First, allowing the jurors to replay the interviews in the courtroom with no one else present was the equivalent of allowing them to do so in the jury room and, given the facts here, warranted an objection based on a violation of the continuing witness rule. See Ross v. State , 344 Ga. App. 477, 479-482 (2), 810 S.E.2d 645 (2018) (trial court erred in allowing jury to replay defendant's taped statement in the jury room during deliberations, in violation of the continuing witness rule); Summage v. State , 248 Ga. App. 559, 561 (1), 546 S.E.2d 910 (2001) (trial court erred by allowing victim's videotaped statement to go to the jury room). The proper procedure for complying with a jury's request to rehear a portion of trial testimony during deliberations is to return the jury to the courtroom to hear the testimony in the defendant's presence.
Because our prior decision on this issue was binding upon the trial court, the court erred in granting Bordeaux's motion to dismiss on this ground. See Ross v. State , 344 Ga. App. 477, 479 (1), 810 S.E.2d 645 (2018) (this Court's earlier decision in same action was law of the case); OCGA ยง 9-11-60 (h) ("[A]ny ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be."); see generally Fortson v. Hardwick , 297 Ga. App. 603, 604-605 (1), 677 S.E.2d 784 (2009) (where this Court ruled in prior appeal that party was not entitled to bad faith attorney fees, party's subsequent action for those fees was barred). Neither party sought certiorari in our Supreme Court from our decision in Bordeaux I.
Under the continuing-witness rule, "it is error to allow a jury to take written or recorded statements into the jury room during deliberations unless those statements are consistent with the defendant's theory of the case." Ross v. State , 344 Ga. App. 477, 479 (2), 810 S.E.2d 645 (2018) (citation and punctuation omitted). The continuing witness rule does not apply where, as here, an audiovisual recording "was replayed to the jury a single time in a controlled environment, the courtroom, with all parties and the trial judge present."