Smith v. State, 35467

• Decision Date: 20 December 1979
• Docket Number: No. 35467,35467
• Citation: 244 Ga. 814,262 S.E.2d 116
• Parties: SMITH v. The STATE.
• Court: Georgia Supreme Court

Page 116

262 S.E.2d 116

244 Ga. 814

SMITH v. The STATE.

No. 35467.

Supreme Court of Georgia.

Argued Oct. 10, 1979.

Decided Dec. 5, 1979.

Rehearing Denied Dec. 20, 1979.

Elizabeth C. Calhoun, Augusta, for appellant.

Richard E. Allen, Dist. Atty., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Staff Asst. Atty. Gen., for appellee.

BOWLES, Justice.

Appellant Willie Alfred Smith was indicted in the Superior Court of Richmond County along with three co-defendants and charged with the offenses of malice murder, armed robbery, and felony murder. He was tried separately from his co-indictees, found not guilty of malice murder, but guilty of felony murder and armed robbery. He was thereafter sentenced to life imprisonment for the offense of murder. Following the overruling of his motion for a new trial he filed a timely appeal to this court. The general grounds are not assigned as error but appellant specifies five other separate enumerations. Each assignment will be dealt with in order of their presentation and other facts necessary to a consideration of each assignment will be dealt with in the opinion.

1. Appellant complains that the trial court erred in not striking from the record, over appellant's objection, that portion of Lt. Sanders' testimony referring to the appellant asserting his right to remain silent.

Lt. Sanders, an investigator for the Richmond County sheriff's department, testified that after defendant was arrested, he was advised of his constitutional rights and taken to headquarters. Lt. Sanders attempted to talk to the defendant about the investigation and testified ". . . he said he didn't want to talk to us. He knew nothing about . . ." At this point counsel for defendant objected on the ground that defendant had a right to remain silent and asked that the entire statement be stricken from the record. The trial court sustained the objection and instructed the jury to disregard what the witness had said beyond the point in his statement that ". . . he didn't want to talk . . ." Appellant contends that the trial court erred in allowing the jury to consider the statement of the defendant that "he didn't want to talk . . ." and that doing so violates his rights under the Fifth Amendment of the United States Constitution. The Fifth Amendment states in part that no person ". . . shall be compelled in any criminal case to be a witness against himself." This portion of the Fifth Amendment is applied to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

Pretermitting the question of whether or not defense counsel preserved the point by proper objection during the trial, we hold there is no merit to appellant's contention that the testimony denied appellant his Fifth Amendment right to remain silent. The question we must decide is whether this bare remark remaining in the record and in the jury's mind produced a trial which was fundamentally unfair so as to deny appellant due process. We note initially that the trial court sustained the objection. The error, if any, would be the trial court's failure to instruct the jury to disregard all of what the witness said in regard to the defendant's silence. The trial court merely instructed the jury to disregard what the witness said beyond the point that he didn't want to talk. The remarks of the witness in this case in our opinion do not amount to reversible error. Every comment directed toward a defendant's silence will not be cause for an automatic reversal. While we cannot say that the evidence against the defendant in this case is overwhelming, we do say it is substantial and is without contradiction. In rebuttal to the state's case, defendant offered a defense which if believed could merely amount to an alibi. We recently considered a similar situation in Williams v. State, 242 Ga. 757, 251 S.E.2d 254 (1978). Williams cites approvingly Stone v. Estelle, 556 F.2d 1242, 1244 (5th Cir. 1977) (cert. den. 434 U.S. 1019, 98 S.Ct. 742, 54 L.Ed.2d 767 (1978)) which in turn recognized the real issue before the court was whether the remarks had produced a trial which was fundamentally unfair so as to deny appellant due process. Other cases considering the point and holding the error to be harmless are United States v. Wick, 416 F.2d 61 (7th Cir. 1969) (cert. den. 396 U.S. 961, 90 S.Ct. 436, 24 L.Ed.2d 425 (1969)) and United States v. Kaplan, 576 F.2d 598 (5th Cir. 1978). The comment of the witness in the instant case was unrelated to defendant's innocence, nor was it related to his defense of alibi. Thus, the harm to defendant as illustrated in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) is not present here. In this case the comment of the witness was not directed to any particular statement or defense offered by appellant. To reverse a conviction the evidence of the defendant's election to remain silent must point directly at the substance of defendant's defense or otherwise substantially prejudice the defendant in the eyes of the jury. No such situation exists here. As to harmless error, compare Shepherd v. State, 239 Ga. 28(1), 235 S.E.2d 533 (1977) and Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

