Lively v. State

• Decision Date: 08 June 1976
• Docket Number: No. 30986,30986
• Parties: James Lewis LIVELY v. The STATE.
• Court: Georgia Supreme Court

Page 581

226 S.E.2d 581

237 Ga. 35

James Lewis LIVELY v. The STATE.

No. 30986.

Supreme Court of Georgia.

June 8, 1976.

Horace T. Clary, Jim M. Foss, Rome, for appellant.

F. Larry Salmon, Dist. Atty., Rome, Arthur K. Bolton, Atty. Gen., James L. Mackay, Staff Asst. Atty. Gen., Atlanta, for appellee.

HALL, Justice.

Lively appeals from a conviction of murder and sentence of life imprisonment.

At the trial, the State called as a witness Browning, an accomplice who had been separately indicted and separately tried. Browning was asked, 'Where were you and who were you with on the evening of Saturday, March 8, 1975.' He replied, 'I was with Louis Lively at Buck's Liquor Store.' (The murder occurred on that date at the named location). Following this question and answer, Browning refused to answer any further questions claiming his Fifth Amendment privilege against self-incrimination. Lively's counsel attempted to cross-examine him and he refused to answer on the self-incrimination ground. Counsel then moved to strike his testimony. The trial court ruled that Browning, by electing to testify at his own (prior) trial, had waived the privilege against self-incrimination as to this subject. The court instructed the witness that he should answer the defense counsel's question. The witness said, 'Yes sir. Okay.' The court then instructed the defense counsel to proceed with his cross-examination. The defense counsel expressly declined to question the witness. The court again requested defense counsel to proceed with the questions. Defense counsel again declined stating he disagreed with the court's ruling and that cross-examination would be detrimental to his client. We find no harmful error in the trial court's refusal to strike Browning's testimony from the record. By refusing to crss-examine, defense counsel waived any right to object based on a denial of cross-examination.

Appellant also enumerates error on the part of the trial court in ruling that Browning had waived his right to remain silent by electing to testify at his own trial; but this contention is without merit. The privilege against self-incrimination is that of the person under examination as a witness and his intended for his protection only; the defendant on trial has no standing to raise this issue. United States v. Mayes, 512 F.2d 637 (6th Cir. 1975); United States v. Zouras, 497 F.2d 1115 (7th Cir. 1974); United States v. Dowdy, 486 F.2d 1042 (5th Cir. 1973); United States v. Foster,478 F.2d 1001 (7th Cir. 1973); United States v. Skolek, 474 F.2d 582 (10th Cir. 1973); United States v. Howell, 470 F.2d 1064 (9th Cir. 1972); United States v. Goodwin, 470 F.2d 893 (5th Cir. 1972); United States v. Le Pera,443 F.2d 810 (9th Cir. 1971); United States v. Ceniceros, 427 F.2d 685 (9th Cir. 1970); Sharp v. United States, 410 F.2d 969 (5th Cir. 1969); Long v. United States, 124 U.S.App.D.C. 14, 360 F.2d 829 (1966); Hudson v. United States, 197 F.2d 845 (5th Cir. 1952); Beauvoir Club v. State,148 Ala. 643, 42 So. 1040 (1907); State v. Cassady, 67 Ariz. 48, 190 P.2d 501 (1948); State v. Snyder, 244 Iowa 1244, 59 N.W.2d 223 (1953); Samuel v. People, 164 Ill. 379, 45 N.E. 728 (1896); State v. Davis, 208 La. 954, 23 So.2d 801 (1945); State v. Marchese, 14 N.J. 16, 101 A.2d 13 (1953); State v. Britton, 27 Wash.2d 336, 178 P.2d 341 (1947); State v. Hanley,249 Wis. 399, 24 N.W.2d 683 (1946). See also 8 Wigmore on Evidence §§ 2196(2)(a); 2270 (McNaughton rev. 1961); McCormick on Evidencen, § 72 et seq. (1954).

We have carefully reviewed the evidence in this transcript and hold that the evidence supports the verdict.

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