Burney v. State
| Decision Date | 19 January 1984 |
| Docket Number | No. 40180,40180 |
| Citation | 252 Ga. 25,310 S.E.2d 899 |
| Parties | BURNEY v. The STATE. |
| Court | Georgia Supreme Court |
Amy Jean Griffith (court-appointed), Susan E. Teaster, Atlanta, for Jessie J. Burney.
Lewis R. Slaton, Dist. Atty., Benjamin H. Oehlert III, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Paula K. Smith, Staff Asst. Atty. Gen., Atlanta, for the State.
Jessie J. Burney appeals from his conviction of malice murder, for which he was sentenced to life imprisonment.
There was evidence adduced which would authorize the jury to find the following. On October 22, 1982, around 9:00 p.m., Helen Martin was sitting at the bar in the Sanabella Lounge in Atlanta. She had not been drinking. The victim, Eddie J. Anderson, came in and sat with her. While these two were talking, the appellant, also known as "Black," approached them and offered to sell marijuana. The appellant had come to the Sanabella Lounge with Jimmy Lee Terry. Once inside, Terry went to dance, while the appellant approached Anderson about the marijuana. Anderson asked the appellant about the quality of the marijuana before deciding about a purchase. The appellant offered to let him try one "joint." An argument ensued over the money for the marijuana. The appellant pulled out a .32 caliber, semi-automatic pistol, and shot Anderson three times. Both an eyewitness to the shooting and the appellant's companion, Terry, identified the appellant as the one having fired the fatal shots. After the shooting, the appellant left the club. Later, he bragged about the shooting, demonstrating to his family and friends how he had done it. A medical examiner determined the cause of death to be disruption to both lungs and the heart and loss of blood due to the three bullets. A firearms expert determined that all the bullets fired--those found in the victim's body and those found on the floor of the crime scene--were fired from the same weapon: a semi-automatic, .32 caliber pistol.
1. The trial court did not err, as contended in the first enumerated error, in allowing the prosecution to cross-examine state witnesses Betty Arnold and Jimmy Terry after their testimony differed from their prior statements implicating the appellant in the murder and after they had repudiated the prior statements (copies of which were given to them in the trial) as having been made under duress. Where the witnesses had taken the stand and were subject to cross-examination, their prior inconsistent statements were admissible as substantive evidence as well as for impeachment purposes, even if the prosecution was aware of the prospect of changed testimony. Ranger v. State, 249 Ga. 315(2), 290 S.E.2d 63 (1982); Davis v. State, 249 Ga. 309(3), 290 S.E.2d 273 (1982); Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982). The issue of voluntariness of the original statements raised a question for jury decision as to which of the statements to accept, the state having presented evidence of their voluntariness. The mere fact that a statement of a nondefendant was coerced does not mandate exclusion. Wilcox v. State, 250 Ga. 745(2, 4), 301 S.E.2d 251 (1983).
2. The trial court did not err, as contended in the second enumerated error, in admitting testimony that a search of the appellant's apartment revealed a number of small envelopes of marijuana similar to the one found on the victim's body, which the evidence shows he had obtained from the appellant. Owens v. State, 248 Ga. 629, 630, 284 S.E.2d 408 (1981). Here, there was evidence that an argument over money in the sale of marijuana was the cause of the victim's death, and there was an issue as to the identity of the seller-killer. The testimony as to the envelopes found in the appellant's apartment was admissible as relevant to this issue, among others, even though it incidentally placed the defendant's character in issue, if indeed it had not already been placed in issue. Boling v. State, 244 Ga. 825(5), 262 S.E.2d 123 (1979). The credibility of the testimony was a jury issue.
3. The third enumerated error is the trial court's refusal to direct the state to furnish the defense with a copy of witness Helen Martin's pretrial statement for purposes of...
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