Wilson v. State
| Citation | 235 Ga. 470,219 S.E.2d 756 |
| Decision Date | 28 October 1975 |
| Docket Number | No. 30306,30306 |
| Parties | Billy Ray WILSON v. The STATE. |
| Court | Georgia Supreme Court |
William Jerry Westbrook, Summerville, for appellant.
On this appeal from Wilson's conviction of murder and armed robbery, the foremost issue is whether the trial court erred in allowing the district attorney to impeach his own witness Pickall by introducing Pickall's prior inconsistent statement, when Pickall's testimony had not damaged the state's case save by failing to bolster it as hoped. We find that there is a conflict in the applicable Georgia cases interpreting the controlling statute, Code Ann. § 38-1801. This impeachment was not permissible under certain of these cases; however, that result has no sound supporting reason, and is not dictated by the terms of Code Ann. § 38-1801. Accordingly, we will no longer follow those cases disallowing impeachment on these facts.
Wilson was tried alone for the murder and armed robbery of James Olin Hammond. The state's evidence tended to show that the crimes were jointly committed by Wilson, Tommy Lerch, and Jesse Dodson. Wilson's only presentation was his sworn denial.
There were three items of evidence which tended to connect Wilson with the crime. The first was the testimony of the accomplice Dodson, who testified that Wilson participated in the killing and robbery and laughed; but he admitted that he had earlier told officers that Lerch did the killing and Wilson was not present.
The second state's item was the testimony of Pickall, from whom the district attorney hoped to elicit evidence that Wilson had confessed killing Hammond. Pickall had earlier given a written, sworn statement concerning Wilson's 'confession' of the crime. That statement included the following portion: However, at trial all Pickall would state was that Wilson told him The district attorney then asked to be allowed to impeach his own witness with the previous inconsistent statement, on the ground that his testimony had 'entrapped' the state under Code Ann. § 38-1801. At a conference at the bench, the district attorney admitted that he had known for some time that the witness was 'wishy washy' and was 'backing up' in his earlier story, but he did not know what to do except to put him on the stand and hope for the best. The court then indicated that impeachment of this witness would not be proper because the state was not actually surprised; but upon further consultation, the court changed its opinion and allowed Pickall to be impeached and the statement implicating Wilson to be introduced under instructions that it was for impeachment purposes only. When examined about the statement, Pickall testified that he had made the statement but that the facts stated therein were not confessed by Wilson but were told Pickall by one Michael Whitehead, who had talked to Pickall about the murder.
The third item of evidence was the surprise testimony of Michael Whitehead, near the end of the trial, after the district attorney stated in his place that he had only learned the previous afternoon that Whitehead could testify that Wilson had confessed to Whitehead after Wilson's arraignment, when Wilson and Whitehead were both in jail together. The trial court, considering that the district attorney claimed the evidence to be newly discovered, allowed it, and Whitehead testified even though he had not been named on the witness list provided to defendant.
Wilson was convicted and sentenced to life imprisonment for murder, and four years for armed robbery.
1. We consider first the testimony of the witness Pickall. The first section of Code Ann. § 38-1801 states that, 'A party may not impeach a witness voluntarily called by him, except where he can show to the court that he had been entrapped by said witness by a previous contradictory statement.' (Emphasis supplied). In addition to certain requirements concerning to whom the statement may be made, see, e.g. Jeens v. Wrightsville & Tennille RR Co., 144 Ga. 48, 85 S.E. 1055, Georgia cases have placed a gloss on the term 'entrapment' requiring that one desiring to impeach his own witness show both surprise and prejudice by the actual testimony as opposed to the earlier statement. E.g., McDaniel v. State, 53 Ga. 253, 254; Jackson v. State, 124 Ga.App. 488, 184 S.E.2d 185; Luke v. Cannon, 4 Ga.App. 538, 542, 62 S.E. 110. When impeachment is allowed, the prior inconsistent statement is admitted in evidence for impeachment purposes only. Wisdom v. State, 234 Ga. 650, 655, 217 S.E.2d 244; Rogers v. Saye, 106 Ga.App. 453, 455, 127 S.E.2d 161.
Wilson contends that the court erred in two respects in allowing the district attorney to claim 'entrapment' and thus cross-examine Pickall and introduce his former statement: (1) because the state was on notice that Pickall would probably not adhere to his earlier statement and was not genuinely surprised; and because Pickall's testimony did not prejudice the state, but merely failed to bolster its case.
On the issue of surprise, the district attorney addressed these remarks to the court outside the jury's hearing: '. . . I do feel like I do have to tell the Court this, that I've talked to Allen Eugene Pickall after arraignment day, . . . and he indicated at that time that he was backing up on his statement, of course the only thing I can do is go ahead and just put him up, I was hoping that if he was put under oath that he would make the same statement that he had made to agent Paul Griffin and Sheriff Gary McConnell, and I have been entrapped I feel, he have this statement, read it over and even signed it, and I think the State ought to be able to rely upon it . . . I'll say this, Your Honor, of course I want to be fair about it, . . . when I talked to him, one minute he would say he would go along with it, and the next minute he'd say well I don't know if he said he stuck the stick in his head, he would make that kind of answer so I gave up with him after talking with him I guess for some 20 minutes, I finally just gave up and told him that I was going to call him as a witness, and you know, he could either tell the truth or it would be on his conscience.'
The defense passed up any opportunity to cross-examine Pickall about the 'backing up' he had earlier communicated to the district attorney; so the record on the extent of the state's 'surprise' consists solely of the district attorney's representations to the court. He at no time indicated that Pickall had ever previously repudiated his statement that Wilson confessed the crime; the repudiation or 'backing up' as he described it ran to details of the alleged 'confession' only. Compare, Jackson v. State, supra. We conclude that the state has shown adequate surprise.
A more difficult question is presented regarding prejudice. Wilson argues cogently that Pickall's testimony did not harm the state's case; it just failed to support it. We agree; and were we still convinced that their reasoning is sound, the following cases, among others, presenting analogous facts and requiring actual prejudice flowing from the testimony would control this case and require that we find error: Beach v. State, 138 Ga. 265-266, 75 S.E. 139; Nathan v. State, 131 Ga. 48, 61 S.E. 994; Rickerson v. State, 106 Ga. 391, 33 S.E. 639. As was written in Rickerson (p. 392, 33 S.E. p. 640), 'The mere failure of a witness to testify to facts supposed to be beneficial to the party introducing him and which were expected to be proved by him does not come within the reason or policy of the rule (allowing impeachment).' However, in opposition to those cases stand others imposing no such stringent prejudice requirement. In Peurifoy v. State, 53 Ga.App. 515, 517, 186 S.E. 461, 462 the Court of Appeals...
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