Drake v. State

• Decision Date: 09 February 1982
• Docket Number: Nos. 38034,38272,s. 38034
• Citation: 248 Ga. 891,287 S.E.2d 180
• Parties: Henry Arthur DRAKE v. The STATE.
• Court: Georgia Supreme Court

Page 180

287 S.E.2d 180

248 Ga. 891

Henry Arthur DRAKE v. The STATE.

Nos. 38034, 38272.

Supreme Court of Georgia.

Feb. 9, 1982.

Mary J. Wilkes, Martin & Young, Atlanta, for Henry Arthur drake.

Cleve Miller, Dist. Atty., Elberton, for the State in No. 38272.

Bryant Huff, Dist. Atty., Lawrenceville, Michael J. Bowers, Atty. Gen., for the State in both cases.

GREGORY, Justice.

In case No. 38034 Henry Arthur Drake appeals from the denial of his extraordinary motion for new trial based on newly discovered evidence.

Drake was convicted of the armed robbery and murder of a Madison County barber. He was sentenced to death for the murder and life imprisonment for the armed robbery. We affirmed his convictions on appeal. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1265, 59 L.Ed.2d 485 (1979).

Prior to Drake's trial, his co-indictee, William Campbell, was tried and convicted of the armed robbery and murder. Campbell was sentenced to life imprisonment for the armed robbery and death for the murder. Campbell's convictions were affirmed on appeal. See, Campbell v. State, 240 Ga. 352, 240 S.E.2d 828 (1977), cert. denied, 439 U.S. 882, 99 S.Ct. 218, 58 L.Ed.2d 194 (1979). At Campbell's trial, Campbell testified that he and Drake had been drinking prior to going to the victim's barber shop. Campbell maintained that over his protests, Drake had bludgeoned the barber with a claw hammer, then robbed him.

Campbell testified that, after striking the barber, Drake hit Campbell in the head with the hammer, then picked him up and placed him next to the door. Campbell testified that when Drake helped him up to leave, he noticed blood on the floor. The State introduced into evidence a small knife found at the scene of the crime which matched the description of a knife belonging to Drake. Campbell testified that he had never seen this knife before. The State presented evidence that there had been a struggle in the barber shop of a "violent and brutal nature." Campbell, supra, at 352, 240 S.E.2d 828. "Blood [was] smeared all over the whole barber shop and everything in the barber shop." Campbell, at 353, 240 S.E.2d 828. The State also showed that, at the time of Campbell's arrest in Virginia, he was wearing the band to a watch which had belonged to the victim. The victim's watch was found at the residence Campbell and Drake shared. Drake did not testify at Campbell's trial.

At Drake's trial Campbell testified that, over his protests, Drake "struggle[d] with the victim until [the barber] passed out from blows to his head." Drake, supra, 241 Ga. at 584, 247 S.E.2d 57. The State also showed that "the victim was over 70 years old, but he was healthy ... Campbell was in his sixties, and suffered so severely from asthma and emphysema that he could not exert himself strenuously. Drake, on the other hand, was healthy and in his thirties. From this the State argued that Drake must have been the one who actually beat the victim." Ibid.

Drake maintained his innocence at trial. He testified that he was visiting his mother at the time of the offense. Drake's alibi was corroborated by Mary Caruth with whom Drake and Campbell lived. Drake's mother also testified that her son was with her at the time of the crime. There was undisputed evidence that Caruth and Drake drove Campbell to the barber shop, drove him to their home later in the afternoon, and then drove him to Atlanta so that "he could flee the state even though by that time Drake admittedly knew of Campbell's involvement in the crimes." Drake, supra, at 586, 247 S.E.2d 57.

We noted, in reviewing Drake's convictions, that the "State's case rested largely on Campbell's testimony, since there was no other direct evidence, and little circumstantial evidence of Drake's participation in the crime." Id. at 584, 247 S.E.2d 57.

In April, 1981, Campbell signed an affidavit stating that he lied at Drake's trial and that Campbell, not Drake, had been responsible for the murder of the barber. The affidavit alleges that Drake and Caruth dropped Campbell off at the barber shop, then drove away. Campbell states that the barber "messed [his] hair up;" that he tried to get the barber to "fix it," but the barber refused; that the barber "got mad and hit [Campbell] with a hammer," whereupon Campbell drew a small knife belonging to Drake, took the hammer away, then beat and robbed him. The affidavit states that, afterwards, Campbell waited for Drake and Caruth to pick him up. He informed them that he was in trouble and gave Drake the victim's watch. Drake later took Campbell to Atlanta where Campbell boarded a bus to Virginia.

