People v. Blackburn

Opinion

DALSIMER, J.

Following a jury trial, appellant suffered a conviction of multiple counts in the information alleging that he had committed various serious felonies. After denial of his motion for new trial, probation was denied and appellant was sentenced to spend in excess of 18 years in the state penitentiary. Due to egregious error by the trial court, we must reverse and remand the matter for a new trial.

Appellant appeared at trial in propria persona. Late in the afternoon on the seventh day of trial, appellant called as a defense witness Mr. Mewborn, his alleged partner in the crimes with which he had been charged. When Mr. Mewborn attempted to exercise his right not to testify by virtue of the Fifth Amendment to the United States Constitution, the court ruled that he had no testimonial privilege and directed the witness to answer. A few moments later, the court recessed the trial until the following morning.

At 9:55 the following morning, Mr. Roger Stanton appeared, identified himself as a deputy public defender, and informed the court that he was representing Mr. Mewborn. On behalf of Mr. Mewborn, counsel renewed the claim of privilege against giving testimony that might tend to incriminate that witness. After a brief discussion, the court agreed that Mr. Mewborn indeed had a right to assert the privilege and excused the witness.

Thereafter the court instructed that appellant’s witnesses be brought into court. Upon the court’s being advised that there was no one in the hallway, appellant stated that he had asked his family to tell his witnesses to be present in court after 1:30 p.m. He explained that he had expected Mr. Mewborn to be on the witness stand until at least noon. The court thereupon instructed appellant to make a telephone call to find out whether the witnesses had left home, and appellant did so. After appellant finished the telephone call, the court inquired, “Didn’t I tell you to have your witnesses in this morning at nine o’clock?” Appellant responded, “I did have my witness here at nine o’clock.” The court then stated that appellant had been instructed to have all of his witnesses in court at nine o’clock. Appellant replied, “You told me to tell my

witness.

” (Italics supplied.) The court then stated that it had expressly instructed appellant to have his witnesses there at 9 a.m. and had made a note of it. The reporter’s

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