Stinson v. State, 58153

• Decision Date: 26 September 1979
• Docket Number: No. 58153,58153
• Parties: STINSON v. The STATE.
• Court: Georgia Court of Appeals

Page 407

260 S.E.2d 407

151 Ga.App. 533

STINSON v. The STATE.

No. 58153.

Court of Appeals of Georgia.

Submitted July 2, 1979.

Decided Sept. 26, 1979.

John C. Swearingen, Jr., Ben B. Philips, Columbus, for appellant.

E. Mullins Whisnant, Dist. Atty., for appellee.

CARLEY, Judge.

On May 4, 1977, an undercover agent working with the Muscogee County Sheriff's Department made contact with Wanda Carlson, a co-defendant in this case, concerning the purchase of one pound of marijuana and arranged to meet with her the next day in the parking lot of a designated fast food restaurant in Columbus. At the appointed time the undercover agent, Douglas Pugh, and a deputy sheriff, David Wright, met Ms. Carlson, who did not have the marijuana. She explained that she had tried to contact "the guy" who had it but had been unable to get in touch with him and that she would keep trying. On the morning of May 6 Ms. Carlson telephoned Pugh to tell him that she had made contact with "the guy with the pound" and would meet Pugh at the restaurant that afternoon as previously arranged. Pugh and Wright again met Ms. Carlson, who was driving the same automobile in which she was seen on the previous day. At this time the vehicle also contained a passenger, the appellant Stinson. Ms. Carlson left her car and walked to the agents' van. When she told them she had the marijuana and that it would cost $175, they asked to see it first. They walked over to her car and Ms. Carlson opened the door at the driver's side, lifted the back seat and pointed to a paper sack on the floorboard behind the driver's seat. Wright testified that he opened the bag, identified its contents as marijuana and then arrested both Ms. Carlson and Stinson. Upon searching them he found a small bag of marijuana in Ms. Carlson's pocketbook. No contraband was found on Stinson's person.

Ms. Carlson identified Stinson as "the guy" who owned the marijuana. She admitted that the marijuana was in her car but claimed that she got it from Stinson and they delivered it together. Stinson, however, testified that he had gotten in the car with Ms. Carlson to go to a record store across town where record albums and tapes were cheaper; that he did not know why she stopped at the restaurant or why the agents approached her car; and that he knew of no reason why she would swear under oath that he owned the marijuana or why she would commit perjury. The court charged the jury on possession of marijuana with intent to distribute as to both defendants, and a verdict of guilty as to both was returned. In sentencing, the trial judge expressed the opinion that Ms. Carlson "at least got on the stand and was truthful" and "testified primarily not so much from the standpoint of assisting the State, except that she just felt that she should not take the blame for the entire incident that she was not totally responsible for;" and stated that he would "reward her for it" by sentencing her to two years and Stinson to four years in the penitentiary. Stinson appeals, enumerating eight errors.

1. The pivotal issue is encompassed in enumerations 4, 5 and 6 and involves questioning of Detective Wright by a juror. The appellant asserts that reversible error occurred during the presentation of the state's case when the trial court allowed a juror to ask an improper question and then compounded the error by interposing questions of its own which were prejudicial to the defense. A juror inquired "Could I ask one question?", the court replied "Yes, sir," and the following exchange ensued:

