Upshaw v. State
| Decision Date | 20 November 1984 |
| Docket Number | 69204,Nos. 68809,s. 68809 |
| Citation | 324 S.E.2d 529,172 Ga.App. 671 |
| Parties | UPSHAW v. The STATE (two cases). |
| Court | Georgia Court of Appeals |
William D. Smith, Atlanta, for appellant.
Jack Upshaw, pro se.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Howard Goldstein, H. Allen Moye, Asst. Dist. Attys., for appellee.
Henry Lee Barnes and Jack Upshaw were convicted of delivering cocaine in violation of the Georgia Controlled Substances Act. Barnes' conviction was upheld in Barnes v. State, 168 Ga.App. 925, 310 S.E.2d 777. Upshaw's retained counsel filed an appeal in which he raised four enumerations of error. Defendant subsequently filed a pro se appeal in which he raised the same four enumerations of error. Thus, although the appeals have been filed as two separate cases, they contain the same factual circumstances and the same enumerations of error and will therefore be addressed in one opinion. Held:
1. Defendant filed a pretrial motion for discovery under the authority of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, in which he sought to compel disclosure of, among other things, "[t]he full names and addresses of all persons who have given information to the prosecuting attorney or law enforcement officers relating to the arrest of the defendant and the charges against him." Subsequently, after defendant's conviction of the crime in question, defendant brought a motion for new trial contending inter alia, that he was denied due process of law because the State failed to produce certain material information pursuant to his pre-trial motion for discovery. However, the court made an in camera inspection of the State's file before ruling on defendant's new trial motion, but having found no exculpatory evidence, the court denied defendant's motion. Defendant enumerates this denial as error. Specifically, defendant argues that the evidence adduced at trial disclosed that a certain third party was an active participant in the scheme to arrest or set up the defendant; that the State knew the name and address of this third party; that the State failed to disclose this third party's name and address pursuant to his pre-trial discovery motion; and that such failure to disclose on the part of the State denied him due process of the law. We disagree.
"The trial judge's discretionary ruling on the lack of exculpatory matter in the prosecution's file established that as a fact absent a counter-showing." Durham v. State, 239 Ga. 697, 700(3)(a), 238 S.E.2d 334. "[W]e will not call up the state's files for review unless the appellant can show cause, by showing that particular evidence was suppressed which was material." Barnes v. State, 157 Ga.App. 582, 588, 277 S.E.2d 916.
Defendant argues that error arises from the failure of the State to produce the "current name and address" of "Rick Dowdell ... an active participant in the scheme to arrest or set-up Defendant Upshaw." First, we note that the record indicates the existence of an individual identified as "Rick" but otherwise fails to support defendant's factual assertions. Defendant appears to be more knowledgeable in regard to this individual than the State. Secondly, the record fails to suggest that the prosecution's file contained any information in regard to Rick Dowdell (or if such a person actually exists). "[T]he state cannot be required to disclose something which it does not know." Lingerfelt v. State, 147 Ga.App. 371, 377(9), 249 S.E.2d 100. Also, defendant's Brady requests both prior to trial and post-trial were general in nature. Tribble v. State, 248 Ga. 274, 275, 280 S.E.2d 352. Finally, if in fact, as defendant argues, the "current name and address" of one "Rick Dowdell" has been suppressed, defendant has failed to show that such evidence was material in the constitutional sense. The proper standard of materiality is whether the omitted evidence creates a reasonable doubt that did not otherwise exist. United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342, supra. The Brady issue being resolved against defendant we do not reach the further issues argued by defendant in regard to Thornton v. State, 238 Ga. 160, 231 S.E.2d 729. This enumeration of error is without merit.
2. Defendant contends that the trial court erred in allowing the State to introduce evidence of his involvement in a cocaine sale some six days prior to the cocaine sale of which he was charged with the crime of delivering cocaine in the case sub judice. Defendant argues that by allowing the State to introduce evidence of his involvement in this prior criminal act, his character was improperly placed into evidence. We disagree.
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