Brown v. State

Marshall, Justice.

This case is here on certiorari. As stated in the Court of Appeals’ opinion, the appellant and the deceased became involved in a scuffle, as a result of which the deceased, who suffered from a form of cancer which weakens the bones, received a fracture of the right femur. He subsequently died, and the appellant was indicted for and convicted of involuntary manslaughter. The Court of Appeals affirmed. We granted certiorari for the purpose of reviewing Divisions 1, 2 and 7 (b) of the Court of Appeals’ opinion.

1. In Division 1, the Court of Appeals held that the trial court did not err in overruling the appellant’s motion to disqualify a special prosecutor employed by the family of the deceased. We agree.

A special prosecutor, who is subject to the direction and control of the district attorney, may be employed by the family of the deceased to assist the district attorney in prosecuting the case. Woods v. State, 240 Ga. 265 (5) ( 239 SE2d 786 ) (1977); Jackson v. State, 156 Ga. 842 ( 120 SE 535 ) (1923). The fact that the special prosecutor represents the deceased’s family in civil litigation arising from his death is no ground for disqualification. Park v. State, 225 Ga. 618 (1b) ( 170 SE2d 687 ) (1969).

Since the appellant made no request that the jury be informed that the victim’s family had hired the special prosecutor, we agree that the failure to make this disclosure to the jury provides no ground for reversal of the conviction.

2. In Division 2, the Court of Appeals held that the failure of the prosecution to furnish the appellant with a list of several state’s witnesses until immediately prior to *537 trial did not constitute grounds for a new trial, since the appellant had waived her demand for a list of witnesses. For reasons which follow, we are unable to agree with this holding.

Several months prior to trial, the appellant on two different occasions filed demands for a list of all state’s witnesses. See Code Ann. § 27-1403 (Const. 1976, Art. I, Sec. I, Par. XI; § 2-111; Cobb, 834; Ga. L. 1966, pp. 430, 431). On the morning of the trial, the appellant formally entered a plea of not guilty in the space provided on the indictment for entry of the plea; however, the appellant did not mark through the language printed on the ipdictment under which the defendant waives a copy of the indictment, list of witnesses, and formal arraignment.

Prior to the empaneling of the jury, the prosecutor presented the appellant with a list of supplementary witnesses. The appellant sought to have the witnesses disqualified, in accordance with the provisions of Code Ann. § 27-1403. In the alternative, she sought a continuance in order to interview the witnesses. The trial court denied the relief sought, but offered defense counsel an opportunity to interview the witnesses outside of the jury’s presence.

The Court of Appeals found this eleventh-hour proffering by the prosecution of a supplementary list of witnesses, without any claim that the evidence was newly discovered, to be questionable. Citing Butler v. State, 139 Ga. App. 92 (1) ( 227 SE2d 889 ) (1976), the Court of Appeals stated that the remedy offered by the trial court was authorized by law. However, the Court of Appeals stated that the remedy was inadequate here where two of the five new witnesses were medical witnesses whose expert testimony was crucial to the state on a highly important issue: the cause of death. Citing Fishman v. State, 128 Ga. App. 505 (4) ( 197 SE2d 467 ) (1974), the Court of Appeals stated that it would find these factors sufficient to demand a new trial had it not been for the appellant’s waiver of her right to a list of witnesses. Citing White v. State, 137 Ga. App. 9 (2) ( 223 SE2d 24 ) (1975) and Parr v. State, 117 Ga. App. 484 (1) ( 160 SE2d 865 ) (1968), the Court of Appeals held that such a waiver is effective *538 and the state is entitled to rely on it.

In the present case, the purported waiver of the demand for a list of witnesses did not occur until immediately prior to trial. Therefore, the state could not have relied on it. Prior to commencement of trial, defense counsel made known to the trial court that he did not intend to waive the appellant’s demand for a list of witnesses and that he had not marked through the waiver language on the indictment because he thought that the pending demand for a list of witnesses made it unnecessary. Under these circumstances, the trial court should have allowed the appellant to withdraw what was clearly an unintentional and inadvertent waiver.

We accept the Court of Appeals’ finding that allowing the appellant an opportunity to examine the witnesses outside of the jury’s presence was an inadequate means of curing the state’s failure to comply with the defendant’s demand for a list of witnesses. Therefore, we hold that a new trial is required.

3. In Division 7 (b), the Court of Appeals held that defense counsel was privileged to refuse to testify in response to a subpoena served on him by the defendant in connection with her motion for new trial. In the subpoena, the defendant sought to show that defense counsel had rendered ineffective assistance of counsel in his trial preparation. The Court of Appeals held that defense counsel was privileged to refuse to answer these questions under Code § 38-1205, which provides that: "No party shall be required to testify as to any matter which may criminate or tend to criminate himself, or which shall tend to work a forfeiture of his estate, or which shall tend to bring infamy or disgrace or public contempt upon himself or any member of his family.” Code § 38-1711 provides: "A witness shall be relieved from testifying as to the same matters hereinbefore specified in relation to a party making discovery.”

In Brooks v. State, 233 Ga. 524 (2) ( 212 SE2d 355 ) (1975), this court construed the foregoing testimonial privilege, in accordance with the great weight of authority, to require the witness to answer questions tending to bring infamy, disgrace or public contempt upon himself or his family, if the proposed evidence is material *539 to the issues in the case; it is only where the proposed answer has no effect on the case except to impair the witness’ credibility that the witness may fall back on the privilege. Accordingly, we hold that an attorney may be required to answer questions which are intended to establish that the attorney rendered ineffective assistance of counsel, even though the answers to these questions may tend to bring him into public disgrace or contempt. The materiality of the evidence outweighs the testimonial privilege.

Argued September 20, 1978

Decided November 7, 1978

Rehearing denied November 21, 1978.

Fierer & Devine, Robert G. Fierer, Bruce H. Morris, Walter James Gordon, for appellant.

Cleve Miller, District Attorney, for appellee.

Since we have ordered a new trial in Division 2, supra, it is unnecessary for the trial court to reconsider the appellant’s motion for new trial. The judgment of the Court of Appeals, affirming the appellant’s conviction, is accordingly reversed.

Judgment reversed.

All the Justices concur, except Undercofler, P. J., who dissents from Divisions 2 and 3 and the judgment, and Jordan and Bowles, JJ., who dissent from Division 3 but concur in the judgment.