"A Juror: I should have asked it, I guess, before he left. The Court: We can call the witness back if its a proper question. A Juror: What I wanted to know is was any when the front seat was lowered and you looked in the sack, of course, the passenger could look down in the floorboard and see what was there when the bag was opened was any The Court: Suppose we call Mr. Wright back. (District Attorney): Call Detective Wright back, please. A Juror: Get him to talk into the mike, too, please sir. Whereupon, Deputy Wright entered the Courtroom. The Court: Mr. Wright, a juror has a question of you and I think it relates to what the person in the passenger side could have observed as you opened it in the back. Suppose you state your question. A Juror: My question was, when you lowered the driver's seat with the sack sitting in the floorboard on the split car, you are sitting above the floorboard and, of course, naturally, as would be human nature, to look down, and when you opened the sack could you explain what reaction it was, as if the man knew it was there, or was it a surprise or what? Did you remember anything The Court: Is your question was it in view if he had looked? A Juror: Was it in view and did he act as if he knew what was there or if it was a surprise or what? The Court: All right, sir. (Defense Counsel): If it please the court, I certainly don't want to cut off a juror's question, but I believe there are certain rules, Your Honor, and I would have to ask that his opinion, Mr. Wright's opinion of what this man thought or did, I don't think would be admissible. I think he is entitled to say what my client did and describe how he looked to the juror but I would have to object to Mr. Wright being able to give his opinion as to Mr. Stinson's reaction. The Court: Yes, sir. Well, ladies and gentlemen of the jury, of course, the jurors it's the discretion of the Court that they can ask questions, but they are subject to the same rules of evidence and objections as if an attorney had asked them. However, it's the Court's opinion, Mr. Elkins, that Mr. Wright can say whether the bag of marijuana, as he opened it, was in view plain view of the person in the passenger side had he looked and what the passenger's reaction was at the time. So, if you can answer that, Mr. Wright. The Witness: Okay. Whenever he was sitting there he made no reaction whatsoever whenever we walked up to the car or when we pulled it out of the brown paper sack. He just more or less turned his head and looked and that was all the reaction he made. The Court: All right. What reaction was there at the time of the arrest, if any. The Witness: He never said a word. Mr. Elkins: We have to object to that, Your Honor. The Court: I asked what his reaction was and, of course, he has a right to remain silent and it should not be held against him. You ladies and gentlemen will not hold it against him, the fact that he made didn't say anything, so to speak. We don't even know whether he was given an opportunity or not. All right, is there any other questions, ladies and gentlemen? A Juror: Could the bag in its position be seen from the passenger side without pulling the seat up? The Witness: Are (you) saying without raising the front seat? The Court: You mean before they did whatever they did? A Juror: If he was a passenger, could he have seen that without any unnecessary looking back to the back to be able to see it? Was he in a position where the bag was, just from looking around, could he have seen it? The Witness: He might have. He might not have. I don't really know how to answer your question, sir. The Court: I believe, Mr. Crawford, there's been testimony that the seat was raised up somewhat and you are asking if the passenger if a passenger had looked would it have been in his view prior to lifting up the seat. The Witness: My answer to that would be he would have to more or less raise up and look over the back seat. The Juror: That was my question. The Court: I don't think that's prejudicial. Now, is there any other questions from Detective Wright, ladies and gentlemen?"

In Hall v. State, 241 Ga. 252, 256(4), 244 S.E.2d 833 (1978), defense counsel asked the trial judge to allow the jurors to question the defendant after he testified. Error was enumerated on the judge's refusal to exercise his discretion to inform the jurors of any right to do so. The Supreme Court held: "We have found no Georgia authority and conclude that jurors are not permitted during trial to interrogate witnesses. Contra, Green, Georgia Law of Evidence § 131." Since this statement is unequivocal, Georgia, as noted by Professor Agnor, "seems not to follow the general rule." Agnor's Ga. Evidence 8, § 4-5 (1978 Supp.).

We think Hall states the correct rule that a juror should not be permitted to examine a witness under any circumstances. However, even if a juror were allowed to question a witness, he would have no more right to ask an improper question than do the parties or their counsel. But from a practical standpoint the trial attorney is placed in an untenable position if he has to object to an improper question from a juror who, being a layman and unversed in the complexities and necessary technicalities of the rules of evidence, is likely to conclude that the objecting attorney is trying to hide something. Although an attorney may hesitate to object for fear of intimidating or offending the juror, at the same time it is his duty to insure that his client receives a fair trial. See Annot., 31 A.L.R.3d 868, 881 § 4(b).

As can be seen from the transcript, this was clearly the situation in the instant case. First the trial judge stated that the juror could ask...