Fleming v. State

• Citation: 236 Ga. 434,224 S.E.2d 15
• Decision Date: 08 March 1976
• Docket Number: No. 30669,30669
• Parties: Bruce Allen FLEMING v. The STATE.
• Court: Supreme Court of Georgia

Page 15

224 S.E.2d 15

236 Ga. 434

Bruce Allen FLEMING v. The STATE.

No. 30669.

Supreme Court of Georgia.

March 8, 1976.

Rehearing Denied March 23, 1976.

John Wright Jones, Andrew N. Sapp, Savannah, for appellant.

Joseph H. Briley, Dist. Atty., Gray, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Asst. Atty. Gen., Atlanta, for appellee.

INGRAM, Justice.

Appellant was convicted by a jury in the Superior Court of Baldwin County of the offenses of armed robbery and murder for which he received consecutive sentences of life imprisonment. Under the state's theory, the appellant and his father entered into a conspiracy to rob and murder the victim, Harold (Jack) Cooper, who was a crucial witness against appellant's father in a Chatham County burglary case. The primary defense relied on by appellant was alibi and misidentification of him by the victim's wife as the person who fired the pistol shot which resulted in the death of the victim. We have reviewed the enumerations of error relating, both to appellant's convictions and the sentences imposed therefor, and find no reversible error.

Evidence

A brief summary of the evidence presented at trial shows that on the evening of January 26, 1975, the victim, his wife and two children returned to their home in Milledgeville. Upon entering the house and turning on the light in the kitchen, the pantry door suddenly opened and the Coopers were confronted by two armed men. One was tall and armed with a pistol; the other was armed with a shotgun. Both men were wearing stockings over their heads and socks on their hands. The family was tied up and receipts of over $4,000 from the family grocery store were taken. Mrs. Cooper heard a shot and then heard the gunmen leave. Harold Cooper had been shot by the robber with the pistol and Mr. Cooper subsequently died from his injuries.

Harold Cooper, the victim, had formerly owned an auto parts store in Chatham County which had been burglarized. Several persons were charged in that case, including Charles Fleming, appellant's father. The police, while investigating the murder, showed Mrs. Cooper a photographic display of Charles Fleming and several of his known associates. Mrs. Cooper recognized several of the men whom she already knew and suddenly picked out appellant as one of the robbers. She testified that she had not seen appellant prior to the robbery. She subsequently identified appellant in court over defense objections as the robber with the pistol.

Malice Murder

In his first enumeration of error, appellant asserts the general grounds and argues the evidence shows at most a murder in the commission of a felony and not malice murder. He cites Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975) in support of his contention that his armed robbery sentence must be vacated. The facts in Burke are distinguishable from the facts in the present case. In Burke, the defendant was a look-out who had only conspired to commit armed robbery and did not shoot the victim. The evidence in this case places the pistol that killed the victim in appellant's hand. The convictions for malice-murder and for armed robbery are thus both supported by the evidence. See Dobbs v. State, 236 Ga. 427, 224 S.E.2d 3 (1976) (a companion case to Burke, supra). In addition, once a jury has returned a verdict and the trial court has approved the verdict by denying a motion for new trial, the evidence is viewed on appeal in a light favorable to the verdict. See Harris v. State, 234 Ga. 871, 218 S.E.2d 583 (1975). This enumeration of error is without merit.

Commitment Hearing

Appellant asserts as error the failure of the state to provide him with a commitment hearing. A majority of this court has held that after indictment and subsequent conviction, lack of a commitment hearing will not be considered reversible error. See State v. Middlebrooks, 236 Ga. 52, 222 S.E.2d 343 (1976). The author of this opinion dissented in Middlebrooks, but the majority view is the law. Under it, there is no merit in this enumeration of error.

