Rozier v. State
| Citation | 184 S.E.2d 203,124 Ga.App. 481 |
| Decision Date | 09 September 1971 |
| Docket Number | No. 46370,No. 2,46370,2 |
| Parties | Lloyd E. ROZIER v. The STATE |
| Court | United States Court of Appeals (Georgia) |
Edwin M. Saginar, Paul L. Wayman, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Carter Goode, Thomas W. Hayes, Joel M. Feldman, Atlanta, for appellee.
Syllabus Opinion by the Court
The defendant was indicted and tried for the offense of burglary. He was convicted of an attempt to commit burglary and sentenced to serve a term of 10 years, the last three to be suspended. A motion for new trial was filed, thereafter amended, heard and overruled. The appeal is from the judgment of conviction and sentence. Error is enumerated as to: (1) the denial of a motion for mistrial, (2) the allowance of certain testimony of officers who allegedly violated the rule of sequestration, (3) the denial of a thorough and sifting crossexamination of a witness, (4) the insufficiency of the evidence to convict, and (5) the overruling of the motion for new trial as amended which incorporates each of the above specifications of error. Held:
1. On direct examination the State's attorney asked the witness this question: 'Any particular reason why they have burglar alarms?' to which the witness answered, 'A lot of robberies have been going on around there.' The court immediately took action by stating, Thereafter, counsel for defendant made a motion for mistrial, which was denied. The court in the exercise of its broad discretion quickly acted to remedy the error, if any. See Manchester v. State, 171 Ga. 121, 132, 155 S.E. 11; Johnson v. State, 209 Ga. 333(6), 72 S.E.2d 291. However, we find no error in this complaint, since it was relevant to show the conditions existing in the neighborhood where the alleged crime occurred. See James v. State, 223 Ga. 677, 684, 157 S.E.2d 471.
2. During a recess the State's attorney held a conference outside the courtroom with two of the witnesses yet to testify and witnesses who had already testified. Counsel for the accused moved to exclude the testimony of two witnesses who had not testified for violation of the sequestration rule. The court refused to do so.
The decisions by the appellate courts of Georgia have not been completely harmonious on this subject. There is a line of cases which hold that a witness who violates the rule of sequestration may be punished for contempt but his testimony may not be rejected. Howard v. Echols, 31 Ga.App. 420(1), 120 S.E. 815; Pope v. State, 42 Ga.App. 680(7), 157 S.E. 211; Edwards v. State, 55 Ga.App. 187, 189 S.E. 678; Shelton v. State, 111 Ga.App. 351(1), 141 S.E.2d 776; certified question answered (same case), 220 Ga. 610, 140 S.E.2d 839. But there is another line of cases which hold that a litigant has an absolute right to have the witnesses sequestered, so they may not be permitted to hear each other testify. This is, of course, subject to certain exceptions, including the court's discretion in allowing officers of the law to remain in the courtroom to assist the court and preserve order; allowing a witness who assists in the trial to remain, etc. But unless within an exception, the rule of sequestration must be observed where invoked, and a denial thereof has been held absolute ground for a new trial. In the case of Massey v. State, 220 Ga. 883(4), 142 S.E.2d 832, the litigant objected to the witness testifying because of violation of the rule of sequestration. The Supreme Court held this complaint was actually directed to the failure to grant the right of sequestration under Code § 38-1703 (), and granted a new trial. Also see Head v. State, 111 Ga.App. 14, 140 S.E.2d 291; Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785; Montos v. State, 212 Ga. 764, 95 S.E.2d 792.
In the case sub judice counsel for defendant stated to the trial court that there had been a conference or discussion in the hall during recess between certain witnesses who had already testified, and two witnesses who had not yet testified, in which the district attorney participated, and that the testimony that had been delivered was discussed during that conference. The district attorney stated that he had discussed the case during recess with the witnesses which he contended he had a right to do. No denial was made of the statement of defendant's counsel.
Objection was made to these two witnesses testifying upon the basis of violation of the rule of...
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Hicks v. State
...violations of the rule might necessitate a mistrial. See, e.g., Watts v. State, 239 Ga. 725, 238 S.E.2d 894 (1977); Rozier v. State, 124 Ga.App. 481(2), 184 S.E.2d 203 (1971). To what extent these cases are affected by the more recent Jordan case, we need not decide, for it is clear that th......
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...Ins. Co. v. Sheppard, 85 Ga. 751(36), 12 S.E. 18 (1890); Silas v. State, 133 Ga.App. 560(2), 211 S.E.2d 609 (1974); Rozier v. State, 124 Ga.App. 481(2), 184 S.E.2d 203 (1971). Thus, even if we agreed with Ross that the record demonstrates that the prosecutor talked to Butler before he testi......
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...part of that same statement, he said that he would take a lie detector test?" The state's objection was sustained. See Rozier v. State, 124 Ga.App. 481(3), 184 S.E.2d 203. Later, the state agreed to stipulate to such testimony but the court required the witness to be recalled. The detective......
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...includes the charge of attempt to commit the crime. See Finley v. State, 139 Ga.App. 495(1), 229 S.E.2d 6; Rozier v. State, 124 Ga.App. 481, 483(4), 184 S.E.2d 203. Defendant argues, however, that because the General Assembly enacted a separate statute for attempt to possess marijuana (or o......