Lockhart v. State, 67307
| Decision Date | 06 February 1984 |
| Docket Number | No. 67307,67307 |
| Citation | 169 Ga.App. 931,315 S.E.2d 455 |
| Parties | LOCKHART et al. v. The STATE. |
| Court | Georgia Court of Appeals |
John W. Sheffield III, Americus, Randolph B. Jones, Jr., Roswell, for appellants.
John R. Parks, Dist. Atty., R. Rucker Smith, Asst. Dist. Atty., for appellee.
Appellants Sammy Lockhart and Billy Smith were convicted of burglary. They allege in their appeal that the trial court erred in allowing the admission of previous inconsistent statements made by a prosecution witness, and in failing to grant a mistrial when the assistant district attorney made improper remarks to the jury during closing argument. Also, appellants contend that a prosecution witness was intimidated by alleged prosecutorial misconduct.
1. A third participant in the burglary, Dennis Smith, pled guilty and was called by the prosecution to testify against appellants. When asked if the appellants had assisted him in the burglary, Smith apparently startled the assistant district attorney by answering, "No." At this point, the state, claiming surprise, requested that it be allowed to impeach its own witness. The trial court granted the state's request. We note, parenthetically, that it is no longer necessary to show surprise before a party is allowed to impeach his own witness. Davis v. State, 249 Ga. 309(3), 290 S.E.2d 273.
The state asked Smith whether he remembered making prior statements to a GBI agent and at the hearing of his guilty plea to the effect that the appellants were in fact participants in the burglary. Smith answered affirmatively and admitted that those statements were lies, but he maintained that he was now telling the truth. The state called to the stand the GBI agent who had taken Smith's statement and asked him to relate the content of Smith's prior assertion. The agent testified that Smith had implicated appellants as co-perpetrators of the burglary. The state was also allowed to play a tape recording of Smith's guilty plea wherein he testified under oath that appellants were involved in the burglary in question.
Appellants claim that since Smith admitted that he had made prior inconsistent statements, direct evidence of the statements was not admissible because impeachment of Smith's testimony was accomplished by his admission. As a result, appellants contend, the statements' admission into evidence would be only cumulative in nature and therefore unduly prejudicial to their case. Appellants base their argument on Pethel v. Waters, 220 Ga. 543(5), 140 S.E.2d 252, and its progeny. We agree that the court in Pethel correctly stated the general rule as it applied at the time the decision was written. However, the Supreme Court in Gibbons v. State, 248 Ga. 858, 862, 286 S.E.2d 717, ruled that evidence of a witness' prior inconsistent statement may now be admissible as substantive evidence of the prior statement's truthfulness and not just for the purpose of impeaching the witness. Therefore, even though a witness has admitted to making the prior inconsistent statement, evidence of those statements may still be admitted because the jury can now consider it as substantive evidence. Since impeachment is no longer the sole function of the prior inconsistent statements, their admission into evidence was neither cumulative in nature nor unduly prejudicial to appellants' case. It follows that the trial court correctly admitted the agent's testimony and the tape recording as substantive evidence. See Dexter v. State, 166 Ga.App. 226, 303 S.E.2d 765.
2. Appellants argue that the tape recording of Smith's guilty plea was inadmissible for the additional reasons that it was improperly authenticated and that the transcript of a guilty plea is per se inadmissible. Whatever merit, if any, these arguments may have is irrelevant because appellants failed to assert the above contentions at trial. ...
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James v. Wilson, 1999-CA-000787-MR.
...by a co-conspirator were admissible as substantive evidence when witness changed his story at trial.); and Lockhart v. State, 169 Ga.App. 931, 315 S.E.2d 455 (1984)(In a burglary case, a co-conspirator's prior inconsistent statement given to police as part of the investigation was admissibl......
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Hubbard v. State
...prior inconsistent statement made by witness Randall Andrews. Gibbons v. State, 248 Ga. 858, 862, 286 S.E.2d 717; Lockhart v. State, 169 Ga.App. 931, 932, 315 S.E.2d 455. See also Waldrup v. Baker, 180 Ga.App. 121, 348 S.E.2d 566. Defendant's first enumeration of error is without merit. 2. ......
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Waldrup v. Baker
...of the prior inconsistent statement, its admission into evidence is neither cumulative nor unduly prejudicial. Lockhart v. State, 169 Ga.App. 931(1), 315 S.E.2d 455 (1984). Similarly, prior consistent statements are now admissible as substantive evidence. Edwards v. State, supra; Cuzzort v.......
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Willingham v. State, A90A0383
...evidence which was probative of appellant's guilt. Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982); Lockhart v. State, 169 Ga.App. 931, 932(1), 315 S.E.2d 455 (1984). Although the evidence may not have shown appellant's active participation in all of the crimes that were attempted or c......