Roberts v. State
| Decision Date | 08 May 1979 |
| Docket Number | No. 34376,34376 |
| Citation | 243 Ga. 604,255 S.E.2d 689 |
| Parties | ROBERTS v. The STATE. |
| Court | Georgia Supreme Court |
McAllister & Roberts, J. Dunham McAllister, Jonesboro, Reeves & Collier, Rex T. Reeves, Atlanta, for appellant.
Arthur K. Bolton, Atty. Gen., Michael R. Johnson, Asst. Atty. Gen., Robert E. Keller, Dist. Atty., Jack T. Wimbish, Jr., Asst. Dist. Atty., for appellee.
Leonard Leon Roberts was convicted of murder and aggravated battery, sentenced to life imprisonment and six years imprisonment, and appeals.
The conviction stemmed from a shoot-out at an apartment where a sale of 150 pounds of marijuana was to be consumated. According to the state's evidence, the appellant was one of three men who burst into the apartment and exchanged gunfire with two alleged prostitutes and two men who were occupants of the apartment.
1. Appellant first contends that the trial court erred in not providing, upon request, statements of the two women in the apartment, alleging inconsistencies between what they said at the trial and what they had previously told police officers, relying upon Rini v. State, 235 Ga. 60, 218 S.E.2d 811 (1975).
Georgia law does not provide that the statements of witnesses be generally available for discovery by the defendant in a criminal case. Stevens v. State, 242 Ga. 34, 247 S.E.2d 838 (1978). As stated in Stevens, supra, an appellant must indicate the materiality and the favorable nature of the evidence sought. The appellant in this case has not carried that burden. He has failed to make a showing as to what the alleged inconsistent statements would reveal or to show in any way how he has been prejudiced by the failure to disclose the statements. Counsel had at least three opportunities to confront these witnesses and they were subjected to a thorough and sifting cross examination during the trial. In addition, the trial judge conducted an in-camera inspection of the state's file before ruling on the defendant's notice to produce. We find no merit in this enumeration.
2. On direct examination a detective testified that Roberts "was also asked if he would be willing to take a polygraph test." Defense counsel objected and moved for a mistrial which was denied after a cautionary instruction was given to the jury. Appellant contends that this is reversible error, citing Stack v. State, 234 Ga. 19, 214 S.E.2d 514 (1975).
In Herlong v. State, 236 Ga. 326, 223 S.E.2d 672 (1976) this court said: "The decision in Stack did not require, as a matter of law, that a new trial be granted on every occasion where a jury is apprised that a lie detector test has been given." In this case there was only a rather insignificant reference to a polygraph test and nothing of substance was mentioned, including whether the test was passed or failed or whether indeed one was given. See Porter v. State, 237 Ga. 580, 229 S.E.2d 384 (1976). The denial of the appellant's motion for mistrial was not a manifest abuse of discretion under these circumstances.
3. The appellant contends that he was denied the right of a thorough and sifting cross examination as afforded him by Code Ann. § 38-1705. Most of the alleged examples of restricted cross examination relate to the examination by the defense of the state's two key witnesses, the two women occupants of the apartment. We note that the cross examination of one of them covered 118 pages of the transcript and the cross examination of the other took up 98 pages of the transcript. In this case the court did not abuse its discretion in restricting irrelevant and mostly repetitious questions by defense counsel.
4. (a) The appellant requested that the state furnish him with a list of addresses and telephone numbers for certain state witnesses and that he be informed of the whereabouts of Charles Hughes, one of the male occupants of the apartment. This request was denied.
The record is clear that the state was unable to locate Charles Hughes and he was not available as a witness at the trial. Since his whereabouts were unknown to the State, such information could not have been furnished to the appellant.
The state furnished the appellant with a list of witnesses as provided by Code Ann. § 27-1403. We have held that this meets the requirement of the statute and that addresses and telephone numbers of witnesses need not be furnished. McDowell v. State, 239 Ga. 626, 238 S.E.2d 415 (1977); Holsey v. State, 235 Ga. 270, 219 S.E.2d 374 (1975); and Hopkins v. State, 144 Ga.App. 663, 242 S.E.2d 325 (1978). We would agree that the better practice would dictate that the state furnish such addresses and telephone numbers along with the list of the witnesses if such information is available.
( b) The appellant sought to obtain for viewing and testing various kinds of physical evidence. The state contended that no ballistic evidence was available which was capable of testing, although it was in possession of certain shotgun pellets which were found at the scene of the crime or extracted from the murder victim. The appellant relies on Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975) which holds that a criminal defendant cannot be denied the opportunity to have his own expert examine critical evidence, and Patterson v. State, 238 Ga. 204, 232 S.E.2d 233 (1977). Seven shotgun pellets were removed from the body of the victim and analyzed by the state crime lab as to weight and size. It is clear from the testimony of the state's expert witness that no meaningful test could have been performed on the pellets which would have been material or critical to the appellant's case. Under these circumstances the trial court did not err in denying the appellant's request that the state turn over to him such items of physical evidence.
5. Appellant's attack upon the present justice of the peace system is without merit. We held in Allen v. State, and Shaw v. State, 240 Ga. 567, 242 S.E.2d 61 (1978) that the present Georgia statutes after the 1977 amendment satisfy the constitutional requirements set forth in Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977).
6. A "prostitute's book" listing the names of her "clients" was recovered in the apartment but was returned to the prostitute, along with a grant of immunity, in exchange for her testimony. The defendant attempted to attain a copy of this book, claiming that it was "arguably favorable" to the defense. In Street v. State, 237 Ga. 307, 316, 227 S.E.2d 750, 757 (1976) this court held that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), " 'does not require the prosecution to open its file for general inspection by the defense . . . The appellant has the burden of showing how his case has been materially prejudiced . . .' "
In this case the appellant has not attempted to show how he...
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...furnish such addresses and telephone numbers along with the list of witnesses if such information is available." Roberts v. State, 243 Ga. 604, 606(4a), 255 S.E.2d 689 (1979). Uniform Superior Court Rule 30.3 (effective July 1, 1985) provides, "Upon request of defense counsel, the district ......
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...the circumstances, we conclude that the error was harmless. See State v. Kinsey, supra, 173 Conn. 351, 377 A.2d 1095; Roberts v. State, 243 Ga. 604, 255 S.E.2d 689 (1979). The circumstances in which this claim of error arose leads us to conclude that, in the future, where counsel for either......