Mitchell v. State

• Decision Date: 05 September 1996
• Docket Number: No. A96A0956,A96A0956
• Citation: 222 Ga.App. 878,476 S.E.2d 604
• Parties: MITCHELL v. The STATE.
• Court: Georgia Court of Appeals

Page 604

476 S.E.2d 604

222 Ga.App. 878

MITCHELL v. The STATE.

No. A96A0956.

Court of Appeals of Georgia.

Sept. 5, 1996.

Reconsideration Denied Sept. 25, 1996.

Word & Mitchell, Gerald P. Word, Carrollton, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, and Kevin W. Drummond, Assistant District Attorneys, for appellee.

JOHNSON, Judge.

Louise Dallas Mitchell was convicted of one count of violating the Georgia Controlled Substances Act. She appeals the denial of her motion for new trial. We affirm.

1. Mitchell challenges the sufficiency of the evidence to sustain her conviction. "On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court ... does not weigh the evidence or determine witness credibility." (Citation and punctuation omitted.) Powell v. State, 218 Ga.App. 556, 462 S.E.2d 447 (1995). So viewed, the evidence shows that undercover agent Jerald Dalton of the Georgia Bureau of Investigation went to Mitchell's house, asked Mitchell to sell him some cocaine, and gave Mitchell $200. Mitchell then gave a quantity of crack cocaine to Dalton. After she was arrested and advised of her Miranda rights, Mitchell also signed a confession. This evidence is sufficient. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Williams v. State, 218 Ga.App. 571, 572(1), 462 S.E.2d 457 (1995).

2. Mitchell alleges that the trial court committed harmful error by allowing lead investigating officer James Perry to "violate the rule of sequestration." Before testimony began Mitchell's counsel asked that all witnesses, specifically including Perry, be sequestered, or that Perry be required to testify first if he was not sequestered. It is apparent from the colloquy between the court and defense counsel that Perry, as the lead investigating officer in the case, had remained in the courtroom to assist the prosecuting attorney during Mitchell's first trial, which had ended in a hung jury. In this first trial, Perry had testified after other State witnesses, and it is apparent that defense counsel and the court expected the prosecution to desire Perry to remain in the courtroom at counsel table to assist the prosecutor during the second trial also. The trial court denied the sequestration request as to Perry on the ground that Perry had already testified at the first trial and was therefore subject to impeachment if he changed his testimony. Perry was the second witness called by the State, was recalled for further testimony after Agent Dalton testified, and was called a third time after Mitchell testified. Mitchell objected to Perry's being recalled after Dalton's testimony, and the trial court overruled the objection.

OCGA § 24-9-61 provides: "[I]n all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. The court shall take proper care to effect this object as far as practicable and convenient, but no mere irregularity shall exclude a witness." However, "the trial court, in the exercise of its discretion, was authorized to permit the chief investigating officer to remain and assist in the orderly presentation of the State's case." Johnson v. State, 198 Ga.App. 316(4), 401 S.E.2d 331 (1991). The trial court did not abuse its discretion in allowing the lead investigator to remain in the courtroom.

Mitchell also argues that it was error to allow Perry to be recalled to testify multiple times. Pretermitting the question of whether Mitchell's enumeration of error was specific enough to raise this issue, the trial court has discretion to allow such repeated testimony by an unsequestered lead investigator. Dunbar v. State, 209 Ga.App. 97(1), 432 S.E.2d 829 (1993). We find no abuse of discretion here.

3. Mitchell also alleges error in the court's overruling of his objection to and motion to strike a comment by Agent Dalton which Mitchell contends impermissibly expressed Dalton's opinion that Mitchell was guilty. Dalton testified that he would not overstate his certainty in his eyewitness identification of Mitchell because "[m]y job is not to put innocent people in jail, only the people who commit these acts of crime."

"Ordinarily, a witness may not express his opinion as to an ultimate fact, because to do so would invade the province of the jury." Fordham v. State, 254 Ga. 59(4), 325 S.E.2d 755 (1985). When a witness states such an impermissible opinion, however, the error may be cured by appropriate remedial action of the trial court. See Grayer v. State, 181 Ga.App. 845, 846(1), 354 S.E.2d 191 (1987). Such an error may also be harmless where the evidence against the defendant is overwhelming, and the court instructs the jury that they alone are to decide the case's outcome. See Nolton v. State, 196 Ga.App. 690, 691-692(2), 396 S.E.2d 605 (1990).

