Floyd v. State

275 S.E.2d 786, 156 Ga. App. 741, 1980 Ga. App. LEXIS 3186

• Court: Court of Appeals of Georgia
• Decided: December 5, 1980
• Docket: 60285
• Status: Published

Opinions

McMurray, Presiding Judge.

Defendant was indicted and convicted of the offenses of burglary and theft of a motor vehicle. Defendant appeals, enumerating as error the trial court’s permitting the examination of a witness who remained in the courtroom after the rule of sequestration had been invoked and the trial court’s denial of his motion to suppress. Held:

1. The record contains no transcript of the hearing of defendant’s pre-trial motion to suppress. However, the record does contain the transcript of the trial at which an objection to the introduction of the evidence was renewed and another hearing, outside the presence of the jury, was held on the admissibility of the evidence. The trial judge was not the same judge who had ruled on the pre-trial motion to suppress. Defendant’s objection to the evidence was overruled by the trial judge after the hearing at trial as to its admissibility. The transcript of the hearing as to the admissibility of the evidence which occurred during the trial contains evidence in regard to an officer’s testimony with reference to the fact that defendant was arrested for violation of probation, the reading of rights to the defendant, and that while in the bedroom, where the defendant asked that he might go to dress, the evidence was seized. The officer testified that the reason he went to the rear of the dwelling with the defendant while he dressed was “ [f]or my own safety, to not allow him a chance to obtain any type of weapon.” At that time a quantity of silver change was seized, and also a small paper bag lying on the floor, and a pair of shoes “covered in sand, grass and grass seed ... [which were]... also very wet.’’The defendant was then allowed to testify and both the state’s counsel and defendant’s counsel were allowed to argue the issue, the state arguing that the articles were in plain view and that this was not a search; and the trial court overruled the objection.

The defendant has not complained of the absence of any transcript of the hearing on the pre-trial motion to suppress. Nor has the defendant argued that the evidence heard by the trial court, outside the pr§sence of the jury, was to any degree different from that heard by another judge on the pre-trial motion to suppress. Furthermore, the defendant’s brief in support of his appeal makes sole reference to certain portions of the trial transcript as constituting the specific complained error.

Under Davis v. State, 242 Ga. 901, 903 (1) (252 SE2d 443), the Supreme Court citing Stephens v. Hopper, 241 Ga. 596, 601 (2) (247 SE2d 92) reiterates the age-old requirement on appeal that the appellant must point out the harmful or prejudicial matter which may have occurred; that is, to show not only error but harmful error. This has not occurred in this case.

Submitted July 2, 1980 Decided December 5, 1980. F. Bradford Wilson, Jr., for appellant. W. Donald Thompson, District Attorney, Willis B. Sparks, III, Assistant District Attorney, for appellee.

But in addition to the above, defendant points out in his brief that at trial (before another judge who had not heard the pre-trial motion to suppress) “the objection to the introduction of the evidence was renewed and another hearing was held on the admissiblity of the evidence... again, the... objection was overruled.” (Emphasis supplied.) The brief points to the pages of the transcript where this occurred with the jury out of the room.

Based upon the above the trial court did not err in denying the motion to suppress.

2. The trial judge at all times has control of the court and the witnesses. It is always within the discretion of the trial court to allow a witness to testify. The trial court here did not abuse its discretion in allowing the officer witness to testify in rebuttal after remaining in the courtroom in violation of the rule of sequestration which had been invoked. See Larkins v. State, 230 Ga. 418 (1) (197 SE2d 367), and cases cited therein.

Judgment affirmed.

Deen, C. J., Shulman, Banke, Birdsong, Carley and Sognier, JJ., concur. Quillian, P. J., concurs in the majority opinion and filed a special concurrence in which Shulman, Birdsong, Carley and Sognier, JJ., join. Smith, J., dissents.