Identification Testimony

The appellant enumerates as error the trial court's refusal to suppress the in-court identification of appellant by Mrs. Cooper, the victim's wife, who was present at the scene of the crimes. Appellant argues that a photographic display Mrs. Cooper was shown by the police prior to appellant's arrest was so impermissibly suggestive that it precluded her from accurately identifying appellant at trial. Mrs. Cooper was shown photographs of 17 men and two women. Only appellant's picture and his father's picture appear more than once. The law enforcement agents who were present when she made the identification made no suggestion to her that any of the men were suspects. Mrs. Cooper already knew three of the men and she chose their pictures and identified them also. Without any suggestion, she then identified appellant's picture and said he was the tall man involved in robbing and killing her husband. On the stand she testified that while the men were in her house she made a special effort to remember their appearances.

When a witness is shown a photographic display, the question of whether a subsequent in-court identification has been tainted is to be determined on the facts of each case considered separately. '. . . (C)onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside . . . only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (show-up). See also Dagenhart v. State, 234 Ga. 809, 810, 218 S.E.2d 607 (1975), and Payne v. State, 233 Ga. 294, 299, 210 S.E.2d 775 (1974). On the facts of this case, we hold that the photographic display procedure was not 'so impermissibly suggestive' that the subsequent in-court identification should be suppressed.

Motion for Continuance

Enumerations of error 4 and 5 concern the failure of the trial court to grant a motion for continuance on two different bases. First, defense counsel asserts that he had insufficient time to prepare for trial and that he needed transcripts of motion hearings to assist him in his trial preparation. Second, counsel complains that the state delayed too long in giving him a list of witnesses prior to trial.

The hearing on the motion for a continuance shows that the court reporter provided counsel with transcripts of the two motion hearings three days and two days prior to trial. There was no showing at the hearing on the motion for the continuance of any harm to defense preparation. See Chenault v. State, 234 Ga. 216, 221, 215 S.E.2d 223 (1975).

An initial list of witnesses was provided to defense counsel on February 21, 1975, on the copy of the indictment. A supplemental list was provided on March 21, 1975, and corrections to that list were made on March 26, 1975. The trial began on March 31, 1975. Counsel admitted interviewing only a small number of witnesses on both the initial and supplemental list and failed to establish any prejudice. The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be cause for reversal absent an abuse of that discretion. See Chenault, supra; also, Favors v. State, 234 Ga. 80, 84, 214 S.E.2d 645 (1975); and, Dutton v. State, 228 Ga. 850, 188 S.E.2d 794 (1972), and cases cited.

Discovery

Enumeration of error No. 6 concerns the failure of the trial court to require extensive discovery of the prosecution's case. In support of this enumeration appellant argues that because he was denied a commitment hearing he is entitled to full discovery beyond that required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1962). He also urges that the state failed to disclose agreements with three prosecution witnesses to recommend leniency concerning charges pending against them. The trial court pursuant to a defense motion held an in camera inspection of the prosecution's file and ordered disclosure of part of that file, with which the state complied. See Hicks v. State, 232 Ga. 393, 395, 207 S.E.2d 30 (1974). The requirements of Brady appear to have been complied with in this case. See Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975), and Houser v. State, 234 Ga. 209, 213, 214 S.E.2d 893 (1975).

Several witnesses for the state had been indicted for the earlier Chatham County burglary involving the victim in this case. The district attorney stated at a pre-trial motion hearing that no agreement had been offered and that he had asked the witnesses if any agreement had been made with them. Subsequent to appellant's conviction, the three received probated sentences for entry of pleas of guilty in Chatham County.

We agree with appellant that the existence of an agreement with a witness is relevant to that witness' credibility and that if an understanding or agreement exists, the prosecution must disclose it. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and Allen v. State, 128 Ga.App. 361, 196 S.E.2d 660 (1973). 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.

Motion to Suppress

Enumeration No. 7 asserts that the trial court erred in denying a motion to suppress evidence. appellant does not point to anything in the record to support his contention that the affidavits supporting the warrant were insufficient. Neither the affidavit nor warrant appears in the record in this court even though the motion to suppress transcript indicates they were introduced at that hearing. The officer who obtained the warrant testified that an arrest...