Westbrook v. State
| Decision Date | 15 April 1982 |
| Docket Number | No. 63739,63739 |
| Citation | 290 S.E.2d 333,162 Ga.App. 130 |
| Court | Georgia Court of Appeals |
| Parties | WESTBROOK v. The STATE. |
Judith F. Bagby, Dallas, for appellant.
W. A. Foster, III, Dist. Atty., Steve Messinger, Asst. Dist. Atty., Dallas, for appellee.
1. The sole issue on appeal is whether, on the trial of a defendant, the spouse must make an election not to testify outside the presence of the jury or whether he or she may be compelled, if asked, to state such election in the jury's presence.
A divided court in Merneigh v. State, 123 Ga.App. 485(2), 181 S.E.2d 498 (1971) held that to compel the answer before the jury did not constitute harmful or reversible error. It will be noted however that the court did not in totidem verbis approve the practice. In Colson v. State, 138 Ga.App. 366, 226 S.E.2d 154 (1976) a divided court struck down that decision without appearing actually to overrule it. The discrepancy was noted in Casper v. State, 244 Ga. 689, 693, 261 S.E.2d 629 (1979) with the remark that the most recent of these cases, Colson, held it error to make one spouse invoke the privilege against testifying against the marital partner in front of the jury. We agree that this is a proper construction, and that the effect of Colson was to overrule Merneigh sub silentio. Further, and contrary to a statement in Colson, we find that a majority of five members of the court in Merneigh did allow the practice, since four judges specifically dissented from division 2 of that opinion and the three judges specially concurring did so on an entirely different issue.
In order to put this question to rest and make it perfectly clear, we overrule any statement to the contrary in Merneigh v. State, 123 Ga.App. 485, 181 S.E.2d 498, supra, and any other cases of similar import and hold that the election of one spouse to testify against the other should be made outside the presence of the jury under normal circumstances. If the issue has not been settled prior to the state calling the spouse as a witness, defense counsel may at that time indicate to the court that he has a motion to make outside the presence of the jury, and the court shall then excuse the jury and hear the objection. See San Frantello v. U. S., 340 F.2d 560 (5th Cir.) as to the method recommended in that case.
2. This right, although belonging to the defendant in the first instance, may be waived, and should be considered waived if it becomes a methodology for forcing or bringing the issue to the jury's attention. Where the whole purpose of deciding the question in privacy is to avoid alerting the jury to the spouse's election, any act by the defendant which intentionally does so...
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...jury be retired. Defense counsel made no objection to this procedure either before or after the jury retired. In Westbrook v. State, 162 Ga.App. 130, 290 S.E.2d 333 (1982), we held that under normal circumstances the election of one spouse to refrain from testifying against the other should......
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Burrell v. State, 67981
...State, 128 Ga. 660, 58 S.E. 49 (1907) and cits." Perryman v. State, 244 Ga. 720 (2)-721, 261 S.E.2d 588. See also Westbrook v. State, 162 Ga.App. 130, 131(2), 290 S.E.2d 333. 3. On cross-examination of GBI agent Henry, defense counsel asked, "You recognize that when two people live in a hou......
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