Pless v. The State., 142 Ga. App. 594, 236 S.E.2d 842 (1977)
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Judgment affirmed. Shulman and Banke, JJ., concur.
Summary
Judgment affirmed. Shulman and Banke, JJ., concur.
Text
Maylon K. London, for appellant.
Defendant appeals his conviction of burglary. Held:
1. The defendant asserts the trial court erred in failing to grant a new trial on the general grounds. We can not agree. Where a conviction is based upon circumstantial evidence, "to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt." Rogers v. State,
2. A pre-trial motion to produce was denied by the court after an in-camera inspection. The defendant requested copies of all statements of witnesses, scientific data, a list of items seized, and a list of all persons who had knowledge, information or records concerning the instant case. Although not requested or demanded, defendant stated in his motion that he was "entitled to . . . any information favorable to the defendant."
Rulings by our Supreme Court have been refined in relation to discovery in criminal cases. Formerly the Supreme Court held: "There is no Georgia statute or rule of practice which allows discovery in criminal cases." Chenault v. State,
The Brady rule appears to have four elements: (1) demand by the defense, (2) for evidence favorable to the defendant, (3) which is material to guilt or punishment, and (4) suppression by the prosecution. Our Supreme Court has also held that the ultimate test "is whether the undisclosed evidence was so important that its absence prevented the accused from receiving his constitutionally-guaranteed fair trial." Carter v. State,
127, 128 (2) (
3. Counsel for the defendant made a motion to suppress two statements made by the defendant to law enforcement authorities. The first statement was made to Sheriff Baker. When asked about the circumstances the sheriff testified: "He [the defendant] sent for me to come back [to the jail cell where he was confined]. Q. And did you know what he was sending for you for? A. No sir . . . He just said that he'd talk to me in private . . . He just said that he had information that one of the drug stores in Cleveland had been broken into between eleven and twelve." (Emphasis supplied.)
On further examination the sheriff stated that defendant told him "he had information that one of the drug stores in Cleveland would be burglarized or broken into between eleven and twelve . . . Q. In the morning? A. Yes sir." (Emphasis supplied.) The sheriffs office was informed of the burglary by one of the owners of the burglarized building "fifteen to twenty minutes later."
Regardless of which version of the sheriffs testimony is correct -- the rule of evidence as to admissibility of a defendant's statement remains the same. A statement of the accused is admissible if made voluntarily, without inducement by another, by the slightest hope of benefit or the remotest fear of injury. Code 38-411. Although defendant had been arrested and confined for public drunkenness, this was not a custodial interrogation as that term is used in Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). There was no interrogation and the defendant was not a suspect in a yet to be reported crime. While legality, duration, and conditions of detention are relevant, in the determination of voluntariness of an accused's statement, nothing of record shows compulsion, coercion, or any illegal inducement. Wilson v. State,
The trial court held a Jackson-Denno hearing, out of the presence of the jurors, and established that an agent from the Georgia Bureau of Investigation spoke to the defendant on Sunday, February 8, 1976, and again on the next day. The defendant was advised of his Miranda rights on both days before he made a statement to the GBI agent. The agent read the Miranda rights from a form that he used. Although the defendant signed the form waiving his rights, the agent said he lost the form. The agent testified that defendant advised him that "[h]e did understand his rights and was willing to talk, but he didn't want to sign anything."
The defendant also objects to the taking of the second statement on an additional ground that although the interrogator knew that defendant was, at that time represented by counsel, he secured an additional statement from the defendant. "[A] statement may be shown to be voluntary even though made in the absence of counsel after counsel has been retained or appointed." Pierce v. State,
The question of voluntariness was properly considered in a Jackson-Denno hearing, held outside the presence of a jury. The trial court's determination that the statement was freely and voluntarily given, therefore admissible for the jury's consideration, was supported by a preponderance of the evidence. Jett v. State,
We are aware of the decision of Brewer v. Williams, ---- U. S. ----, issued March 23, 1977; 45 LW 4287, but find it inapposite. We find no error here.
