Howell v. State

• Decision Date: 30 January 1981
• Docket Number: No. 60442,60442
• Citation: 157 Ga.App. 451,278 S.E.2d 43
• Parties: HOWELL v. The STATE.
• Court: Georgia Court of Appeals

Page 43

278 S.E.2d 43

157 Ga.App. 451

HOWELL v. The STATE.

No. 60442.

Court of Appeals of Georgia.

Jan. 30, 1981.

Rehearing Denied Feb. 11, 1981.

Certiorari Denied April 10, 1981.

Fred Hasty, S. Phillip Brown, Macon, for appellant.

W. Donald Thompson, Dist. Atty., Willis B. Sparks III, Graham Thorpe, Asst. Dist. Attys., for appellee.

POPE, Judge.

Billy Howell was convicted of criminal attempt to murder his wife and sentenced to ten years. The alleged attempt was made by contracting with a person appellant believed to be an assassin-for-hire but who was actually a police officer. He appeals alleging the trial court erred by refusing to compel the state to permit pretrial hearing of taped conversations between appellant and police officers and their agents, and by failing to reveal exculpatory evidence contained in the tapes heard by the court in camera. Appellant also enumerates several instructional deficiencies and contends that the evidence did not substantiate the charge. Finding no error, we affirm.

1. Appellant filed a pretrial motion for discovery which sought to compel disclosure of, among other things, "(a)ny tape recording or recordings of any conversation or conversations between any person, including but not limited to, any agent of the Federal, State, County or Municipal Government, and the Defendant, which are intended to be used at the trial of the case by the State of Georgia." The trial court denied appellant's motion but did conduct an in camera inspection of the tapes to determine whether they contained anything "exculpatory, that is favorable or arguably favorable to the defendant. Rini v. State, 235 Ga. 60 ((1), 218 S.E.2d 811 (1975))." Appellant argues at great length that these tapes contained exculpatory evidence which he needed in order to prepare his defense and that the trial court erred in failing to reveal this evidence to him prior to trial. The thrust of appellant's argument is that if he had been allowed to hear the tapes before trial, he would have been able to make out an entrapment defense which he was consequently unable to do. Appellant stipulated to the accuracy and authenticity of the tapes, and all recorded conversations between him and the police officers and their agent were played at trial.

"(D)ue process requires that there be no suppression by the state of evidence in its files favorable to the accused. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. It was held in Hicks v. State, 232 Ga. 393, 207 S.E.2d 30 that Brady does not mean there is a burden on the state to open its file for general inspection by the defendant; that an in camera inspection of the prosecution file by the judge is sufficient, and that the appellant 'has the burden of showing how his case has been materially prejudiced...' " Thornton v. State, 139 Ga.App. 483, 483-484(1), 228 S.E.2d 919 (1976). See Quaid v. State, 132 Ga.App. 478(8), 208 S.E.2d 336 (1974).

Prior to his in camera inspection, the trial court was asked by appellant to be particularly attentive to any evidence of entrapment. Our review of the record supports the trial court's conclusion that there was no exculpatory evidence contained in the tapes. "(W)e find that although such evidence may have been informative and helpful, the trial court did not abuse its discretion in failing to order release of the (tapes) after an in-camera inspection, as the items 'would not exculpate appellant nor would (they) lessen his criminal liability.' Carter v. State, 237 Ga. (617, 619, 229 S.E.2d 411 (1976)); Watts v. State, 141 Ga.App. 127, 128(2), 232 S.E.2d 590 (1977))." Pless v. State, 142 Ga.App. 594, 596-597, 236 S.E.2d 842 (1977). Therefore, Enumerations No. 1, 2 and 9 are without merit. Accord, Moten v. State, 149 Ga.App. 106, 253 S.E.2d 467 (1979); Brooks v. State, 141 Ga.App. 725(4), 234 S.E.2d 541 (1977).

2. Two tapes, identified as 5 and 5A, were neither transcribed nor played at trial; they purportedly relate the sound of appellant's unanswered telephone ringing and at times the sound of unidentified persons answering and saying he was not there. Appellant contends that these tapes revealed the affirmative defenses of abandonment and entrapment.

Although these two tapes were not played at trial, there was evidence to the effect that the police officers and their agent were repeatedly unsuccessful in contacting appellant on certain occasions; therefore, the "information" contained on the tapes was merely cumulative. Additionally, the evidence showed that the police were concerned that appellant might have decided to murder his wife on his own and also that they wanted to determine whether appellant had abandoned his scheme. The trial court charged on abandonment, but we are not persuaded that the "information" contained on these tapes would have warranted a charge on entrapment. Therefore, appellant's motion to perfect the record by transcribing these tapes is denied. See generally, Wilson v. State, 246 Ga. 62(1), 268 S.E.2d 895 (1980); Plemons v. State, 155 Ga.App. 447(9), 270 S.E.2d 836 (1980).