Campbell's affidavit asserts that he implicated Drake in the crimes because he believed Drake had informed the authorities that he could be located in Virginia. The officer who arrested Campbell in Virginia had the victim's watch in his possession. Campbell states that since he had earlier given this watch to Drake, he had reason to believe Drake led the authorities to him. Campbell's affidavit states that he testified against Drake at Drake's trial because Drake had told him after Campbell's conviction that he was glad Campbell "got the chair," and that he is recanting his earlier testimony because he "know[s] it was wrong to lie" and he desires "to be forgiven."

At the hearing on the extraordinary motion for new trial Campbell testified that the barber struck the first blow and that he beat the barber in self-defense. Campbell explained that he had taken Drake's knife from him before going to the barber shop. When the barber attacked him, Campbell stabbed him "once or twice" with the knife, but found it "didn't do no good." He threw it on the floor of the barber shop where it was later found by the police. Campbell further testified that, while his health was so poor he could "hardly walk a block without giving out," he and the barber "scuffled all the way to the back" of the barber shop. He also testified that there was "not a lot of blood" in the shop when he left, and that the barber, while conscious, was unable to move.

Drake's attorney introduced into evidence an affidavit from another attorney who had represented Drake at his habeas corpus hearing, stating that in "May or June, 1979" Campbell had informed him that Campbell had committed the crime and that Drake was not involved. On cross-examination Campbell denied knowing the other attorney or ever making this statement to him.

(1) "The standard for granting a new trial on the basis of newly discovered evidence is well established. 'It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.' Emmett v. State, 232 Ga. 110, 117, 205 S.E.2d 231 (1974); Bell v. State, 227 Ga. 800, 805, 183 S.E.2d 357 (1971); Burge v. State, 133 Ga. 431, 432, 66 S.E. 243 (1909); Berry v. State, 10 Ga. 511, 527 (1851); see Code Ann. § 70-204. All six requirements must be complied with to secure a new trial. Offutt v. State, 238 Ga. 454, 455, 233 S.E.2d 191 (1977); Corn v. State, 142 Ga.App. 798, 799, 237 S.E.2d 203 (1977)." Timberlake v. State, 246 Ga. 488, 491, 271 S.E.2d 792 (1980).

Pretermitting the question of whether the "newly discovered evidence" meets the first five of the above requirements, it is clear that the effect of Campbell's new testimony is to impeach the credibility of his earlier sworn statements. The law is settled that a post-trial declaration by a State's witness that his former testimony was false is not a ground for a new trial. Stroud v. State, 247 Ga. 395, 276 S.E.2d 597 (1981); Sutton v. State, 238 Ga. 336, 338, 232 S.E.2d 569 (1977); Fowler v. State, 187 Ga. 406, 1 S.E.2d 18 (1939); Felton v. State, 56 Ga. 84 (1876); Richey v. State, 132 Ga.App. 188, 207 S.E.2d 672 (1974); Code Ann. § 70-204.

Further, inconsistencies between the testimony Campbell now offers and other evidence presented on the trial of the case cast serious doubt on the credibility of his latest testimony. Campbell's testimony at the hearing on the extraordinary motion for new trial that he was the sole perpetrator of the crime contradicts his trial testimony that, at the time of the crime, his health was so impaired he was incapable of strenuous physical exertion. Campbell's current testimony that there was "not much blood" in the barber shop when he left the victim conflicts with evidence introduced at trial showing that "blood was smeared all over" the barber shop.

"All applications for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and unless it affirmatively appears that he has abused his discretion in overruling the same, his discretion will not be controlled." Kitchens v. The State, 228 Ga. 624, 626, 187 S.E.2d 268 (1972); Carter v. State, 246 Ga. 328, 271 S.E.2d 475 (1980); Pullin v. State, 237 Ga. 759, 229 S.E.2d 606 (1976). We conclude that the trial court did not abuse its discretion in denying Drake's extraordinary motion for new trial.

(2) Drake's contention that the trial court erred in denying his motion to be present at the hearing on the extraordinary motion for new trial is, likewise, without merit. "In Georgia, as in most jurisdictions, the general right of one accused of a felony to be present during the course of his trial does not extend to post-verdict procedures such as a motion for new trial, at which only questions of law, not questions of fact are...