Wynn v. State ( 1972 )

Clark, Judge,

concurring specially. Initially I concurred in the reversal opinion on the authority of Lynch v. State, 108 Ga. App. 650 (134 SE2d 526). I was further influenced by the views expressed in Pickler v. State, 220 Ga. 224 (138 SE2d 171) where the Supreme Court reversed a conviction because the trial judge charged the alternatives open to an accused in the exact language of Code Ann. § 38-415. This was followed by our court in Cameron v. State, 123 Ga. App. 284 (180 SE2d 555). I recognize the difference between the case at bar in which we have the judge voluntarily advising an accused as to his rights upon taking the witness stand by reciting to him in the presence of the jury the alternatives from this code section, whereas in Pickier the reversal was based on the charge being "not adapted to the record and not applicable in a case where the accused testified as a witness.” (Emphasis supplied.) Nevertheless, I had at that time considered the discussion on p. 225 of the Pickier opinion with reference to the advantage of sworn testimony over an unsworn statement to be applicable to the case at bar when the trial judge reviews such alternatives with the accused in the presence of the jury. If our Supreme Court gave such importance to this difference, then certainly laymen serving as jurors would be impressed even more when hearing the instruction to the accused as to the alternatives if defendant thereafter elects to give an unsworn statement.

Upon further study, however, I decided to reverse my position. My change of mind¹ came about because I decided we were bound to follow certain opinions by the Supreme Court in addition to their Waldrop, Hammond and Massey cases. The additional Supreme Court cases which indicate correctness of the action taken by the trial judge in this case are:

(1) Harris v. Stynchcombe, 227 Ga. 763 (2) (183 SE2d 205) was an instance where "The record shows that the defendant indicated that he wished to make a statement; that the court instructed him in terms of § 38-415; that he did not object to making an unsworn statement; that he did not offer himself to be sworn as a witness in his own behalf or to have his counsel examine him as a witness or unsworn; that no constitutional attack was made upon either Code Ann. § 38-415 or § 38-416 . . .” It was held there was no denial of defendant’s alleged rights.

(2) Hart v. State, 227 Ga. 171 (5) (179 SE2d 346) where the charge approved was "The defendant’s statement is not under oath and it shall have such force only as the jury may think right to give it. The jury may believe it in part, they may believe it as a whole or they may reject it as a whole or you may believe it in preference to the sworn testimony in the case and acquit the defendant.”

(3) Hunsinger v. State, 225 Ga. 426, 428 (169 SE2d 286). Here the defense counsel stated to the court: "The defendant is going to take the stand to make an unsworn statement. We request the court to inform him of his rights in this regard. That is, of any defendant in a criminal case.” In advising defendant the trial judge limited his explanation to that portion of the Code Section dealing with the unsworn statement. Defense counsel contended that he should not have thus limited it, as the result was that defendant was not instructed as to all of his rights. The Supreme Court said that competent counsel having announced defendant was going to make an unsworn statement it was not error to confine the instructions to this portion of the statute.

(4) Abrams v. State, 223 Ga. 216 (154 SE2d 443) was similar to Hunsinger in that at p. 222 it is contended that there was error in that "the court, prior to defendant making an unsworn statement, failed to correctly advise and instruct him as to his right to have the assistance of counsel and to present evidence in his defense in violation of the 6th and 14th amendments to the United States Constitution and Code Ann. § 38-415 ... in that he failed to instruct the defendant that he had a right to testify under oath as a witness in his own behalf.” The court ruled no error in that "so far as the record shows the prisoner voluntarily took the stand to make an unsworn statement. He did not announce in open court his intention to testify, as required by the statute. He was represented by competent counsel, and we can assume that defendant elected to make an unsworn statement after consultation and upon advice of his counsel.”

In the writing of this concurring opinion, I have not dealt with the numerous decisions of our Court of Appeals which have been rendered since the General Assembly sought to meet the decision of Ferguson v. Georgia, 365 U. S. 570 (81 SC 756, 5 LE2d 783) by amending Code § 38-415 to add the language of Ga. L. 1962, pp. 133, 134. Suffice it to quote from Emory Professor William H. Agnor’s article in 23 Mercer L. Rev. 126, when in reviewing developments during the previous year in the field of criminal law, he said: "This provision [forbidding comment because of accused’s failure to testify under oath] is still producing problems, along with other problems in regard to the sworn statement.” The instant division in our court is confirmatory of Professor Agnor’s comment as the courts seek to protect a privilege given the accused by our statute without infringement upon defendant’s right to a fair trial.

1 L’homme absurde est celui qui ne change jamais (The absurd man is he who never changes) — Auguste Marseille Barthelemy: Ma Justification (1832) as quoted in Bartlett’s Familiar Quotations (13th Ed.) (1955), p. 444.