Davis v. Jones

377 S.E.2d 163, 189 Ga. App. 569, 1988 Ga. App. LEXIS 1469

• Court: Court of Appeals of Georgia
• Decided: November 16, 1988
• Docket: 76992
• Status: Published

Opinions

Banke, Presiding Judge.

Evelyn Davis filed this wrongful death action against, Carey and Clifford Jones after her son, Robert, died from gunshot wounds inflicted by Carey Jones. The case has been tried twice. The first trial resulted in a verdict in favor of Davis. However, in Jones v. Davis, 183 Ga. App. 401 (359 SE2d 187) (1987), this court held that the Joneses should have been granted a new trial based on an error in the jury charge. The retrial resulted in a verdict in favor of the Joneses, and the case is now before us on appeal from the denial of Davis’s motion for new trial. Held:

1. The plaintiff contends that the trial court erred in refusing to allow her to introduce Clifford Jones’s pre-trial deposition testimony as rebuttal evidence in lieu of calling him as a rebuttal witness. In the alternative, she contends that the court erred in cutting off her cross-examination of this witness without allowing her to introduce a selected portion of his deposition testimony for impeachment purposes.

In support of the first contention, the appellant relies on OCGA § 9-11-32 (a) (3), which provides, in pertinent part, that the “deposition of a witness, whether or not a party, may be used by any party for any purpose. . . .” See Head v. H. J. Russell Constr. Co., 152 Ga. App. 864 (264 SE2d 313) (1980). However, pursuant to OCGA § 9-11-32 (a) (4), the use of a deposition given by a witness who is available to testify in person is subject to the discretion of the trial judge. See Atlanta Coca-Cola Bottling Co. v. Rosser, 250 Ga. 52, 54 (fn. 1) (295 SE2d 827) (1982). At the time the plaintiff sought to introduce the deposition, Clifford was already on the stand and was in the process of being cross-examined by the plaintiff’s counsel as a rebuttal witness. Consequently, no necessity whatever was shown for supplying his testimony by deposition, and the trial court did not abuse its discretion in declining to allow the deposition to be used for this purpose.

The deposition testimony was, however, potentially relevant for impeachment purposes. The shooting had occurred at a store where Carey Jones worked as a cashier and where the decedent was present as a customer. The plaintiff sought to prove that Carey Jones had shot her son in the entranceway of the store after becoming angry with him in a dispute over the amount of change he was entitled to receive from a beer purchase. The defendants, on the other hand, sought to establish that Carey had shot the decedent in self-defense as the latter was climbing over the counter to attack him. On rebuttal, in response to a question propounded by the plaintiff’s counsel, Clifford Jones testified that Carey had told him that the decedent was “coming across the counter” when the fatal shots were fired. In his deposition, however, Clifford had testified that Carey told him the decedent was standing in the entranceway when the shots were fired. It appears that the trial court declined to allow this portion of the deposition to be used for impeachment purposes because a proper foundation had not been laid for it.

“[T]he procedure for laying the foundation for impeachment by prior inconsistent statements [is] as follows: ‘[T]he cross-examiner will ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place, and the person to whom made. ... If the witness denies the making of the statement, or fails to admit it, . . . then the requirement of “laying the foundation” is satisfied and the cross-examiner, at his next stage of giving evidence, may prove the making of the alleged statement.’ McCormick on Evidence 72, § 37 (2d ed.) (1972).” Carter v. State, 244 Ga. 803, 806 (262 SE2d 109) (1979). While an examination of the transcript reveals that no such foundation was laid for the introduction of the deposition testimony in this case, it further reveals that the reason no such foundation was laid was because the trial court cut off the questioning of the witness prematurely and refused to allow it. As the evidence in question was not only material but central to the plaintiff’s case, we must conclude that this constituted reversible error.

2. We reject the plaintiffs contention that the trial court gave an incorrect charge on self-defense, inasmuch as the court’s charge tracked the language of the statute, OCGA § 16-3-21. See McNeil v. Parker, 169 Ga. App. 756 (315 SE2d 270) (1984).

3. The plaintiff contends that during closing argument opposing counsel violated an earlier court ruling by referring to the fact that Carey Jones had previously been acquitted of criminal charges in connection with the incident. However, an examination of the transcript reveals that no objection was made to the comment at trial. “When allegedly improper argument is made to the jury, opposing counsel must object at trial or otherwise invoke a ruling of the trial court. Failure to so object constitutes waiver.” Verde v. Granary Enterprises, 178 Ga. App. 773, 774 (5) (345 SE2d 56) (1986). (Emphasis supplied.) Accordingly, this enumeration provides nothing for review.

Judgment reversed.

Birdsong, C. J., Deen, P. J., Carley, Pope, and Benham, JJ., concur. McMurray, P. J., and Beasley, J., dissent. Sognier, J., dissents in judgment only.