Carver v. State, 74523

• Citation: 185 Ga.App. 436,364 S.E.2d 877
• Decision Date: 18 December 1987
• Docket Number: No. 74523,74523
• Parties: CARVER v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 877

364 S.E.2d 877

185 Ga.App. 436

CARVER v. The STATE.

No. 74523.

Court of Appeals of Georgia.

Dec. 18, 1987.

Rehearing Denied Dec. 18, 1987.

Certiorari Granted Feb. 23, 1988.

Sam G. Dickson, Decatur, for appellant.

C. Andrew Fuller, Dist. Atty., Daniel A. Summer, Donald F. Chase II, Asst. Dist. Attys., for appellee.

James C. Rawls, V. Robert Denham, Jr., Jennifer F. Weiss, Atlanta, amicus curiae.

McMURRAY, Presiding Judge.

Defendant was indicted for the offense of a terroristic threat. The evidence adduced at trial, construed most favorably to support the jury's verdict, was as follows:

Defendant is the "Great Titan" in an organization known as the "Ku Klux Klan." In his leadership capacity with this association, defendant organized a demonstration through a series of tape recorded messages of a political and racial commentary which were transmitted to interested persons by a telephone answering machine. Pursuant to his efforts, defendant assembled a group of followers on March 22, 1986, in the parking lot of "the Georgia Mountain Center in Gainesville[, Georgia]," where he and his associates clothed themselves in long white robes and tall white conical shaped hats. Defendant then directed the group to a location in the vicinity of Atlanta Street and Sycamore Street in Gainesville, Georgia. While marching to the locus of the demonstration, some of the demonstrators carried placards. Defendant carried a non-functional "replica of a Thompson submachine gun ..."

After the protesters arrived at the designated demonstration area, defendant disposed of the "submachine gun" replica and began encouraging his followers in their cause. Soon thereafter, a large group of people, which included local residents and vendors, gathered in the area of the demonstration. A number of people outside the KKK demonstration became agitated as a result of the demonstrators' activities; and, despite the presence of a large contingent of law enforcement officers, derogatory comments were exchanged between the opposing groups.

The victim, a businessman, arrived in the area of the demonstration at about 12:00 to open his place of business. The victim observed the hostile environment and, in an attempt to relieve the tension, the victim approached defendant and asked him to lead the protesters from the area. Defendant did not comply, the demonstration continued and the victim withdrew. A few moments later, the victim approached defendant and said, " 'Why don't you go ahead and leave because the people done got angry and I'm scared they are going to start a riot.' " In reply, defendant told the victim to " '[g]et back or I'll shoot, I'll shoot ...' " and "[defendant's] hand went down in his right-robe area." The victim then "backed up and began to yell at the policemen that [defendant] had a gun."

From this and other evidence adduced at trial, defendant was found guilty of the offense of a terroristic threat. Defendant appeals. Held:

1. In his first two enumerations of error, defendant contends the trial court erred in quashing his subpoenas for the production of documents directed to various law enforcement agencies and to Southland Publishing Company, d/b/a The Times. In this regard, defendant argues that photographs relevant to his plea of "self-defense and provocation" were improperly withheld from discovery. Defendant also argues that photographs were withheld which were necessary for impeaching the State's witnesses.

In response to the State's and The Times' motions to quash defendant's subpoenas, the trial court ordered the State and The Times to produce to the court for an in camera examination all of the photographs requested by defendant. However, the trial court limited The Times burden of production to "all photographs showing defendant and [the victim] or either individual separately [and allowed The Times ] to exclude any photographs taken after the arrest of defendant ..." The State and The Times complied and, after an in camera inspection of these materials, the trial court provided defendant four photographs produced by the State for use at trial and found that none of the photographs produced by The Times were "relevant or material to the stated defense of self-defense."

" '(T)he appellant has the burden of showing he was denied material exculpatory information such that he was denied a fair trial.' Kilgore v. State, 251 Ga. 291(5) (305 SE2d 82) (1983). If the trial court performs an in camera inspection and denies the defendant access to certain information, on appeal the appellant has the burden of showing both the materiality and the favorable nature of the evidence sought. Welch v. State, [251 Ga. 197(8) ( 304 SE2d 391]. Mere speculation that the items the appellant wishes to review possibly contain exculpatory information does not satisfy this burden. Id." Williams v. State, 251 Ga. 749, 789, 312 S.E.2d 40.

