Reed v. State

• Decision Date: 23 February 1977
• Docket Number: No. 31694,31694
• Citation: 238 Ga. 457,233 S.E.2d 369
• Parties: Charles David REED v. The STATE.
• Court: Georgia Supreme Court

Page 369

233 S.E.2d 369

238 Ga. 457

Charles David REED v. The STATE.

No. 31694.

Supreme Court of Georgia.

Feb. 23, 1977.

Rehearing Denied March 8, 1977.

Charles S. Hunter, Norcross, for appellant.

H. Reginald Thompson, Dist. Atty., Swainsboro, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.

NICHOLS, Chief Justice.

This is a companion case to Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (1976). Reed was tried and convicted for two counts of burglary, two counts of armed robbery and two counts of murder. He was sentenced to two 20-year terms and four life terms to run concurrently.

The same witnesses testified in this case for the state as testified in Birt's trial. The evidence was the same except that Reed was identified by Carswell Tapley as the person with "Jim Gordon" when he came to Louisville for Tapley to point out the Fleming residence, but that Reed did not go to Wrens with them.

1. The eleventh enumeration of error complains of the failure to sever Indictment No. 23, from the remaining indictments, and the first enumeration of error complains of the sufficiency of the evidence to support the conviction for the burglary of the Haymon residence alleged in Indictment No. 23 occurring on Friday night. The state sought to prove one continuing conspiracy involving both the Friday night burglary and the Saturday night burglary and murder. There was slight circumstantial evidence of a general conspiracy as to both the Friday night and Saturday night occurrences, but it failed to connect Reed to the conspiracy until sometime Saturday when Birt, Reed and Gaddis went to Davis' used car lot to pick up a car for use on Saturday night. It was not error to deny the motion to sever.

The only evidence linking Reed with the offense on Friday night was the testimony of Billy Wayne Davis. He testified that Reed was in the motel room in Atlanta on Friday about noon when Birt summoned him there to borrow a car to "take care of some business" that night; that Birt went with Davis to get the car; and that Birt and Gaddis returned the car Saturday with the fruits of the Haymon burglary in the trunk of the car. There was no evidence of Reed's leaving the motel with Birt, Gaddis or Davis. The direct and circumstantial evidence was insufficient to exclude every reasonable hypothesis (Code § 38-109); therefore, the conviction on Indictment No. 23 must be reversed. See Smith v. State, 230 Ga. 876, 199 S.E.2d 793 (1973).

2. Enumerations of error 2 through 7 complain of the sufficiency of the evidence to sustain the convictions on Indictment Nos. 24, 25, 26 and 27 and the conviction of more than one armed robbery. We have carefully reviewed the record in this case and find the verdicts supported by the evidence except as to the two armed robberies charged in Indictment Nos. 25 and 26.

In Birt v. State, 236 Ga. 815, 827, 225 S.E.2d 248, 256, supra, this court held: "Although the state sufficiently established the taking of the money, the state was unable to show in this case from which victim the money was taken. Under these circumstances, the trial judge did not err in overruling the motion to require the state to elect. Apparently no jury instructions regarding this matter were requested and none were given. Under the circumstances of this case and in view of the lack of evidence on this point, one conviction for armed robbery should be set aside upon remand. See Creecy v. State, 235 Ga. 542(5), 221 S.E.2d 17 (1975); Jackson v. State, 236 Ga. 98, 222 S.E.2d 380 (1976)."

3. The eighth and ninth enumerations of error contend the trial court erred in not granting appellant's motion for change of venue. The appellant's motion is predicated on pre-trial publicity and the fact that two of the co-defendants had previously been tried, convicted and received the death penalty.

This court, in the recent case of Coleman v. State, 237 Ga. 84(1), 226 S.E.2d 911 (1976) and Street v. State, 237 Ga. 307(II), 227 S.E.2d 750 (1976), in a thorough analysis of the due process issue under both the State and Federal Constitutions, concluded that: ". . . under the decisions of the Supreme Court of the United States, to find that the petitioner did not receive a fair trial, petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. The appellant . . . has shown neither." Street v. State, supra, at p. 311, 227 S.E.2d at p. 754. We find no error in the denial of the motion for change of venue.

4. The tenth enumeration of error contends that the trial court erred in denying an in-camera inspection of the files of the district attorney in this case pursuant to his motion for discovery. Although the enumeration of error relates to the entire motion, the trial court did grant part of the motion. In addition, appellant had the trial transcript of his two co-defendants who had previously been tried. The appellant makes no contention that any particular evidence was withheld, but that under the Brady ruling, he is entitled to search the prosecution's files.

In Hicks v. State, 232 Ga. 393, 396, 207 S.E.2d 30, 33 (1974), this court held: "In our view, Brady does not require the prosecution to open its file for general inspection by the defense or for pre-trial discovery."

The trial court ordered that anything favorable to appellant be turned over to his counsel, including any criminal record of prosecution witnesses be given counsel. Therefore, it was not error to deny the...