McTaggart v. State

• Decision Date: 11 March 1997
• Docket Number: No. A97A0125,A97A0125
• Citation: 225 Ga.App. 359,483 S.E.2d 898
• Parties: , 97 FCDR 1391 McTAGGART v. The STATE.
• Court: Georgia Court of Appeals

Page 898

483 S.E.2d 898

225 Ga.App. 359, 97 FCDR 1391

McTAGGART v. The STATE.

No. A97A0125.

Court of Appeals of Georgia.

March 11, 1997.

Daniel L. Henderson, Marietta, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Debra H. Bernes, Ann B. Harris, Assistant District Attorneys, for appellee.

ELDRIDGE, Judge.

Appellant, James David McTaggart, was tried on three counts of solicitation for murder. In Count 1, appellant was charged with soliciting Terry Haas on May 19, 1994, to murder Theresa Morris. In Count 2, appellant was charged with soliciting Terry Haas on May 19, 1994, to murder Nancy McTaggart. In Count 3, appellant is charged with soliciting Pat Richards on May 18, 1994, to murder Theresa Morris. Nancy McTaggart is appellant's former wife, who had been after him about back child support and who had him tried and convicted of committing an aggravated assault upon her just prior to the incident in the case sub judice.

The incident in the case sub judice was precipitated upon appellant's belief that Theresa Morris, with assistance and encouragement from Nancy McTaggart, burglarized his home, took some 45 rifles, shotguns, and pistols, and sold them in Alabama. Pat Richards, a friend that owed appellant money, was told by appellant that the debt would be forgiven and that he would be paid an additional $1,500 if he would kill Nancy McTaggart. Appellant gave Richards a loaded pistol and told him to commit the murder or appellant would kill him. Richards became frightened and called the police, who began an undercover operation using Detective Terry Haas as "Bo," an alleged hit man from south Georgia. On May 24, 1994, Bo telephoned appellant and discussed carrying out the murders of the two women who had been placed in protective custody. During the tape-recorded conversation, appellant told Bo that he wanted them killed that day and wanted to have evidence that they were dead.

Bo called the next day to tell appellant that the murders were completed, that he had Polaroid photos of the bodies, and that he wanted the $2,500 promised for doing the murders. Appellant stated that he was leaving for Tennessee and would see him later. The police, from their surveillance, knew that appellant had not left town; the police became concerned that appellant would kill the women himself if he learned that they were still alive. They obtained an arrest warrant and took appellant into custody. After being given the Miranda rights, appellant agreed to talk to Detective John Mark Dawes and other detectives. After about 30 minutes of warmup questioning, the detectives tape-recorded appellant's responses to their questions, which tape was transcribed on August 11, 1994, and was 30 pages long.

Appellant was indicted on September 8, 1994. Plea and arraignment was held on October 10, 1994. Jury selection began for trial on February 28, 1995. The trial began on March 1, 1995. The verdicts of guilty on Counts 1 and 2 and not guilty on Count 3 were returned on March 3, 1995. On June 28, 1995, the appellant was sentenced to five years to serve on each count to run consecutively. Motion for new trial was filed on July 6, 1995. An amended motion for new trial was filed on February 12, 1996. The amended motion for new trial was heard and denied on February 13, 1996. Notice of appeal was filed on February 14, 1996.

1. The first enumeration of error is that the trial court abused its discretion in failing to grant a continuance of the trial date.

Appellant was arrested on a warrant on May 25, 1994. Appellant has been represented by defense counsel since May 26, 1994, when a release on bond was sought. Appellant was indicted on September 8, 1994, and was arraigned on October 10, 1994. The first notice of trial was filed on November 17 for trial calendars on November 28 and December 5, 1994. A defense conflict letter caused the case to be continued. On December 27, notice for trial calendars on January 9, 1995, was given, but this also was continued based upon a defense motion. By court order the case was set on February 16 for trial on the calendars for February 20 and 27, 1995. A defense motion for a continuance from the February 20 calendar was granted.

Although the prosecution had made extensive discovery disclosures on September 8, 1994, the prosecution made a supplemental discovery disclosure dated February 17, 1995, which was not received until February 21. Defense counsel orally moved at the calendar call of February 27 for yet another continuance because certain witnesses were out of town until March 2 and others could not be found; the defense contention was that the prosecution discovery was late so that the appropriate witnesses had to be called late. Defense counsel in this oral motion did not disclose the identities of all the witnesses; did not state that the witnesses were under subpoena; did not disclose the nature and substance of their testimony in order to demonstrate relevance and materiality; and did not state when these witnesses would, if ever, be available for trial. While denying the motion for a 30-day continuance, the court continued the case until Wednesday, March 1, the day before the witnesses that had been found were supposed to be available. Thereafter, the defense put only appellant up to testify, despite the fact that the defense case was not put on until Thursday, March 2, when even the out-of-town witnesses were supposed to be available.

