Timberlake v. State

• Citation: 271 S.E.2d 792,246 Ga. 488
• Decision Date: 07 October 1980
• Docket Number: No. 36470,36470
• Parties: TIMBERLAKE v. The STATE.
• Court: Supreme Court of Georgia

Page 792

271 S.E.2d 792

246 Ga. 488

TIMBERLAKE v. The STATE.

No. 36470.

Supreme Court of Georgia.

Submitted July 11, 1980.

Decided Sept. 23, 1980.

Rehearing Denied Oct. 7, 1980.

Frank E. Coggin, Leslie P. George, Jonesboro, for appellant.

Lewis R. Slaton, Dist. Atty., J. Wallace Speed, H. Allen Moye, Asst. Dist. Attys., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Asst. Atty. Gen., for appellee.

HILL, Justice.

This appeal is from the denial of defendant's amended motion for a new trial, including allegedly newly discovered evidence, following his conviction and sentence to life imprisonment for the murder of Herbert Bishop Edwards.

The victim was shot three times at his Sandy Springs Texaco Station at approximately 4 p. m. on September 20, 1979. The forensic pathologist testified that death was due to two gunshot wounds to the head (the third shot passed through the victim's body).

Walter Shonhor was standing in the victim's station about ten feet from the assailant at the time of the shooting. Shonhor testified that a man whose face was clearly visible walked into the office of the station and suddenly fired three shots. He identified the defendant from a photographic array. At trial he identified the defendant as the gunman.

Emerson Soules was a customer in the station when the shooting occurred. Soules testified that he observed the assailant, whom he identified in court as the defendant, walk into the office of the gas station with a pistol in his hand, aimed at the victim. Without saying anything, the assailant fired one shot. The bullet struck the victim who fell against Soules as a second shot was fired. As the victim fell to the floor, the assailant warned Soules not to move. The assailant then put the gun to the victim's head and shot a third time. The murderer then left the station. Soules followed him, hoping to read the license plate on the getaway car, and saw him enter a car which did not have a Georgia license plate. He identified the defendant from the third photographic array he was shown.

Vicki Killingsworth was driving past the Texaco Station when she heard shots. She observed a man fleeing the scene by the same route described by Soules and saw him enter a car driven by another male. She identified the defendant in court as the man she saw leave the station and enter the car. ¹

The gun identified as the murder weapon, a .38 caliber Charter Arms pistol, was found in the possession of one George Edward Partin, an escapee from the Tennessee State Prison. Partin and another inmate had escaped on September 18, 1979, two days before the murder, using a truck later found in Atlanta or Marietta. Two weeks later, on October 3, 1979, Partin engaged officers of the Chattanooga Police Department in a gun battle and was killed. The gun Partin was using was kept in the custody of the Chattanooga Police Department until late November or early December when it was learned that it may have been the one used in the murder of Herbert Edwards. Ballistics evidence showed this to be true.

In undertaking to explain Partin's possession of the murder weapon, the state sought to prove a connection between Partin and the defendant through Harry B. Daniels, a man known to the defendant and his son. Testimony showed that Partin and Daniels were seen together the week before Partin's death and that a letter and automobile registration bearing Daniels' name were found in Partin's hotel room after his death. The names, addresses and telephone numbers of Daniels and the defendant were each found twice in Partin's notebook which he left when he escaped from the penitentiary. Partin's daughter testified that the writing contained in the book was that of her father.

The state introduced business records of Southern Bell Telephone Company which indicated that between September 1 and October 9, 1979, eleven long distance calls were placed from the pub the defendant managed in Atlanta to the number of Kathy Shipley in Tennessee. Ms. Shipley testified that she knew the defendant by having met him at his place of business and by talking to him on the telephone. She stated further that the defendant used to call for the purpose of speaking to John McGee, an alias Harry Daniels used. The defendant objected to the evidence tending to show any connection he had with Partin through Daniels.

An employee of the defendant testified that the defendant left his pub at about 2 p. m., going to get a pistol permit, and returned about 4 p. m. The defendant testified that he left the pub about 2 p. m., went to the Probate Court to renew his pistol license, filled out an application form, walked to the police station to be fingerprinted about 2:45 p. m., returned to the Probate Court and then returned to the pub about 4 p. m. He denied having shot the deceased, denied being near the scene of the shooting, and denied knowing Partin.

