State v. Roberts
| Decision Date | 09 April 1981 |
| Docket Number | No. 37067,37067 |
| Citation | 277 S.E.2d 644,247 Ga. 456 |
| Parties | The STATE v. ROBERTS. |
| Court | Georgia Supreme Court |
Harry N. Gordon, Dist. Atty., B. Thomas Cook, Asst. Dist. Atty., Athens, for the State.
Jack Affleck and Curtis W. Miller, Athens, for William M. Roberts.
We granted certiorari in this case to review the issue considered by the Court of Appeals in Roberts v. State, 156 Ga.App. 405, 274 S.E.2d 772 (1980). That issue is whether or not the trial court may, at the request of the jury, exercise a discretion to reopen the evidence and allow new evidence to be introduced after jury deliberations have begun. The Court of Appeals answered in the negative. We reverse.
The defendant was on trial upon a charge of theft by taking. It was alleged in the indictment that he took in excess of $900 from his employer. During the State's case in chief Brenda Cattell testified that the defendant had spent substantial sums of money in her behalf to rent an apartment and purchase items for use in the apartment. In order to refresh recollection the witness was permitted to examine a lease and a sales receipt. Neither the lease nor the sales receipt were offered in evidence. Following the submission of the case to the jury and about an hour of deliberations the jury sent a written request to the judge asking to be allowed to see the lease and the sales receipt. The trial court permitted the evidence to be reopened. Two witnesses were called. A foundation for the admissibility of the lease and sales receipt was elicited. In addition, an application relating to the lease was identified and a foundation for admissibility presented. The lease, application, and sales receipt were admitted into evidence. Both the State and the defendant then made further argument to the jury. The jury resumed deliberations and thereafter reached a verdict of guilty.
The Court of Appeals has pointed out that the matter of reopening evidence is generally within the sound discretion of the trial court. The Court of Appeals in its opinion further recognized that a trial judge has a discretion, upon a jury request made during deliberations, to permit the jury to hear again parts of the evidence previously presented. Both these principles are well established. Hurt v. State, 239 Ga. 665, 672, 238 S.E.2d 542 (1977); Person v. State, 235 Ga. 814, 816, 221 S.E.2d 587 (1976). However, relying on certain language contained in Strickland v. State, 115 Ga. 222, 41 S.E. 713 (1902), the Court of Appeals held that the trial judge does not have discretion to reopen the evidence and allow new evidence after the jury has begun deliberations. We note that under the facts of Strickland, the opinion stands only for the principle that the judge may, after deliberation begins, allow the jury to rehear portions of the trial testimony. The court there found that the testimony admitted after the evidence was reopened was substantially the same as that previously given. There was no new evidence. In reaching its conclusion the court did state: "Let it be conceded that good law and sound practice would prohibit a judge from ever allowing a criminal case to be reopened and new evidence introduced after the jury have retired to consider their verdict..." Strickland, supra, at 227, 41 S.E. 713. Under the facts before the court in Strickland this must be regarded as dicta. In other cases not squarely dealing with the present issue, the Georgia courts have suggested that a discretion is vested in the trial judge. See: Pollard v. State, 144 Ga. 229, 86 S.E. 1096 (1915); Dwight v. State, 60 Ga.App. 205, 3 S.E.2d 468 (1939); Moulton v. State, 18 Ga.App. 285, 89 S.E. 341 (1916). It has been held that the discretion remains vested in the judge even until such time in the trial when the jury reaches the jury room but has not begun deliberations. Pennington v. State, 42 Ga.App. 377, 383, 156 S.E. 286 (1930). The precise issue now presented has never been decided in the Georgia cases.
We have examined authorities in other jurisdictions which generally hold that a discretion continues in the trial judge to reopen the evidence to allow new evidence even after deliberations begin. 87 A.L.R.2d 849 § 2. This is the position taken by the North Carolina courts where the issue has been presented a number of times. State v. Shutt, 279 N.C. 689, 185 S.E.2d 206, 209 (1971), cert. denied, 406 U.S. 928, 92 S.Ct. 1805, 32 L.Ed.2d 130 (1972)....
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Castell v. State
...is well established that the matter of re-opening the evidence is within the sound discretion of the trial court. State v. Roberts, 247 Ga. 456, 457, 277 S.E.2d 644 (1981). A trial must come to an end at some point, and we find no abuse of discretion in this case. 10. We address the defenda......
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Perkins v. Hall., S10A1754.
...ex parte response to a jury's question was not harmful even under the standard applied on direct appeal); State v. Roberts, 247 Ga. 456, 277 S.E.2d 644 (1981) (holding that a trial court has the discretion to grant or deny a motion to reopen the evidence during jury deliberations). Accordin......
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State v. McKnight
...States v. Burger, 419 F.2d 1293, 1295 (5th Cir.1969); Henry v. United States, 204 F.2d 817, 820-21 (6th Cir.1953); State v. Roberts, 247 Ga. 456, 457-58, 277 S.E.2d 644 (1981). In Olsen, the Court of Appeals pointed out that the power to reopen at the deliberating stage must be exercised "w......
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Chancellor v. State
...292 S.E.2d 850. That discretion is also to be exercised upon a request to reopen after the jury commences deliberations. State v. Roberts, 247 Ga. 456, 277 S.E.2d 644. Having read the transcript of both the trial and the proffer, we find no abuse in the exercise of the trial court's 28. App......