Howell v. State, s. 64386

• Decision Date: 10 September 1982
• Docket Number: 64422,Nos. 64386,s. 64386
• Parties: HOWELL v. The STATE. SIKES v. The STATE.
• Court: Georgia Court of Appeals

Page 329

295 S.E.2d 329

163 Ga.App. 445

HOWELL v. The STATE.

SIKES v. The STATE.

Nos. 64386, 64422.

Court of Appeals of Georgia.

Sept. 10, 1982.

Dan MacDougald, Albany, for Howell.

George L. Hoyt, Alma, for Sikes.

C. Deen Strickland, Dist. Atty., Waycross, for the State.

DEEN, Presiding Judge.

Appellants Howell and Sikes together with defendants Dean and Toole were indicted for armed robbery. Dean pleaded guilty. The remaining three were jointly tried and convicted. The evidence indicates that two men wearing coveralls, masks and gloves held up the prosecutrix, an elderly woman living alone on a small farm, roughed her up and stole cash, her pickup truck, a pistol, watches, blackjack and cigarettes. The prosecutrix notified police who found the victim's automobile in which the robbers had fled abandoned on the roadside where it "conked out." The two men then struck out through the woods discarding their gun, coveralls and other articles of clothing; came to a white getaway car belonging to defendant Sikes and attempted escape but were stopped and arrested by the sheriff who was in pursuit after being notified of the robbery. He had found the abandoned car and was tracking footprints of two men leading from the car into the woods. He saw one fugitive, and shortly thereafter saw the fleeing getaway car and followed it, coming upon it stopped at a mudhole. At that time the defendants Toole and Dean had stepped out of the car, leaving one unidentified man still inside. After a highspeed chase the three men left the car. Dean and Howell were captured at that time with the aid of bloodhounds, and Toole was later arrested.

Dean, who had entered a guilty plea but had not been sentenced at the time of this trial, testified for the state. According to him, the conspirators had all met at Sikes' house to plan the robbery. Sikes did not accompany them to the farm, but contributed his wife's truck as a getaway car, as well as the coveralls, gloves, ski masks and pistols used in the robbery. Dean's description of the chase and capture agreed with that of law enforcement officers. Following conviction, Howell and Sikes filed separate appeals, which we here consider together.

1. It is urgently contended that the state has fallen afoul of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Allen v. State, 128 Ga.App. 361, 196 S.E.2d 660 (1973) and like cases in that Dean was allowed to testify although the record shows he was promised a lesser sentence for his cooperation; that Dean committed perjury on the stand in denying this fact, and that the district attorney failed to take any steps to correct the false impression being presented. "Evidence of any understanding or agreement as to a future prosecution of an accomplice, on whose testimony the state's case almost entirely depends, is relevant to his credibility; the jury is entitled to know of it; the prosecutor has a duty to disclose it; and the failure to make this disclosure violates due process and requires the reversal of the conviction." Allen v. State, 128 Ga.App. 361, 196 S.E.2d 660, supra.

In the present case Dean testified that the district attorney never offered him leniency in regard to his sentence if he testified as the state expected him to; that he had figured he would probably receive the same as the others, that he was confessing to get it over with; he asked his lawyer if there was a chance of getting a light sentence and his lawyer said he didn't know, he had no commitment. Asked about his personal attitude, he was not told he would receive less than everybody else. His attorney "said he didn't know how things would go." He asked if there would be any chance of his getting 5 or 10 years and the only answer was, "I don't know." Dean's attorney told the court that in the absence of Dean he discussed with the sheriff the possibility of a 10-year sentence with five years probated but that this happened after Dean had already confessed. The sheriff remembered the discussion and denied he had definitely promised a recommendation. Further, in the concluding argument to the jury the district attorney stated, "I told you in my opening arguments that he would testify, that he was a codefendant, and the state somewhere along in time would recommend to the court some leniency for his testimony."

A fine line, marking vastly different consequences, exists between plea bargaining and induced confessions. This case perhaps illustrates the narrowness of that line. An agreement by a prosecuting attorney to make certain recommendations if the defendant pleads guilty is perfectly proper and enforceable. Ga. Criminal Trial Practice, Daniel, § 15-2. If, however, the agreement includes the offering of testimony against an accomplice the credibility of the witness is at stake and the jury should on the trial of the alleged accomplice be apprised of the facts; the prosecutor has a duty to make the disclosure and where the fact is allowed to be concealed reversal must ensue. Allen, supra; Price v. State, 141 Ga.App. 335(2), 233 S.E.2d 462 (1977); Williams v. State, 151 Ga.App. 683(4), 261 S.E.2d 430 (1979); Dudley v. State, 148 Ga.App. 560(5), 251 S.E.2d 815 (1978). "In order for there to be a reversal, however, there must be evidence that such information existed at or before trial, and that such information was actually withheld." Potts v. State, 241 Ga. 67(2), 243 S.E.2d 510 (1978); Echols v. State, 231 Ga. 633(1), 203 S.E.2d 165 (1974). Here there was no bargain as to the sentence to be imposed, but there was an agreement to recommend leniency, although whether...