In the case sub judice, defendant has failed to show that any relevant or exculpatory photographs remain in the State's files or The Times' records. He merely asserts that such photographs may exist and that his examination of all of the photographs in the State's files and The Times' records is necessary to satisfy his discovery request. We do not agree.

It is undisputed that The Times produced all photographs in its records depicting defendant or the victim for the in camera inspection. It is also undisputed that the State produced all photographs of the demonstration in its records for the in camera inspection. Contrary to defendant's assertions, we find any photographs not depicting defendant or the victim irrelevant to defendant's defenses to the offense of a terroristic threat or for the purpose of impeaching the State's witnesses. Consequently, these enumerations of error are without merit as the photographs produced by the State and The Times were sufficient to satisfy defendant's discovery request. Further, we find that the trial court's in camera inspection procedure was an appropriate method of determining the relevance of this evidence at trial. See Byrd v. State, 171 Ga.App. 344, 345(3), 319 S.E.2d 460 and Jinks v. State, 155 Ga.App. 925(2), 274 S.E.2d 46.

2. Defendant contends in his third enumeration of error that the trial court "erred in not reprimanding the District Attorney for misstating the evidence to the jury in closing argument."

"We reject this argument because it is well-settled that a sustained objection to improper argument of counsel cannot serve as the basis for reversal unless it is contemporaneous with a denied motion for mistrial, denied request to strike or denied request for curative instructions, none of which were made [by defendant's counsel] below. See Williams v. State, 156 Ga.App. 17(1) (274 SE2d 71) (1980); Carroll v. State, 147 Ga.App. 332(7) (248 SE2d 702) (1978); Favors v. State, 145 Ga.App. 864(2) (244 SE2d 902) (1978)." Keen v. State, 164 Ga.App. 81, 88(7), 296 S.E.2d 91.

3. Next, defendant contends the trial court "erred in denying [his] motion to dismiss for selective prosecution."

"In United States v. Berrios, [501 F.2d 1207 (2d Cir., 1974) ], the court said, 'To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights ...' " William W. Daniel's, Ga. Criminal Trial Practice (1985 ed.) § 21-21.

Applying this principle in the case sub judice, we find no basis to support a claim for selective prosecution. There is no evidence showing that others committed the crime of a terroristic threat during the demonstration and there is no evidence indicating that the prosecution of defendant was undertaken for a retaliatory purpose. This enumeration of error is without merit. See Sabel v. State, 250 Ga. 640, 643, 300 S.E.2d 663; and, Lee v. State, 177 Ga.App. 698, 699(1), 340 S.E.2d 658.

4. In his fifth enumeration of error, defendant contends the trial court "erred in admitting tapes of political and racial commentary made by the Defendant on his telephone answering machine."

The trial court allowed the State to introduce into evidence seven tape recorded messages which were prepared by defendant and transmitted to interested persons through defendant's telephone answering machine. While these tape recordings were saturated with defendant's political and racial commentary, defendant objected only to certain specified language in each of four tape recorded messages dated February 18, 1986, March 4, 1986, March 10, 1986, and March 22, 1986.

Defendant argues that the objected-to language has no relevance and that it was introduced for the purpose of influencing the jury. We do not agree. The objected-to language, considered in context, demonstrates racial overtones and shows defendant's bent of mind and is relevant to the issue of defendant's intent to terrorize. See Wood v. State, 255 Ga. 697, 698(4), 341 S.E.2d 442. The trial court did not err in admitting the entire tape recorded messages into evidence. See also Shafer v. State, 191 Ga. 722, 727, 13 S.E.2d 798.

5. In his sixth enumeration of error, defendant argues that the trial court erred in allowing a Georgia Bureau of Investigation agent to testify that he had seen defendant at other Ku Klux Klan demonstrations with weapons. More specifically, defendant refers to the testimony of Special Agent Scott Curley who testified that he has observed defendant at other Ku Klux Klan "functions" in "possession of both automatic pistols, revolvers, shotgun, also some type of...