Dickey v. State, 32802
| Citation | 240 Ga. 634,242 S.E.2d 55 |
| Decision Date | 20 January 1978 |
| Docket Number | No. 32802,32802 |
| Parties | James Edward DICKEY v. The STATE. |
| Court | Georgia Supreme Court |
Brown, Katz & Flatau, S. Phillip Brown, Richard M. Katz, Macon, for appellant.
Walker P. Johnson, Jr., Dist. Atty., Willis B. Sparks, III, Asst. Dist. Atty., Macon, Arthur K. Bolton, Atty. Gen., William B. Hill, Jr., Atlanta, for appellee.
Following a change of venue to Bibb County, the defendant was convicted by a jury of the murder of Crawford County Deputy Sheriff Allen Kay O'Neal. The jury found that the offense of murder was committed against a peace officer while engaged in the performance of his official duties but recommended mercy to the court, and the defendant was sentenced to life imprisonment.
Several witnesses testified to encounters between the deputy sheriff and the defendant. One witness testified that three days before the shooting, the defendant had stated that as long as he lived he would have something against the deputy and would rather be dead than go back to jail. On the afternoon preceding the shooting, the victim had telephoned the Bibb County sheriff's office to request a recent photograph of the defendant from their files.
In the early morning hours of Tuesday, January 25, 1977, the body of the deputy sheriff was found on Highway 341 lying 45 feet in front of his patrol car with its blue light flashing. Medical testimony placed the time of death between midnight and 3:00 a. m. Death was caused by a bullet wound to the upper chest fired at close range from a .22 caliber pistol recovered from the scene. The deputy's pistol was found on the ground nearby. Two of his shirt buttons were found at the scene. Georgia Bureau of Investigation officials interviewed Arthur James Felton and Miller Sherman Fluellen who provided statements which resulted in the defendant's arrest and indictment for the murder of Deputy O'Neal.
At trial, Felton and Fluellen testified for the state. According to their testimony, on the Monday evening in question, Fluellen, Felton and the defendant left in a car borrowed in Fort Valley intending to drive to Atlanta. They ran out of gas in Bibb County near Macon sometime between 8 and 9:30 p. m. and did not leave there for about two hours when they decided to go to the Paradise Club in Fort Valley (Peach County). From there, they went to Maine's Place in Roberta (Crawford County) where only the defendant went inside. Three witnesses testified to having seen the defendant inside Maine's Place on the night in question.
Fluellen, Felton and the defendant were "high on drugs" and resumed their trip toward Atlanta leaving Roberta on Highway 341. Fluellen was driving, Felton was asleep in the rear seat and the defendant was in the front passenger seat. A mile before they reached the Crawford County line, they were stopped by a patrol car. The defendant left the automobile alone, telling Fluellen he would "take care of them." After a few minutes, two shots were fired. The defendant ran back to the car and said, "Let's go, get the hell out of here." When asked why he shot the man, the defendant made no response. Defendant, Felton and Fluellen then drove from the scene to Atlanta where they stayed with relatives of Felton.
On cross examination, both Felton and Fluellen freely admitted having lied to defense counsel in separate interviews prior to trial. They were questioned at length about their prior statements in which they had denied being in the area the night of the shooting but claimed to have gone together directly to Atlanta earlier that evening.
The defendant testified he was not in Crawford County the night Deputy O'Neal was killed. He stated he was with Felton and Fluellen and that they had proceeded directly to Atlanta that evening without returning to Roberta. He maintained he first learned of Deputy O'Neal's death from newspaper accounts.
1. In accordance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the defendant filed a motion prior to trial to discover exculpatory evidence possessed by the prosecution. The defense specifically requested "All tape recordings of statements, written statements and reports of oral statements of James Arthur Felton and Miller Sherman Fluellen, which would tend to show that James Edward Dickey did not commit the offense charged, or which may be inconsistent with other statements made by them or either of them, or which may be considered to be impeaching in any way of their expected testimony."
