Nance v. State ( 2000 )

Carley, Justice,

concurring specially.

In Division 6, the majority concludes that Nance’s death sentence must be reversed because the trial court erred in failing to excuse juror Johnson for cause. I am in full agreement with that holding. I also concur in the remainder of the opinion, with the exception of certain portions of Division 2. In that division, the majority correctly finds that it was error, but harmless, for the trial court to allow the State’s expert to testify, during the prosecution’s case in chief in the guilt-innocence phase, that Nance made certain statements to her in the course of a mental health examination. I believe, however, that Division 2 errs in its ultimate holding that “the State expert may only testify in rebuttal to the testimony of the defense expert or to rebut the testimony of the defendant himself.”

Decided February 28, 2000 Reconsideration denied March 23, 2000. Edwin J. Wilson, for appellant.

There is no authority for limiting the State’s expert to rebuttal of testimony given by either the defendant’s expert or the defendant himself. To the contrary, “ ‘the State has the right to call rebuttal witnesses to refute or explain any or all of the defendant’s evidence. . . . (Cit.)’ [Cit.]” (Emphasis supplied.) Watkins v. State, 206 Ga. App. 701, 705 (5) (426 SE2d 238) (1992). In particular, the right to rebut a witness’ testimony through impeachment “is one of the cornerstones of the adversarial process. Even evidence which violates constitutional standards of due process, such as unlawfully obtained confessions, may be admitted for impeachment purposes. [Cit.]” Charlton v. State, 217 Ga. App. 842, 844 (459 SE2d 455) (1995).

The majority relies upon federal cases applying Federal Rule of Criminal Procedure 12.2 (c). However, the federal rule does not prohibit the rebuttal use of a statement which the defendant made to the State’s expert and which related to an issue other than mental condition, if the defense has already introduced testimony on that particular issue. United States v. Kessi, 868 F.2d 1097, 1108 (V) (9th Cir. 1989); 1A Wright, Federal Practice & Procedure: Criminal 3d § 209, pp. 441-442 (1999).

I also cannot agree with the second footnote, wherein the majority overrules Hittson v. State, 264 Ga. 682, 683 (2) (449 SE2d 586) (1994) to the extent that that decision “authorized a State expert to testify in response to lay witness testimony that the defendant was remorseful. . . .” Consideration of the viability of Hittson is not even necessary, because the State’s expert in this case testified during the State’s case in chief and not in rebuttal. Moreover, as previously discussed, I believe that Hittson properly holds that statements made to a State expert may be related by that expert in rebuttal of the defendant’s evidence, regardless of the source of that evidence. Hittson is correct because it involves only testimony introduced by the State during rebuttal of the evidence produced by the defense. It should not be overruled.

I am authorized to state that Justice Hines joins in this special concurrence. Daniel J. Porter, District Attorney, Phil Wiley, Assistant District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Allison B. Goldberg, Assistant Attorney General, for appellee.