Pless v. State, 53839

• Citation: 142 Ga.App. 594,236 S.E.2d 842
• Decision Date: 01 June 1977
• Docket Number: No. 2,No. 53839,53839,2
• Parties: D. L. PLESS v. The STATE
• Court: United States Court of Appeals (Georgia)

Page 842

236 S.E.2d 842

142 Ga.App. 594

D. L. PLESS v. The STATE.

No. 53839.

Court of Appeals of Georgia, Division No. 2.

June 1, 1977.

Rehearing Denied June 21, 1977.

Maylon K. London, Cleveland, for appellant.

Jeff C. Wayne, Dist. Atty., Roland H. Stroberg, James H. Whitmer, Asst. Dist. Attys., Gainesville, for appellee.

QUILLIAN, Presiding Judge.

Defendant appeals his conviction of burglary. Held :

1. The defendant asserts the trial court erred in failing to grant a new trial on the general grounds. We can not agree. Where a conviction is based upon circumstantial evidence, "to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt." Rogers v. State, 139 Ga.App. 656, 659, 229 S.E.2d 132, 134. "Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law." Harris v. State, 236 Ga. 242, 245, 223 S.E.2d 643, 645. The evidence in this case was sufficient to support the verdict.

2. A pre-trial motion to produce was denied by the court after an in-camera inspection. The defendant requested copies of all statements of witnesses, scientific data, a list of items seized, and a list of all persons who had knowledge, information or records concerning the instant case. Although not requested or demanded, defendant stated in his motion that he was "entitled to . . . any information favorable to the defendant."

Rulings by our Supreme Court have been refined in relation to discovery in criminal cases. Formerly the Supreme Court held: "There is no Georgia statute or rule of practice which allows discovery in criminal cases." Chenault v. State, 234 Ga. 216, 221, 215 S.E.2d 223, 227; accord Henderson v. State, 227 Ga. 68, 77(2), 179 S.E.2d 76; Pass v. State, 227 Ga. 730, 737(12), 182 S.E.2d 779; Hicks v. State, 232 Ga. 393, 207 S.E.2d 30. In Jarrell v. State, 234 Ga. 410, 418, 216 S.E.2d 258, 266, the court modified the rule to state that "there is no statute or rule of procedure in force in Georgia governing pre-trial discovery in criminal cases." (Emphasis supplied.) This distinction was brought into focus clearly in Brown v. State, 238 Ga. 98, 99, 231 S.E.2d 65, 66, when the court held: "There is a distinct difference however between pre-trial discovery and the production of documents at trial . . . Code Ann. § 38-801(e) shows clearly that it is applicable to subpoenas for attendance at a hearing or trial." The court also held that "pursuant to Code Ann. § 38-802, subsection (g) of Code Ann. § 38-801 is applicable in criminal cases." Id. at 101, 231 S.E.2d at 67.

The instant case deals with a pre-trial discovery motion; thus Brown is inapplicable, and Jarrell's holding that "there is no statute or rule of procedure in force in Georgia governing pre-trial discovery in criminal cases" (Jarrell v. State, 234 Ga. at 418, 216 S.E.2d at 266, supra) controls the disposition of this issue. "Whatever rules of procedure there are, have been formulated by the trial courts . . ." Id. Defendant argues that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, is applicable and "the prosecution may not suppress any evidence which in any matter is helpful or favorable to the Defendant . . ." This simplistic view is overly broad. The United States Supreme Court stated that "(t)he heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or punishment." Moore v. Illinois, 408 U.S. 786, 794, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706. Moore is important for another reason. It also held: "We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case." 408 U.S. at 795, 92 S.Ct. at 2568. Our Supreme Court is in accord. "There is no Georgia statute nor rule of practice which requires the district attorney to open his files to the attorney for the accused, nor is the accused entitled as a matter of right to receive copies of police reports . . ." Henderson v. State, 227 Ga. 68, 77, 179 S.E.2d 76, 84.

The Brady rule appears to have four elements: (1) demand by the defense, (2) for evidence favorable to the defendant, (3) which is material to guilt or punishment, and (4) suppression by the prosecution. Our Supreme Court has also held that the ultimate test "is whether the undisclosed evidence was so important that its absence prevented the accused from receiving his constitutionally-guaranteed fair trial." Carter v. State, 237 Ga. 617, 619, 229 S.E.2d 411, 413-414.