3. Appellant contends that the trial court erred in failing to charge on entrapment, despite his failure to request such a charge. "Entrapment exists where the idea and the intention to commit the act originate with a police officer, who, by undue persuasion and deceitful means, induces the defendant to violate the law. But there is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense." Hill v. State, 225 Ga. 117, 119, 166 S.E.2d 338 (1969); Code § 26-905.

The record shows that appellant telephoned one F. D. on December 30, 1979 and told her that he had someone he wanted "taken care of." She told appellant that she had company at that time but would call him back later. F. D. then contacted the police and agreed, at their request, to "go along with this thing and call (appellant) back and see if he really did have any plans for doing something to somebody." The record also discloses that appellant admitted each of the factual allegations in the indictment, to wit: "On December 31, 1979 Billy Howell contacted (F. D.) at the Macon Mall Parking Lot in Macon, Bibb County, Georgia and told her he wanted his wife dead and requested that (F. D.) obtain the service of a professional killer; On or about January 4, 1980 Billy Howell procured a photograph of Barbara Howell for the purpose of identifying Barbara Howell to a professional killer; On January 10, 1980 Billy Howell agreed to hire Detective Robert Davis, a person Billy Howell believed to be a professional killer, to murder Barbara Howell for the sum of $500.00 and certain diamond rings which were to be removed from the dead body of Barbara Howell; On January 14, 1980 Billy Howell met with Barbara Howell for the purpose of ascertaining that Barbara Howell was in possession of certain diamond rings; On January 15, 1980 at the Holiday Inn Motel at I-475 in Bibb County, Georgia, Billy Howell met with Detective Robert Davis for the purpose of discussing the murder of Barbara Howell; On January 15, 1980 Billy Howell supplied to Robert Davis a photograph and physical description of Barbara Howell; On January 15, 1980 Billy Howell supplied to Robert Davis the tag number and description of the automobile driven by Barbara Howell; On January 15, 1980 Billy Howell supplied to Robert Davis a map of the neighborhood and residence of Barbara Howell; On January 15, 1980 Billy Howell paid the sum of $500.00 in cash to Robert Davis as down payment for a contract for the murder of Barbara Howell; On January 15, 1980 Billy Howell authorized and directed Robert Davis to proceed with the murder of Barbara Howell." Additionally, appellant testified that almost from the beginning he knew the individuals he had been dealing with were tied in with the police department.

"It does not constitute entrapment where a defendant approaches a police officer (or, as here, an agent-informer) with an offer to commit a crime, if that officer then plays a role in order to provide the defendant with an opportunity to commit the intended offense. (Cit.) The facts in the case relied upon by (appellant), Jones v. State, 101 Ga.App. 851(4), 115 S.E.2d 576 (1960), are entirely different from the facts of this case." Orkin v. State, 236 Ga. 176, 195-196(8), 223 S.E.2d 61 (1976). Since the evidence did not show entrapment, appellant's third enumeration of error is not meritorious. White v. State, 230 Ga. 327, 339(7), 196 S.E.2d 849 (1973); Jones v. State, 154 Ga.App. 21(2), 267 S.E.2d 323 (1980).

4. In his fourth enumeration of error, appellant asserts that the evidence failed to substantiate the crime of criminal attempt to commit murder. As noted in Division 3 of this opinion, appellant admitted each factual allegation set forth in the indictment. Nonetheless, he argues that these facts show mere "preparation" to commit a crime rather than attempt.

"An attempt to commit a crime consists of three elements: first, the intent to commit the crime; second, the performance of some overt act towards the commission of the crime ...; and third, a failure to consummate its commission." Alexander v. State, 66 Ga.App. 708, 711, 19 S.E.2d 353 (1942). Since appellant admitted he wanted his wife killed but did not succeed in doing so, we will focus our attention on whether appellant's employment of a "paid assassin" constituted an "overt act" toward the commission of her murder.

"In order to constitute the offense of attempt to commit a crime, the accused must do some act towards its commission. Commission means the act of committing, doing, or performing; the act of perpetrating ... Mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it." Groves v. State, 116 Ga. 516, 42 S.E. 755 (1902). The Supreme Court continued, " 'To constitute an attempt there must be...