Stephens v. State

• Decision Date: 26 September 1994
• Docket Number: No. S94A0871,S94A0871
• Parties: Herbert Connell STEPHENS v. The STATE.
• Court: Georgia Supreme Court

Page 192

450 S.E.2d 192

264 Ga. 761

Herbert Connell STEPHENS v. The STATE.

No. S94A0871.

Supreme Court of Georgia.

Sept. 26, 1994.

Reconsideration Denied Dec. 20, 1994.

Megan C. De Vorsey, Atlanta, for Herbert Connell Stephens.

Nancy A. Grace, Asst. Dist. Atty., Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta, for the State.

Peggy R. Katz, Asst. Atty. Gen., Dept. of Law, Atlanta.

Carl Greenberg, Asst. Dist. Atty., Atlanta, for other appellee.

CARLEY, Justice.

After a jury trial, appellant was found guilty of two counts of malice murder and three counts of felony murder and was given three consecutive sentences of life imprisonment. His motion for new trial was denied and he appeals. ¹

1. The State produced evidence which showed that appellant and his four co-indictees robbed the three victims. Numerous eyewitnesses identified appellant as the one who shot the victims. Although a prior statement of a defense witness indicated that one of the victims was shot by someone other than appellant and his four co-indictees, " 'any questions of the credibility of witnesses and the weight to be given their testimony is entirely within the province of the jury. (Cits.)' [Cits.]" Smith v. State, 263 Ga. 224(1), 430 S.E.2d 579 (1993). Accordingly, the evidence in this case is sufficient to authorize a rational trier of fact to find proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Smith v. State, supra; Roker v. State, 262 Ga. 220(1), 416 S.E.2d 281 (1992). This would be "true even [if] appellant was not the triggerman [as to every victim]." Van Huynh v. State, 258 Ga. 663, 664(1), 373 S.E.2d 502 (1988).

2. Appellant and his four co-indictees were arrested soon after the murders. A few months later, one of the eyewitnesses, Torrance Jackson, identified John Wesley Ragin and Travis Williams as also having been at the scene of the crimes along with appellant and the four co-indictees. Jackson further stated that it was Ragin who shot one of the victims. Based upon this information, arrest warrants were issued for Ragin and Williams, who, however, were not indicted. Several enumerations are predicated upon appellant's contention that the State deliberately concealed the existence of these arrest warrants until after the trial.

Although appellant may not have discovered the existence of the arrest warrants until after trial, there is no proof that the State deliberately concealed the existence of those warrants from appellant. Moreover, the record shows that, although appellant may not have been specifically informed of the existence of the arrest warrants until after trial, he was informed of Jackson's statement. The record further shows that appellant used Jackson's statement extensively to cross-examine the detective to whom it had been given, in an effort to impeach the detective's allegedly contradictory earlier testimony. Thus, even assuming that the existence of the arrest warrants should have been disclosed to appellant, they were not so material to appellant's defense that their nondisclosure would amount to a constitutional violation of his right to a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Wallin v. State, 248 Ga. 29, 279 S.E.2d 687 (1981); Potts v. State, 241 Ga. 67, 74(5), 243 S.E.2d 510 (1978).

3. Contrary to appellant's contention, there is no "Brady violation where information sought becomes available to the accused at trial. [Cit.]" Shearer v. State, 259 Ga. 51(1), 376 S.E.2d 194 (1989). After conducting an in camera inspection of the prosecution's file, the trial court provided appellant with various materials and ordered a six-day recess in the trial to allow defense counsel to review the materials. There was no reversible error in this procedure. See Annison v. State, 206 Ga.App. 861, 863(5), 427 S.E.2d 5 (1992); Manous v. State, 200 Ga.App. 293, 295(2), 407 S.E.2d 779 (1991).

4. Appellant urges that the State deprived him of a fair trial through the knowing use of perjured testimony given by two officers. Appellant contends that the officers' testimony at trial with regard to the possibility of there being additional suspects has been shown to be untrue in light of the subsequently disclosed existence of the arrest warrants for Ragin and Williams.

When the officers' testimony is read in context, there is no inconsistency with the existence of the arrest warrants. Accordingly, "[i]t was not proved that [their] trial testimony was false." Ward v. State, 205 Ga.App. 504, 507(3), 423 S.E.2d 288 (1992). Moreover, as previously discussed, the evidence underlying the arrest warrants was admitted at trial and was used by appellant on cross-examination of both officers. "This is not a situation wherein the [S]tate allowed a witness to give false testimony which defense counsel had no means of correcting. [Cits.]" Gober v. State, 203 Ga.App. 5, 7(4), 416 S.E.2d 292 (1992).

5. During her opening statement, the prosecuting attorney indicated that she expected the evidence to show that, in addition to the five co-indictees, "another male has turned himself in down in Florida." Appellant urges that, because this statement was known by counsel for the State to be false, a mistrial should have been declared.

There was no showing that counsel's statement was false. Moreover, the record shows that appellant never made a motion for a mistrial based upon this statement, but merely moved for a continuance. Although the trial court denied a continuance, it did instruct the jury to disregard the prosecuting attorney's reference to the person in Florida. The opening statement "contained no indication that the [person in Florida] had implicated [appellant]" and the trial court's instruction, which was more relief than had been requested by appellant, was sufficient. Welch v. State, 207 Ga.App. 27, 28(5), 427 S.E.2d 22 (1992). See also Williams v. State, 261 Ga. 640, 643(4), 409 S.E.2d 649 (1991); Hilburn v. State, 166 Ga.App. 357, 358(2), 304 S.E.2d 480 (1983).

6. In her closing argument, the prosecuting attorney recalled her own struggle with the standard of "reasonable doubt" as she pondered the Wayne Williams case when she was still in law school. The trial court overruled appellant's objection to this statement....