Boyd v. State
Boyd v. State
Dissenting Opinion
dissenting.
I dissent in view of the wide discretion vested in the trial judge to determine whether mistrials should be granted or some other remedial measure followed instead. Here the court did caution the jury to disabuse their minces of any statement made to the witness by another, and to
Opinion of the Court
A special agent with the Georgia Bureau of Investigation, working through an informant, purchased some marijuana from Boyd. The agent, by hearsay testimony, injected Boyd’s character into issue on two occasions. Boyd’s motion for a mistrial was denied. We reverse.
There are only two enumerations of error that have merit.
1. The first deals with the court’s refusal to compel the agent to reveal the informant’s name. In cases such as this it is usually within the discretion of the trial judge to allow or deny such revelation. Bell v. State, 141 Ga. App. 277 (3) (233 SE2d 253) (1977).
2. After the state’s witness, the GBI agent referred to above, stated that he had a conversation with the defendant, Bernice Boyd, the district attorney asked: "Bernice Boyd — on that occasion — could you tell us what that was?” The witness replied: "I received a telephone call from my informant which stated he had set up a deal with a known narcotics dealer” (meaning the defendant). The statement was objected to as hearsay and admitted for the limited purpose of explaining the witness’ conduct in going to the cafe. The judge then instructed the district attorney to proceed, saying, "All right, Mr. Turk.” Without waiting for the next question, the agent then interjected, "Okay, I received a telephone call from the informant he had stated he had set up a deal with a known narcotic dealer who would sell me ...” This time opposing counsel moved for a mistrial.
This case presents a clear example of a law enforcement officer violating two statutes by injecting hearsay testimony and placing the defendant’s character into evidence.
It may well be argued that peace officers are not always well acquainted with our rules of evidence and that statements such as the one here are merely inadvertent. But if we refuse to reverse this judgment, then we provide no incentive to district attorneys and solicitors to counsel their witnesses, especially law
Felton v. State, 93 Ga. App. 48 (1) (90 SE2d 607) (1955), is all the authority needed to reverse. After the two statements by the agent the court made a valiant attempt to retrieve the situation, cautioning the jury to disabuse their minds of any statement made to the witness by another. However, all of us know that when the GBI agent placed the defendant’s character in evidence (and by hearsay at that) there was no way on earth for the jurors to disabuse their minds of any statement repeated to them by him.
The Supreme Court in the case of Newton Bros. v. Shank, 240 Ga. 471 (241 SE2d 231) (1978), zeroed in on this matter of the trial court cautioning the jurors to "disabuse their minds” of harmful testimony. The court, dealing with an instruction to the jury as to the limited admissibility of evidence of compromise, said: " 'The rule against allowing evidence of compromises is founded upon recognition of the fact that such testimony is inherently harmful, for the jury will draw conclusions
Judgment reversed.
Reference
- Full Case Name
- Boyd v. the State
- Cited By
- 53 cases
- Status
- Published