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Court of Appeals of Georgia.


No. A07A1776.

Decided: March 27, 2008

Gerard Bradley Kleinrock, for Appellant. Gwendolyn Keyes Fleming, Leonora Grant, for Appellee.

A jury found Benjamin Clark guilty of armed robbery. Following the denial of his motion for new trial, Clark appeals, arguing that the trial court erred (1) in allowing the victim's statements to police to go out with the jury and (2) in instructing the jury that armed robbery could be committed by a method that was not charged in the indictment. For the reasons set forth below, we reverse.

The victim, and only witness to the crime, testified that during his night shift at the front desk of a Comfort Suites Hotel, Clark rang the hotel's front door bell. The victim recognized Clark as one of the hotel's maintenance men and let him in to use the restroom. As Clark walked toward the restroom, the victim went back behind the front desk. Clark then came through the front desk door, pulled out a gun, and demanded money from the cash drawer. After the victim gave Clark the money from the drawer, Clark gave the victim $90 and provided him with a “phony description” to give to police. He then threatened to kill the victim if the victim identified him to police. Clark walked out the door and drove away in a late model vehicle “similar to a Toyota or a Honda Accord.” After Clark left, the victim called a co-worker and then the police.

1. Clark contends that the trial court erred in allowing the victim's statements to go out with the jury in violation of the continuing witness rule. Clark introduced into evidence two statements the victim gave to police following the robbery. These statements were read by the victim in court, and during cross-examination, Clark attempted to point out minor inconsistencies between those statements and the victim's testimony at trial, as well as inconsistencies between the two statements.1 A few minutes after the jury began deliberating, the court dismissed a juror because the juror's daughter was acquainted with the victim, then replaced her with an alternate juror. Before the jury started over with its deliberations, a juror asked if the jury could have the victim's statements in the jury room. The trial court responded, “If you'd like to have them, yes, you're entitled to them. Yes.” Clark objected that sending the statements out with the jury was a violation of the continuing witness rule.

As a general rule, allowing an alleged victim's written statement to go out with a jury violates the continuing witness rule. Kent v. State, 245 Ga.App. 531, 533(3) (538 S.E.2d 185) (2000). “In Georgia, the continuing witness rule is based on the idea that written testimony is heard by the jury when read by a witness, just as oral testimony is heard when a witness testifies. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.” (Citations and punctuation omitted.) Buchanan v. State, 282 Ga.App. 298, 300(3) (638 S.E.2d 436) (2006).

In this case, allowing the victim's statements to go out with the jury violated the continuing witness rule. But “harm as well as error must be shown to warrant a reversal.” (Citations and punctuation omitted.) Hinton v. State, 233 Ga.App. 213, 214(1) (504 S.E.2d 49) (1998). Here, the victim was the only witness to the crime, the jury was charged with determining the victim's credibility, and the evidence was not overwhelming. Under these circumstances, “we cannot say it is highly probable that allowing the victim's [statements] to go out with the jury did not contribute to the verdict.” (Citation and footnote omitted.) Summage v. State, 248 Ga.App. 559, 561(1) (546 S.E.2d 910) (2001) (reversible error where videotaped statement of victim was allowed to go to jury room and jury had to decide whether victim was a credible witness). Clark is therefore entitled to a new trial. See id.

The State's reliance on Kent v. State, 245 Ga.App. 531 (538 S.E.2d 185) (2000) and Hinton v. State, 233 Ga.App. 213 (504 S.E.2d 49) (1998), is misplaced. In Kent, the physical evidence against the defendant was overwhelming and independent of any witness credibility issue. Id. at 533(3). And Hinton is distinguishable because it involved a transcript of the defendant's own trial testimony that he never sold drugs, testimony which was repeated several times during cross-examination, re-direct, and argument of counsel Id. at 214(1). The court held that under those circumstances, it was highly probable that the jury's view of the transcript of the statement did not contribute to the verdict.

In reversing Clark's conviction here, we must overrule Hopkins v. State, 283 Ga.App. 654 (642 S.E.2d 356) (2007). Hopkins holds that although allowing a police report to go out with the jury was a violation of the continuing witness rule, the error was nevertheless self-induced because the report was admitted by the defense for the purpose of impeachment. Id. at 658(3). Hopkins is the first and only case applying a self-induced error analysis to a violation of the continuing witness rule. The authority cited in support of the holding in Hopkins does not involve a continuing witness objection, see id. at n. 14, citing Phyfer v. State, 259 Ga.App. 356 (577 S.E.2d 56) (2003), but rather involves testimony (previously ruled inadmissible) induced by defense counsel's cross-examination of a witness. See Phyfer, supra, 259 Ga.App. at 361(5)(b). The continuing witness rule concerns undue emphasis that is placed on testimony or statements going out with the jury and is independent of the circumstances surrounding the admission of the testimony or statement into evidence. And we find no authority to support the conclusion that a defendant must suffer allowing a statement to go out with the jury once the defendant has entered that statement for impeachment or some other purpose. The holding in Hopkins would render the continuing witness rule useless.

