Hicks v. State
| Decision Date | 18 June 1974 |
| Docket Number | No. 28810,28810 |
| Citation | 207 S.E.2d 30,232 Ga. 393 |
| Parties | Milton Leon HICKS v. The STATE. |
| Court | Georgia Supreme Court |
Michael J. Kovacich, Decatur, for appellant.
Richard Bell, Dist. Atty., Edward H. Kellogg, Jr., Decatur, for appellee.
Syllabus Opinion by the Court
This appeal is from convictions and sentences of appellant after a trial in DeKalb Superior Court for the offenses of rape, armed robbery and burglary. Two life imprisonment sentences and a sentence of 20 years, to run consecutively with each other, were imposed in the trial court for these crimes.
The transcript of evidence reveals that at approximately 7:30 a.m. on January 22, 1973, the prosecutrix was awakened in her home in DeKalb County by the barking of the family dog, and as she opened her eyes she saw a black man standing beside her bed with a gun. He threatened harm to her small children if she failed to remain quiet. He then asked where the family kept its money and guns. She replied the family kept no guns and that the only money available was pocket change in her pocketbook. The man then stated he had already taken the money in the pocketbook and pushed the prosecutrix with the gun from the bedroom through the hall and into the den. Again the intruder demanded money and guns, and the prosecutrix, in an effort to comply, stated there was some change in her children's bank. Appellant then replied, 'I'm not going through all this for that change,' whereupon he demanded the victim remove her nightgown. When she resisted, her children were again threatened and she was forced to disrobe. She was forced to lie on the floor with her gown over her face while the intruder, holding the gun on her, committed a sexual assault upon her. He then left with the victim's billfold, which had been taken from her pocketbook before she was awakened, and it contained $12 and several credit cards. Appellant was identified by the victim at a subsequent police lineup following his arrest for another crime unrelated to the present case. After appellant was indicted, tried before a jury and convicted of the present offenses, his motion for a new trial was overruled and that ruling is enumerated as error, along with other alleged errors in the trial court.
The first enumeration of error contained in this appeal asserts that the trial court erred in denying a motion for discovery and for inspection and production of evidence alleged to be favorable to appellant. Prior to the trial, appellant sought an order requiring the prosecution to disclose various materials which might be favorable to the defense. As a result, the trial judge ordered the state to produce both a list of its witnesses and any statements in its possession made by the appellant. In addition, the judge held an in camera inspection of the state's files and ordered disclosure of the lineup photographs and reports. However, the judge specifically refused to order disclosure of medical reports in the state's files, and of material outside those files, consisting of arrest records of the state's witnesses and conversations between police and witnesses not contained in the police reports. On this appeal, appellant cites this order as a breach of constitutional requirements of due process and relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) in support of this contention.
A part of the material sought by appellant clearly was evidence which was not in the prosecution's file. This evidence could have been obtained only if the prosecution actively sought it. For the trial court to require production by the state of this evidence would require the state to investigate the case for the defense. In our opinion, this goes beyond the constitutional limits of Brady which proscribed the 'suppression by the prosecution of evidence favorable to an accused.' 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215. The prosecution does not 'suppress' evidence by refusing to conduct a search for it, even though the evidence may be more accessible to the state than to the defense. There is no merit in this contention. The other evidence sought by the defense consisted of medical reports which were in the prosecution's file at the time of appellant's pre-trial motion for discovery. These reports came to light when, during appellant's trial, the prosecution introduced evidence of two crimes which occurred in a manner similar to the criminal episode charged in the present indictment. Both of these prior crimes involved a burglary of a residence in the early hours of the morning, and in both cases the wife of the household was forced to submit to a sexual assault. During the trial, the state offered the testimony of the doctors who examined the molested women in these other cases, but the testimony revealed that in one case no motile sperm or other evidence of sexual intercourse was found, while in the other case there were no signs of trauma. This evidence was contained in the medical reports of these two doctors, and it is these medical reports which appellant complains on this appeal were proper for pre-trial disclosure under the Brady rule.
