Pinckney v. State, A98A1992.
| Decision Date | 22 January 1999 |
| Docket Number | No. A98A1992.,A98A1992. |
| Citation | 510 S.E.2d 923,236 Ga. App. 74 |
| Parties | PINCKNEY v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Bruce S. Harvey, Atlanta, for appellant.
J. Tom Morgan, District Attorney, Robert M. Coker, Keith A. Carnesale, Assistant District Attorneys, for appellee. JOHNSON, Chief Judge.
A jury found Antone Pinckney guilty of one count of armed robbery and two counts of aggravated assault. He appeals from the convictions and the denial of his motion for new trial.
1. Pinckney contends the trial court erred in allowing the state to introduce evidence that his co-indictee pled guilty to the crimes. We agree that the trial court erred in admitting the evidence, reverse the convictions, and remand the case for a new trial.
Pinckney and Eric Overton were arrested together in connection with the armed robbery of a grocery store and the aggravated assaults of store customers and employees. The two men were jointly indicted and, before trial, Overton pled guilty to one count of armed robbery and five counts of aggravated assault. At trial, outside the presence of the jury, the state put Overton on the stand in order to see what his testimony would be, since he had indicated that he was not going to say anything if called as a witness in Pinckney's trial.
While on the stand outside of the jury's presence, Overton admitted that he pled guilty to armed robbery and aggravated assault, but otherwise refused to answer any questions about the crimes. The trial court instructed Overton that because he pled guilty to the offenses, he no longer had any right against self-incrimination regarding the crimes. The trial court ordered Overton to testify and informed him he could be held in contempt if he refused to answer the questions. Overton reiterated that he would not testify. The prosecutor informed the court that he would nonetheless call Overton as a witness.
When the jury returned, the prosecutor called Overton to the stand and asked him whether he pled guilty to the crimes charged in the indictment "that charged both you and Antone Pinckney with those offenses." Overton responded that he did, but added that he was only talking about himself and no one else. The prosecutor then asked Overton what he was wearing at the time he committed the crimes and whether Pinckney was with him at the time he was arrested for the crimes. Overton refused to answer these questions and gave no other testimony.
In general, a guilty plea of a joint offender is not admissible in evidence at the trial of another joint offender. See Hendrix v. State, 202 Ga.App. 54, 55(4), 413 S.E.2d 232 (1991), overruled on other grounds, Duke v. State, 205 Ga.App. 689, 690, 423 S.E.2d 427 (1992); Neal v. State, 160 Ga.App. 834, 837(3), 288 S.E.2d 241 (1982). See generally OCGA § 24-3-52. This rule does not apply where the joint offender is present at trial and testifies as a witness subject to cross-examination. See Brown v. State, 132 Ga. App. 200(2), 207 S.E.2d 682 (1974); Mindock v. State, 187 Ga.App. 508(2), 370 S.E.2d 670 (1988) (physical precedent only). Nor does it apply where the joint offender's guilty plea is admitted with instructions that it not be used as evidence of the defendant's guilt. See Hendrix, supra; Greer v. State, 188 Ga.App. 808(1), 374 S.E.2d 337 (1988).
Although Overton briefly took the stand as a witness for the state, the trial court did not allow Pinckney to conduct any cross-examination of Overton. Thus, the testimony here did not come within the first exception. We note that the testimony Overton did give only concerned the guilty plea. Had he testified about relevant matters besides the plea, and had he been subject to cross-examination, his credibility could have been challenged and the danger of prejudice would not be so great. See James v. State, 196 Ga.App. 569, 570, 396 S.E.2d 306 (1990).
Furthermore, the trial court in this case gave no limiting instruction at the time the testimony was given and during the charge instructed the jury that it was not required to use the fact that the co-indictee pled guilty against Pinckney. That is not the same as instructing the jury that the testimony cannot be used as substantive evidence of Pinckney's guilt. See...
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Paige v. United States
...purpose, reversible error where trial court failed to give a cautionary instruction as to that limited purpose); Pinckney v. State, 236 Ga.App. 74, 510 S.E.2d 923, 924 (1999) (guilty plea of joint offender admissible only where joint offender is present at trial and subject to cross-examina......
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...offender's guilty plea [was] admitted with instructions that it not be used as evidence of the defendant's guilt.Pinckney v. State, 236 Ga.App. 74, 74–5, 510 S.E.2d 923 (1999). However, Bennett was tried in 2013, after the effective date of Georgia's new Evidence Code. See Ga. L. 2011, pp. ......
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Verdree v. State, A09A1402.
...plea or conviction of a joint offender is not admissible in evidence at the trial of another joint offender. Pinckney v. State, 236 Ga.App. 74, 74-75(1), 510 S.E.2d 923 (1999). "This rule does not apply where the joint offender is present at trial and testifies as a witness subject to cross......
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