Barnes v. State

• Decision Date: 06 January 1981
• Docket Number: No. 60467,60467
• Court: Georgia Court of Appeals
• Parties: BARNES v. The STATE

Page 916

277 S.E.2d 916

157 Ga.App. 582

BARNES v. The STATE

No. 60467.

Court of Appeals of Georgia.

Jan. 6, 1981.

Kenneth J. Vanderhoff, Jr., Cumming, for appellant.

Frank C. Mills, III, Dist. Atty., Rafe Banks, III, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellant was convicted of voluntary manslaughter in the death of his wife. Appellant and Jane Barnes were in the process of getting a divorce. On Friday, September 1, 1978, appellant went to Mrs. Barnes' house to pick up the couple's two boys for their usual weekend visitation. When the couple got into an argument about a truck repair bill, Mrs. Barnes allegedly pointed a gun at the appellant. Appellant left, but on Monday when he returned from work he thought his trailer and shed had been broken in to, and suspected his wife. Appellant went to her house and was invited to come in. Appellant testified he heard Mrs. Barnes say to one of her daughters: "Go get my gun ... I'll kill him." Appellant returned to his truck, got his pistol and returned to the house. The victim was sitting on the couch with her left hand behind her back. Appellant thought she had a gun behind her back, and testified that he saw a gun. He testified that she leaned over to the left and pulled her hand out, and at that moment he shot her. Other testimony showed that when appellant came in, Mrs. Barnes told her daughter to call the police, that an argument erupted wherein the victim was slapped and knocked down on the sofa, and wherein finally the appellant took his gun from his pocket and shot Mrs. Barnes. She was shot at least five times at close range. Held:

1. During the trial of the case the state showed that five years earlier appellant had plead guilty to simple assault. Appellant contends this evidence was inadmissible under Code Ann. § 38-202, as putting defendant's character and conduct in other transactions in issue; that proof of the separate offense was inadmissible because there was no logical connection between the two incidents; and proof of the earlier offense was too remote in time to show motive, intent or plan, and did not tend to prove the latter crime. Thomas v. State, 239 Ga. 734, 238 S.E.2d 888; Campbell v. State, 234 Ga. 130, 214 S.E.2d 656.

The appellant is incorrect in his contentions. We reached a seemingly contrary result in Brown v. State, 109 Ga.App. 212, 215, 135 S.E.2d 480, where we thoroughly discussed the question of the admissibility of evidence of prior difficulties, but in that case and most of the cases it cites, the evidence of the previous act shed no light upon the truth of the offense in question and shared no relevance with it, so the telling of it caused more harm than good. But in Shaw v. State, 60 Ga. 246, 250, the Supreme Court approved the admission of evidence that the defendant had beat his wife four years before he finally killed her, because this evidence showed that the state of feeling between husband and wife was never good, and it would be more likely that they would be quarreling than others between whom good feelings had always existed. In June v. State, 213 Ga. 311, 99 S.E.2d 70, evidence of an incident three years earlier where the defendant had threatened the deceased, was held admissible because of the relevance of the incident in showing bad feeling. And in Starke v. State, 81 Ga. 593, 7 S.E. 807, it was held that it was not error to admit evidence of a previous difficulty between accused and deceased, because it went to illustrate the state of feeling between accused and deceased and to show that, on an occasion different in time from the killing, the accused had drawn his gun on the deceased. The evidence was admissible even though it was also shown the two parties were perfectly friendly after this prior difficulty. The subject was most recently taken up in Milton v. State, 245 Ga. 20, 26, 262 S.E.2d 789 when it was held that the length of time intervening (between the prior difficulty and the present offense) is only material as affecting the credibility and weight to be given such evidence.

