Billings v. State, 62943

• Decision Date: 19 February 1982
• Docket Number: No. 62943,62943
• Citation: 288 S.E.2d 622,161 Ga.App. 500
• Parties: BILLINGS v. The STATE.
• Court: Georgia Court of Appeals

Page 622

288 S.E.2d 622

161 Ga.App. 500

BILLINGS v. The STATE.

No. 62943.

Court of Appeals of Georgia.

Feb. 19, 1982.

Daniel Kane, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Asst. Dist. Atty., Atlanta, for appellee.

SHULMAN, Presiding Judge.

Appellant was indicted for murder and convicted of voluntary manslaughter. The evidence showed that the victim died from a gunshot wound. There was no dispute concerning the source of the wound: the victim was shot by a gun held by appellant.

1. Appellant's first enumeration of error raises the general grounds. Our review of the evidence shows that there was sufficient evidence for a jury to find that appellant and the victim argued and that, as the victim ran away, appellant shot him in the back, causing his death. That evidence "... convinces us that a rational trier of fact could have found the essential elements of the crime of [voluntary manslaughter] beyond a reasonable doubt." Driggers v. State, 244 Ga. 160, 161, 259 S.E.2d 133.

2. Appellant contends in his second enumeration of error that the trial court's charge on intent was impermissibly burden shifting because it failed to inform the jury that the presumption of intent may be rebutted. We are at a loss to comprehend appellant's complaint in this regard since the charge to which exception is taken, an almost verbatim reading of Code Ann. § 26-605, not only did not authorize a presumption, it specifically provided that "[a] person will not be presumed to act with criminal intention." (Emphasis supplied.) Appellant's second enumeration of error is clearly without merit.

3. The state presented evidence authorizing a finding that appellant shot the victim in the back as the victim ran away. Defense witnesses testified that appellant struck the victim with the pistol and that the pistol then discharged, wounding the victim. In rebuttal, the state offered the testimony of a forensic scientist that there was no gunpowder residue on the clothes of the victim and that the absence of gunpowder meant that the fatal shot was fired from a distance of more than two feet from the victim. Appellant unsuccessfully resisted the admission of the scientific testimony and now enumerates as error the admission of the evidence and the denial of his motion for mistrial based on the admission of the testimony.

The basis for appellant's objection was that the state had not complied with his motion for discovery of scientific reports. That motion was based on Code Ann. § 27-1303, which provides as follows: "Discovery of scientific reports. (a) In all criminal trials, felony and misdemeanor, the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal. This request for a copy of any written scientific reports shall be made by the defendant in writing at arraignment or within any reasonable time prior to trial. It shall be within the sound discretion of the trial judge to determine in each case what constitutes a reasonable time prior to trial if such written request is not made at arraignment. If the scientific report is in the possession of or available to the district attorney, he must comply with this section at least 10 days prior to the trial of the case. (b) Failure by the prosecution to furnish the defendant with a copy of any written scientific report when a proper and timely written demand has been made by the defendant shall result in such report being excluded and suppressed from evidence in the prosecution's case-in-chief or in rebuttal. (c) Written scientific reports shall include but not be limited to: reports from the Georgia State Crime Laboratory; autopsy reports by the coroner of a county or a private pathologist; blood alcohol test results done by a law enforcement agency or a private physician; and similar type reports that would be used as scientific evidence by the prosecution in its case-in-chief or in rebuttal against the defendant."

The key to the resolution of this issue in the present case is the last sentence in subsection (a): "If the scientific report is in the possession of or available to the district attorney, he must comply with this section at least 10 days prior to the trial of the case." The unrebutted testimony of the forensic scientist was that he was called on the morning of the same day on which he testified and was asked to perform certain tests on the clothing of the deceased. The prosecuting attorney stated in his place that the state had not foreseen any need for such testimony until confronted by appellant's evidence that the fatal shot was fired while the pistol was touching the body of the...