McElroy v. State , 154 Ga. App. 638 ( 1980 )

Sognier, Judge,

dissenting.

I respectfully dissent from the majority’s determination that a witness who has violated the sequestration rule in the judge’s discretion may be barred from testifying. I am well aware of the rule that requires the proponent of a witness whose appearance is contested to submit an offer of proof for determination of the relevancy or materiality of such testimony before the witness may be heard. And allegiance must be paid to the rule that such proffered testimony must be included in the record before we will consider an enumeration of error based on the refusal to permit such testimony. However, in the instant case we are not dealing with such an enumeration of error; rather, we are dealing with abridgment of the right of a defendant in a criminal case to present a witness in his own behalf solely because the witness had violated the sequestration rule.

A witness who had violated the sequestration rule was called by the defendant to impeach the testimony of a primary state witness. The judge refused to allow the witness to testify because she had violated the sequestration rule. In Baker v. State, 131 Ga. App. 48, 51 (2) (205 SE2d 79) (1974), this court held: "[W]hile there are many cases dealing with the court’s discretionary power where sequestration has not properly been observed, the rule appears to be as stated in McCartney v. McCartney, 217 Ga. 200 (7), 201 (121 SE2d 785): 'A party’s right to have the testimony of any witness, when material to the assertion of his rights, is unabridged, except by the exceptions under Code § 38-1603, and this right is unaffected by the rule of sequestration of witnesses under Code § 38-1703. [Cits.] Thus, the disobedience of an order of sequestration is a mere irregularity, subjecting the offender to punishment for contempt and may affect his credit as a witness, but it does not render the witness incompetent.’ ” Accord, Shelton v. State, 220 Ga. 610 (140 SE2d 839) (1965); Baker v. State, 143 Ga. App. 302, 305 (6) (238 SE2d 241) (1977). In my opinion this rule, in effect, states that a trial judge does not have discretion in such matters; rather, a party has an unabridged right to present witnesses in his own behalf, with certain exceptions not applicable here. While discretion might be more permissible in civil cases, the rule should be strictly construed in a criminal case. This is particularly true where, as here, the witnesses the defendant sought to impeach were 12 and 14-year-old children, one of whom was the alleged victim. Accordingly, I believe the trial court committed reversible error in refusing to allow the witness to testify.

I am authorized to state that Judge Smith and Judge Banke join in this dissent.