We are convinced from our study of the cases that evidence of prior difficulties between the victim and the defendant ought to be received carefully, and if there is no probative connection between the two, or the prejudice arising from the evidence far outweighs what probative value it may have, it ought not be admitted. See Hicks v. State, 232 Ga. 393, 397, 207 S.E.2d 30. But if there is any relevance, or in cases of doubt, Milton, supra, the jury ought to hear it, and determine for itself the weight and credibility the evidence will be given. In the case before us the evidence that five years before the appellant had plead guilty to simple assault, apparently committed against his wife, was highly relevant and illuminative. The appellant had just at length told of several occasions when his wife had threatened or attempted bodily harm against him. In describing the fear and nervousness his wife created in him, which he contended eventually resulted in her own death, he implied that his own conduct towards her had been blameless and stated he never laid hands on her. This was clearly a killing that arose from a long, turgid relationship, and in casting on the deceased all blame for violence in the relationship, appellant made relevant the evidence of which he now complains. The jury was entitled to hear it and determine its weight and credibility (Milton, supra).

2. In his second enumeration of error, appellant contends the trial court erred in failing to make a record of the in camera inspection of the state's files. The appellant made both general and specific Brady requests. (See Chafin v. State, 246 Ga. 709, 715(6), 273 S.E.2d 147). Following an examination of the files, upon which the trial court found nothing even "slightly, remotely beneficial," appellant requested that the state's file and the investigators' file be made a part of the record for appellate review. His argument on appeal is that the Supreme Court held in Wilson v. State, 246 Ga. 62, 65, 268 S.E.2d 895 that on defendant's motion the material examined in camera should either be sealed and filed, or an inventory or record of the examined material made, so as to permit appellate review. Appellant's contention is that since no record of the state's file was made, he "has absolutely nothing at his disposal with which to mount his appeal" of the trial court's failure on in camera inspection to produce exculpatory material. Appellant concludes that he "has a right, but no remedy."

The short answer to the appellant's contentions is the same one we made in Collins v. State, 143 Ga.App. 583, 586, 239 S.E.2d 232. In Collins, the defendant claimed there was testimony that the files might well have contained "arguably favorable" information, and that the only meaningful way of obtaining appellate review of the trial court's inspection is to have the state's file inserted in the record. Collins, supra, held that the trial court's examination complied with the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; and the burden was on the defendant to show how his case was materially prejudiced by the lack of access to the state's file.

However, a similar argument was made in Plemons v. State, 155 Ga.App. 447, 452, 270 S.E.2d 836 and in that case, we overruled Collins' holding in Division 2. The Plemons defendants claimed, as did Collins, that "since at trial there was testimony that the files might well have contained 'arguably favorable' information, the only meaningful way of obtaining review of the trial court's inspection is to have the state's files inserted into the record for appellate review." Plemons agreed with this proposition. Plemons expanded on Wilson, supra, to "set forth the proper procedure for appellate review" of in camera inspections, which procedure required the trial court to photocopy, seal and certify the files, then make them part of the appellate record and transfer the same to the appellate court for review. We pointed out that Wilson, supra, held: "Once the material is sealed or inventoried by the trial court, the appellate court can, upon the defendant's showing cause, exercise its discretion and call for the examined material" (emphasis supplied).

Plemons concluded that "the filing of an enumeration of error to review the in camera inspection shall constitute sufficient cause for this court to require that the procedure set forth above shall be followed." The decision obviously implies that the filing of an enumeration of error would constitute sufficient cause for this court to review the in camera inspection.

On reconsideration of Plemons, we have determined that our decision therein was error and that our earlier decision in Collins, supra, is correct. The argument that there can be no meaningful way of obtaining review of in camera inspections wherein the trial court fails to find exculpatory evidence, unless the state's file is inserted in the record stems from the classic concern, which has plagued the Brady principle from its advent, that a defendant's Brady rights may be denied by the trial court and are unprotected on appeal, because he cannot ask for what he does not know exists.

This classic concern, which is the villain in Plemons, was noted as part of the congenital problem, but not directly addressed, in United States v. Agurs, 427 U.S. 97, 101, fn. 4, 96 S.Ct. 2392, 2396, fn. 4, 49 L.Ed.2d 342; and see Comment, Brady v. Maryland and the Prosecutor's Duty to Disclose, 40 U.Chi.L.Rev. 112, 116-117, 130-131 (1972). In Agurs, the Supreme Court saw the argument as one which merely questions the state's duty to disclose exculpatory information where no request, or only a general Brady request is made. By inference, then, the concern that the defendant cannot ask for what he does not know exists is disposed of by the Agurs decision that where only a general request for...