Rogers v. State
| Decision Date | 18 November 1987 |
| Docket Number | No. 44967,44967 |
| Citation | 257 Ga. 590,361 S.E.2d 814 |
| Parties | ROGERS v. STATE. |
| Court | Georgia Supreme Court |
H. Bradford Morris, Jr., Gainesville, for James Floyd Rogers.
Andrew Fuller, Dist. Atty., Gainesville, Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Asst. Atty. Gen., for State.
Rogers' conviction of the murder of Harry Justus resulted in the imposition of a sentence of life in prison. 1 Rogers enumerates five errors dealing with questions of alleged newly discovered evidence, the availability of materials in the state's file, the charge on the rule of sequestration and the court's regulation of cross-examination. A review of the grounds of appeal reveals no error and we affirm.
The evidence indicates that the defendant and Jerry Sanders sought out the victim for the purpose of buying "something to smoke." When the two found Justus, he joined them in their quest to "pick up some smoke," but their visit to several locations proved to be fruitless. The threesome apparently abandoned the original purpose of their travels when Rogers asked the other two to help him pick up a boat motor at an isolated spot on the river. Justus accompanied Rogers to the supposed location of the motor while Sanders waited near the truck. Sanders testified he heard two shots within several seconds of each other and that Rogers returned carrying a pistol, but without Justus. When Sanders asked Rogers where Justus was, Rogers replied that Justus would never "take nothing or tell nothing on me or none of my friends anymore." He further told Sanders to keep his mouth shut and, in fact, at one of their stops on the way back to Sanders' trailer, gave Sanders money to "help you keep your mouth shut about this."
At the Sanders' trailer, they joined a number of other people. Sanders drank until he passed out. The next day he found Rogers' gun under a seat cushion at the trailer and asked his wife to hide it.
When Justus' body was found by two fishermen, he was lying on his back having been shot in the neck and head. After some investigation, officers arrested Sanders and charged him with murder. When Sanders had his wife give the gun to the authorities, they established that at least one of the bullets found in the body of Justus was fired from this revolver. The indictment of Sanders for murder was followed by denials of guilt and finally a plea of guilty to voluntary manslaughter and an agreement from Sanders to assist in the investigation and possible prosecution of Rogers. Ultimately Rogers was tried and convicted of murder.
1. Applying the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we conclude the evidence supports the jury's verdict of guilty.
2. Rogers assigns error to the trial court and says it abused its discretion in denying his motion for a new trial because of alleged newly discovered evidence. He relies on two items of evidence which we treat separately.
a. Dr. Larry Howard, Director of the State Crime Laboratory, testified for the prosecution telling of two bullet wounds and expressing an opinion as to the likely sequence of the wounds and the likely time lapse between the shots. The defense also offered the testimony of pathologists which varied in some respects from that of Dr. Howard, particularly as regards the sequence and time intervals of the wounds.
At the hearing on his motion for new trial, Rogers offered in evidence an affidavit of another pathologist who stated he had reviewed the various reports and the transcript of the trial and disputed the testimony of the state's witness concerning the position of the victim when he was shot and expressed an opinion that the injury to the head did not necessarily occur at the scene where the body was found. The affidavit further expressed criticism of the autopsy procedure and some of the conclusions reached by the state's expert.
The issue is whether the testimony of Dr. Joseph Burton, whose affidavit was offered at the hearing on the motion for new trial, constitutes such newly discovered evidence as is necessary to demand a new trial. This court established a concise standard for granting a new trial on the grounds of newly discovered evidence in the case of Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980). The six prongs of that standard are as follows: "(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness." We find that the alleged new evidence in the form of the testimony of Dr. Burton does not satisfy the standards enunciated in Timberlake v. State, supra.
b. Rogers also points to the affidavit of Jimmy Armour who stated he played pool with the victim in a bar on the night the victim died. He recounted that the victim was still in the bar when he left at about 6:15 to 6:30 p.m. and that the bar is some 28.8 miles from the location where...
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Ward v. Hall
...been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Rogers v. State, 257 Ga. 590, 592 (3), 361 S.E.2d 814 (1987), quoting United States v. Bagley, 473 U.S. 667 (105 S.Ct. 3375, 87 L.E.2d 481) After consideration of each of these it......
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Brown v. State, S17A0826.
...witnesses indicated that the statements would not have any effect on their testimony. Based on Brown's citation of Rogers v. State, 257 Ga. 590, 361 S.E.2d 814 (1987), in her amended brief, see id. at 592–593 (4), 361 S.E.2d 814, she apparently is complaining that a mistrial was required be......
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Waldrip v. State
...that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " Rogers v. State, 257 Ga. 590, 592(3), 361 S.E.2d 814 (1987). The polygraph results are inadmissible, without stipulation by the parties, and we find no merit in appellant's conte......
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Boatright v. State
...v. State, 253 Ga. 352, 320 S.E.2d 751, or, that assuming error had occurred, he was prejudiced thereby. See generally, Rogers v. State, 257 Ga. 590, 592, 361 S.E.2d 814; see also Parks v. State, 254 Ga. 403, 407, 330 S.E.2d 686. Accordingly, this enumeration of error is without 3. Appellant......