A jury found Benjamin Clark guilty of armed robbery, and the trial court entered judgment of conviction and sentence on the guilty verdict. On appeal to the Court of Appeals, Clark raised two enumerations of error, contending first that the continuing witness rule was violated and, second, that the charge to the jury was erroneous. The 12 Judges on the Court of Appeals were equally divided as to affirmance or reversal based upon resolution of the first enumeration of error. Accordingly, the case was transferred to this Court pursuant to Art. VI, Sec. V, Par. V of the Georgia Constitution of 1983. The Court of Appeals also submitted to us two separate opinions, each of which received the votes of six judges. The victim, and only witness to the crime, testified that, during his night shift at the front desk of a hotel, he permitted Clark, who was a daytime maintenance man, to enter the locked hotel in order to use the bathroom. Once inside the hotel, however, Clark came through the front desk door, pulled out a gun, and demanded money from the cash drawer. After receiving the money, Clark gave $90.00 to the victim and told him to give police an inaccurate description. Clark also threatened to kill the victim if he revealed Clark’s identity to police. During the trial, Clark proffered and the trial court admitted into evidence two written statements that the victim gave to police, and attempted to show that the two statements were inconsistent with one another and with the victim’s trial testimony. Near the beginning of deliberations, a juror asked for the statements. The trial court permitted the statements to go out with the jury, despite Clark’s objection based on the continuing witness rule, because he had tendered them into evidence.
“As a general rule, allowing the written statement of an alleged victim to go out with a jury violates the continuing witness rule. Cit.” Kent v. State , 245 Ga. App. 531, 533 3 538 SE2d 185 2000. See also Buchanan v. State , 282 Ga. App. 298, 300 3 638 SE2d 436 2006. One of the opinions submitted by the Court of Appeals concluded that the continuing witness rule was violated in this case, and that the error was harmful because the victim was the only witness, the jury was charged with determining his credibility, and the evidence was not overwhelming. Summage v. State , 248 Ga. App. 559, 561 1 546 SE2d 910 2001. That opinion would also overrule Hopkins v. State , 283 Ga. App. 654, 658 3 642 SE2d 356 2007. The other opinion took issue with the first opinion’s determination that the error was not self-induced merely because Clark was the party who introduced the victim’s written statements into evidence. This opinion also posited that Hopkins v. State , supra, should be followed and not overruled.