In the case before us, any conclusion implied by Agent Dalton's comment was merely cumulative of the obvious import of his explicit and proper testimony, summarized in Division 1 above. Moreover, the court charged the jury on the presumption of innocence; the State's burden to prove guilt, including identity, beyond a reasonable doubt; the evaluation of identification testimony; the elements of the charged offense; and the jury's exclusive responsibility to decide guilt or innocence. Any error in overruling this objection was thus harmless because, like the erroneous admission of conclusory testimony in Carroll v. State, 185 Ga.App. 857, 858-859(1), 366 S.E.2d 232 (1988), "in the context of the other evidence it is highly probable that the error did not contribute to the judgment." (Citation and punctuation omitted.) Id. at 858, 366 S.E.2d 232. See generally Palmer v. State, 186 Ga.App. 892, 901(4), 369 S.E.2d 38 (1988).

Judgment affirmed.

McMURRAY, BIRDSONG and POPE, P.JJ., and ANDREWS and SMITH, JJ., concur.

BEASLEY, C.J., concurs specially.

BLACKBURN and RUFFIN, JJ., concur in part and dissent in part.

BEASLEY, Chief Judge, concurring specially.

I agree with the logic of the dissent, but we are governed by Chastain v. State, 255 Ga. 723, 724(2), 342 S.E.2d 678 (1986), which derives from earlier cases cited therein. See, in addition, Norman v. State, 255 Ga. 313, 316(3), 338 S.E.2d 249 (1986); Davis v. State, 242 Ga. 901, 903(3), 252 S.E.2d 443 (1979); Shaw v. State, 102 Ga. 660, 666(5), 29 S.E. 477 (1897); Keller v. State, 102 Ga. 506, 508(1), 31 S.E. 92 (1898).

The common law, and now statutory, right of sequestration is "a substantial and positive right." Poultryland v. Anderson, 200 Ga. 549, 562(2), 37 S.E.2d 785 (1946). The object of the rule is "to prevent one witness from being taught by another as to the testimony he should give." Id. at 561-562(2), 37 S.E.2d 785. It serves the truth-finding process by recognizing that witnesses are subject to being even subconsciously influenced by what another testifies under oath. The rule prevents an innocent shading as well as a deliberate falsification of testimony based on another's testimony. See also O'Kelley v. State, 175 Ga.App. 503, 504(1), 333 S.E.2d 838 (1985). Poultryland illustrates its application in civil cases; its application in criminal cases such as this one is even more critical because upon its proper application depends a person's liberty.

As recognized by the dissent, the trial court may permit a witness to remain in the courtroom to advise the non-objecting party in the presentation of its case. Poultryland, supra. In this instance, the nature of the unsequestered witness's testimony was not directly the alleged transaction. The witness was not a witness to it or involved in it. His testimony related instead to Mitchell's inculpatory statement, which he obtained when she was arrested two months after the event and brought to the police station. The statement itself did not constitute a confession as to the particular sale charged but rather is constituted simply of defendant's signature below the handwritten notation of the officer "Admits having sold cocaine before, but says it wasn't hers."

Identity of Mitchell as the seller of cocaine to Agent Dalton, who saw the seller only on that one brief occasion, was the primary issue in the case, and there was conflicting evidence such as the description of the seller and of the house where the transaction occurred. The court did not specifically instruct the jury to consider the effect of witness Perry's hearing of others' testimony on weight and credit of that witness's own testimony. See Johnson v. State, 258 Ga. 856, 857(4), 376 S.E.2d 356 (1989), which recognizes the ameliorative effect of such a charge.

Although the record does not reveal the cause of the first mistrial, it does reflect that the jury at this second trial deliberated nearly four and one-half hours before reaching a verdict of guilty. Thus it is evident that the jury did not easily reach its verdict despite the trial being short. I find no clues which would lead to the conclusion that the non-sequestration was harmless. Denial of the right conferred by statute is "presumptively injurious." Hall v. Hall, 220 Ga. 677, 679(1), 141 S.E.2d 400 (1965). Compare Johnson, supra at 857(4), 376 S.E.2d 356 (1989).

Nevertheless, we must defer to the trial court's discretionary allowance. Although no "proper foundation for an exception to the sequestration rule" was expressly laid by the State, see Davis, supra at 904, 252 S.E.2d 443, and Norman, supra at 316, 338 S.E.2d 249, Chastain did not require it. It was enough in Chastain that the witness was the prosecutor, and Perry was identified as the prosecutor on the indictment. If a reason must be shown as well, we must assume that the court, which was aware of the prior trial, regarded the same basis as existing again, that the witness was needed to assist in the orderly presentation of the State's case.

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