Coleman v. State

• Citation: 271 Ga. 800,523 S.E.2d 852
• Decision Date: 01 November 1999
• Docket Number: No. S99A1238.,S99A1238.
• Parties: COLEMAN v. The STATE.
• Court: Supreme Court of Georgia

523 S.E.2d 852

271 Ga. 800

COLEMAN v. The STATE.

No. S99A1238.

Supreme Court of Georgia.

November 1, 1999.

Reconsideration Denied December 20, 1999.

Steven E. Phillips, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Adam M. Hames, Assistant Attorney General, for appellee. HUNSTEIN, Justice.

Brian Burrell Coleman was indicted on nine counts arising out of the death and sexual assault of an unidentified woman. He was convicted on all counts and received three consecutive life sentences. He appeals from the denial of his motion for a new trial.¹

1. The body of the unidentified victim was discovered on September 20, 1994 among weeds in a parking lot off Piedmont Avenue in downtown Atlanta. A cash register receipt with appellant's name on it, dated 8:03 a.m. the previous day, was located in a shrub two to three feet from the body. The victim died from strangulation and blunt trauma to the head. Expert testimony matched appellant's DNA to sperm found in the victim's vagina and anus as well as skin fragments found under the victim's fingernails. Statistically, no more than one in ten billion would exhibit the same DNA pattern found between appellant and the sperm retrieved from the victim's rectum; one in 800 million in the Caucasian population and one in four billion in the African-American population would exhibit the same DNA pattern found between appellant and the sperm retrieved from the victim's vagina.

In his statements to the police, appellant said that he was in downtown Atlanta the evening of September 19. Although he originally omitted any mention of the victim, after being presented with the results of the DNA testing appellant admitted that he had had sex with her. His version of the encounter with the victim was strikingly similar to the story he had given police regarding a rape complaint made against him one month earlier by a witness who testified appellant struck up a conversation with her at a downtown MARTA station; bought her food then forced her at knife point to engage in vaginal sex from the rear; attempted unsuccessfully to have anal sex with her; and placed his hands around her neck.

The evidence adduced was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the charged crimes. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends that the State erroneously withheld exculpatory and impeaching evidence in regard to a "deal" made with jail house snitch, Mark Ray, and that the State used perjured testimony when questioning Ray about that deal at trial. At the hearing on appellant's pre-trial motion to reveal the deal, the prosecutor testified that she had agreed to speak personally with the judge assigned to Ray's case at the time of his sentencing regarding his anticipated testimony for the State. She also stated that while Ray and his attorney had expressed interest in getting Ray into a drug rehabilitation program, she did not tell them Ray would get that program. At trial Ray testified to his understanding regarding the contact with his assigned judge and was subject to a thorough cross-examination by defense counsel regarding every aspect of the agreement with the prosecutor, including the manner and timing in which he revealed to the State his conversations with appellant.

At the motion for new trial hearing, Ray's former attorney testified that in response to Ray's request to be placed in the rehabilitation program, the prosecutor's reply "would be that she would do everything she could for him. I think she said she would go to bat for him, talk to the victims on the case and talk to the judge at the time of his sentencing." Ray's counsel also testified, however, that prior to trial the prosecutor canceled the agreement upon deciding not to call Ray as a witness. No other evidence was adduced regarding the agreement arranged when the prosecutor thereafter changed her decision regarding Ray's testimony. According to the parties, Ray was subsequently tried and acquitted of the charge for which he had been incarcerated.

(a) The State is under a duty to reveal any agreement, even an informal one, with a witness concerning criminal charges pending against that witness; a failure to disclose such an agreement constitutes a violation of an accused's due process rights. Owen v. State, 265 Ga. 67(2), 453 S.E.2d 728 (1995). In order to establish reversible error, however, a defendant must show, inter alia, that had the evidence of the agreement been disclosed to the defendant, there existed a reasonable probability that the result at trial would have been different. Burgeson v. State, 267 Ga. 102, 104, 475 S.E.2d 580 (1996). Even assuming, arguendo, that the prosecutor's offer in regard to the rehabilitation program was included in the final agreement with Ray so that the State failed to reveal information of a type required to be disclosed under Brady and Giglio,² we conclude based on the DNA and similar transaction evidence establishing appellant's guilt that there is no reasonable probability the disclosure of this additional aspect to the agreement with Ray would have affected the result of the jury's deliberations. See Owen, supra. This same evidence, combined with our review of the in-depth cross-examination of Ray by the defense regarding his motivation for disclosing the information and the manner in which he divulged the information to the prosecution, leads us to the same conclusion regarding the State's failure to disclose allegedly impeaching evidence about the timing of Ray's disclosures to the prosecutor.

(b) Appellant also argues that Ray's testimony was perjured and the State violated his due process rights by knowingly introducing this testimony. Appellant claims that Ray perjured himself by failing to mention the rehabilitation program aspect of the agreement. Appellant has not shown, however, that Ray's testimony did not reflect Ray's understanding of that agreement and that the parties did not consider the prosecutor's contact with the judge to include a request for Ray to get the rehabilitation program. Given the nebulous details of the agreement, we cannot conclude from the record that the prosecutor knowingly used perjured testimony in this regard. See generally Johnson v. State, 258 Ga. 506(4)(b), 371 S.E.2d 396 (1988).

Accordingly, we find no reversible error in these enumerations.

3. On the seventh day of trial, appellant sought to introduce testimony by a defense witness for the purpose of purportedly impeaching Ray's testimony by disclosing statements Ray had made to the witness indicating Ray had fabricated appellant's confession in order to curry favor with the State. The defense had opted into the Georgia Discovery Act, OCGA § 17-16-1 et seq., and the trial court disallowed the testimony. See OCGA § 17-16-8(a). Appellant challenges that ruling. However, even assuming the trial court erred by excluding this evidence, considering the nature of the excluded testimony and the overwhelming evidence of appellant's guilt, we find it is highly probable that the exclusion of the proffered evidence did not contribute to the jury's verdict. See Laney v. State, 271 Ga. 194(8), 515 S.E.2d 610 (1999).

4. "The factual findings of the trial court regarding probable cause for the issuance of a search warrant are to be upheld unless clearly erroneous. [Cit.]" Bryant v. State, 268 Ga. 616, 618(6), 491 S.E.2d 320 (1997). The affidavit presented to the magistrate in the instant case gave details about the body of the victim, when and where the body was found, the indications on the body of "sexual and/or body contact" with the perpetrator, and the presence within three feet of the body of a dated receipt with appellant's name. We conclude that there were sufficient facts in the affidavit to provide a substantial basis for concluding that probable cause existed for the issuance of a search warrant for appellant's blood. See id.; see generally State v. Henderson, 271 Ga. 264(4), 517 S.E.2d 61 (1999) (magistrate's task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that evidence of a crime will be found in a particular place; magistrate's decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court).

5. Appellant contends he received ineffective assistance of counsel based on trial counsel's failure to file or properly argue motions to dismiss and counsel's failure to investigate the relationship between the State and Mark Ray, the jail house snitch. In order to prevail on this claim, appellant must show both that counsel's performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d...