Burnett v. State, 32684
| Decision Date | 24 January 1978 |
| Docket Number | No. 32684,32684 |
| Citation | 240 Ga. 681,242 S.E.2d 79 |
| Parties | Billy J. BURNETT v. The STATE. |
| Court | Georgia Supreme Court |
Jeff C. Wayne, Dist. Atty., Roland H. Stroberg, Asst. Dist. Atty., Gainesville, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.
This appeal is from the conviction of Billy J. Burnett for the offense of murder. He was indicted in Hall Superior Court along with Larry Looney and Coy Michael Sullens for the malice murder of Colie Bowen. All defendants were tried separately, and we have previously affirmed the convictions of the co- defendants. Looney v. State, 240 Ga. 691, 242 S.E.2d 86 (1978); Sullens v. State, 239 Ga. 766, 238 S.E.2d 864 (1977).
On September 1, 1976 the body of a man identified as Colie Bowen was found in a wooded area off a dirt road in Hall County, Georgia. The deceased was 61 years of age and had been employed by the defendant's father, J. C. Burnett, as a pulpwood cutter. The victim had six bullet wounds in his face and head, and three other wounds in the shoulder and hand. The examining pathologist testified that the victim was shot between six and ten times. There was powder tatooing around the wound under the left eye indicating that the gun's muzzle had been fired less than three inches away.
At the trial of appellant, Hoyt Sullens, the father of co-defendant Mike Sullens and father-in-law of co-defendant Larry Looney, testified that he had loaned his station wagon to Looney the evening of August 31. Appellant Burnett left the witness' trailer with Looney and Mike Sullens about 6 or 7 P.M. in the station wagon and returned an hour later.
Cathy Looney, wife of co-defendant Looney and sister of co-defendant Sullens, testified that when Burnett, Looney and Mike Sullens returned that evening to the trailer, Burnett told her he had "put the pedal to the metal" and killed "the old man." Cathy Looney and her two small children then got into the car with the three defendants and drove to Burnett's home where they told his mother about the murder. When the mother replied she did not believe it because it was too good to be true, appellant insisted upon showing her the body. Appellant Burnett, Looney, Mike Sullens, Cathy Looney, and appellant's sister and brother then drove to the location where they viewed Bowen's body lying on its right side. While in the car Mrs. Looney asked where the gun was, and one of the three men told her it was in the lake.
Freddie Joe Christie testified that while he was riding with appellant and Looney on September 1, 1976, he asked if they had heard about Bowen's murder. Appellant and Looney replied that they knew what had happened and proceeded to tell Christie that Bowen was drunk and had called appellant names. Further, the victim approached appellant to commit an unnatural sex act which appellant refused to do. Upon the victim continuing to make sexual requests of appellant the latter got a pistol from the car and shot him. Sullens told Christie the gun was in the lake.
A Jackson-Denno hearing was held during the trial, at the conclusion of which the court ruled that two statements made by appellant to Detective Tony Carter on September 2, 1976, were admissible in evidence. Detective Carter also took a statement from appellant on September 2, 1976, in which appellant denied knowing anything about the victim's death. On September 4, 1976, appellant told Carter he had been too drunk to remember if he had been involved in a murder. Also on that date appellant gave a second statement to GBI Agent Walt Stowe, claiming that the three principals were taking the victim to town when Bowen made a sexual remark to Looney. Appellant stated that "they" shot Bowen and that Mike Sullens threw the gun in the lake.
Investigators were directed by Mike Sullens to an area of the lake where he had thrown the gun. The gun was recovered by a diver and found to contain six spent .22 shells. Balistics tests showed that two bullets removed from the victim's body were definitely fired from the gun and a third bullet was probably fired from the gun.
The defense presented several members of appellant's family to testify in support of appellant's contention that it was Looney who had murdered Bowen. Appellant testified in his own behalf and admitted that he, Looney and Sullens were taking Bowen to town, but placed the actual blame of the killing on Looney. He testified that Sullens later threw the gun into the lake. He testified about their plans to move the body after the shooting. He claimed that Cathy Looney offered him $2500 to confess to the murder. He denied his statements to Christie, and also denied portions of his statement made to Agent Stowe.
