Vinyard v. State , 177 Ga. App. 188 ( 1985 )

Beasley, Judge.

Jamey Lee Vinyard was convicted of burglary after trial to a jury and was sentenced to serve seven years and to pay $593 in restitution. He now appeals.

1. Appellant alleges as error the trial court’s action permitting a letter written by his brother to go out with the jury. The brother had earlier pleaded guilty to a charge of burglary arising from the same incident for which appellant was tried and now appeals.

The state had obtained a letter written by defendant’s brother to him from the prison diagnostic center, where he was already incarcerated following his plea of guilty and sentencing for the burglary.¹ The letter was postmarked August 13, 1984, after defendant had been indicted for the same offense and was awaiting trial. If defendant had participated in the burglary, his brother was the only eyewitness known to the state, so it planned on calling him to testify. Defendant’s position in defense was that he was not present at the burglary, knew nothing about it, and that after the policeman saw him at the station while on his way back from going out in his girl friend’s car for something to eat, he returned to her apartment, went to sleep and did not awaken until the police came to arrest him. His brother was not there when he arrived back, he said.

The witness testified that defendant did not have anything to do with the burglary, that he admitted being alone from the very beginning when he was arrested, and that he did not deviate from that position at any time. In the course of the state’s case, the district attorney asked several questions about whether the witness had “talked” to his brother about what the latter was going to say in his own defense or what he should say. The witness replied that they had never “discussed” it. Then the state asked whether he had written a letter to defendant about it, and the witness replied that he had. When the letter was produced, the witness admitted having written it. He never denied it or any part of its contents. He subsequently explained that letters are not censored when they are mailed by inmates, that “Hi Bro” meant defendant, and that the signature “little bro” meant himself.

The fact that the witness never denied writing the letter but only denied discussing their respective anticipated testimonies apparently escaped attention and it was perceived that the letter constituted a prior inconsistent statement, inconsistent with the testimony that the subject had not been talked about between the two or discussed. But examination of the testimony shows that it was not inconsistent.²

Depending on the meaning the reader attributes to the letter’s contents, it was or it was not consistent with the testimony that defendant had nothing to do with the burglary. Considering that the writer had already pleaded guilty to the crime and knew that he had told the police from the outset that he was the only one involved, if that was true he would not want his brother, who was arrested after-wards, to say anything that would jeopardize his non-involvement. Of course, if the defendant was actually a cohort, and the sentenced letter-writer was motivated by a belief he could save his brother from implication, he would not want defendant to say anything that would be inconsistent. So whether the letter is read as corroborating non-involvement or as an indication of complicity to withhold the truth, depends on the circumstances and the credibility of the witnesses. And that, of course, is a jury question. Whether its contents showed an inconsistency between the witness’ unwavering testimony that he was alone was up to the jury. Thus the jurors had a perfect right to see it as evidence that the witness was not telling the truth at trial concerning who committed the burglary.

It was not “written testimony” as, for example, a deposition is. The written deposition is merely prerecorded testimony and, when the questions and answers are read to the jury during the course of the trial, the answers become the testimony and there is no need to duplicate that testimony by giving it to the jury also in its written form. As a matter of fact, to do so is error because of the added emphasis and therefore unfair advantage the twice-submitted evidence is given. Interrogatories, too, are written questions asked within the context of a lawsuit, and if the witness at trial adopts the answers previously given, they constitute no more and no less than his testimony at trial. If he denies the previously given answers, they may be read as inconsistent statements given earlier to the same questions asked at trial. Thomason v. Genuine Parts Co., 156 Ga. App. 599, 600 (275 SE2d 159) (1980). Likewise with an affidavit, which is a written statement. The same applies to a dying declaration, reduced to writing and signed by the deceased. Strickland v. State, 167 Ga. 452, 460 (6) (145 SE 879) (1928). All of these are statements, recorded with the judicial process in mind.

In this case the issue was whether the witness had written his brother a letter from prison concerning trial testimony which, depending on how the witness might explain it and how the jury might construe it, could be circumstantial evidence of guilt or innocence of the intended recipient of the letter. The state considered it in the former light; the defendant, although objecting to it, elicited testimony showing it could be considered in the latter light.

Since the contents of the letter, and not only whether it had been sent or not, was in issue, the jury was authorized by the rules of evidence to see it. It was the best evidence of the writing which the state sought to prove and higher proof of its contents than oral evidence thereof. OCGA § 24-5-4. It was not a reduction to writing of an oral statement, which oral statement could be re-elicited as testimony in court. Nor was it a statement in lieu of testimony. Certainly when the witness wrote the letter, he had no intention or idea that what he wrote would constitute testimony. The circumstances did not give the letter’s contents the nature of testimony either. The letter was not a substitute for testimony, nor could it be as it was not under oath, for one thing. It did not constitute merely a written record of a statement by the witness, which statement to the factfinder by way of testimony was, or could have been if it had been elicited, given at trial. It was instead a private written communication from the witness in prison to his brother outside. Thus it was independent and original evidence, in and of itself. Its importance was in part its relation to the circumstances out of which it sprang. Not only the words used in the letter, all of which were not in testimony, but the spelling, the style, the handwriting and so on were evidence of the character of the communication which were not and could not be communicated to the jury by live testimony. Only the document could “speak for itself.” It did not depend for its value as a letter solely on the credibility of the maker. Thus it was not double evidence when admitted. It did not bear the critical criteria that would make it inadmissible, in that the fact of the letter itself, did not depend for its value on the credibility of the maker. See Royals v. State, 208 Ga. 78, 81 (2) (65 SE2d 158) (1951). Whether the witness admitted it or not, it still existed.

“Interrogatories and depositions, being in lieu of testimony, should not be taken into the jury room. [Cits.] The rule does not apply to documents which, being under the best-evidence rule, are introduced as documents and not orally.” Whitehead v. Seymour, 120 Ga. App. 25, 27 (2) (169 SE2d 369) (1969); Dunagan v. Elder, 154 Ga. App. 728, 729 (3) (270 SE2d 18) (1980). The reason for excluding written testimony from being sent out with the jury simply did not apply to this letter. “The reason given for not allowing interrogatories to be delivered to the jury [is] that ‘the testimony which [it] contains, if read and reread by the jury, would have an unfair advantage over oral testimony of the other side, by speaking to the jury more than once.’ . . . [S]uch written testimony may have an unfair advantage over oral testimony by speaking to the jury more than once.” Royals v. State, supra at 80-81. Part of the reasoning seems to be that such written statements are made with the calculation to influence the fact finder. Shedden v. Stiles, 121 Ga. 637, 640 (4) (49 SE 719) (1904). The letter was not written testimony.

2. None of the remaining enumerations of error has merit.

Judgment affirmed.

Banke, C. J., Deen, P. J., McMurray, P. J., Carley and Sognier, JJ., concur. Birdsong, P. J., Pope and Benham, JJ., dissent.

1 Apparently the letter was delivered to the prosecution by appellant’s ex-girl friend. The letter was sent to her address and opened by her.

2 The brothers had, after all, little if any opportunity to talk with one another following their separate arrests.