DeBerry v. State, 241 Ga. 204, 243 S.E.2d 864 (1978) relied on by appellant is distinguishable. While the opinion in that case might well indicate that this court agrees that the introduction into evidence of the state's case in chief, that appellant made no statements to the police when he was arrested, might violate his Fifth Amendment rights under the United States Constitution, nevertheless, the holding in that case was based on waiver. This is not to imply that the bare introduction of evidence regarding the silence of an accused is error in all other cases when waiver is not applicable.

2. The next two enumerations will be considered together. Appellant complains that the trial court erred in permitting the district attorney to interview after the commencement of the trial and over the appellant's objection, two prospective witnesses, co-indictees, who were under the rule of sequestration. He also complains in that regard that the court erred in not requiring the official court reporter to record or take stenographic notes of the interview between the district attorney and these two sequestered witnesses. He contends that this failure denied him his Fifth Amendment right to a fair trial.

The sequestration of witnesses is a basic and fundamental right to a fair trial in every case. It develops and preserves the truth better than any other procedure known to the courts. It should not be violated except from necessity.

In the instant case the two prospective witnesses which the district attorney requested the court to allow him to interview after the trial had started, were two of appellant's co-indictees. Before permitting the interview the request of the district attorney was properly made to the court in open court. Before passing on the motion the court took the following precautions:

"THE COURT: Alright, Mr. Allen (the district attorney), would you perfect the record at this time?

"MR. ALLEN: Yes, your Honor, as the record shows, we called to the witness stand Mr. Robert Steve Hogan. I think the record also shows he is a co-indictee in this case. Another co-indictee the State expects to call is Marlin Bell. After asking the Deputy to go down and bring the witness to the witness stand I received word that both witnesses refused to testify until they had occasion to talk to me. I would further like the record to show that some communication was made by and through counsel for one of the defendants of threats. I can't go into detail, but threats in the event they did testify. Counsel for Mr. Hogan, that's Mr. Kenneth Chance, an attorney, informed me last night that his client would testify in spite of the threats. However, in view of this new development I would request permission to talk to these witnesses. I realize they are under the rule of sequestration. I would not discuss any anticipated testimony or any testimony that has been given in the trial. I would like to talk to them. I have no objection to defense counsel accompanying me.

"THE COURT: I inquired of defense counsel if he had any objection and he said he did and I told him I was going to grant you permission to interview the prospective witnesses and would extend to him the privilege of being present if he wished to do so. Is that what transpired, Mr. Blount? (counsel for defendant)

"MR. BLOUNT: Yes, sir.

"THE COURT: Do you wish to add anything to the record?

"MR. BLOUNT: No, sir.

"THE COURT: All right, you may interview the witnesses and Mr. Blount, you may accompany him if you wish to do so. (Mr. Allen and Mr. Blount retired from the courtroom together.)"

Thus, upon assurances of counsel that no anticipated testimony nor any testimony that had been given in the trial would be discussed the court allowed the request. He also permitted defense counsel to accompany the prosecutor and was present during the discussions with the witnesses. Upon return to the courtroom, defense counsel raised no allegation that any impropriety had occurred, made no motion for a mistrial, and made no objection to the state's next witness, who was Robert Steve Hogan. Neither did defense counsel object when Mr. Bell, the other witness, was called to testify for the state.

Appellant's counsel filed a motion for new trial in the instant case. In support of that motion no evidence was offered and no complaint was made that any impropriety occurred in the interview permitted by the court to the prosecutor. The applicable Code section, § 38-1703, provides: "In all cases either party shall have the right to have 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...