Winget v. State

• Decision Date: 22 April 1976
• Docket Number: No. 2,No. 51990,51990,2
• Citation: 138 Ga.App. 433,226 S.E.2d 608
• Parties: Harry WINGET v. The STATE
• Court: Georgia Court of Appeals

Page 608

226 S.E.2d 608

138 Ga.App. 433

Harry WINGET v. The STATE.

No. 51990.

Court of Appeals of Georgia, Division No. 2.

April 22, 1976.

David E. Henderson, Macon, for appellant.

E. Byron Smith, Dist. Atty., Barnesville, Kenneth R. Waldrep, Asst. Dist. Atty., Forsyth, for appellee.

EVANS, Judge.

Defendant was indicted for the sale of marijuana in violation of the Georgia Controlled Substances Act. He was convicted and sentenced to serve 4 years and 11 months in the penitentiary. Motion for new trial was filed and denied. Defendant appeals. Held:

1. Counsel for defendant invoked the rule of sequestration of witnesses whereupon the prosecuting attorney requested the presence of the prosecutor (county sheriff) to remain in the courtroom and assist him the presentation of the case. He stated in his place that he needed the prosecutor to assist him and he could not proceed without him. The court then ruled 'you will have to put him up first.' Here the court ascertained from the prosecuting attorney that the sheriff was the principal investigator and the one most familar with the presentation of the case to the jury and held that the sheriff had a legal right to stay in the courtroom with the above conditions. Unlike the case of Stuart v. State,123 Ga.App. 311, 312, 180 S.E.2d 581, the trial judge considered the exigencies of the case to see that the rule of sequestration was obeyed as far as possible, but allowed the sheriff to remain, provided he was put upon the witness stand first. The trial judge did not abuse his discretion in granting the district attorney's request. See McNeal v. State, 228 Ga. 633(4), 187 S.E.2d 271; Fountain v. State, 228 Ga. 306(3), 185 S.E.2d 62; Spurlin v. State, 222 Ga. 179(2), 149 S.E.2d 315; Pippins v. State,224 Ga. 462(2), 162 S.E.2d 338.

2. The sheriff testified first and then remained in the courtroom during the entire trial. He was then called as a rebuttal witness after the defense rested. The substance of the questions asked appeared to be mere repetition as to his instructions to the undercover agent and as to his confidence in the truthfulness of this undercover agent who was a witness in this case. However, no objection was made thereto. But it is contended that the court erred in denying a motion for mistrial when the sheriff was recalled as rebuttal witness, as this was a violation of the rule of sequestration. Under the ruling in McNeal v. State, 228 Ga. 633, 636(4), 187 S.E.2d 271, supra, there was no error here, and no error in the court's denial of the motion for mistrial by defendant. See in this connection Poole v. State,130 Ga.App. 603, 607, 203 S.E.2d 886; Thomas v. State, 27 Ga. 287(8).

3. During cross examination of state's witness (the undercover agent), he volunteered certain information not in response to a question but as to what another person told him to the effect that drugs should not have been sold to a certain boy (not the defendant). This testimony had nothing to do with the case against the defendant. Whereupon the court proceeded to ask questions of this witness as to what this person had said in regards to the sale to that boy, and the witness proceeded to tell about the antics of the boy-that he began to feel like a giant and later like an octopus. These questions were totally irrelevant to the case. But counsel for the defendant made no motion for mistrial or to exclude these questions, nor did he in any manner attempt to obtain a ruling from the court that the court should not have asked these questions of the witness. The testimony elicited by the court was prejudicial, was irrelevant, and had no probative value, and the only effect was to prejudice and inflame the jury and deny the defendant a fair and impartial trial. While defense counsel did not object to this hearsay evidence, it was entirely without probative value. See Dowling v. Doyle, 149 Ga. 727, 731, 102 S.E. 27; Higgins v. Trentham, 186 Ga. 264(1), 197 S.E. 862. Yet the trial judge, knowing the evidence was hearsay, and knowing it was without probative value, even without objection by defense counsel, and knowing that the effect was to inflame the minds of the jurors against defendant, the judge sua sponte placed this illegal evidence before the jury, all of which was improper and illegal. If proper objection had been made in the lower court, we would have to reverse on the above grounds, but proper objections were not made in the lower court.

