Anglin v. State
| Decision Date | 05 March 1985 |
| Docket Number | No. 69025,69025 |
| Citation | 327 S.E.2d 776,173 Ga.App. 648 |
| Parties | ANGLIN v. The STATE. |
| Court | Georgia Court of Appeals |
Stephen M. Friedberg, Atlanta, Michael R. Hurst, for appellant.
Johnnie L. Caldwell, Jr., Dist. Atty., Paschal A. English, J. David Fowler, Asst. Dist. Attys., for appellee.
Defendant appeals his conviction of four counts of child molestation, three counts of sodomy and two counts of statutory rape involving four girls aged 11 and 12, one of whom was his daughter. Held:
1. We find the evidence sufficient to meet the standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Defendant had been indicted on November 2, 1982. About a week before trial, defendant filed a Brady motion [Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] for discovery which was acted upon by a judge who reviewed the State's file. He found nothing exculpatory except possibly a case report which was ordered to be given to the defense. The motion had included a request for copies of tape recordings and any transcripts thereof "in the control of the prosecution pertinent to the subject matter of the case." As it turned out, tape recordings of the victims' statements were in the possession of a deputy sheriff, and a few days before trial, defendant served a subpoena on the deputy, compelling him to bring tapes of conversations by anyone with seven named females. He also served a similarly worded notice to produce on the district attorney, with no mention that this was pursuant to any Brady rights. 1
At the start of the trial the defense moved for a continuance on the grounds that they were unable to properly prepare for trial because they were denied the opportunity of calling the four victims at the preliminary hearing, were unable to obtain the permission of their parents to interview and question them, and were unable to obtain tape recordings made of interviews of the victims and had served a notice to produce on the district attorney and a subpoena for their production upon the deputy sheriff who had them in his possession. The purpose of seeking the tapes, counsel said, was to use them in lieu of interviews and to determine if they could be used to impeach the victims' testimony at trial. His motion for continuance was apparently sought with the thought that when the tapes were produced pursuant to notice and/or subpoena or court order based on them, and finally turned over to defendant, he would then listen to them in further preparation for trial.
As a basis for his right to them, he stated that he thought he might be able "to possibly develop impeaching material on those witnesses and possibly to preserve favorable testimony," relying on Tarpkin v. State, 236 Ga. 67, 222 S.E.2d 364 (1976). As to whether they contained anything materially favorable to defendant, counsel stated: However, in his brief on appeal, defendant says the opposite, that the victim's statement on tape would impeach another State's witness at trial.
The court declined to order production, denied the motion for continuance, and quashed the subpoena. Defendant did not ask for the tapes after the witnesses testified or at the close of the State's evidence. He would not have been entitled to them then either, if his only basis has been as stated at the outset of the trial. Gilreath v. State, 247 Ga. 814, 828, 279 S.E.2d 650 (1981). The denial of the continuance and the quashing of the subpoena are alleged as error in two connected enumerations. The motion to produce the tapes was denied on the ground that the State did not have possession of them, Young v. State, 146 Ga.App. 167, 168(2), 245 S.E.2d 866 (1978), but that denial is not enumerated as error.
Treating these tape recordings as statements of witnesses, Harvey v. State, 165 Ga.App. 7(8), 10, 299 S.E.2d 61 (1983). However, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [supra] held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196. See Payne v. State, 233 Ga. 294, 296-297, 210 S.E.2d 775 (1974).
The State must produce obviously exculpatory material even if it is not requested. Tribble v. State, 248 Ga. 274, 275, 280 S.E.2d 352 (1981). This, of course, relates to matters in his file.
Moreover, a motion to produce is unrelated to disclosure of exculpatory materials pursuant to Brady. It cannot be used to examine the district attorney's file before trial. Exculpatory witness statements would be subject to disclosure under Brady, not pursuant to a notice to produce. Wilson v. State, 246 Ga. 62, 64(1), 268 S.E.2d 895 (1980).
If a defendant does not get what he thinks is exculpatory in the State's file, he may seek an in-camera inspection of that material, which he did not do here. Wilson, supra. Of course, in this instance, the district attorney did not have possession of the tapes and, what is more important, the inspection would not reveal what defendant contends to be the exculpatory nature of them. According to defendant's position, the tapes would be inculpatory but might contain a statement by one of the witnesses involving acts not related to this defendant but possibly useful for impeachment. Thus, a court inspection was not called for, even if it were agreed that possession by the deputy sheriff brought the tapes within the State's file.
Defendant would have to show the materiality first, because if what he was contending was true, only evidence outside of the State's file or beyond the tapes would even tend to show they were exculpatory in the sense of being impeachment material. He was contending that someone else would say the statements made by one of the witnesses on tape, was false (although the opposite is stated in his brief on appeal).
Defendant did not show in any way, such as by an affidavit of the unnamed male witness who had allegedly given contrary information, or by having that witness in court to impeach the allegedly lying witness. He must establish his right to the evidence and he failed to do so by showing concretely that he had a witness who would contradict, by way of testimony, the victim/witness' earlier out-of-court statement.
A defendant bears the burden of showing prejudice to his case, resulting from the prosecution's refusal to turn over evidence. Tribble v. State, 248 Ga. 274, 275, 280 S.E.2d 352, supra. See also Reed v. State, 249 Ga. 52, 56, 287 S.E.2d 205 (1982). There must be "a substantial basis for claiming materiality." Tribble, supra, 248 Ga. at 276, 280 S.E.2d 352. He must make some "evidential showing." Reed, supra, 249 Ga. at 56, 287 S.E.2d 205. He must show that the denial of the motion to produce (or subpoena) prejudiced his defense. McGuire v. State, 238 Ga. 247, 248, 232 S.E.2d 243 (1977). He has the burden of showing how his case has been materially prejudiced by the non-disclosure of the evidence sought. Tarpkin v. State, 236 Ga. 67, 68-69, 222 S.E.2d 364, supra.
Since he had no right to peruse the State's file personally, Payne v. State, 233 Ga. 294, 297, 210 S.E.2d 775, supra, even...
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