Applying the above standards, we find that although such evidence may have been informative and helpful, the trial court did not abuse its discretion in failing to order release of the requested evidence after an in-camera inspection, as the items "would not exculpate appellant nor would (they) lessen his criminal liability." Carter v. State, 237 Ga. at 619, 229 S.E.2d at 414, supra; Watts v. State, 141 Ga.App. 127, 128(2), 232 S.E.2d 590.

3. Counsel for the defendant made a motion to suppress two statements made by the defendant to law enforcement authorities. The first statement was made to Sheriff Baker. When asked about the circumstances the sheriff testified: "He (the defendant) sent for me to come back (to the jail cell where he was confined). Q. And did you know what he was sending for you for? A. No sir . . . He just said that he'd talk to me in private . . . He just said that he had information that one of the drug stores in Cleveland had been broken into between eleven and twelve." (Emphasis supplied.)

On further examination the sheriff stated that defendant told him "he had information that one of the drug stores in Cleveland would be burglarized or broken into between eleven and twelve . . . Q. In the morning? A. Yes sir." (Emphasis supplied.) The sheriff's office was informed of the burglary by one of the owners of the burglarized building "fifteen to twenty minutes later."

Regardless of which version of the sheriff's testimony is correct the rule of evidence as to admissibility of a defendant's statement remains the same. A statement of the accused is admissible if made voluntarily, without inducement by another, by the slightest hope of benefit or the remotest fear of injury. Code § 38-411. Although defendant had been arrested and confined for public drunkenness, this was not a custodial interrogation as that term is used in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. There was no interrogation and the defendant was not a suspect in a yet to be reported crime. While legality, duration, and conditions of detention are relevant, in the determination of voluntariness of an accused's statement, nothing of record shows compulsion, coercion, or any illegal inducement. Wilson v. State, 229 Ga. 395, 397, 191 S.E.2d 783. The trial court did not err in holding the statement was freely and voluntarily given. Gray v. State, 135 Ga.App. 253(1), 217 S.E.2d 482; Jacobs v. State, 137 Ga.App. 592(1), 224 S.E.2d 462.

The trial court held a Jackson-Denno hearing, out of the presence of the jurors, and established that an agent from the Georgia Bureau of Investigation spoke to the defendant on Sunday, February 8, 1976, and again on the next day. The defendant was advised of his Miranda rights on both days before he made a statement to the GBI agent. The agent read the Miranda rights from a form that he used. Although the defendant signed the form waiving his rights, the agent said he lost the form. The agent testified that defendant advised him that "(h)e did understand his rights and was willing to talk, but he didn't want to sign anything."

The defendant also objects to the taking of the second statement on an additional ground that although the interrogator knew that defendant was, at that time, represented by counsel, he secured an additional statement from the defendant. "(A) statement may be shown to be voluntary even though made in the absence of counsel after counsel has been retained or appointed." Pierce v. State, 235 Ga. 237, 239(2), 219 S.E.2d 158, 159; Berryhill v. State, 235 Ga. 549, 551(5), 221 S.E.2d 185.

The question of voluntariness was properly considered in a Jackson-Denno hearing, held outside the presence of a jury. The trial court's determination that the statement was freely and voluntarily given, therefore admissible for the jury's consideration, was supported by a preponderance of the evidence. Jett v. State, 136 Ga.App. 559, 560, 222 S.E.2d 54. Any factual or credibility determination was made by a trial judge and will be accepted by an appellate court unless clearly erroneous. High v. State, 233 Ga. 153, 154, 210 S.E.2d 673.

We are aware of the decision of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, issued March 23, 1977, but find it inapposite. We find no error here.

4. Defendant asked for sequestration of witnesses under Code § 38-1703. The court did not err in permitting the prosecutor, Frank Baker, Jr., to remain in the courtroom upon request of the district attorney as he was needed "to assist (the district attorney) in the trial of this case." The defendant insisted that if the prosecutor remained "he should testify first." The district attorney stated that the witness' testimony would be "out of order." The court ruled that the witness could remain and testify when called. Enforcement of this codal right "has been vested in the discretion of the trial court...