4. On cross examination of the sheriff, he was questioned in regard to payment made to the undercover agent. Thereafter when the undercover agent was on direct examination, the undercover agent was asked about his various purchases of drugs and the accounting which he maintained. State's counsel then asked what he had purchased, for instance from Wanda Watson: 'What did you buy from her? A. I bought one hundred hits of T.H.C. from her. Q. You got seventy-five one time and twenty-five another? A. Yes, sir. She said thirty. I didn't count them. BY MR. HENDERSON: Your Honor, I object to going into Wanda Watson's case. We are dealing with Harry Winget and what happened on March 18th. BY MR. LAWRENCE: Your Honor, he has left the inference there that this man could buy more than he turned in to the Sheriff, and that he could make money on the side. BY THE COURT: Do you contend that, Mr. Henderson? BY MR. HENDERSON: Sir? BY THE COURT: Do you contend what Mr. Lawrence has said? BY MR. HENDERSON: I will leave it to the Jury to draw whatever conclusions they would from the testimony. BY THE COURT: I will let him answer that question, then. If that is going to be an issue I think he has a right to go into it.'

The prosecuting attorney then proceeded to examine the undercover agent about the purchase of drugs from Wanda Watson and his accounting for said purchases to the sheriff. This testimony regarding 'buys' of drugs from others was totally unrelated to the instant case. Same was clearly irrelevant and immaterial and introduced solely to bolster the good character of the undercover agent in the eyes of the jury. Testimony as to the defendant's purchase of drugs from others should have been excluded in objection. See Watson v. State, 137 Ga.App. 530(3), 224 S.E.2d 446. Whether drugs were or were not purchased by the undercover agent from Wanda Watson was absolutely irrelevant and inadmissible.

5. The evidence was sufficient to authorize the introduction of the 1 ounce of marijuana which the agent testified he purchased from the defendant. The agent witness at all times kept keys to the box in which this marijuana was kept until given to the sheriff. There is no merit in this complaint. No evidence of tampering with the state exhibit has been shown.

6. The prosecuting attorney was entitled by law to a thorough and sifting cross examination of the defendant when he was sworn as a witness. The witness was cross examined and allowed to testify that he played in a band and as to certain engagements he would be playing the next week-end. However, there appears to be no ruling on the objection made by defendant's counsel. We do not see any harmful error although this questioning and the testimony appear to be irrelevant and immaterial.

7. The court did not err in sustaining an objection to a question by defense counsel that same was leading. The question could have easily been rephrased another way to meet the objection that same was leading. No harmful error is shown. There is no merit in this complaint.

8. The court allowed the district attorney, over objection, to argue as follows: 'Everytime I hear the word 'concert' where you see these thousands of people on these acres of land, I don't say all of them are doing it, but I say it's a good spot to go look for drugs; you're going to find them, and you can see some of the craziest folks at one of those concerts. I went with a group of us one night and I saw one with a rooster sitting on his shoulder and the rooster had gone to the bathroom all the way down his back. He'd been there all evening with that rooster. It will run you crazy as a bat. And this is an illustration in this case, listen to this illustration; a little seventeen-year-old-I think he's an eighteen-year-old boy now, by the name of Kenneth Mays, sitting in the living room, he takes off his shirt and he said, 'G-D, I feel like a giant,' and then what's the next thing he says, 'Man, I feel like an octopus.' And I'll tell you one thing, if you use it long enough, you will be a monkey. And it makes me mad when they start giving it to young children and selling it to them. Let me tell you, we don't have but one mind, but that child, if it had been my child, and I would have whipped the daylights out of him, if I could get him, but the person who sold it to him had better go too, if I know who he is. And to sell it to those teenagers or grown folks, whoever they may be in this society and let them see their brains deteriorate until they...