Hubbard v. State

Pope, Judge,

dissenting.

I respectfully dissent. The State presented evidence which established a prima facie showing of appellant’s guilt on all charges. Appellant’s sole defense was entrapment. Appellant testified that he had never dealt in illegal drugs prior to having been induced to sell drugs by a man he knew as Joe Westmoreland, a man who later introduced appellant to undercover GBI agents. Appellant was persuaded to participate in selling drugs by Westmoreland’s assertion that appellant could make a lot of money. Appellant denied ever using illegal drugs himself and denied selling them to anyone other than Westmoreland and the undercover GBI agents. He testified that absent the actions of Westmoreland and the GBI agents, he would not have gotten into dealing in illegal drugs. On cross-examination appellant admitted acquiring and selling the subject illegal drugs; he answered questions on the financing of the drug transactions; and he testified how long it took him to acquire the drugs. However, appellant invoked the Fifth Amendment when asked the identity of his source of the illegal drugs. Upon motion by the State at the conclusion of appellant’s testimony, the trial court struck the entirety of appellant’s testimony and instructed the jury to totally disregard it in their deliberations.

“A party, though introduced as a witness in his own behalf, may, upon cross-examination as to matters not voluntarily testified about on his direct examination, decline to give testimony which would tend to incriminate him. . . .” Bishop v. Bishop, 157 Ga. 408 (1) (121 SE 305) (1924). “The true rule is that when a witness declines to answer on cross-examination certain pertinent que[s]tions, relevant to a matter testified about by the witness on direct examination, all of the witness’ testimony on the same subject matter should be stricken. [Cits.]” Smith v. State, 225 Ga. 328, 331 (168 SE2d 587) (1969), cert. den., Smith v. Georgia, 396 U. S. 1045, rehg. den., 397 U. S. 970 (1970). “[A] distinction must be drawn between cases in which the assertion of the privilege merely precluded inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination.” Id. at 333.

It is clear under the circumstances in this case that the State’s inquiry as to appellant’s source of the illegal drugs was neither a matter essential to its case-in-chief nor a matter testified about by appellant on direct examination. Indeed, the State’s sole purpose in pursuing this line of questioning was an attempt to rebut appellant’s entrapment defense by inquiring into his “knowledge and expertise . . . in dealing with drugs.” While I encourage all lawful attempts by the State to discover and eradicate all sources of illegal drugs, the State’s inquiry here was not pertinent to the issues raised at trial, i.e., the identity of appellant’s source of the drugs was at most an issue collateral to the State’s case-in-chief as well as appellant’s defense of entrapment. Compare Rasnake v. State, 164 Ga. App. 765 (2) (298 SE2d 42) (1982), cert. den., Rasnake v. Georgia, __ U. S. __ (103 SC 3114, 77 LE2d 1368) (1983), wherein the defendant’s testimony was stricken upon his refusal to answer a question relating to the ownership of a certain suitcase in which illegal drugs were discovered, said inquiry being relevant to issues raised at trial. Since the State’s questions regarding the identity of appellant’s source of the drugs bore only on appellant’s credibility and not on a matter about which appellant had testified on direct examination, under the holding in Smith v. State, supra, the trial court was not authorized to strike any portion of appellant’s testimony upon his invocation of the Fifth Amendment in response to the questions. In my view, the trial court’s action in this regard is error requiring a new trial.

I am authorized to state that Presiding Judge Deen and Judge Benham join in this dissent.