Moclaire v. State

• Decision Date: 03 November 1994
• Docket Number: A94A1249,Nos. A94A1248,s. A94A1248
• Parties: MOCLAIRE v. The STATE. ENDRES v. The STATE.
• Court: Georgia Court of Appeals

Page 68

451 S.E.2d 68

215 Ga.App. 360

MOCLAIRE v. The STATE.

ENDRES v. The STATE.

Nos. A94A1248, A94A1249.

Court of Appeals of Georgia.

Nov. 3, 1994.

Reconsideration Dismissed Nov. 17, 1994.

Reconsideration Denied Nov. 29, 1994.

Certiorari Denied Feb. 24, 1995.

Steven H. Sadow, Robert G. Fierer, Colette B. Resnik, Atlanta, for appellants.

Lewis R. Slaton, Dist. Atty., Barry I. Mortge, Shawn E. Lagrua, Alfred D. Dixon, Asst. Dist. Attys., for appellee.

JOHNSON, Judge.

The state prosecuted William Moclaire and Troy Endres together on a multiple count indictment charging them with participating in a crime ring involving several law enforcement officers and others. The Fulton County jury found Endres guilty of two counts of armed robbery and Moclaire guilty of two counts of burglary, three counts of armed robbery, two counts of aggravated assault and two counts of possession of a firearm during the commission of a felony. Moclaire and Endres jointly appeal from their convictions.

1. Moclaire and Endres contend the court erred in denying their extraordinary motion for a new trial because the state failed to disclose the results of a prosecution witness' polygraph examination and statements made by the witness after the polygraph in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). "The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and material either to guilt or punishment.... Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule. Such evidence is evidence favorable to an accused, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." (Citations and punctuation omitted.) Brooks v. State, 182 Ga.App. 144, 145(1), 355 S.E.2d 435 (1987). Contrary to the argument of Moclaire and Endres, the polygraph results and the witness' statements after the polygraph are not exculpatory. Black's Law Dictionary defines exculpatory as clearing or tending to clear from alleged fault or guilt; excusing. Houston v. State, 187 Ga.App. 335, 338(3), 370 S.E.2d 178 (1988). Here, the polygraph results and witness statements in no way clear or excuse Moclaire and Endres from guilt; rather, the evidence shows simply the probability that the witness, who was indicted along with Moclaire and Endres, committed crimes other than those which he admitted and did not reveal the identities of all the crime-ring participants. This evidence is, at best, non-inculpatory of Moclaire and Endres, whom the witness had previously identified as crime-ring participants, in that it does not again mention them by name. See Whatley v. State, 197 Ga.App. 489, 490(3), 398 S.E.2d 807 (1990).

Despite their argument to the contrary, Moclaire and Endres could not have used the polygraph results as impeachment evidence because they did not stipulate with the state that the results would be admissible at trial. "[W]here the defendant and the State did not stipulate that the results of a polygraph test taken by a witness would be admissible at trial, questioning the witness regarding those test results is impermissible because a stipulation is a prerequisite for the admissibility of such evidence." (Citations and punctuation omitted.) Walker v. State 264 Ga. 79, 80(2), 440 S.E.2d 637 (1994); Bragg v. State, 175 Ga.App. 640, 644(2), 334 S.E.2d 184 (1985). Moclaire and Endres have also made no showing as to how the witness is impeached by the statements he made after the polygraph. Any other evidence concerning the unstipulated polygraph test was also nonprobative and inadmissible. See Allen v. State, 210 Ga.App. 447, 449(3), 436 S.E.2d 559 (1993). Moreover, we find no merit in the appellants' contention that the results of the polygraph examination could have potentially led to the discovery of exculpatory information. See Jefferson v. State, 159 Ga.App. 740, 742(2), 285 S.E.2d 213 (1981).

