Williams v. State, A90A0475

• Decision Date: 16 April 1990
• Docket Number: No. A90A0475,A90A0475
• Citation: 195 Ga.App. 376,393 S.E.2d 506
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Court of Appeals

Page 506

393 S.E.2d 506

195 Ga.App. 376

WILLIAMS v. The STATE.

No. A90A0475.

Court of Appeals of Georgia.

April 16, 1990.

Timothy G. Madison, Dist. Atty., for appellee.

SOGNIER, Judge.

Ricky Lane Williams was tried by a jury and convicted of arson in the first degree and he appeals.

1. Appellant contends the trial court erred by refusing to give his requested charge taken directly from OCGA § 24-9-85(b), which provides that "[i]f a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence." Before this Code section may be charged, " 'it must appear, among other things, that the witness admits, on the trial, that he wilfully and knowingly swore falsely, or the testimony must be such as to render the purpose to falsify manifest.' [Cits.]" Mauldin v. State, 167 Ga.App. 789, 791(5), 307 S.E.2d 689 (1983). We have carefully examined the transcript, and conclude that this requirement was not met. Appellant points to instances of conflicting testimony and minor discrepancies in the testimony of various witnesses. However, assuming, without deciding, that witnesses contradicted each other as to material matters, the credit to be given these witnesses by the jury is governed by subsection (a) of OCGA § 24-9-85, and not by subsection (b) as argued by appellant. If, indeed, any inconsistency or discrepancy existed in any witness' testimony, it was obviously attributable to the fallibility of memory. "The rule [compelling a charge on OCGA § 24-9-85(b) ] does not extend to situations where it is shown to be reasonably possible that the discrepancy was occasioned by mistake or the failure of memory." (Citation and punctuation omitted.) Abrams v. State, 157 Ga.App. 609-610(1), 278 S.E.2d 37 (1981). There is no merit in this enumeration.

2. Appellant was tried with two co-defendants: Myra Jean Porter, the owner of the burned house, and William Mark Mize. During the State's case-in-chief, it called as a witness Dennis Porter, the husband of Myra Jean Porter. After acknowledging he was Myra Jean's husband, Porter was asked if he had been informed that he had the right not to testify, and he agreed that the prosecutor had said he "had the right not to testify against [Myra Jean], yes," and that he understood that right, but had nevertheless agreed to testify as to certain matters. However, after being informed by the trial court that if he testified at all he would be testifying against his wife, Porter invoked his privilege and refused to testify. Appellant then moved for a mistrial based on the fact that Porter had been called to the stand and in the presence of the jury had refused to testify against his wife. See Westbrook v. State, 162 Ga.App. 130, 290 S.E.2d 333 (1982).

Although this court has found reversible error where the spouse of the accused had invoked the privilege not to testify in the presence of the jury, see Colson v. State, 138 Ga.App. 366, 369-371 (13-17), 226 S.E.2d 154 (1976), several distinguishing factors are present here. It was evident that the prosecutor was surprised by Porter's invocation of his privilege not to testify. The jury was not present when Porter actually invoked the privilege, having been sent out at the request of the prosecutor in the middle of the colloquy between counsel and the court. After the trial court denied appellant's motion for a mistrial the judge instructed the jury that "Mr. Porter has declined to testify, which he has the perfect right to do. Now, you will draw no inferences one way or the other from his failure to testify. I don't know what he was going to testify to, and neither do you. So you will draw no inferences one way or the other concerning his failure to testify." These factors mitigated the prejudicial effect of Porter's invoking his privilege.

Moreover, in deciding whether the denial of the motion for mistrial was harmful error requiring reversal, we must look at the other evidence presented by the State, as "[t]he fact that there is other sufficient evidence to convict does not make the error harmless; rather, the test is whether the [testimony] may have...