4. Defendant asked for sequestration of witnesses under Code 38-1703. The court did not err in permitting the prosecutor, Frank Baker, Jr., to remain in the courtroom upon request of the district attorney as he was needed "to assist [the district attorney] in the trial of this case." The defendant insisted that if the prosecutor remained "he should testify first." The district attorney, stated that the witness' testimony would be "out of order." The court ruled that the witness could remain and testify when called. Enforcement of this codal right "has been vested in the discretion of the trial court." Jarrell v. State,
The second alleged infraction of the rule of sequestration occurred when the state called the sheriff as a witness. He also had remained in the courtroom when the other witnesses departed. Two witnesses had testified for the state before he was called. In a similar factual situation, our Supreme Court held: "As held in McWhorter v. State,
The trial court in this instance determined "that there would be no harm then done to the Defendant. Sheriff Baker's testimony does not relate to the testimony that's already been given . . . The Court will instruct the District Attorney not to examine this Witness, Sheriff Baker, concerning matters that you have examined the other two Witnesses on." We find no abuse of discretion in the ruling of the trial court.
The third alleged infraction involved another police officer who testified for the state. Defendant objected to him testifying "due to the fact that he's been inside the Courtroom during the State's presentation . . ." The officer testified that he was not sworn in with the other witnesses and went home after being excused by the prosecution. He stated that he did sit down in the courtroom "for about a minute and got up and left. Somebody told [him] they asked the Witnesses to go outside so [he] got up and left." The witness denied hearing anything of substance. We find no abuse of judicial discretion in permitting this witness to testify.
5. Defendant contends the court erred in failing to suppress two prior statements of two state witnesses and in allowing this improper evidence, including hearsay, to be read to the jury -- over defense objection.
The state called the two children of the defendant to show circumstances surrounding defendant's acts on the night of the burglary. After examining each witness, the district attorney pleaded entrapment. Each witness admitted they had given a prior statement to a GBI agent. The district attorney was then permitted to bring out prior contradictory statements of the witness to testimony which had been given on the witness stand.
We find no prejudice in the procedure followed. The GBI agent was later called to the stand and testified that the statements used by the district attorney were given to him by the two witnesses. He stated that he had taken "word for word statements from them, and [he] reread the statements to each of the children, and they advised [him] the statements were correct." In our review of these statements, and comparison of them with the testimony of the witnesses on the stand, we found sufficient variance to support the ruling of the court.
"A party may not impeach a witness voluntarily called by himself unless he 'can show to the court that he has been entrapped by the witness by a previous contradictory statement.' (Code 38-1801) . . . [W]hen a written statement has been given to one who has authority in law to make criminal investigations for the State, the [district attorney] may rely upon it as fully as if it had been made directly to him." Sparks v. State,
Formerly, where the state prosecutor alleged he had been entrapped by a state witness, the prior statement must have been "prejudicial to the case being made . . ." Kemp v. State,
The trial court properly restricted the prior statements to credibility of the witnesses. Accordingly, this enumeration is without merit.
6. We have examined the remaining enumerations of error and find them to be without substantial merit.
Jeff C. Wayne, District Attorney, Roland H. Stroberg, James H. Whitmer, Assistant District Attorneys, for appellee.
1977
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This document cites
- Supreme Court of Georgia - CARTER v. THE STATE., 237 Ga. 617, 229 S.E.2.d 411 (1976)
- Supreme Court of Georgia - HARRIS v. THE STATE., 236 Ga. 242, 223 S.E.2.d 643
- Supreme Court of Georgia - PIERCE v. THE STATE., 235 Ga. 237, 219 S.E.2.d 158
- Supreme Court of Georgia - PEARLEY v. THE STATE., 235 Ga. 276, 219 S.E.2.d 404
- Supreme Court of Georgia - WILSON v. THE STATE., 235 Ga. 470, 219 S.E.2.d 756
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