Williams v. State, 39526

• Decision Date: 09 March 1983
• Docket Number: No. 39526,39526
• Citation: 250 Ga. 664,300 S.E.2d 685
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Supreme Court

Page 685

300 S.E.2d 685

250 Ga. 664

WILLIAMS v. The STATE.

No. 39526.

Supreme Court of Georgia.

March 9, 1983.

John E. Pirkle, Hinesville, for Feldon Riley Williams.

Dupont K. Cheney, Dist. Atty., Hinesville, C. Paul Rose, Jr., Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Atlanta, Janice G. Hildenbrand, Staff Asst. Atty. Gen., for the State.

MARSHALL, Presiding Justice.

Feldon Riley Williams appeals from a conviction of murder with a life sentence. The sufficiency of the evidence to authorize the conviction is not contested.

1. On direct examination, the director and micro-analyst of the Savannah branch of the GBI's State Crime Laboratory--who was qualified as an expert witness--testified that he had received from named GBI agents certain specified items pertaining to this case, which items had been submitted to him for analysis and some of which had been admitted in evidence as state's exhibits.

On cross-examination of this witness, defense counsel solicited testimony from the expert witness that the official laboratory report--which the witness had before him to refresh his memory but which had not been admitted in evidence--showed that the witness had received 11 items, numbered 1 through 11. Defense counsel then sought to question the witness concerning items numbered 9 ("a ziploc plastic bag, containing a small amount of residue"), 1, and 2. At this point, the prosecutor objected on the grounds that the report was not in evidence and that the witness had not testified that he had received these particular items, which had not been admitted in evidence, although they were listed on the report.

Defense counsel asked the trial judge if he might ask the witness whether he had received these items, which he contended that the witness had said he had. The judge asked defense counsel whether the report was in evidence, and counsel responded that the witness had analyzed the materials. At that point, the judge sustained the state's objection and refused defense counsel's request for a clarification of the judge's ruling. Enumeration of Error 1 contends that the trial court's "unexplained" ruling deprived the defense of the right of "thorough and sifting cross-examination." OCGA § 24-9-64 (Code Ann. § 38-1705).

" 'Although a defendant is entitled to a thorough and sifting cross-examination of witnesses against him (Code Ann. § 38-1705 [OCGA § 24-9-64] ), the scope of cross-examination is largely within the discretion of the trial judge and will not be controlled by this court except for abuse of discretion.' Mitchell v. State, 236 Ga. 251, 256, 223 S.E.2d 650 (1976)." Sustakovitch v. State, 249 Ga. 273, 276(8), 290 S.E.2d 77 (1982). The defendant had no right to examine the witness' report which was used to refresh his memory and which was not in evidence. Reece v. State, 160 Ga.App. 59(1), 286 S.E.2d 41 (1981), citing McEachin v. State, 245 Ga. 606(5), 266 S.E.2d 210 (1980); Smith v. Smith, 222 Ga. 313, 315, 149 S.E.2d 683 (1966); Shouse v. State, 231 Ga. 716, 718, 203 S.E.2d 537 (1974); Jackson v. State, 242 Ga. 692, 251 S.E.2d 282 (1978). (Jackson v. State, supra, involved a State Crime Laboratory report, as does the case sub judice.) " 'It is elementary that documents upon which a party rests his case must be offered into evidence.' Stanley v. Stanley, 138 Ga.App. 560, 561, 226 S.E.2d 800 (1976)." Hadden v. Owens, 154 Ga.App. 467(2), 268 S.E.2d 760 (1980).

Furthermore, the appellant failed to show that the matters sought on cross-examination are in some manner relevant to the issues in the case on trial, Canady v. State, 147 Ga.App. 640(2), 249 S.E.2d 690 (1978) and cits., and hence that the lack of the material impaired his defense so as to deprive him of a fair trial. Jackson v. State, 242 Ga. 692, supra, p. 693, 251 S.E.2d 282, citing Potts v. State, 241 Ga. 67 [74(5) ], 243 S.E.2d 510 (1978). If the relevance and materiality of the rejected evidence had been made to appear by testimony coming in subsequently, the defendant would have had to offer the evidence again. Plemons v. State, 155 Ga.App. 447, 451(8), 270 S.E.2d 836 (1980), citing Horton v. State, 128 Ga. 26(2), 57 S.E. 224 (1907). The appellant failed to show prejudice by the exclusion of the questions asked on cross-examination. See Cross v. State, 136 Ga.App. 400, 409(8), 221 S.E.2d 615 (1975) and cit. Enumeration of Error 1 is without merit.

2. In Enumeration of Error 2, the appellant contends that the trial judge erred in injecting himself into the trial by taking over questioning of witnesses, by commenting to a witness in the presence of the jury (in a bench conference) as to protection of the witness and his family, and by interrogating the defendant in an argumentative manner such as to cast discredit on him, and in denying the defendant's motion for mistrial based on such alleged conduct.

The trial court has the authority to control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it. Davis v. State, 127 Ga.App. 76(3), 192 S.E.2d 538 (1972); Jarrard v. State, 163 Ga.App. 99, 101(3), 292 S.E.2d 488 (1982). "The trial judge has the right to propound a question or a series of questions to any witness for the purpose of developing fully the truth of the case; and the extent to which the examination conducted by the court shall go is a matter within his discretion. And a lengthy examination by the court of a witness called by either party will not be cause for a new trial, even though some of the questions propounded by the court were leading in character, unless the court, during the examination of the witness by himself, expresses or intimates an opinion on the facts of the case, or as to what has or has not been proved, or the examination takes such course as to become argumentative in character." Thomas v. State, 240 Ga. 393, 400(3), 242 S.E.2d 1 (1977) and cits.

Our examination of the entire transcript, including the portions about which the appellant complains, fails to disclose any impropriety by the trial judge. One conversation involving the judge, defense counsel, and a witness, merely concerned an effort to determine the sequence of streets in a particular area of downtown Savannah; no objection was made to this dialogue. At one point, the judge questioned the defendant concerning what the defendant had seen at a lounge at which he had testified he had seen his co-indictee and another party; where the defendant had found the victim's property and what he had done with it; and how the defendant's driver's license had gotten inserted in one of the...