Simmons v. State

• Citation: 174 Ga.App. 171,329 S.E.2d 312
• Decision Date: 14 March 1985
• Docket Number: 69038,Nos. 69037,s. 69037
• Parties: SIMMONS v. The STATE. HILL v. The STATE.
• Court: Georgia Court of Appeals

Page 312

329 S.E.2d 312

174 Ga.App. 171

SIMMONS v. The STATE.

HILL v. The STATE.

Nos. 69037, 69038.

Court of Appeals of Georgia.

March 14, 1985.

Rehearing Denied March 27, 1985.

Certiorari Denied April 25, 1985.

William P. Slack, Lafayette, for appellant in No. 69037.

William Ralph Hill, Jr., Lafayette, for appellant in No. 69038.

David L. Lomenick, Jr., Dist. Atty., David J. Dunn, Jr., Asst. Dist. Atty., for appellee.

POPE, Judge.

Appellants Terry Simmons and Sharon Renee Hill were jointly tried and convicted of conspiracy to commit murder. These appeals from their convictions raise similar issues and thus are consolidated for the purpose of review.

1. Both appellants first cite as error the trial court's denial of their respective challenges to the array of the grand and petit juries in the Walker County Superior Court on the ground that the Walker County Board of Jury Commissioners is illegally and unlawfully constituted in that one of its members, Ralph Phillips, is a Walker County Deputy Sheriff and also a bailiff for the grand and petit juries. Although the foregoing argument is raised on appeal, the record discloses that the challenges before the trial court related solely to whether the jury selection procedure had systematically excluded from service citizens between the ages of 18 and 24. It appears that the basis of these motions was the recent Eleventh Circuit Court of Appeals decision in Willis v. Zant, 720 F.2d 1212 (11th Cir.1983). The record affirmatively shows that during the pretrial hearing on this matter, evidence was presented which disclosed Mr. Phillips' status as a jury commissioner and also as a deputy sheriff and bailiff. Notwithstanding this evidence, no challenge to the array of the grand and petit juries was asserted on this ground in the court below. "Where the objection urged below is not argued here it must be treated as abandoned and where an entirely different objection is presented in this court, we do not consider it since we are limited to those grounds urged in the trial court. [Cits.]" Carney v. State, 134 Ga.App. 816, 817, 216 S.E.2d 617 (1975). See Porter v. State, 143 Ga.App. 640(1), 239 S.E.2d 694 (1977). It follows that these enumerations of error present no ground for reversal. See also Young v. State, 232 Ga. 285, 286, 206 S.E.2d 439 (1974); Thompson v. State, 55 Ga. 47(2) (1875).

2. The issue raised by appellants' second enumerations of error, as well as appellant Simmons' third enumeration, is controlled adversely to them by the holding in Favors v. State, 173 Ga.App. 567(2), 327 S.E.2d 543 (1985).

3. Simmons' fourth and Hills' seventh enumerations challenge the trial court's denial of their general and specific demurrers to their indictments. Both indictments alleged that on July 20, 1983 the named appellant did conspire with the other appellant "to commit the offense of murder upon the person of Kenneth Hill and in furtherance of said conspiracy, did meet with and make arrangements concerning the said corrupt agreement with Georgia Bureau of Investigation Special Agent Richard Hayes, acting under the name of Richard Hill, and did furnish the said [GBI] Special Agent ... with a check to cover his expenses and instructions on the manner and method under which the said Kenneth Hill was to be killed and murdered." Both appellants argue that their respective indictments were too vague and indefinite to allow them to prepare adequate defenses.

"Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct." OCGA § 17-7-54(a). "A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy." OCGA § 16-4-8. "The indictment[s] in [these cases] clearly [charge] appellants with unlawfully conspiring one with the other to commit the offense of murder upon a named person. Furthermore, [they set] forth the date of the charged offense and [enumerate] the overt acts done to effect the object of the alleged conspiracy. The indictment[s] [are] are not vague and ambiguous. [They apprise] appellants of the charges against them with sufficient clarity to permit them to adequately prepare their defense[s] and [are] sufficiently technical and correct--so plain that the nature of the offense charged may easily be understood by the jury. [Cit.]" Causey v. State, 154 Ga.App. 76, 78-9, 267 S.E.2d 475 (1980).

