Bryant v. State
| Decision Date | 02 November 1982 |
| Docket Number | No. 64895,64895 |
| Parties | BRYANT v. The STATE. |
| Court | Georgia Court of Appeals |
Herbert Shafer, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., R. Michael Whaley, Asst. Dist. Atty., Atlanta, for appellee.
Defendant appeals his conviction for burglary. Held:
1. Defendant was tried for a burglary committed in Fulton County in June 1981. Previously defendant had been accused of committing a series of burglaries in DeKalb and Fulton Counties early in 1980. At that time and before defendant was indicted a DeKalb assistant district attorney made an apparently oral agreement with defendant's counsel that defendant would disclose his involvement in the criminal conduct to all police jurisdictions, that in exchange for such disclosures defendant would not be prosecuted in DeKalb County nor would any derivative use be made of his disclosures beyond one prosecution, and that defendant would be given first offender status and a single punishment. There is no indication that any court approved this agreement. Thereafter, defendant made the disclosures, was not prosecuted in DeKalb County, pled guilty to a four count burglary indictment in Fulton County and received first offender status and a single sentence. At trial in the instant case defendant objected to the state introducing evidence of any of the 1980 offenses, which the state was offering as similar offenses to show identity, motive, plan, scheme, bent of mind or course of conduct, on the ground that the use of such evidence violated the DeKalb prosecutor's agreement to make no derivative use of defendant's disclosures of the 1980 offenses. The overruling of the objection is enumerated as error.
Up to the point of the attempt to use the DeKalb County agreement to prevent admission of evidence in a Fulton County trial, the facts of this case are similar to those of State v. Hanson, 249 Ga. 739, 295 S.E.2d 297, which affirmed Hanson v. State, 161 Ga.App. 536, 287 S.E.2d 764. We conclude the following based on State v. Hanson.
(a) Because the instant case does not involve compelled testimony or a plea bargain it does not fall under the use immunity statute, Code Ann. § 38-1715 (Ga.L. 1975, pp. 727, 728); nor is there any statutory or common law basis for transactional immunity in Georgia. Id. 249 Ga. at 741-43(1), 295 S.E.2d 297. Thus, contrary to defendant's contention, defendant "was not entitled to immunity for the purpose of constitutional protection" as he gave up no constitutional right.
(b) The DeKalb district attorney had the prosecutorial discretion to agree to dismiss cases prior to indictment in exchange for information or evidence. Id. at 744(2), 295 S.E.2d 297.
(c) The ruling in State v. Hanson at 744(2), 295 S.E.2d 297, mandating that any future such agreements contain "a description of the crimes or transactions in regards to which an individual is excused from prosecution" and have court approval, being prospective only (Id. at 747(3), 295 S.E.2d 297), does not apply to this case.
Although the validity of the agreement and defendant's construction of it is questionable, we need not determine these matters because even assuming, arguendo, that it is a valid agreement in DeKalb County and means what defendant says it does, we find that it is not enforceable in Fulton County.
There are no Georgia cases on this issue and we look to authorities from other jurisdictions. See generally, 21 Am.Jur.2d 404, Criminal Law §§ 221-222; 43 A.L.R.3d 281, §§ 6-7.
In Stancel v. Schultz (Fla.App. 2nd Dist.), 226 So.2d 456, under a statute limiting the duties and authority of a state's attorney to the judicial circuit in which he was duly elected and qualified, an agreement between a state's attorney and a defendant, against whom charges were pending in another county and which granted immunity from prosecution for any crimes the defendant had committed up to the date of the agreement in return for testimony before a legislative committee, was held not to preclude prosecution in the county in which charges were pending on the grounds of "extra territorial ineffectiveness."
The Georgia Constitution provides: "There shall be a district attorney for each judicial circuit ... elected by the electors of the circuit wherein the district attorney is to serve..." Art. VI, Sec. XI (Code Ann. § 2-4001). "It shall be the duty of the district attorney to represent the State in all cases in the superior court of his circuit and in all cases taken up from the superior courts of his circuit to the Supreme Court, and Court of Appeals and to perform such other services as shall be required of him by law." Art. VI, Sec. XI (Code Ann. § 2-4002).
"Where the constitution creates an office and prescribes the duties of the holder thereof, and declares that other duties may be imposed upon him by statute, he has no authority to perform any act not legitimately within the scope of such statutory and constitutional provisions." Walker v. Georgia Railway, etc., Co., 146 Ga. 655 (headnote 1), 92 S.E. 57. Accord, Boykin v. Martocello, 194 Ga. 867, 870, 22 S.E.2d 790.
Thus, we construe the Georgia Constitution as limiting the authority and duties of district attorneys to their judicial circuits, just as Stancel v. Schultz, 226 So.2d 456, supra, found that Florida state's attorneys are so limited by statutory law.
Applying the rational of Stancel v. Schultz to the instant case we find that the DeKalb prosecutor's agreement with defendant was not enforceable in Fulton County and, if it was enforceable at all, was enforceable only in the DeKalb district attorney's judicial circuit. Accordingly, this enumeration has no merit.
2. There is no merit in the assertion that the admission of the evidence of the prior burglaries was error because they were not similar and were introduced only to show that the defendant was a bad man.
"The only separate crimes which are admissible are those that are either similarly or logically connected to the crime for which a defendant is being tried ... Proof of crimes which are closely connected to the crimes charged does tend to establish the crime charged.
"... If the defendant is proven to be the perpetrator of another (similar) crime and the facts of that crime are sufficiently similar ... to the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct." State v. Johnson, 246 Ga. 654(1), 655, 272 S.E.2d 321.
Our examination of the evidence of the burglary being tried and the manner in which the prior burglaries were committed shows strong similarity and meet the standard of admissibility of State v. Johnson.
3. Defendant alleges that the state's closing argument deprived him of a fair trial because it was stated that defendant should be convicted based in part on his prior similar offenses, that jurors were asked to put themselves in the place of victim witnesses, and for erroneously stating that defendant had failed to subpoena a witness.
Since evidence of prior similar crimes was admitted and could be used to establish defendant's guilt as...
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