OCGA §§ 17-8-20 and 17-8-22 require that defense counsel show due diligence when making application for a continuance and that the trial judge in the exercise of sound legal discretion shall grant or deny "as the ends of justice may require," such continuance. Under OCGA § 17-8-25, certain criteria must be shown by the movant in obtaining a continuance based on the absence of witnesses. Appellant failed to make the proper showing. In this case, the witnesses were not under subpoena; there was no offer of proof made so that the trial judge could exercise his sound discretion in determining whether the evidence was relevant and material or merely cumulative or impeaching; and there was no showing that the witnesses were not absent with permission of counsel or that the witnesses would be available at the next trial term of court.

Further, defense counsel made no showing of due diligence in trial preparation or that they had conducted their own discovery, instead of relying solely upon the prosecution. See Mojica v. State, 210 Ga.App. 826, 437 S.E.2d 806 (1993); Davis v. State, 204 Ga.App. 657, 420 S.E.2d 349 (1992). Defense counsel failed to reveal that the witnesses had identities, that they were under subpoena, and that the witnesses were to testify as to relevant and material facts set forth in a proffer of proof. See Dorsey v. State, 203 Ga.App. 397, 416 S.E.2d 879 (1992); Hulett v. State, 150 Ga.App. 367, 258 S.E.2d 48 (1979). Counsel failed to show that he reasonably could expect to have the witnesses present in court without undue delay. Miller v. State, 208 Ga.App. 20, 430 S.E.2d 159 (1993).

Each of the statutory grounds for a continuance based upon an absent witness is absolute, so that the failure to substantially comply is a ground to deny a continuance. Curry v. State, 177 Ga. App. 609, 340 S.E.2d 250 (1986); Brown v. State, 169 Ga.App. 520, 313 S.E.2d 777 (1984); McNabb v. State, 69 Ga.App. 885, 27 S.E.2d 246 (1943). The trial court is entitled to know what relevant and material evidence the witness will prove in order to exercise discretion in ruling. Mell v. State, 69 Ga.App. 302, 25 S.E.2d 142 (1943); see also Wiggins v. State, 84 Ga. 488, 10 S.E. 1089 (1890); Griffin v. State, 26 Ga. 493 (1858). The testimony cannot be merely cumulative or impeaching, and the court must have the testimony proffered to establish that it is not. Daniel v. State, 180 Ga.App. 179, 348 S.E.2d 720 (1986). For the proffer to justify a continuance, it should appear that no other witness can provide such relevant and material evidence. Hill v. State, 91 Ga. 153, 16 S.E. 976 (1893). If the witness is the sole witness for the defense, then a continuance should be granted. Teat v. State, 181 Ga.App. 735, 353 S.E.2d 535 (1987).

In the case sub judice, absent a satisfaction of each of the statutory grounds, the trial judge did not abuse his discretion in denying a continuance. Garrett v. State, 202 Ga.App. 463, 414 S.E.2d 693 (1992). Moreover, this Court cannot find abuse in the trial court's exercise of discretion when all of the statutory requirements have not been met, because the absence of any one of such conditions would justify the trial court's denial. Vaughan v. State, 210 Ga.App. 381, 436 S.E.2d 19 (1993). Thus, we find that the trial court did not abuse its discretion in denying the continuance of trial.

2. The second enumeration of error is that the trial court erred in admitting evidence of prior difficulties between appellant and appellant's wife, who was named in the indictment as one of the victims of the solicitation of murder charge.

Evidence of the prior difficulties between appellant and Nancy McTaggart is highly probative, i.e., relevant and material, for several reasons: first, it provides both a motive and intent to solicit her murder; second, it corroborates statements that appellant made publicly that he would not mind seeing her "bumped off"; third, it demonstrates identity and the capability to commit a violent crime against Nancy McTaggart, or any other woman that he hates, i.e., Theresa Morris; fourth, such prior course of conduct shows a violent habit or difficulties in his relationship with Nancy McTaggart; and fifth, such prior conduct and statements provide an explanation for appellant's modus operandi in hiring a hit man so that he could establish an alibi, since he had threatened to kill McTaggart when he got out of jail for the prior aggravated assault conviction. Any of the foregoing reasons would be...