The fact that the subject indictments could have set forth additional specifics regarding the conspiracy--e.g., the locale of the alleged meeting with the GBI agent; the nature of the "arrangements" made to effectuate the proposed murder; the amount, maker and payee of the "expense check"; and the details of the "instructions" given to the purported assasin--did not render them insufficient under OCGA § 17-7-54(a). See State v. Black, 149 Ga.App. 389(2), 254 S.E.2d 506 (1979). See generally Mell v. State, 69 Ga.App. 302(1), 25 S.E.2d 142 (1943). Nor were the indictments imperfect for failure to utilize the term "overt acts" immediately preceeding the actions alleged to have occurred "in furtherance of said conspiracy." It is clear appellants were sufficiently apprised of the offense charged so as to have suffered no prejudice as the result of the inconsequential omission. See generally Farrar v. State, 187 Ga. 401(2), 200 S.E. 803 (1939); Driver v. State, 60 Ga.App. 719, 722, 4 S.E.2d 922 (1939); Duncan v. State, 41 Ga.App. 655, 657, 154 S.E. 197 (1930). Finally, the indictments were not insufficient for failure to allege dates specifying the beginning and ending of the alleged conspiracy. See Causey v. State, supra, 154 Ga.App. at 79, 267 S.E.2d 475; see also Massengale v. State, 164 Ga.App. 57(1), 296 S.E.2d 371 (1982). Appellants' challenges to the indictments are without merit.

4. Appellants' fifth enumerations cite as error the trial court's refusal to require the State to reveal certain material information pursuant to motions made in accordance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Hill also assigns error in her sixth enumeration to the trial court's denial of her motion to dismiss the charges against her on the basis of the State's alleged violation of its duty to disclose exculpatory evidence under Brady. We find these enumerations entirely without merit.

The thrust of appellants' arguments in support of these enumerations of error is that certain information which they view as exculpatory and material was not disclosed to them prior to trial. Assuming arguendo that the information cited by appellants is indeed exculpatory and material, it is clear that all this information was disclosed at trial. The holding in Brady provides "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1196. This rule applies to "the discovery, after trial, of information which had been known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342) (1976). The rule in Brady does not require pretrial disclosure of favorable information and is not violated where such information is made available at trial. See Castell v. State, 250 Ga. 776(2b), 301 S.E.2d 234 (1983). Appellants have the burden of showing that the evidence withheld from them so impaired their respective defenses that they were denied a fair trial within the meaning of the Brady rule. Wallin v. State, 248 Ga. 29(6), 279 S.E.2d 687 (1981). "Here, the [allegedly] exculpatory information was not withheld from the jury. The complaint is that it was not furnished in response to ... discovery request[s]. How has the failure to furnish [appellants] the evidence in advance of trial impaired [their] defense[s]? It has not been shown. If it is [Hill's] contention that additional time for investigation would have enhanced [her] defense, the proper motion would have been for an adequate recess, not [dismissal of the charges against her.]" Id. at 33-34, 279 S.E.2d 687. Furthermore, the fact that the information was not made available to appellants so that their opening statements would "establish the outline of the case[s] for the jury so that they [could] better follow the evidence" does not require reversal as there has been no showing that this circumstance was detrimental to their cases. See generally Bowman v. State, 144 Ga.App. 681(1), 242 S.E.2d 480 (1978). We find no violation of the Brady rule in this case for any reason assigned. See Castell v. State, supra; Baker v. State, 245 Ga. 657(3), 266 S.E.2d 477 (1980).

5. Simmons' sixth enumeration cites as error the trial court's denial of his motion to produce pursuant to OCGA § 24-10-26. Simmons' motion requested the production of the original cassett recording of the July 20th meeting between himself, appellant Hill and Special Agent Hayes; the complete transcript of the resulting conversation; and the complete arrest and conviction record of one Brenda Parker, alleged by Simmons to be an unindicted co-conspirator. It is clear from the record on appeal that the first two items were in fact produced at trial. It is equally clear from the record that what the trial court denied in regard to this motion was Simmons' attempt to review the requested material "at a reasonable time before trial." The trial court's ruling in this regard was not erroneous. See Sims v. State, 251 Ga. 877(4), 311 S.E.2d 161 (1984). As to Parker's criminal record, the record on appeal indicates that the prosecution was not in possession of such...