Spivey v. State

Carley, Judge.

Appellant was tried before a jury and found guilty of selling cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

At trial, the State relied upon the testimony of Randy Carter, a private citizen who had been working with police officials, to establish appellant’s guilt. After the State rested, appellant called Brenda Ross as a defense witness. The initial question posed to Ms. Ross was whether she had “some conversations — two in particular . . . late last December with Randy Carter. . . .?” Ms. Ross declined to answer this question and invoked the Fifth Amendment. Appellant’s counsel informed the trial court that the purpose of his questioning of Ms. Ross was not to have her incriminate herself but to have her recount conversations with Carter which were exculpatory of appellant and impeaching of Carter’s trial testimony. The trial court nevertheless sustained Ms. Ross’ invocation of the Fifth Amendment and it is this ruling that is the subject of appellant’s enumerations of error.

“The appropriate course where, as here, a witness invokes his right to remain silent is as follows: First, the trial court must determine if the answers could incriminate the witness. If so, then the decision whether it might must be left to the [witness]. [Cits.] On the other hand, where the trial court determines that the answers could not incriminate the witness, he must testify (or be subject to the court’s sanction). [Cits.] It is for the court to decide if the danger of incrimination is ‘ “real and appreciable.” ’ [Cit.]” (Emphasis in original.) Lawrence v. State, 257 Ga. 423, 424 (3), fn. 3 (360 SE2d 716) (1987). We fail to see how it could incriminate Ms. Ross merely to answer questions about such conversations as she may have had with Carter regarding Carter’s participation in the events leading up to appellant’s arrest and prosecution. Such limited questioning would appear to be calculated to elicit only potentially relevant testimony exculpatory of appellant, rather than incriminatory of Ms. Ross. See Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). If, in his questioning of Ms. Ross, appellant’s counsel did not pursue the relevant topic of Carter’s conversations regarding appellant’s guilt or innocence and strayed into an area which was potentially incriminatory of Ms. Ross herself, then it would be appropriate to allow Ms. Ross to determine whether her answer might be incriminating. “[T]he claim of privilege should be made when the question is asked and ... it cannot operate as a general prohibition of inquiry[.] [Cits.] The privilege against self-incrimination cannot be asserted in advance of the questions actually propounded in the examination or hearing. [Cit.]” Chastain v. State, 113 Ga. App. 601, 602 (3) (149 SE2d 195) (1966). The record demonstrates that the trial court, in effect, erroneously allowed Ms. Ross to invoke the Fifth Amendment as a general prohibition of appellant’s inquiry into the topic of her non-incriminatory conversations with Carter.

However, reversal of appellant’s conviction would not be authorized unless the error was harmful. Ms. Ross had taped her conversations with Carter and appellant’s counsel made a proffer of the transcripts of those taped conversations. We have reviewed those transcripts and find nothing therein that specifically relates to appellant’s arrest and prosecution or that is materially impeaching of Carter’s trial testimony and exculpatory of appellant. Carter’s conversations appear to relate only to his participation in the arrest and prosecution of individuals other than appellant. “A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case.” OCGA § 24-9-83. If, in his conversations with Ms. Ross, Carter made statements regarding his participation in other arrests and prosecutions, those statements were certainly not inconsistent with or impeaching of his trial testimony regarding appellant’s arrest and prosecution. Likewise, the specifics of Carter’s statements to Ms. Ross regarding his participation in other arrests and prosecutions would not be admissible as impeaching evidence pursuant to OCGA § 24-9-84. “On direct examination of a witness for the purpose of impeaching another witness by proof of the latter’s general bad character and reputation[,] the examination must be confined to the general character of the witness, and questions as to specific acts are improper. [Cit.] “Particular transactions can not be inquired into to prove the bad character of a witness, except in cross-examination in seeking for the foundation and extent of the witness’s knowledge.’ [Cit.]” Haynes v. Phillips, 67 Ga. App. 574, 576 (1) (21 SE2d 261) (1942). Accordingly, even if the trial court had allowed appellant’s counsel to ask Ms. Ross questions regarding her non-incriminating conversations with Carter, it is clear that she would not have been able to give answers which were relevant to any issue in the case. Thus, the trial court’s error in allowing the invocation of Ms. Ross’s Fifth Amendment privilege was harmless.

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs specially.