Employees at the Probate Court had records of the defendant applying for a pistol permit on the date in question but could not say whether it was done in the morning or afternoon. An employee at the fingerprint office testified that the defendant was fingerprinted between 9 and 11 a. m. on the morning of the day in question. A person fingerprinted that same day placed defendant at the office at about 10 a. m.

The jury found the defendant guilty of murder.

1. The defendant contends that the trial court erred in denying his amended motion for a new trial based on newly discovered evidence. At the hearing on his motion, the defendant attempted to introduce the testimony of two witnesses to whom George Partin allegedly confessed. Defendant asserts that the witnesses were unknown to him at the time of trial and that their testimony constitutes newly discovered evidence. The state objected to the testimony of both witnesses as being hearsay and inadmissible and the trial court so held.

The standard for granting a new trial on the basis of newly discovered evidence is well established. "It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (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." Emmett v. State, 232 Ga. 110, 117, 205 S.E.2d 231 (1974); Bell v. State, 227 Ga. 800, 805, 183 S.E.2d 357 (1971); Burge v. State, 133 Ga. 431, 432, 66 S.E. 243 (1909); Berry v. State, 10 Ga. 511, 527 (1851); See Code Ann. § 70-204. All six requirements must be complied with to secure a new trial. Offutt v. State, 238 Ga. 454, 455, 233 S.E.2d 191 (1977); Corn v. State, 142 Ga.App. 798, 799, 237 S.E.2d 203 (1977). Implicit in these six requirements is that the newly discovered evidence must be admissible as evidence. The evidence offered here is not admissible, as will be seen below.

Preliminarily, however, we note that although the defendant has stated that the evidence has come to his attention since the trial, he has made no showing that it was not owing to want of due diligence that he did not acquire it sooner. Failure to show one requirement is sufficient to deny a motion for a new trial. Offutt v. State, supra. The fact that the murder weapon was found on George Partin was known to the defendant before trial, as shown by his pre-trial motions. The defendant states in his brief that "There was no showing of lack of due diligence on the part of the (defendant) to locate said evidence. Diligence on the part of the (defendant) may be inferred from the continuing efforts to uncover any possible leads even after the trial of the case." It is not incumbent upon the state to show lack of diligence, and diligence before trial will not be inferred from diligence after conviction. The rule is that "It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court ..." as to each of the six requirements. Bell v. State, supra, 227 Ga. at 805, 183 S.E.2d 357 (emphases supplied); Burge v. State, supra, 133 Ga. at 432, 66 S.E. 243; Berry v. State, supra, 10 Ga. at 527. There was no factual showing that this evidence could not have been discovered by the exercise of ordinary diligence. ² The mere assertion that the evidence could not have been discovered by ordinary diligence is insufficient. Mills v. State, 193 Ga. 139, 147, 17 S.E.2d 719 (1941); Johnson v. State, 196 Ga. 806, 807, 27 S.E.2d 749 (1943); Taylor v. State, 132 Ga. 235, 237, 63 S.E. 1116 (1908). This record is void of any reason why the defendant did not acquire this information before trial.

More important, the testimony of Partin's two alleged confidants is not admissible evidence; it is inadmissible hearsay. It is the long-standing rule in this state that declarations to third persons against the declarant's penal interest, to the effect that the declarant, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused at his trial, Lyon v. State, 22 Ga. 399(1) (1857); Johnson v. State, 188 Ga. 662(1), 4 S.E.2d 813 (1939); Bryant v. State, 197 Ga. 641(9) (30 S.E.2d 259) (1944), or to procure a new trial on the basis of newly discovered evidence. Herrin v. State, 230 Ga. 476, 478, 197 S.E.2d 734 (1973). In Lyon v. State, supra, the court reasoned that if such admissions were allowed as evidence upon the trial of the accused, a person could subvert the ends of justice by admitting the crime to others and then absenting himself.

The defendant relies on two cases which he argues undercut this reasoning: Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d...