Norris v. the State.

• Decision Date: 26 April 2011
• Docket Number: No. S11A0469.,S11A0469.
• Citation: 11 FCDR 1345,709 S.E.2d 792,289 Ga. 154
• Parties: NORRISv.The STATE.
• Court: Georgia Supreme Court

289 Ga. 154

709 S.E.2d 792

11 FCDR 1345

NORRIS

v.The STATE.

No. S11A0469.

Supreme Court of Georgia.

April 26, 2011.

Chaunda Brock, Deah Brittny Warren, Austell, for appellant.Paul L. Howard, Jr., Dist. Atty., Christopher M. Quinn, Paige R. Whitaker, Elizabeth A. Baker, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Amy E. Hawkins Morelli, Asst. Atty. Gen., for appellee.CARLEY, Presiding Justice.

Appellant Damien Norris and his co-defendant Demarcus Armour were tried jointly before a jury. Both were found guilty of the felony murder of Bernard Glass, Jr., the underlying felony of aggravated assault, and possession of a firearm during the commission of a felony. Armour was also found guilty of malice murder. The separate aggravated assault count against Norris was merged into the felony murder verdict. The trial court entered judgments of conviction and sentenced Norris to life imprisonment for murder. Although the trial court orally sentenced Norris to a consecutive five-year term for the weapons charge, the written judgment reflects a sentence of life imprisonment for both the murder and the weapons offense. A motion for new trial was denied, and Norris appeals.^*

1. Construed most strongly in support of the verdicts, the evidence shows that, a short time after Montrez Jones' brother shot Armour's brother at a housing complex, Jones returned to the complex. Armour and Norris began shooting across a street at Jones, who returned fire. The victim was an innocent 16–year–old bystander who was killed during the shootout. The evidence was sufficient to authorize a rational trier of fact to find Norris 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); McKee v. State, 277 Ga. 577, 578(1), 591 S.E.2d 814 (2004).

However, the trial court's sentence of Norris to life imprisonment for possession of a firearm during the commission of a felony far exceeds the statutory maximum term-of-years sentence. See OCGA § 16–11–106(b), (c). Therefore, the sentence imposed for that offense “must be vacated and the case remanded for resentencing on that conviction.” Tesfaye v. State, 275 Ga. 439, 443(5), 569 S.E.2d 849 (2002).

2. Norris contends that the trial court erred when it refused to grant a continuance after the State violated the reciprocal discovery statute, OCGA § 17–16–1 et seq.

Pursuant to the State's request in March 2009, the case was specially set for Monday, June 15, 2009. Because Norris opted into reciprocal discovery under OCGA § 17–16–2(a), the prosecuting attorney was required to furnish defense counsel with the names, current locations, dates of birth, and telephone numbers of the State's witnesses, “not later than ten days before trial, ... unless for good cause the judge allows an exception to this requirement, in which event [defense] counsel shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.” OCGA § 17–16–8(a). See also Cockrell v. State, 281 Ga. 536, 538–539(3), 640 S.E.2d 262 (2007). However, on June 9, less than ten days before trial, the prosecutor amended the list of State's witnesses from two to forty-seven witnesses.

All but two of the forty-seven witnesses were listed in discovery reports.

When 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. [Cits.]

McLarty v. State, 238 Ga.App. 27, 29(2), 516 S.E.2d 818 (1999). It appears that Norris was aware of all of the witnesses' identities except one and knew of the State's intention to call many of them as witnesses. See Morris v. State, 268 Ga.App. 325, 326(1), 601 S.E.2d 804 (2004); Johnson v. State, 241 Ga.App. 448, 450(2)(b), 526 S.E.2d 903 (1999). However, the discovery reports here did not contain sufficient contact information in several instances.

The trial court was authorized to exercise its discretion in deciding whether good cause has been shown for nondisclosure and in fashioning a remedy under OCGA § 17–16–6. State v. Dickerson, 273 Ga. 408, 410(1), n. 3, 542 S.E.2d 487 (2001). “It is usually a sufficient remedy for the defense to be afforded an opportunity to interview the witness. [Cit.]” Taylor v. State, 305 Ga.App. 748, 753(2)(a), 700 S.E.2d 841 (2010). OCGA § 17–16–6 lists a continuance as one possible remedy and also permits the trial court to “enter such other order as it deems just under the circumstances.”

“ ‘In 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.’ ” [Cit.]

