Owens v. State

• Decision Date: 30 June 1983
• Docket Number: 39610 and 39611,Nos. 39604,s. 39604
• Citation: 305 S.E.2d 102,251 Ga. 313
• Parties: Charles Edward OWENS v. The STATE. Gregory Hughes LUMPKIN v. The STATE. (Two cases)
• Court: Georgia Supreme Court

Page 102

305 S.E.2d 102

251 Ga. 313

Charles Edward OWENS v. The STATE.

Gregory Hughes LUMPKIN v. The STATE. (Two cases)

Nos. 39604, 39610 and 39611.

Supreme Court of Georgia.

June 30, 1983.

Rehearing Denied July 22, 1983.

Louis J. Kirby, Zachry & Kirby, LaGrange, for Charles Edward owens.

Marc E. Acree, for appellant.

Arthur Mallory III, Dist. Atty., Blanchette Holland, Robert H. Sullivan, Asst. Dist. Attys., LaGrange, Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Asst. Atty. Gen., for the State.

CLARKE, Justice.

On November 3, 1981, the appellants, Charles Edward Owens and Gregory Hughes Lumpkin were indicted along with Larry Gene Heath, Jerry Wayne Heath, Denise Paige Lambert and Sanders Williams for the murder of Rebecca McGuire Heath, the wife of co-indictee Larry Heath. The state initially sought the death penalty in the cases of Larry Heath, Owens and Lumpkin.

The state waived the death penalty as to Larry Heath and he entered a plea of guilty to the murder and was sentenced to life in prison in February of 1982. Lumpkin was arraigned on April 12, 1982; Owens was arraigned April 16. It was then announced that the state was withdrawing its request for the death penalty and announced it would try Owens jointly with Lumpkin on April 26, 1982. On April 20, 1982, co-defendants Lambert and Jerry Heath entered pleas of guilty to conspiracy to commit a crime. Co-defendant Williams was also permitted to enter a plea to conspiracy.

Owens and Lumpkin were tried jointly, convicted of murder and sentenced to life imprisonment. Their respective motions for new trial were denied and each has filed a separate appeal to this court. The facts at trial and many of the enumerations of error are the same and we have consolidated the cases into one opinion.

The body of Rebecca Heath was found in her automobile on the morning of August 31, 1981, off of Highway 185 in Troup County, Georgia. The cause of death was a single gunshot to the head. Rebecca and her husband Larry Heath lived in Phoenix City, Alabama. A neighbor of the Heaths' testified that he observed the Heath car and a truck which belonged to Denise Lambert in the road near the Heath home at 7:15 a.m. on August 31, 1981, and stated the vehicles were side-by-side and the occupants appeared to be having a conversation. A motorist on Highway 185 testified that on the same morning at approximately 9:15 a.m. he observed the Heath car on the edge of the woods. He also testified that as he approached he saw a light blue Mustang leave the area at a high rate of speed. Another motorist saw the Heath car at around 11:00 a.m.; he investigated the scene and discovered the body.

The bulk of the state's case consisted of the testimony of the alleged co-conspirators, Lambert, Williams and Jerry Heath, who had all previously entered pleas to the lesser offense of conspiracy.

1. Motions were filed by the appellants prior to trial for disclosure of any agreements entered into by the state and any prosecution witnesses which might influence their testimony. These motions were granted by the court. Prior to trial the prosecutor stated that the three co-defendants had been allowed to enter pleas to conspiracy but that there had been no agreements on sentencing. The state made a motion in limine to prohibit defense counsel from cross-examining the co-defendants on their sentencing as a result of their pleas. The court granted this motion.

The appellants contend that the prosecution failed to disclose an agreement with Jerry Heath's attorney that the state would recommend a sentence of ten years to serve two. It has been held that failure to disclose such an agreement constitutes a violation of the due process requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1971). They also contend that the trial court abused its discretion in limiting cross-examination of the state's main witnesses on the issue of possible punishments and that this was reversible error under our holding in Hines v. State, 249 Ga. 257, 290 S.E.2d 911 (1982). The state contends that there was no actual agreement as to a recommendation of a sentence for Jerry Heath and therefore no disclosure was required under Brady and Giglio. It is also contended that if there was error in the court's grant of the state's motion to limit cross-examination, such error was harmless.

