Birdwell v. State ( 1997 )

Judge Harold R. Banke,

concurring specially.

I concur specially in Division 1 because the State’s witness, a Georgia Bureau of Investigation polygrapher, clearly violated the court’s order excluding any reference to the polygraph by gratuitously injecting the issue into the case in an unresponsive answer on cross-examination. Nothing in the question posed to the polygrapher elicited the reference to the polygraph examination. The fact that the witness was a trained law enforcement agent who had been informed on the record that the polygraph evidence would be excluded at trial renders the error even more egregious. See Boyd v. State, 146 Ga. App. 359 (2) (246 SE2d 396) (1978) (reversing denial of motion for mistrial asserted after the State’s witness placed the defendant’s character in issue with hearsay).

Nothing in the record supports the majority’s finding that the error was self-induced. Nor should we fault Birdwell for declining a curative instruction which would only have brought more attention to the fact that there was a polygraph which was not used. Nevertheless, the overwhelming evidence of guilt, including Birdwell’s own admissions both before and during trial, convinces me that the error was harmless beyond a reasonable doubt. Compare Ochle v. State, 218 Ga. App. 69, 72-73 (4) (459 SE2d 560) (1995).

I am authorized to state that Judge Smith joins in this special concurrence.

Decided November 25, 1997 Reconsideration denied December 12, 1997 Thompson, Fox, Chandler, Homans & Hicks, Joseph A. Homans, for appellant. Timothy G. Madison, District Attorney, Sean P. Dolan, Robin R. Riggs, Assistant District Attorneys, for appellee.