Rutledge v. State

155 Ga. App. 232 | Ga. Ct. App. | 1980

Deen, Chief Judge.

The defendant appeals his conviction of aggravated assault, based primarily on the testimony of the two victims, one of whom he attempted to throw from his automobile apparently in order to kidnap the other. The enumerations of error are based on the court’s refusal to exclude the testimony of the victim Cora Jean “when it was discovered that she had not been sequestered as the Court ordered,’’and in denying the motion for mistrial.

It does not appear that the sequestration order was violated. The witness did not return to the courtroom although, for other reasons, she was not kept in the room with the other witnesses. There is no evidence that she was informed of the testimony of other witnesses after the beginning of the trial. The district attorney may interview a witness after the trial starts if this is necessary to his case and if he does not inform the witness of what others have testified or to what he is expected to testify. Smith v. State, 244 Ga. 814, 818 (262 SE2d 116) (1979). In this case he stated in his place that he did not interview her after the trial started (although he consulted with her shortly before this, as he had not previously been in a position to interview her). For her part, the victim testified that no one talked about the case in her presence, tried to influence her or suggested in any manner how she should testify, and that she had not overheard any of the testimony delivered in court. The fact that the witness was vague and unsure as to the approximate time of certain events during the night in question merely raises a credibility issue for the jury. The denial of the motions to exclude and for mistrial were correctly denied.

Submitted June 2, 1980 Decided July 10, 1980. D. E. Morgan, III, for appellant. Claude N. Morris, District Attorney, Howard S. McKelvey, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong and Sognier, JJ., concur.