Childs v. State, 287 Ga. 488, 493(5), 696 S.E.2d 670 (2010). “The trial court has latitude in fashioning an appropriate remedy, and we will not reverse its decision absent an abuse of discretion. [Cit.]” Luker v. State, 291 Ga.App. 434, 435(1), 662 S.E.2d 240 (2008). In particular, the “trial court's grant or denial of a continuance will not be disturbed in the absence of an abuse of discretion. [Cit.]” Dunagan v. State, 286 Ga.App. 668, 670(3), 649 S.E.2d 765 (2007), rev'd on other grounds, 283 Ga. 501, 661 S.E.2d 525 (2008).

At a pre-trial hearing on June 12, defense counsel moved for a continuance pursuant to OCGA § 17–16–6. Instead of granting that motion, the trial court directed the State to compile a list of essential witnesses whom defense counsel would be permitted to interview after jury selection. The trial court discussed each witness on the shortened list with the parties. Some were excluded, and defense counsel waived any objection to many others. As to the two witnesses who were not listed in discovery, Norris' attorney agreed to a limitation on the testimony of one and was already aware of the other, seeking to exclude her testimony only on relevance grounds and not because of surprise. The trial court ordered the prosecutor to have certain witnesses available for interview on June 15 and expressly recognized that the State had problems, presumably previously specified difficulties with furloughs and reassignment of the case to a new prosecuting attorney, and that the prosecutor was doing the best that she could. Late in the day on June 15, after jury selection, three of the witnesses were unhappy with being delayed, did not want to be stranded without a ride, and refused to be interviewed even though the trial court had apologized and explained that the need for their presence was attributable to the district attorney. When the trial court was informed on the morning of June 16 of the witnesses' refusal, the prosecutor noted that they were again present but could not be compelled to be interviewed and that defense counsel could proceed with interviews of any who were willing to speak. Norris' attorney said nothing, and Armour's lawyer agreed that they could not be compelled and stated that the true remaining issue is the untimeliness of the State's witness list. The trial court stated, “Okay. Let's bring the jurors out. We are starting the case.” Neither defendant made any further objection.

“ ‘The witness list rule is designed to prevent a defendant from being surprised at trial by a witness that the defendant has not had an opportunity to interview.’ [Cit.]” Rose v. State, 275 Ga. 214, 217(3), 563 S.E.2d 865 (2002). Defense counsel attempted to interview the three witnesses in question on the first day of trial and declined to seek another such opportunity despite the State's invitation to do so early on the second day. See Childs v. State, supra; Taylor v. State, supra; Luker v. State, supra; McLarty v. State, supra at 29–30(2), 516 S.E.2d 818. Although Norris' attorney had the opportunity to interview the three witnesses prior to opening statements and initially attempted to do so, they “simply declined an interview, ‘as was [their] prerogative. (Cit.)’ [Cit.]” McLarty v. State, supra at 29(2), 516 S.E.2d 818. Moreover, defense counsel asked for no additional relief. See Luker v. State, supra. The motion for continuance was not renewed, and he never requested the exclusion of testimony, nor does he complain in this Court that any undisclosed witnesses' testimony should have been excluded. “ ‘Appellant cannot complain of a ruling his own procedure or conduct aided in causing.’ [Cit.]” McLarty v. State, supra at 30(2), 516 S.E.2d 818. Furthermore, Norris has failed to identify any testimony which was a surprise or to show that, with a continuance, he would have uncovered helpful information which he did not already know. See Johnson v. State, supra; McLarty v. State, supra at 29(2), 516 S.E.2d 818. Indeed, Norris was able to use a prior inconsistent statement to impeach the one of the three witnesses who, he claims, provided the testimony which was most beneficial for the State.

Under all of the circumstances, including Norris' failure to show that he was prejudiced by the commencement of trial on June 15 and 16, we cannot say that the trial court abused its discretion when it denied the motion for continuance. See Dunagan v. State, supra at 671(3), 649 S.E.2d 765. Moreover, we find that any error was harmless “in light of the overwhelming evidence of [Norris'] guilt and conclude it highly probable that the [denial of a continuance] did not contribute to the jury's verdict[s]. [Cit.]” Carter v. State, 285 Ga. 394, 398(6), 677 S.E.2d 71 (2009). See also Dickerson v. State, supra at 411–412(2), 542 S.E.2d 487.

Furthermore, because the trial court did not abuse its discretion in refusing to grant a continuance due to the untimeliness...