Appellant assigned thirteen separate enumerations of error. We will deal with each assignment separately.
1. The trial court did not err in denying appellant's motion for continuance based upon lack of adequate time to prepare a defense and prejudicial pre-trial publicity. The record indicates that on September 16, 1976 counsel was appointed to represent appellant. The case came on for trial on October 12, 1976, at which time appellant's counsel filed his motion for a continuance. Following his appointment, counsel for appellant had personally attended the co-defendants' trials, and had an opportunity to preview the expected testimony of the State's witnesses against appellant. Notwithstanding, appellant's counsel requested the delay in the proceedings so that he could obtain a copy of the trial transcripts to assist in his representation of appellant.
Such motions for a continuance predicated on the basis that counsel had not had sufficient time to prepare for trial address themselves to the sound discretion of the trial court, and the ruling of the trial judge in denying a motion for a continuance will not be interferred with unless the court has abused its discretion in denying the motion. Brawner v. State, 221 Ga. 680, 146 S.E.2d 737; Shaw v. State, 239 Ga. 690, 238 S.E.2d 434 (1977). See also: Chenault v. State, 234 Ga. 216, 221, 215 S.E.2d 223 (1975).
In his motion for continuance appellant also argued that because of certain adverse newspaper articles concerning appellant's trial and his co-defendants' trials a level of local prejudice attached, denying him the right to a fair trial. However, appellant made no showing that a fair and impartial trial could not be obtained in Hall County, nor did he show that the jurors selected had read the inflammatory newspaper articles or that they had formed an opinion as to guilt or innocence of appellant from having read these newspaper articles. Absent such a showing, his motion for continuance for that reason was properly denied. Krist v. Caldwell, 230 Ga. 536(2), 198 S.E.2d 161 (1973); Jarrell v. State, 234 Ga. 410, 416, 216 S.E.2d 258 (1975); Dobbs v. State, 236 Ga. 427, 429, 224 S.E.2d 3 (1976).
2. Appellant contends that the trial court's refusal to grant appellant's motion for discovery and inspection was error. Counsel for appellant, prior to trial, filed his motion for discovery based upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 seeking, inter alia, written statements of all persons who had been interviewed by the police in connection with this case. The statement of Cathy Looney, wife of Larry Looney, a co-defendant, was specifically requested.
Counsel for appellant admits that the State had permitted him to look over the transcribed statement of Cathy Looney which was in the prosecution file. He contends however, that he should have been provided with a copy of the statement, and that his being able to review the statement in the file does not satisfy the requirements of Brady, supra.
It appears that the tape recording from which Mrs. Looney's statement was taken was made available to appellant's counsel. Further, it appears that the court informed appellant's counsel that during a noon recess, appellant could take the tape and have it transcribed. Appellant did not do this. He did, however, during a noon luncheon recess review the transcribed statement of witness Looney. Appellant's counsel made no request during the trial that he be permitted to use Mrs. Looney's statement for cross examination. Neither did he use a tape recorder made available to him for the purpose of making a tape of the statement and playing it in front of the jury.
A pre-trial Brady motion requires the State to make available for defendant's inspection any material of an exculpatory nature. From the record it appears that the State fully complied with this requirement concerning Cathy Looney's statement. The prosecution made available to the defendant for examination and for copying the exact statement requested. He complains now because the State did not make him a copy. In our opinion, this is not required under the holding in Brady or its progeny. Additionally, the appellant has demonstrated no prejudice to his case. See Hicks v. State, 232 Ga. 393, 395, 207 S.E.2d 30 (1974); Coachman v. State, 236 Ga. 473, 475, 224 S.E.2d 36 (1976). This enumeration is without merit.
3. Two witnesses for the State testified that appellant's in-court appearance differed substantially from his appearance at the time of the murder in that he was no longer wearing a beard and his hair was considerably shorter than it had been. Appellant contends that this testimony was prejudicial to him and tended to place his character into evidence. He cites no authority except Code Ann. § 38-201, which includes a statement that, "irrelevant matters should be excluded."
There was testimony in this case that the victim had made certain disparaging remarks about the length of appellant's hair. For this reason, evidence regarding his hair at the time of the murder became a pertinent fact...
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