At the hearing on the appellants' motion for new trial evidence was presented on plea negotiations between Mack Reynolds, counsel for Jerry Heath, and Mr. Mallory, the district attorney. Mr. Reynolds testified that Jerry Heath informed him that if a bargain could be reached with the state he would testify in exchange for two years of jail time. Mr. Reynolds approached Mr. Mallory and they entered into discussions on plea bargaining. They discussed the subject on more than one occasion. According to Mr. Reynolds, Mr. Mallory told him he was willing to go along with ten years to serve two, that he would make that recommendation to the trial court but that he was unable to enter into a firm agreement at that time. Mr. Reynolds stated that he told Jerry Heath that there was no firm commitment on sentencing but that there was a "gentlemen's agreement" to recommend 10 to serve 2, "And I told Jerry that Art's [Mr. Mallory] word was all I needed and I felt like it was all he needed."

Mr. Mallory testified that he had several discussions with Mr. Reynolds and that Mr. Reynolds was proposing to exchange Jerry Heath's testimony for a sentence of ten years to serve two and that Mr. Reynolds was very persistent. Mr. Mallory stated that he listened to Mr. Reynolds and agreed to consider all the factors in Jerry's case but told him that he could not make any recommendation at that time and could not enter into an agreement on a recommendation. He testified that Mr. Reynolds must have misunderstood his position.

Under Giglio, the state is under a duty to reveal any agreement with a witness, even an informal one. The trial court after hearing the above evidence, denied the motion for new trial which implies a finding, as the trier of fact, that no agreement existed. We cannot say that there was an undisclosed agreement and therefore we find no due process violation under Brady and Giglio for failure to disclose by the prosecutor.

However, the grant of the state's motion in limine and the restriction of cross-examination of the co-indictees who testified for the prosecution is error under the holding in Hines v. State, supra. During cross-examination of Jerry Heath by defense counsel the following exchange took place:

"Q. Have you talked with your attorney about what possible sentence you might receive?

"A. We've talked with them.

"Q. Do you know what it will be?

"A. No, sir, I sure don't.

"Mr. Mallory: Your Honor, once again, I think--

"The Court: Yes, we had a Motion in Limine about that, Mr. Kirby.

"Mr. Mallory: I think Mr. Kirby is well aware of that Motion, Your Honor."

During cross-examination of co-indictee Sanders Williams there was this exchange:

"Q. Now, you've come into court and pled guilty to the crime of conspiracy to commit murder, haven't you?

"A. Sure.

"Q. But you're already serving a life sentence, aren't you?

"A. Sure.

"Q. So that conspiracy charge doesn't really mean much to a man like you, does it?

"Mr. Mallory: Your Honor, he's going into an area--

"The Court: Yes, sir. We had a motion about penalties.

"Mr. Mallory: That's the second time that's occurred, Your Honor.

"The Court: About punishment for these things, Mr. Kirby. And this is the second time and I'll ask you to refrain from going into punishment."

"As we read Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and the cases cited therein, it appears to us that these decisions interpret the Confrontation Clause of the Sixth Amendment, as applicable to the states through the Due Process Clause of the Fourteenth Amendment, as guaranteeing the defendant in a criminal trial both the general right to cross-examine witnesses against him and the more specific right to cross-examine a key state's witness concerning pending criminal charges against the witness." Hines v. State, supra 249 Ga. at 259, 290 S.E.2d 911. In Hines, the court granted the state's motion to prohibit defense counsel from cross-examining a key state's witness as to separate criminal charges against him and whether he expected favorable treatment as a result of his testimony against Hines. The prosecutor stated that no agreements had been made with the witness. The Court of Appeals held that such restriction was within the discretion of the court. Hines v. State, 160 Ga.App. 546, 287 S.E.2d 584 (1982).

In reversing this decision and the conviction, we pointed out that exposing the motives of a state's witness for testifying is always relevant in attacking the credibility of the witness. " 'It is especially important in a case where a witness or an accomplice may have substantial reason to cooperate with the government that a defendant be permitted to search for an agreement between the government and the witness.' United States v. Crumley, 565 F.2d 945, 949 (5th Cir.1978). Whether or not such a deal existed is not crucial. What counts is whether the witness may be shading his testimony to please the prosecution." Hines, 249 Ga. at 260, 290 S.E.2d 911. (Emphasis supplied.)

Under Hines and Davis v. Alaska, it does not matter whether there was an actual agreement to allow Jerry Heath to receive two years in prison. What is relevant was what Jerry Heath believed as it reflected on his motives in testifying. His attorney testified that it was clear in Jerry's mind that a favorable sentencing recommendation would be made. Similarly, it was a relevant subject of cross-examination to determine if Williams believed he might get a concurrent sentence.

Jerry Heath...