Stith v. State, A91A1375

• Decision Date: 02 October 1991
• Docket Number: No. A91A1375,A91A1375
• Citation: 201 Ga.App. 621,411 S.E.2d 532
• Parties: STITH v. The STATE.
• Court: Georgia Court of Appeals

Page 532

411 S.E.2d 532

201 Ga.App. 621

STITH v. The STATE.

No. A91A1375.

Court of Appeals of Georgia.

Oct. 2, 1991.

Reconsideration Denied Oct. 24, 1991.

John H. Tarpley, Decatur, for appellant.

Paul N. Stith, pro se.

Robert E. Wilson, Dist. Atty., Barbara B. Conroy, J. Michael McDaniel, Nelly F. Withers, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

Following denial of his motion for new trial, Stith appeals his convictions for kidnapping, OCGA § 16-5-40(a), armed robbery, OCGA § 16-8-41(a), aggravated assault, OCGA § 16-5-21(a), hindering the apprehension of a criminal, OCGA § 16-10-50, and possession of firearm during commission of a crime, OCGA § 16-11-106.

1. The first question is whether the trial court erred in denying the motion for mistrial

and allowing the State to reopen its case so the victim could make an in-court identification based on the sound of appellant's voice as listened to by the victim while appellant was testifying. The complaint is that the procedure violated the rule of sequestration, was an improper re-opening of the case rather than rebuttal, and was unduly suggestive.

First, "OCGA § 24-9-61 provides: 'In all cases either party shall have the right to have the 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 mere irregularity shall exclude a witness.' The rule as expressed in the statute plainly allows latitude in its application. Furthermore, the trial court is vested with the discretion to make exceptions to this rule; and unless the discretion is abused, the decision will not be reversed on appeal. [Cit.]" Chastain v. State, 255 Ga. 723, 724(2), 342 S.E.2d 678 (1986).

Discretion was not abused because the purpose of the rule was not compromised. " 'The purpose of the rule of sequestration (OCGA § 24-9-61), is to prevent a witness who has not testified, or who has not completed his or her testimony, from overhearing and having his or her testimony affected by the testimony of another witness....' [Cit.]" Almond v. State, 173 Ga.App. 423, 424(1), 326 S.E.2d 798 (1985). Here, the victim was not recalled following appellant's testimony in order to further or alter the substance of his own recounting of the incident in light of the substance of appellant's testimony. He was recalled merely to testify about the similarity of the sound of the witness' voice to the sound of the gunman's voice during commission of the crimes. Identification was the issue, not the content of appellant's overheard testimony.

Second, assuming the additional testimony by the victim was a re-opening of the State's case rather than a rebuttal, "[t]he trial court is vested with broad discretion in allowing a party to reopen its case and present evidence. [Cits.]" Aikens v. State, 194 Ga.App. 195, 196(2), 390 S.E.2d 102 (1990).

Lastly, the contention that the voice identification was unduly suggestive under a Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) analysis is unavailing. There has been no showing of a substantial likelihood of irreparable misidentification. See Martin v. State, 193 Ga.App. 581, 582(1), 388 S.E.2d 420 (1989). Moreover, such an in-court voice identification in and of itself is no more or less suggestive than the common visual identification of a criminal defendant by a victim as the defendant sits at the defense table.

There was no error in allowing the victim to hear the appellant's testimony, in permitting the State to recall the victim, and in admitting the victim's identification of the appellant by his voice.

2. Appellant contends that no rational trier of fact could have found proof of his guilt beyond a reasonable doubt because there was insufficient evidence identifying him as the perpetrator.

Appellant raises the objected-to in-court voice identification, which has been ruled on in Division 1. Even were such voice identification excluded, there was other evidence linking appellant to the crimes.

Appellant's co-defendant, who had already pled guilty to...