Leger v. State

• Decision Date: 01 October 2012
• Docket Number: No. S12A0833.,S12A0833.
• Citation: 291 Ga. 584,732 S.E.2d 53
• Parties: LEGER v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 584

732 S.E.2d 53

LEGER

v.The STATE.

No. S12A0833.

Supreme Court of Georgia.

Oct. 1, 2012.

H. Maddox Kilgore, Marietta, for appellant.

John Richard Edwards, Asst. Dist. Atty., Patrick H. Head, Dist. Atty., Marietta, Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine Lee Iannuzzi, Asst. Atty. Gen., Atlanta, for appellee.

HINES, Justice.

Donavon Shane Leger (“Leger”) appeals his convictions for malicemurder and aggravated battery in connection with the death of his estranged wife, Tracy Leger (“Tracy”).¹ For the reasons that follow, we affirm.

Construed to support the verdicts, the evidence showed that on the night of her death, Tracy left the home she shared with her brother, David Bumbalough, leaving her nine-year-old son with Bumbalough while she visited Brooks, a male friend with whom she was romantically involved. During that evening, Leger telephoned Tracy's house six to ten times; his speech was slurred and he sounded intoxicated. Tracy called Bumbalough and said that Leger had called her cell phone forty times, and that she was going to turn the cell phone off; she suggested that Bumbalough take the house phone off its hook as well. Tracy also said that she would return home shortly.

The next morning, Bumbalough helped Tracy's son get ready for school and get on the school bus. Bumbalough then saw Tracy's vehicle behind the house; he discovered her body lying near the vehicle. There were 183 knife wounds on her body, including a number of defensive wounds and wounds that had been inflicted after death. Tracy died of a cut to her jugular vein.

During their relationship, Leger had often been abusive toward Tracy; he choked, punched, and kicked her, had thrown her on a bed, and pushed her across a room. He was possessive and jealous, and unhappy that Tracy began a romantic relationship with Brooks after she separated from him. He threatened to kill her, she was scared of him, and Bumbalough moved into her house due to that fear.

1. The evidence authorized the jury to find Leger guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Leger opted to invoke the reciprocal rules of discovery under OCGA § 17–16–1 et seq. He contends that in three instances the State violated the requirements of the reciprocal discovery rules and that this should have resulted in the exclusion of the evidence at issue.

In urging that the only appropriate remedy in each instance was the exclusion of the evidence, Leger particularly relies upon OCGA § 17–16–6, which reads:

If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. If at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of this article, the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery, inspection, and interview and may prescribe such terms and conditions as are just.

However,

[i]n enacting this statute, the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial. Thus, the remedy a trial court fashions to cure a discovery violation is reviewed on appeal only for abuse of discretion.

Jones v. State, 290 Ga. 576, 577–578(2), 722 S.E.2d 853 (2012) (Citation and punctuation omitted). Exclusion of evidence “is a particularly harsh sanction and should be imposed only where there is a showing of prejudice to the defense and bad faith by the State.” Higuera–Hernandez v. State, 289 Ga. 553, 557–558(3), 714 S.E.2d 236 (2011) (Citation and punctuation omitted).

(a) Five days before the start of the trial, the State delivered to defense counsel a copy of a report showing DNA test results from the cap that was found at the crime scene. The predominant DNA found inside the cap matched Leger's DNA profile. Such a report is to be provided ten days prior to trial, unless otherwise ordered by the court.² See OCGA § 17–16–4(a)(4). The prosecuting attorney stated that, although the report had been prepared at least eleven months earlier, it had only been delivered to the prosecution minutes before it was in turn delivered to the defense; in the meantime, it had been in the hands of a laboratory operated by the Federal Bureau of Investigation. That this evidence had been collected and sent to the laboratory was timely disclosed to the defense. Leger asserts that the late disclosure of the DNA match greatly prejudiced his defense in that, before the test result was made available, his defense strategy was to argue that the State's evidence simply did not place him at the scene of the crimes.

Leger did not seek a continuance or request any other remedy authorized by OCGA § 17–16–6, except the complete exclusion of the DNA evidence. Further, he does not articulate what prejudice he suffered that would have been cured by his having been provided with the report five days earlier, as contemplated in OCGA § 17–16–4(a)(4). In any event, “the severe sanction of exclusion of evidence applies only where there has been a showing of bad faith by the State and prejudice to the defense. [Cits.]” Cockrell v. State, 281 Ga. 536, 539(3), 640 S.E.2d 262 (2007) (Emphasis in the original). At trial, the court specifically stated that the State could not have provided the defense with the report sooner than it did, and Leger did not show, either at trial or by his motion for new trial, that this was incorrect. Under these circumstances, there was no abuse of the court's discretion allowing the DNA evidence to be admitted into evidence.

(b) In timely discovery, the State advised the defense that a witness from Leger's cell phone provider would testify regarding cell phone data; however, the witness who testified at trial was not named until the time of trial, nor were the demonstrative exhibits which that witness used in his testimony revealed until that time. Discovery materials timely provided to Leger's attorney before trial showed times of use and locations of cell phone towers utilized by Leger's telephone calls prior to and after the killing; the evidence prepared by the witness from that information, which was not made available until trial, used triangulation methods to place Leger near the scene of the crimes with more specific accuracy.³ Although Leger again did not request a continuance, he was given time to interview the witness, and does not argue that the time was insufficient. Indeed, at one point counsel stated that he needed only another ten minutes with the witness, or “maybe five”; the time was afforded.

Again, the only remedy Leger pursued at trial was exclusion of the evidence. “It is usually a sufficient remedy for the defense to be afforded an opportunity to interview the witness.” Norris v. State, 289 Ga. 154, 156(2), 709 S.E.2d 792 (2011) (Citation and punctuation omitted). As Leger had been provided the data from which the demonstrative exhibits were created, and was afforded time to interview the witness, it does not appear that the trial court abused its discretion in denying the request to exclude the witness from testifying and the admission of the evidence. Id.

(c) In addition to the cell phone witness, six other witnesses were not identified on the witness list provided to Leger ten days before trial. However, each of them was identified elsewhere in discovery materials which were timely provided to Leger. This Court has held that

[w]hen the identity and involvement of a witness are otherwise disclosed to defendant in discovery provided to him by the State, the purpose of the witness list rule is served and the court may allow the State to call the witness even though he or she was not listed on the State's formal witness list.

Norris, supra at 155, 709 S.E.2d 792 (citation omitted). Again, Leger sought no remedy other than the witnesses being prevented from testifying, and no error is shown.

3. Leger contends that the trial court should have excluded the testimony of four witnesses regarding prior difficulties between Leger and Tracy, contending that their testimony was inadmissible hearsay.

Prior difficulty evidence may be admitted to show motive, intent, or bent of mind, but its admissibility is not dependent on a showing that it is sufficiently similar to the crime. The testimony of third parties about prior difficulties between the defendant and the victim may be admitted into evidence under the necessity exception to the hearsay rule if the testimony is necessary and trustworthy and when the statement is more probative of the material fact than other evidence that may be produced and offered. Whether the testimony has particularized guarantees of trustworthiness is a matter left to the trial court's discretion and is not disturbed absent a showing of an abuse of that discretion.

Wright v. State, 285 Ga. 57, 59–60(3), 673 S.E.2d 249 (2009) (Citations and punctuation omitted).

At a motion...