Lester v. State, 69074

• Court: Georgia Court of Appeals
• Writing for the Court: BENHAM; BANKE, C.J., and POPE
• Citation: Lester v. State, 325 S.E.2d 912, 173 Ga.App. 300 (Ga. App. 1985)
• Decision Date: 17 January 1985
• Docket Number: No. 69074,69074
• Parties: LESTER v. The STATE.

Page 912

325 S.E.2d 912

173 Ga.App. 300

LESTER v. The STATE.

No. 69074.

Court of Appeals of Georgia.

Jan. 17, 1985.

Stephen R. Yekel, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., David T. Lock, James M. LaChance, Asst. Dist. Attys., for appellee.

BENHAM, Judge.

This appeal is from appellant's conviction of robbery by force and aggravated assault with intent to rape.

1. Appellant enumerates as error the denial of his motion for mistrial based on an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In response to a timely Brady motion before trial, appellant was told that there was no exculpatory material in the State's possession. Some two months prior to trial, defense counsel was permitted to review the State's file and found nothing exculpatory there. On the day of trial, either just before the trial or during the State's opening statement, defense counsel became aware that a key witness for the State had a criminal record. Appellant alleges that the State withheld that information and insists that a mistrial should have been declared on that ground.

Appellant's assertions are not supported by the record. At a hearing on appellant's motion for new trial, evidence was taken on the specific issue of the date on which the State came into possession of the information that its witness had a criminal record. The undisputed evidence is that an investigator who brought the witness to court on the day of trial learned from the witness, on that date, that the witness had a record. Upon receiving that information, the prosecuting attorney interviewed the witness and ascertained that he had a criminal record in another jurisdiction. There is no evidence that the State was aware of the witness' record prior to the day of trial. Under those circumstances, no Brady violation is shown since the information was not in the possession of the state. Hines v. State, 249 Ga. 257(1), 290 S.E.2d 911 (1982); Hayes v. State, 168 Ga.App. 94(3), 308 S.E.2d 227 (1983). Accordingly, we find no error in the denial of appellant's motion for a mistrial.

2. Appellant's second enumeration of error is that the trial court wrongfully denied his motion for a continuance. The asserted purpose for the continuance was to seek a certified copy of the criminal record of the witness mentioned in the preceding division of this opinion. The motion was made on the second day of trial at the conclusion of the evidence, after both sides had rested.

"A motion for continuance for additional time to prepare for trial addresses itself to the sound discretion of the trial court, and the exercise of this discretion will not be disturbed on appeal absent clear abuse. [Cits.]" Ramsey v. State, 169 Ga.App. 920, 315 S.E.2d 472 (1984). We note that appellant makes no allegation that the witness' name was not provided or that he was in any way prevented from making a pre-trial investigation into the witness' background; indeed, the record shows that the witness was identified as such on the warrants under which appellant was arrested. In the exercise of due diligence, through an interview with the witness or by means of other research, appellant may well have been able to ferret out the information concerning the witness' record without the assistance of the prosecution. Under the circumstances here, where the evidence appellant wanted time to procure was merely impeaching and there was evidence other than that witness' testimony to support the conviction, we find no abuse of the trial court's discretion. Cf. Grimes v. State, 168 Ga.App. 372(6), 308 S.E.2d 863 (1983).

3. Finally, appellant argues that it was error to deny his motion for a directed verdict of acquittal on the aggravated assault with intent to rape...