Kennebrew v. State , 267 Ga. 400 ( 1996 )

Sears, Justice,

concurring specially as to Division 4.

I fully concur with Divisions 1, 2 and 3 of the majority’s opinion. However, I respectfully disagree with the analysis set forth in Division 4, which reasons that by cross-examining a State’s witness with the playing of his recorded earlier statement, Kennebrew introduced evidence in his defense and thereby forfeited any claim to open and close final arguments under OCGA § 17-8-71.³ As explained below, I believe that this Court’s earlier opinions show that within the meaning of section 17-8-71, a defendant only “introduces evidence” during cross-examination if he actually tenders something into evidence, not if he merely reads or plays documentary or recorded evidence for the jury’s listening. Therefore, I believe that the trial court erred in ruling that Kennebrew waived his claim to open and close final arguments. However, because the record shows that the error in this case was harmless, I concur with the result reached in the majority opinion.

The question of what actions taken by the defense during cross-examination will result in the relinquishment of a claim to open and close final arguments was first addressed by this Court in Freeney v. State.⁴ In that case, a woman accused of murder made a statement to the jury in which she referred to receipts for rents paid, exhibited the receipts to the jury, and actually handed the receipts to the jury. After this, at the request of the State’s attorney, the receipts were introduced into evidence. Thereafter, the defense cross-examined a State’s witness by showing him a different receipt and asking him to verify his signature thereon, and the defense also tendered that receipt into evidence. Because these receipts were actually introduced into evidence, this Court ruled that the defendant could not claim a right to open and close arguments. However, in so ruling, the court stated that:

If it were clear that the rent receipts which formed the subject of the ruling in regard to the opening and conclusion of the arguments] were merely read by the defendant as a part of her statement [to the jury], without objection from counsel or ruling thereon by the court, and were not introduced into evidence . . . this would not have affected the right of her counsel to open and conclude the argument.⁵

In Park v. State,⁶ this Court reaffirmed the principle enunciated in Freeney. In Park, the defendant made a statement to the jury in which he referred to and displayed for the jury a written power of attorney and insurance documents. Based upon this, the trial court denied the defendant’s request to open and close arguments.⁷ This Court reversed, and stated that with regard to a defendant’s claim to open and close final arguments, the Freeney opinion “recogniz[es] a distinction between the effect of a defendant’s exhibiting a document and of his introducing it in evidence.”⁸ In the former instance, the defendant does not waive a claim to open and close arguments; in the latter instance, he does waive such a claim.⁹ In Park, it was ruled that the trial court erred in denying the request to open and close arguments because “the record contained] no indication whatsoever that the documents mentioned by the defendant in his statement were introduced in evidence. The State does not even contend any more than that these papers were exhibited to the jury.”¹⁰

Thus, this Court unquestionably has ruled that a defendant does not forfeit a claim to open and close final arguments if the defense instructs a witness simply to read from documents that are not introduced into evidence, refer to such documents, or exhibit such documents to the jury. I believe that in this case, Kennebrew’s playing of the tape recording during cross-examination of the State’s witness is analogous to the mere reading of documentary evidence and exhibiting such evidence to the jury, as occurred in Freeney and Park. As made clear by those cases, unless the evidence is actually introduced into the body of evidence, it does not affect a claim to open and close arguments under section 17-8-71.

When policy reasons are taken into consideration, I think that this is the better rule. For example, in this case, the defense played the tape-recorded statement because it was inconsistent to the testimony of the State’s witness, and offered the defense an opportunity to impeach the witness’s credibility. Thus, it is clear that the defense did nothing to initiate the playing of the tape recording, it merely responded (appropriately, I believe) to the witness’s inconsistent testimony. In the future, the majority opinion will force defense lawyers in similar situations to choose between either raising the inconsistent statement of a State’s witness or preserving their claim to open and close arguments. Presenting defense lawyers with such a Hob-son’s choice may well threaten the fundamental fairness required in all criminal prosecutions.

Furthermore, I believe that the rule enunciated in Freeney and Park would prevent the confusion and “slippery slope” likely to result from trial courts’ application of the majority’s reasoning. This Court now has ruled that cross-examination with the playing of an earlier tape-recorded statement, without introducing it into evidence, prevents the defense from opening and closing final arguments. However, this Court also has ruled that when a State’s witness reads from a document given to him by the defense, or exhibits such a document to the jury, without it being introduced into evidence, the defense does not waive its right to open and close arguments.¹¹ There is nothing to distinguish these separate acts by the defense, yet they lead to contrary results that can only (1) generate confusion; (2) lead to inconsistent applications by the trial courts; and (3) create a “slippery slope” where even the slightest action taken by defense counsel during cross-examination may operate as a waiver of the right to open and close final arguments. The principles enunciated by this Court in Freeney and Park, however, set forth a bright-line test that would provide clarity, require consistent application in the trial courts, and prevent unwarranted waivers of the right to opening and closing arguments.

Accordingly, for the reasons discussed above, I believe that the trial court erred in ruling that Kennebrew waived his right to open and close final arguments, and I disagree with the majority’s reasoning in Division 4. However, my review of the record shows that there was overwhelming evidence of Kennebrew’s guilt, including the testimony of Kennebrew’s companion, who was an eyewitness to the events immediately preceding and following the murder, as well as the murder itself. Therefore, I believe the error in this case to have been harmless,¹² and I concur fully in the judgment affirming Kennebrew’s conviction.

I am authorized to state that Presiding Justice Fletcher joins in this special concurrence as to Division 4.

3 OCGA § 17-8-71 literally states that “[i]f the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the state is closed.” As noted in the majority opinion, under the statute the defendant is still allowed to testify without forfeiting a claim to open and close arguments. The case law indicates that permitting a defendant to testify without affecting his claim to open and close arguments results from past tradition, when an accused was permitted under the previous Penal Code to make a statement to the jury, which was not considered to be evidence. See, e.g., Freeney v. State, 129 Ga. 759 (59 SE 788) (1907); Scott v. State, 243 Ga. 233 (253 SE2d 698) (1979).

4 129 Ga. 759 (59 SE 788) (1907)

5 129 Ga. at 764-775 (emphasis supplied).

6 224 Ga. 467 (162 SE2d 359) (1968).

7 Id. at 478-480.

8 Id. at 478.

9 Id. at 478-480.

10 Id. (emphasis in original). The Park opinion also notes that this position was adopted by the Court of Appeals as early as Hart v. State, 88 Ga. App. 334 (76 SE2d 561) (1953). Id.

11 See notes 2-8, supra, and accompanying text.

12 See Scott, supra; Seyden v. State, 78 Ga. 105 (1886).