Not only have Moclaire and Endres failed to show the polygraph results and witness statements were favorable to them as exculpatory or impeachment evidence, but they have also failed to show the evidence is material to their guilt or sentencing. "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Citation and punctuation omitted.) Rogers v. State, 257 Ga. 590, 592(3), 361 S.E.2d 814 (1987). " 'The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense.' [Cits.]" Belins v. State, 210 Ga.App. 259, 260(2), 435 S.E.2d 675 (1993). "[T]he omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial." (Citations and punctuation omitted.) Houston v. State, supra 187 Ga.App. at 339(3), 370 S.E.2d 178. Considering the polygraph evidence and witness statements in the context of the entire record, we conclude there is no reasonable probability that the result of the instant proceeding would have been different if the evidence had been given to Moclaire and Endres. Because the omitted evidence does not undermine confidence in the outcome of the trial, the trial court was justified in denying the extraordinary motion for a new trial. See Cato v. State, 195 Ga.App. 619, 620(1), 394 S.E.2d 413 (1990); Benefield v. State, 140 Ga.App. 727, 733-736(8), 232 S.E.2d 89 (1976).

2. Moclaire and Endres claim the court erred in refusing to reopen the evidence after both they and the state rested. "It is well settled that the reopening of the evidence is within the sound discretion of the trial court. That decision will not be disturbed absent an abuse of discretion." (Citations and punctuation omitted.) Oswell v. State, 208 Ga.App. 883, 884(2), 432 S.E.2d 586 (1993). Moclaire and Endres requested that the court allow them to present an additional witness who purportedly would have corroborated the testimony of a prior witness. The court did not abuse its discretion in refusing to reopen the evidence for testimony which was cumulative of prior evidence and which Moclaire and Endres could have presented in their case-in-chief. See Brown v. State, 188 Ga.App. 282, 283, 372 S.E.2d 838 (1988); Killens v. State, 184 Ga.App. 717, 721(5), 362 S.E.2d 425 (1987); Pope v. State, 178 Ga.App. 148, 149(1), 342 S.E.2d 330 (1986).

3. Moclaire and Endres assert the court erred in not allowing them to recall a prosecution witness to cross-examine him about criminal charges pending against him in Cobb County. The federal constitution guarantees the defendant in a criminal trial the specific right to cross-examine a key state witness about criminal charges pending against the witness. Hines v. State, 249 Ga. 257, 259-260(2), 290 S.E.2d 911 (1982). See also Owens v. State, 251 Ga. 313, 314-317(1), 305 S.E.2d 102 (1983). Assuming, without deciding, that the witness in the instant case was a key prosecution witness and that the court erred in refusing to allow the cross-examination, the error was harmless beyond a reasonable doubt because the strength of the state's case was overwhelming and the witness' testimony merely corroborated other evidence. See Byrd v. State, 262 Ga. 426, 427-428(2), 420 S.E.2d 748 (1992).

4. Moclaire and Endres argue the court erred in ruling that a newspaper reporter could not be compelled to testify to impeach state witness James Batsel. This argument is without merit.

Batsel's sister purportedly told the reporter about statements Batsel had made concerning the crime ring. Moclaire and Endres attempted to have the sister testify to impeach Batsel, claiming the statements she attributes to Batsel contradict his trial testimony. When Moclaire and Endres were unable to find the sister, they sought to compel the reporter's testimony about what the sister purportedly told the reporter Batsel had said. The trial court refused to compel the testimony, ruling it is protected by the reporter's qualified privilege under OCGA § 24-9-30 and is hearsay.

We note the sister's testimony about any material prior inconsistent statements made by Batsel would not have been hearsay, but would have been admissible both to impeach Batsel and as substantive evidence. See Sprouse v. State, 250 Ga. 174, 176, 296 S.E.2d 584 (1982). Likewise, if the sister had testified and denied telling the reporter about alleged material statements made by Batsel, the reporter's claims to the contrary would have been appropriate to impeach the sister and as substantive evidence. See Jackson v. State, 258 Ga. 810, 811(3), 375 S.E.2d 454 (1989). Under those circumstances, whether the reporter's information is protected by the qualified privilege of OCGA § 24-9-30 would be a pertinent issue. Under the circumstances of the instant case, however, pretermitting that issue is the trial court's correct ruling that the reporter's proffered testimony is inadmissible hearsay.

"Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons." OCGA § 24-3-1(a). Here, the reporter's proffered testimony does not derive its value solely from the reporter's credibility but rests mainly on the veracity and competency of Batsel's missing sister. Contrary to the claim of Moclaire and Endres in the trial court that they offered the reporter's testimony merely to show that Batsel made the statements to his sister, they actually offered the reporter's testimony for the truth of the matter asserted therein; i.e., to prove that Batsel's sister did in fact tell the reporter about...