The prosecution stated at the hearing on the motion that, other than his original claim of lack of knowledge, it had no statements in its files by Felton inconsistent with his anticipated testimony. The prosecution stated further that although Fluellen's original and subsequent statements to authorities were consistent to testimony anticipated at trial, he did change his story during one interview, and give a version consistent with the defendant's defense. It is contended the trial court erred by not requiring the prosecution to provide copies of the prior inconsistent statements made by Fluellen and Felton or erred by failing to conduct an in camera inspection to determine their exculpatory nature.
However, defense counsel independently had obtained and recorded statements by both witnesses which were inconsistent. At trial they admitted making such statements and were exhaustively cross examined concerning them. Even assuming that the state should have furnished the inconsistent statement or statements it had, Rini v. State, 235 Ga. 60, 218 S.E.2d 811 (1965), such evidence would have been admissible only for the purpose of further impeachment of the witnesses (Mathis v. State, 210 Ga. 408, 80 S.E.2d 159 (1954); Code § 38-1803).
A defendant assigning error upon the denial of a "Brady motion" must do more than show suppression. Moore v. Illinois, 408 U.S. 786, 795-798, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Hicks v. State, 232 Ga. 393, 396, 207 S.E.2d 30 (1974); Pryor v. State, 238 Ga. 698, 706, 234 S.E.2d 918 (1977); see United States v. Harris, 458 F.2d 670, 677 (5th Cir. 1972); United States v. Crow Dog, 532 F.2d 1182, 1189 (8th Cir. 1976). A defendant assigning error upon the denial of a "Brady motion" and suppression of an inconsistent statement by a key prosecution witness must show that " . . . the suppressed evidence might have affected the outcome of the trial." United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). 1
In the case before us, the state's two key witnesses were cross examined extensively as to their prior inconsistent statements to defense counsel. Cross examination based upon similar inconsistent statements to law enforcement officers would not have affected the outcome of the trial. Hence no reversible error has been shown.
2. The defendant enumerates as error the failure to disclose an alleged deal made between the district attorney and state's witnesses Felton and Fluellen for their testimony. A review of the transcript of the motion for new trial reveals no error.
It is true that at the time of this trial both Felton and Fluellen had a number of charges pending against them. At the hearing on the motion for new trial, their attorney testified that the district attorney had specifically told him there would be no deal, but that if the investigation and their testimony showed they were not parties to the deputy's murder then they would not be prosecuted for it, that the district attorney would communicate with the other jurisdictions about their cooperation and that he would communicate with the Pardon and Parole Board when they came up before it.
The defense argues that because of the sentences the witnesses ultimately received and the fact that some charges were dropped, there was a deal that should have been disclosed to the defense. We find no evidence of a plea bargain existing at the time of defendant's trial. "However, we cannot find, in the absence of other evidence, that such an agreement existed merely because of the subsequent disposition of criminal charges against these witnesses for the state." Fleming v. State, 236 Ga. 434, 438, 224 S.E.2d 15, 119 (1976).
Moreover, Felton and Fluellen did not testify at trial that they had not received any inducement or promise from the state in exchange for their testimony. Hence there is no issue of perjured testimony here. See United States v. Agurs, supra, fn. 8. Defendant's "Brady motion" did not specifically seek information as to promises of leniency or inducements to testify made to Felton or Fluellen except generally as to "evidence of any kind favorable to the defendant." Hence, the second category discussed in Agurs, supra, a specific Brady request, is inapplicable here.
According to Agurs, where there is no specific Brady request and no inference of perjury (i. e., where there is only a general Brady request, or no request at all), the proper standard of materiality for judging the prosecutor's failure to voluntarily disclose is: If the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. 427 U.S. at 112, 96 S.Ct. at 2401-2402.
The omitted evidence in this case, the state's inducements to Felton and Fluellen to testify, do not create any doubt that did not otherwise exist. The jurors could not be unaware that these two witnesses hoped for leniency, whether or not it had been offered or discussed. 2 The jurors thus found this defendant guilty of murder notwithstanding their knowledge that the state's two principal witnesses were motivated in favor of the state. We find no reversible error in the state's failure to volunteer information as to the usual, minimal inducements made to these witnesses.
3. The defendant enumerates as error the court's refusal to allow in evidence defense counsel's taped interview with Fluellen. 3 Fluellen admitted...
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