State, 251 Ga. 749, 797(10), 312 S.E.2d 40 (1983).

What ends the matter, however, is that the court correctly instructed the jury that the overnight discussion could be taken by it in weighing her credibility. For even if there had been a violation of the rule of sequestration here, "[i]n criminal cases, the violation of the rule of sequestration of any witness either for the defense or for the prosecution goes to the credibility rather than to the admissibility of the witness' testimony. [Cits.]" Baughman v. State, 173 Ga.App. 426, 427(2), 326 S.E.2d 800 (1985). While the court probably should not have included in the instruction what amounted to testimony by it, i.e., a narrative of what the court had heard from this witness out of the jury's presence, no harm was done because the witness was later cross-examined on the subject before the jury. ³ Also, the court never stated to the jury that the rule of sequestration had been violated by defendant or by the witness and cast no aspersions of wilfulness or deliberateness against either of them. Although it referred to the "don't discuss outside" rule as being a part of the sequestration or "don't be here to hear" rule, that fine, technical legal dichotomy would be of no significance to the jury.

2. As his second enumeration of error, appellant argues that the trial court erred in failing to allow defense counsel to examine the shorthand notes of appellant's statements made during custodial interrogation.

Appellant asserts a violation of OCGA § 17-7-210, which provides in pertinent part that: "(a) At least ten days prior to the trial of the case, the defendant shall be entitled to have a copy of any statement given by him while in police custody.... (b) If the defendant's statement is oral or partially oral, the prosecution shall furnish, in writing, all relevant and material portions of the defendant's statement.... (d) If the defendant's statement is oral, no relevant and material (incriminating or inculpatory) portion of the statement of the defendant may be used against the defendant unless it has been previously furnished to the defendant, if a timely written request for a copy of the statement has been made by the defendant."

The intent is to preclude the state from ignoring the discovery rights of an accused and provides a penalty if the state ignores its responsibility. Upon proper demand, the state must provide defense counsel with a written summary of all relevant and material statements made by defendant while in custody. See Reed v State, 163 Ga.App. 364, 365(2), 295 S.E.2d 108 (1982).

During the trial of the instant case, it became known that certain oral statements made by appellant to a detective on the case were originally taken down in shorthand by the detective. In response to appellant's motion under OCGA § 17-7-210, inculpatory statements made to this detective were given to appellant. The detective testified that the statements given to the defense were exact quotes of all inculpatory statements made by appellant to the detective, not merely summaries of appellant's statements. There is nothing in the record to dispute that this was so. Nor was there any request by the defense for the court to make an in-camera inspection of the shorthand notes to see if they were accurately reproduced in the statements given to appellant. Appellant did not claim that there was any exculpatory material in the notes nor did he ask for an in-camera inspection to determine the presence of exculpatory material.

It is well established that there is no Georgia procedure requiring the district attorney to open his files to the accused, " 'nor is the accused entitled as a matter of right to receive copies of police reports and investigation reports made in the course of preparing the case against the [accused].' " Baker v. State, 245 Ga. 657, 661(3), 266 S.E.2d 477 (1980). Moreover, whether the statements contained inculpatory or exculpatory information, the appellant has made no showing that any refusal to supply him with the shorthand notes materially affected his case.

Appellant also argues that his lack of access to the shorthand notes violated his constitutional right of confrontation. His argument is unpersuasive.

The essential purpose of confrontation is cross-examination. Denson v. State, 150 Ga. 618, 622(4), 104 S.E. 780 (1920), appeal dismissed, 258 U.S. 608, 42 S.Ct. 316, 66 L.Ed. 788 (1922). Confrontation in a criminal trial means the right to ask questions and secure answers from the witness confronted. Lingerfelt v. State, 235 Ga. 139, 140, 218 S.E.2d 752 (1975). Here, appellant had the right and opportunity to ask questions and secure answers from the detective, the very preparer of the subject notes. The detective was cross-examined at length concerning her interview with the appellant, and the appellant, who testified, had the opportunity to testify as to his version of the interview with the detective. There was no violation of the appellant's right of confrontation.

3. Appellant alleges that the trial court erred when it "failed to exclude testimony relating to Appellant's thought processes offered by an unqualified lay witness."

During the trial Detective Rowden, an investigator of crimes against persons with the Gwinnett County Police Department who had arrested appellant on the charges of sexual abuse of his young stepdaughters, testified about her interview with O'Kelley. Rowden testified that while discussing the elder...