The dissent argues that the Georgia Supreme Court's opinion in Dyals v. Dyals, 281 Ga. 894 (644 S.E.2d 138) (2007), cites Hopkins in support of an “analogous proposition.” But that is not the case. In Dyals, the husband complained that bank statements with markings made by his wife's attorney should not be sent out with the jury. Id. at 896(3). The wife removed the objectionable pages, and the husband approved of the remaining pages before allowing them to go out with the jury. Id. Dyals simply cites to Hopkins for the proposition of self-induced error generally, by stating that the husband cannot complain of the jury's view of documents he approved for their review. The court in Dyals did not address the analysis employed in Hopkins-that if a party admits a statement into evidence, he cannot later make a continuing witness objection. Neither the facts nor the analysis employed in Hopkins is analogous to that employed in Dyals. The dissent reads more into Dyals than is warranted.

2. Clark's remaining enumeration is rendered moot by our holding in Division 1.

The vote of this court is tied 6 to 6 and this case is hereby transferred to the Supreme Court of Georgia. Those voting to affirm the judgment: Barnes, C. J., Blackburn, P. J., Miller, Ellington, Mikell and Adams, JJ. Those voting to reverse the judgment: Andrews, P. J., Johnson, P. J., Smith, P. J., Ruffin, Phipps and Bernes, JJ.

I respectfully disagree with the majority's conclusion that Hopkins v. State1 must be overruled. Hopkins was correctly decided, and the case was cited by the Georgia Supreme Court in Dyals v. Dyals2 in support of an analogous proposition.

In Hopkins, overwhelming evidence supported the defendant's DUI-less safe conviction; he was passed out drunk behind the wheel at an intersection; beer cans were found throughout his vehicle; he admitted that he had been drinking; and he failed a field sobriety test.3 During cross-examination of the arresting officer, his counsel erroneously tendered the arrest report into evidence instead of laying a foundation in order to impeach the officer with an inconsistency in the report.4 We held that although counsel had performed deficiently by tendering the report, which contained the defendant's blood-alcohol content, the deficient performance was not prejudicial because the evidence was overwhelming.5 Finally, we held that the defendant would not be heard to complain that the trial court violated the continuing witness rule by allowing the report to go out with the jury, because any error had been induced by counsel's own conduct.6

Hopkins was relied upon by our Supreme Court in Dyals, a divorce case. In that case, the husband argued that his businesses' bank statements should not have gone out with the jury because certain markings on the statements made by his wife's counsel constituted a “continuing argument of counsel.”7 Husband's counsel, however, approved of those pages of the exhibit that were sent out with the jury, and the Supreme Court held that “to the extent that any error could have resulted from the marks or highlights that were on the remaining pages that were ultimately sent out with the jury, [h]usband's counsel induced such error by approving the pages, and he will not be heard to complain of the results here.”8 The Court cited Crozier v. State9 and Hopkins for the proposition that a party cannot complain of error induced by his own conduct.10 In my view, the Court thus recognized that the “continuing argument” objection asserted by the husband in Dyals did not differ significantly from the “continuing witness” objection raised by the defendant in Hopkins. Thus, although the Court in Dyals did not cite Hopkins with express approval, the Court did rely on Hopkins in support of an analogous proposition. For these reasons, Dyals should be viewed as tacit approval of Hopkins, and the case should not be overruled.

I am authorized to state that Barnes, C. J., Blackburn, P. J., Miller, Ellington and Adams, JJ., join in this dissent.


1.  Defense counsel challenged the victim on whether Clark rang the hotel bell or knocked on the door, whether Clark rushed in behind the desk or walked in, and whether he only saw Clark's headlights as he drove away or observed the color and approximate model year of the vehicle.

1.  283 Ga.App. 654 (642 S.E.2d 356) (2007).

2.  281 Ga. 894 (644 S.E.2d 138) (2007).

3.  Hopkins, supra at 654-655(1).

4.  Id. at 655-656(2).

5.  Id. at 657-658(2)(a), (b).

6.  Id. at 658-659(3).

7.  Dyals, supra at 896(3).

8.  Id.

9.  263 Ga. 866, 868(3) (440 S.E.2d 635) (1994).

10.  Dyals, supra.

SMITH, Presiding Judge.

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