We have long observed that there is no Georgia statute or rule of practice which allows discovery in criminal cases. See Pass v. State, 227 Ga. 730(12), 182 S.E.2d 779 (1971). But the question here deals not with Georgia law, but with the due process mandate of a fair trial. In further support of his argument, appellant cites the cases of Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968), cert. denied, 393 U.S. 1105, 89 S.Ct. 908, 21 L.Ed.2d 799, and, United States v. Eley, 335 F.Supp. 353 (N.D.Ga.1972), both of which seem to interpret the Brady case as imposing an affirmative duty on the prosecution to disclose, on the defendant's pre-trial motion, evidence favorable to him in advance of trial. Under this view, the concept of a fair trial is seen to include the right of a defendant to have pre-trial access to beneficial evidence in order to prepare his case for trial. In our view, Brady does not require the prosecution to open its file for general inspection by the defense or for pre-trial discovery. See also United States v. Moore, 439 F.2d 1107 (6th Cir. 1971). The trial judge in the present case conducted an in camera inspection of the prosecution's file to determine if it contained material that should be disclosed under the Brady rule. The appellant has the burden of showing how his case has been materially prejudiced, even when the trial court declines to make an in camera inspection. See United States v. Harris, 458 F.2d 670, 677 (5th Cir. 1972). Actually, the evidence which appellant sought was elicited during the trial, in part by the prosecution itself. It was, therefore, made available for the jury's consideration, and appellant has not shown how the lack of this information prior to trial so impaired his defense that he was denied a fair trial within the meaning of the Brady rule. Appellant argues that having prior knowledge of the evidence might have opened up new avenues for his defense at the trial. We think this argument, standing alone, is not enough, and, accordingly, find no constitutional error in this enumeration.
Appellant's second and third enumerations assert that the trial court erred in allowing testimony of other crimes allegedly committed by him which consisted of two incidents involving burglary, robbery and rape. Appellant concedes that his role in these independent crimes was clearly established, but contends on this appeal that these cases were not shown to be sufficiently similar to the criminal episode for which he was on trial to be probative of his involvement in it. In comparing the two other criminal episodes with the present one, the record shows that all three involved a burglary in the early hours of the morning. These incidents occurred at 7:30 a.m. in the present case, at 1:30 a.m. in another, and between 4 and 5 a.m. in the third. Entry was accomplished through either an unlocked window or an unlocked glass door. In each case, the culprit took small items, such as jewelry, money and guns, eschewing larger items such as a television set. No fingerprints were left because in all three cases the trespasser wore gloves and in each instance a hat was pulled down over the intruder's eyes to conceal his identity. Each case involved a forcible sexual assault on the wife at gunpoint and a threat of harm to other members of the family. The three crimes occurred within a 6-month period and were in a common geographical area.
The general rule is that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial. See Cawthon v. State, 119 Ga. 395, 408, 46 S.E. 897 (1903). The issue to which this testimony related in this case was that of the identity of the appellant as the person who committed the crimes with which he was charged. The state contends that the evidence in question was relevant to the case on trial, as the other two occurrences were clearly interwoven with the scheme employed in the instant case. We agree and hold this evidence was admissible to identify the accused and to illustrate a common motive and plan. Allen v. State, 201 Ga. 391(1), 40 S.E.2d 144 (1946); Gunter v. State, 223 Ga. 290, 154 S.E.2d 608 (1967); Anderson v. State, 222 Ga. 561, 150 S.E.2d 638 (1966).
There was sufficient similarity in each of these instances to make the evidence admissible for the purpose of identifying the appellant as the guilty person in the present case and for illustrating his motive, plan, scheme, bent of mind and course of conduct. See McNeal v. State, 228 Ga. 633(5), 187 S.E.2d 271 (1972). Hence the trial court's denial of appellant's motion for a mistrial was not error.
Appellant's fourth enumeration of error relates to the testimony of a witness over objection at the trial whose name was not included...
To continue reading
Request your trial
-
Prater v. State
...579 (1996). 4. Epps, supra. 5. OCGA § 16-8-41(a); Conner v. the State, 251 Ga. 113, 114-15, 303 S.E.2d 266 (1983). 6. Hicks v. State, 232 Ga. 393, 403, 207 S.E.2d 30 (1974); Kurtz, Criminal Offenses and Defenses in Georgia, p. 512 (3rd ed.1991); CJS 77 Robbery 593 § 5. 7. Dillard v. State, ......
-
Ferrell v. Head
...with testimony from a witness whom he has not had the opportunity to interview. See id. at 402, 317 S.E.2d 196; Hicks v. State, 232 Ga. 393, 399, 207 S.E.2d 30 (1974). The record indicates — and the Petitioner concedes — that he was provided an opportunity to interview the "surprise witness......
-
Roberts v. State
...and arrested.3 The responsibility for asking these questions may be delegated by the court to the district attorney. Hicks v. State, 232 Ga. 393, 400, 207 S.E.2d 30 (1974).4 We note, however, that identical charges have been approved by this court in other cases. See, e.g., Castell v. State......
-
Jarrell v. State
...criminal cases. Blevins v. State, 220 Ga. 720(2), 141 S.E.2d 426; Henderson v. State, 227 Ga. 68(2), 179 S.E.2d 76; and Hicks v. State, 232 Ga. 393, 395, 207 S.E.2d 30, and cases cited. Whatever rules of procedure there are, have been formulated by the trial courts as was done in Eley, supr......