McElroy v. State

Court of Appeals of Georgia

McElroy v. State

269 S.E.2d 497, 154 Ga. App. 638, 1980 Ga. App. LEXIS 2320

CourtCourt of Appeals of Georgia

DecidedMay 16, 1980

Docket59525

StatusPublished

Cited by5 cases

This text of 269 S.E.2d 497 (McElroy v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McElroy v. State, 269 S.E.2d 497, 154 Ga. App. 638, 1980 Ga. App. LEXIS 2320 (Ga. Ct. App. 1980).

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Opinions

Deen, Chief Judge.

The sole ground for reversal urged is that the trial court committed error in refusing to allow a witness to be recalled to the stand for further testimony in violation of the sequestration rule (Code § 38-1703), which states both that witnesses shall be examined out of the hearing of each other and that "no mere irregularity shall exclude the witness.” In the present case, after a protracted recess, a witness was called and the court, referring to the invoked rule of sequestration said, “Let’s get all the witnesses out of the courtroom,” whereupon a group of witnesses left the room. As the appellant recalled a second witness the court said, “Wait a minute. You asked for the rule and I instructed all the witnesses to step out and she hasn’t done it.” The attorney then said he did not know the witness failed to leave, at which the judge replied: "She was sitting right back there, and you looked at her when you told her to take the stand. I am not going to let her testify.”

From the many cases reviewing rulings made after the sequestration rule was violated we find a confusing variety of appellate comments. All the cases emphasize that the trial court has a wide discretion in deciding whether to allow the testimony or not, and many emphasize that a mere irregularity is insufficient reason to bar the testimony. Exclusion of the offending witness’ testimony has been reversed (Baker v. State, 131 Ga. App. 48, 51, 205 SE2d 79 (1974); Wallace v. Mize, 153 Ga. 374 (7), 112 SE 724 (1922)) while on other occasions exclusion of the testimony has been affirmed under the facts of the case combined with the discretion inherent in the ruling (Thomas v. State, 240 Ga. 441 (3), 241 SE2d 194 (1978); [639]*639Wessner v. State, 236 Ga. 162 (3), 223 SE2d 141 (1976); Star Jewelers v. Durham, 147 Ga. App. 68 (4), 248 SE2d 51 (1978); Ransum v. Chattooga County Bd. of Education, 144 Ga. App. 783 (2), 242 SE2d 374 (1978)). In still others the admission of such testimony has been affirmed. Watts v. State, 239 Ga. 725 (3) (238 SE2d 894) (1977); Hudgins v. State, 13 Ga. App. 489 (1) (79 SE 367) (1913).

Argued March 5, 1980 Decided May 16, 1980. Floyd H. Farless, for appellant. F. Larry Salmon, District Attorney, William H. Boggs, Assistant District Attorney, for appellee.

In the present case the court obviously felt that the failure of the appellant’s attorney to see that this witness left the courtroom when so instructed was at the least an impermissibly negligent action. No point has been made as to what her "impeachment” testimony would have been, and she had already completed her testimony in chief. We do not find the ruling under these circumstances to be an abuse of discretion.

Judgment affirmed.

Quillian, P. J., McMurray, P. J., and Shulman, J., concur. Birdsong and Carley, JJ., concur specially. Smith, Banke and Sognier, JJ., dissent.

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Deen, Chief Judge.

The sole ground for reversal urged is that the trial court committed error in refusing to allow a witness to be recalled to the stand for further testimony in violation of the sequestration rule (Code § 38-1703), which states both that witnesses shall be examined out of the hearing of each other and that "no mere irregularity shall exclude the witness.” In the present case, after a protracted recess, a witness was called and the court, referring to the invoked rule of sequestration said, “Let’s get all the witnesses out of the courtroom,” whereupon a group of witnesses left the room. As the appellant recalled a second witness the court said, “Wait a minute. You asked for the rule and I instructed all the witnesses to step out and she hasn’t done it.” The attorney then said he did not know the witness failed to leave, at which the judge replied: "She was sitting right back there, and you looked at her when you told her to take the stand. I am not going to let her testify.”

From the many cases reviewing rulings made after the sequestration rule was violated we find a confusing variety of appellate comments. All the cases emphasize that the trial court has a wide discretion in deciding whether to allow the testimony or not, and many emphasize that a mere irregularity is insufficient reason to bar the testimony. Exclusion of the offending witness’ testimony has been reversed (Baker v. State, 131 Ga. App. 48, 51, 205 SE2d 79 (1974); Wallace v. Mize, 153 Ga. 374 (7), 112 SE 724 (1922)) while on other occasions exclusion of the testimony has been affirmed under the facts of the case combined with the discretion inherent in the ruling (Thomas v. State, 240 Ga. 441 (3), 241 SE2d 194 (1978); [639]*639Wessner v. State, 236 Ga. 162 (3), 223 SE2d 141 (1976); Star Jewelers v. Durham, 147 Ga. App. 68 (4), 248 SE2d 51 (1978); Ransum v. Chattooga County Bd. of Education, 144 Ga. App. 783 (2), 242 SE2d 374 (1978)). In still others the admission of such testimony has been affirmed. Watts v. State, 239 Ga. 725 (3) (238 SE2d 894) (1977); Hudgins v. State, 13 Ga. App. 489 (1) (79 SE 367) (1913).

Argued March 5, 1980 Decided May 16, 1980. Floyd H. Farless, for appellant. F. Larry Salmon, District Attorney, William H. Boggs, Assistant District Attorney, for appellee.

In the present case the court obviously felt that the failure of the appellant’s attorney to see that this witness left the courtroom when so instructed was at the least an impermissibly negligent action. No point has been made as to what her "impeachment” testimony would have been, and she had already completed her testimony in chief. We do not find the ruling under these circumstances to be an abuse of discretion.

Judgment affirmed.

Quillian, P. J., McMurray, P. J., and Shulman, J., concur. Birdsong and Carley, JJ., concur specially. Smith, Banke and Sognier, JJ., dissent.

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269 S.E.2d 497, 154 Ga. App. 638, 1980 Ga. App. LEXIS 2320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelroy-v-state-gactapp-1980.

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