Dennard v. State

• Decision Date: 20 September 1993
• Docket Number: No. S93A0942,S93A0942
• Parties: DENNARD v. The STATE.
• Court: Georgia Supreme Court

Page 26

435 S.E.2d 26

263 Ga. 453

DENNARD v. The STATE.

No. S93A0942.

Supreme Court of Georgia.

Sept. 20, 1993.

Reconsideration Denied Oct. 22, 1993.

T. Lee Bishop, Jr., Albany, for Dennard.

John R. Parks, Dist. Atty., Americus, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Peggy R. Katz, Staff Atty., Atlanta, for the State.

CLARKE, Chief Justice.

At about two o'clock in the morning on March 11, 1990, Henry L. Dennard and Michael Daniels drove into the parking lot next to a private club in Americus. About sixty people had gathered there that morning. Before leaving, Dennard would shoot Alphonzo Colwell Jenkins in the chest, fatally wounding him. ¹

Appellant's co-defendant Demetrius Hubbard arrived with Jeffrey Lynn Wright. Wright and Jenkins argued, and someone cooking chicken at the gathering asked Wright to leave. As Wright was driving away, the crowd began beating and rocking Daniels' truck. A fight broke out, and appellant asked Hubbard for a gun. Hubbard gave the gun to Dennard who then fired a bullet into Jenkins's chest. Appellant and Wright drove away, leaving Daniels at the scene. The autopsy revealed that the victim died from the .38 caliber gunshot wound to the chest. Later that morning, the police arrested Dennard who told them that Hubbard shot Jenkins and then handed the gun to him. Police then arrested Hubbard and the three others who were at the scene of the killing with him. After the police read Miranda warnings to him, appellant admitted the shooting but claimed it was an accident. He also said that Hubbard hid the gun under his aunt's trailer. The police later found the gun there.

The jury found appellant guilty of felony murder, voluntary manslaughter, aggravated assault, and three other charges. He was sentenced to life in prison, and now appeals the conviction. Appellant enumerates several errors. We reverse Dennard's conviction for aggravated assault and voluntary manslaughter and affirm the remainder of the judgment.

1. Appellant was convicted of both felony murder and aggravated assault, the underlying felony on which the murder charge was based. As appellant argues and the State agrees, a defendant may not be convicted of more than one crime if that crime is included in the other. OCGA § 16-1-7. We therefore set aside the conviction for aggravated assault.

2. Viewing the evidence in the light most favorable to the jury's verdict, a rational trier of fact could have found appellant guilty of the charges beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The trial court did not err in denying appellant's motion for a directed verdict.

3. Dennard contends that the jury, by convicting him of voluntary manslaughter, necessarily found the aggravated assault of the victim was mitigated by provocation. He further argues that under Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992), his conviction for felony murder must be reversed.

Before the sentencing phase began, defense counsel said, "We don't argue with the jury's verdict. We accept that verdict." Because appellant failed to object to the convictions, he is barred from asserting that the court should have sentenced him for voluntary manslaughter instead of felony murder. Cruz-Padillo v. State, 262 Ga. 629(2), 422 S.E.2d 849 (1992). Therefore, we uphold the conviction for felony murder but set aside the conviction on voluntary manslaughter. See id.; Wilson v. State, 262 Ga. 588, 590, 422 S.E.2d 536 (1992).

4. Prior to trial, appellant filed a demand for exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant then moved for a mistrial when the State presented the testimony of Christopher Jones. Mr. Jones and James D. Brown gave statements to the police that contradicted testimony of the other witnesses. Appellant argues that these statements were exculpatory and should have been revealed to him. However, the statements were revealed during the prosecutor's case-in-chief at trial. Appellant had ample opportunity to cross-examine Jones on both statements. Brady holds that suppression by the prosecution of evidence favorable to the accused which is material to either guilt or punishment violates due process. Brady does not require pre-trial disclosure of materials sought under a Brady motion. Castell v. State, 250 Ga. 776, 781(2)(b), 301 S.E.2d 234 (1983) (citing United States v. Sweeney, 688 F.2d 1131, 1141 (7th Cir.1982)). "Brady is not violated when the Brady material is available to defendants during trial. [Cits.]" Id. (Citing United States v. Behrens, 689 F.2d 154, 158 (10th Cir.1982).) Nor is there a Brady violation where information sought becomes available to the accused at trial. Shearer v. State, 259 Ga. 51, 376 S.E.2d 194, cert. denied, 492 U.S. 922, 109 S.Ct. 3251, 106 L.Ed.2d 597 (1989). Appellant must show that earlier disclosure would have benefited the defense and that the delayed disclosure deprived him of a fair trial. Wallin v. State, 248 Ga. 29(6), 279 S.E.2d 687 (1981).

As in Wallin, supra, the exculpatory evidence was not withheld from the jury. Defendant merely complains that it was not made available prior to trial. Without a showing that this prejudiced the defendant's case, there is no violation of Brady. Wallin, 248 Ga. at 33-34, 279 S.E.2d 687.

5. Appellant complains that the trial court erred in denying the defendant's motion for severance. Both Hubbard and Dennard were tried together. Neither defendant testified, and Hubbard was acquitted on charges of murder and voluntary manslaughter. The trial court admitted a pre-trial statement made by Hubbard implicating Dennard as the killer.

When two or more defendants are jointly indicted for a capital felony where the death penalty is waived, defendants may be tried jointly or separately in the discretion of the trial court. OCGA § 17-8-4.

The trial judge must examine each case individually and exercise his discretion in ruling on the motion. That decision will not be disturbed unless appellant shows an abuse of discretion. Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975). The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process. Majors v. State, 203 Ga.App. 139, 140, 416 S.E.2d 156 (1992). In exercising its discretion, the court must consider three factors: (1) Whether a joint trial will create confusion of evidence and law; (2) whether there is danger that evidence implicating one defendant will be considered against the...