Watson v. State, 51575

Citation137 Ga.App. 530,224 S.E.2d 446
Decision Date22 January 1976
Docket NumberNo. 51575,No. 2,51575,2
PartiesWanda WATSON v. The STATE
CourtUnited States Court of Appeals (Georgia)

EVANS, Judge.

Defendant was indicted with another for selling Phencyclidine, a controlled substance. She was tried, convicted and sentenced to serve 4 years and 11 months. Defendant appeals. Held:

1. The principal witness against defendant was an undercover agent, a veteran of Vietnam. In his opening statement the special prosecuting attorney, who was a district attorney emeritus, with many years experience, made many remarks about the drug problem in the county. Of course the experienced prosecuting attorney knew that much damage may be done in an opening statement, and that an opening statement is limited to the statement of what the state expects to prove. Where matters are stated which relate to evidence that is not admissible in evidence, it constitutes harmful error. And often such remarks may be made, and then apologized for, with the damage already done, so greatly damaging in fact it can not be removed. The prosecuting attorney made many remarks about how his principal witness, an undercover agent, volunteered to help stamp out the drug evil. He also referred to said witness having come forward to volunteer his services; that he had been connected with drugs and wanted to help with the drug problem; and wanted to show he was no longer connected with drugs; that he had served in Vietnam; had taken drugs but had resolved to quit and that he volunteered his services. Defense counsel immediately moved for a mistrial upon the The motion for mistrial was denied, and the court allowed the prosecuting attorney to make the statements to the jury as to the drug problem in the county and the reasons the undercover witness came forward to offer his services for the purpose of stamping out the drug evil in said county. It is quite clear that the prosecuting attorney was trying to make the jury believe that one of the issues in the case was whether drug abuse is an evil that should be stamped out, and whether the state's witness was pure in heart and a very unusual and wonderful person to be willing to crusade and offer his services in this contest between good and evil. And if the jury had found the witness to be like Sir Galahad, whose strength was as the strength of ten because his heart was pure, of course the jury could not fail to believe the testimony of such a witness.

grounds that the remarks of prosecuting counsel about the aforementioned matters were totally irrelevant and immaterial to the case, and violated those factors which are spelled out in Code § 81-1009; that same was prejudicial and inflammatory and was designed to inflame the minds of the jury against the defendant.

Defense counsel was wide-awake and did not let this attempted erroneous conduct go by without making prompt objection. Of course these two matters were not issues; the remarks of counsel were totally improper, prejudicial and irrelevant, and the court should have promptly taken measures to remedy the wrong that was done the defendant. But the court overruled the objections, all of which were reversible error. See Moorehead v. Counts,130 Ga.App. 453, 455(1), 203 S.E.2d 553; Berry v. State, 10 Ga. 511(6); Mitchum v. State, 11 Ga. 615(7), 635; Heard v. State, 210 Ga. 108(1),78 S.E.2d 38; Fitzgerald v. State, 184 Ga. 19, 190 S.E. 602. The court erred in refusing to grant the motion for mistrial.

2. Special prosecuting attorney was an experienced lawyer (a retired District Attorney Emeritus) and knew that lie-detector tests are not admissible in the courts of Georgia. Nevertheless, he sought to inject this into the case in his opening argument by suggesting the state's main witness had been granted a ploygraph test. When the court ruled that this was improper, counsel apologized. But how much harm had been done and how was that harm removed? We find at the very outset that unless defense counsel had been alert and on his toes, state's counsel was going to inject inadmissible and improper matter into the case, and so known because of his experience. Suppose defendant had been represented by unqualified or inexperienced or timid counsel, it can be readily seen how far the prosecuting attorney was willing to go until stopped. It is quite true that when objection was made, counsel for state (district attorney emeritus) said 'I apologize'-but no one knew better than the prosecuting attorney that the damage had already been done, and no one knew better than he that the statement in opening remarks (of what he expected to prove) was inadmissible and illegal because under no circumstance would he be allowed to prove the polygraph or lie detector test in the courts of Georgia.

3. The state offered testimony by the sheriff of the county and the undercover agent which included the following: a. That there was a bad drug problem in the county in 1975; b. As to telephone conversations between the sheriff and the undercover agent (to which defendant was not a privy or party, and was not present and had no way of knowing what was said); and c. As to what the undercover agent had seen in Vietnam and as to what occurred to a narcotic addict there.

Prompt and proper objections were made by defendant's counsel as each item of the above was offered, but each was overruled. None of this testimony was admissible. Suppose there was no drug problem in a county, and only one defendant was even indicted. Could that defendant offer evidence that there was no drug problem in the county? How could anything that happened in Vietnam be relevant to this case unless the defendant himself had 4. The objection to the expert testimony by the forensic chemist of the Georgia State Crime Laboratory that he found the pills delivered to him contained Phencyclidine, or PCP, was properly admitted. Objection was made that it was based upon lack of qualification, and improper foundation for the admission of this testimony. This witness had stated his qualifications, and it was for the court to determine if the witness was properly qualified after stating his competency as an expert. Merrill v. State, 130 Ga.App. 745, 204 S.E.2d 632; Johnson v. State, 130 Ga.App. 704, 204 S.E.2d 302.

                participated therein?   Can two state officers talk to each other on the telephone and then offer that conversation in evidence against a defendant, without violating the hearsay rule?   These questions are simple, and the answers are obvious.  The testimony was inadmissible; the defendant's objections should have been

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19 cases
  • Caldwell v. State, 52257
    • United States
    • United States Court of Appeals (Georgia)
    • July 9, 1976
    ...S.E.2d 530; McHugh v. State, 136 Ga.App. 57, 220 S.E.2d 69; Clark v. State, 138 Ga.App. 266, 226 S.E.2d 89. See also Watson v. State, 137 Ga.App. 530(7), 224 S.E.2d 446. But see Royal v. State, 134 Ga.App. 203, 213 S.E.2d 561. Compare Hancock v. State, 127 Ga.App. 21, 192 S.E.2d 435; Evans ......
  • Bowden v. State
    • United States
    • Supreme Court of Georgia
    • October 18, 1977
    ...expert lies within the trial court's discretion. E. g., Barrow v. State, 235 Ga. 635, 639, 221 S.E.2d 416 (1975); Watson v. State, 137 Ga.App. 530, 532, 224 S.E.2d 446 (1976). Appellant has shown no abuse of his discretion by the trial judge in permitting this witness to 4. In Enumeration 7......
  • Stevens v. State, 35707
    • United States
    • Supreme Court of Georgia
    • April 9, 1980
    ...Thomas v. State, 234 Ga. 615, 216 S.E.2d 859 (1975); Watkins v. State, 144 Ga.App. 694, 242 S.E.2d 347 (1978); see Watson v. State, 137 Ga.App. 530, 224 S.E.2d 446 (1976). The appellant also asserts that the court should have charged on circumstantial evidence. Almost all the evidence was d......
  • Medlock v. State, S93A0053
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    • Supreme Court of Georgia
    • June 28, 1993
    ...not work a change in the law but was a restatement of what has been the law in Georgia for quite some time. Accord Watson v. State, 137 Ga.App. 530(8), 224 S.E.2d 446 (1976), cert. den.; Hudson v. State, 163 Ga.App. 845(4), 295 S.E.2d 123 (1982), cert. den.; Simmons v. State, 168 Ga.App. 1(......
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