Wilson v. State

• Decision Date: 24 June 1980
• Docket Number: No. 35987,35987
• Citation: 268 S.E.2d 895,246 Ga. 62
• Parties: WILSON v. The STATE.
• Court: Georgia Supreme Court

Page 895

268 S.E.2d 895

246 Ga. 62

WILSON v. The STATE.

No. 35987.

Supreme Court of Georgia.

Argued April 14, 1980.

Decided June 10, 1980.

Rehearing Denied June 24, 1980.

Vanderhoff & Jordan, Kenneth J. Vanderhoff, Jr., Lynwood D. Jordan, Jr., Cumming, for appellant.

Frank Mills, III, Dist. Atty., Arthur K. Bolton, Atty. Gen., William R. Hill, Jr., Asst. Atty. Gen., for appellee.

HILL, Justice.

This is a death case. From the presentation of the evidence the jury was authorized to find the following: The defendant, Joseph Wilson, Jr., and the Victim, George A. Knox, and the victim's girl friend, Patty Johnson, were involved one to another or all together in some sort of drug deal.

On the evening of February 23, 1979, the defendant told two witnesses that he was going to blow the victim away. At about 9:45 p. m. that night the defendant abducted the victim at gunpoint from Patty Johnson's house in Cobb County. The victim was in the house with Ms. Johnson and two of his friends when the defendant entered the house carrying a 12-gauge, sawed-off shotgun. He pointed the gun at the victim and said something to the effect that "You set me up", or "You put the heat on me." The victim denied the allegation. The two friends, David and Kenneth Burns, attempted to leave but the defendant pointed the shotgun at them. After being assured that these two knew nothing, the defendant permitted them to go. The defendant again pointed the shotgun at the victim and said, "Let's go." The victim attempted to take his jacket and a chain that he carried, allegedly for protection, but was told he wouldn't need them. The defendant and the victim left the house in the defendant's truck. The Burns brothers saw them come out of the house. Later that night the defendant talked with Ms. Johnson over the telephone and told her that the victim had been "taken care of." The defendant told her to get rid of the victim's jacket.

The victim's body was found the next morning in a field in Forsyth County. He had been shot by a 12-gauge shotgun blast between the eyes at close range. The evidence at the scene indicated that the body was found where the shooting occurred. A neighbor testified that she heard a shot at about 1 a. m. There were no other wounds on the body. The defendant was subsequently arrested, indicted, tried, and based primarily upon the testimony of Patty Johnson, David and Kenneth Burns and the investigating officers, was convicted of the murder of George A. Knox, the kidnapping with bodily injury of George A. Knox, and possession of a firearm during the commission of a crime. He was sentenced to death for the murder based on the statutory aggravating circumstance found by the jury, kidnapping with bodily injury to the victim. He was also sentenced to life imprisonment for kidnapping with bodily injury and to five years for possession of the firearm. ¹ The evidence was sufficient to convince a rational trier of fact of defendant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Prior to trial, the defendant filed a 12-paragraph "Motion for Discovery" stating that it was made under authority of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and other cited cases, and under authority of Code Ann. §§ 38-801, 38-802. This motion called for some items particularly (e. g., statement of Patty Johnson) and described some items generally (e. g., memoranda or reports of law enforcement officers from Forsyth, Cobb and Gwinnett Counties regarding the defendant and the case). The motion called for the production of these items at all pretrial hearings and at trial and asked that defense counsel be permitted to examine the documents or, if examination be denied, that the court conduct an in camera inspection of such documents and that counsel be permitted to examine exculpatory materials found by the court in the in camera inspection. ²

On June 13, 1978, the defendant filed a notice to produce calling for production pursuant to Code Ann. §§ 38-801, 38-802 of eight categories of specifically described items (some of which were listed in the earlier "Motion for Discovery") at a pretrial hearing set for the following day. Following that hearing, the court entered an order requiring the state to submit much of the requested material to the defendant for examination and requiring the district attorney and Forsyth County sheriff to submit their files to the court for an in camera inspection looking for exculpatory materials. The trial judge conducted the in camera inspection and initialed in red ink the materials he reviewed.

After the defendant examined the statements of Patty Johnson and David and Kenneth Burns, the defendant filed another notice to produce seeking to require the state to produce copies of those statements at any pretrial hearing and at trial.

1. The defendant has enumerated three alleged errors on the guilt-innocence phase of the trial. Two of these enumerations, with subparts, deal with the production of documents. In substance defendant complains that the trial court erred (1) in failing to provide the defendant with exculpatory material found during the in camera inspection, (2) in failing to find that the statements of Patty Johnson and David and Kenneth Burns were exculpatory, (3) in failing to furnish copies of the statements of Patty Johnson and David and Kennth Burns to defendant's counsel, and (4) in failing to make a record or inventory of the materials the court examined in camera or to require that they be deposited in the registry of the court, thereby depriving the defendant of the right of appellate review of the in camera inspection. ³

In Brown v. State, 238 Ga. 98, 101, 231 S.E.2d 65 (1976), this court held that, pursuant to Code Ann. § 38-802, the notice to produce provisions of Code Ann. § 38-801(g) are applicable in criminal cases. As was pointed out in Brown, 238 Ga. at 100, 231 S.E.2d 65, sections 38-801 and 38-802 of our Code are unrelated to disclosure of exculpatory materials pursuant to Brady v. Maryland, supra.

Notices to produce under Code Ann. § 38-801(g) can be used in a criminal case "to compel production of books, writing or other documents or tangible things in the possession, custody or control" of the opposite party, the State (district attorney and investigating officers), ⁴ for use at trial, or at a pretrial evidentiary hearing, where such books, etc., would be admissible and are needed for use as evidence on behalf of the defendant. ⁵ Natson v. State, 242 Ga. 618(5), 250 S.E.2d 420 (1978). Such a notice to produce may be quashed or modified if it is unreasonable or oppressive. Code Ann. § 38-801(b). A notice to produce cannot be used to enable defense counsel to examine, in advance of trial or evidentiary hearing, the contents of the district attorney's file. Natson v. State, supra. As was held in Natson, a notice to produce cannot be used in a criminal case to require the production of the district attorney's work product; reports, memoranda, and documents in the files of law enforcement officers; addresses and telephone numbers of the state's witnesses; or the names and addresses of other persons with knowledge of the facts. ⁶ As was pointed out in Stevens v. State, 242 Ga. 34(1), 247 S.E.2d 838 (1978), witness statements are not subject to notice to produce, although exculpatory witness statements are subject to disclosure under Brady v. Maryland, supra. Accord, Hamby v. State, 243 Ga. 339(2), 253 S.E.2d 759 (1979); Spain v. State, 243 Ga. 15(2), 252 S.E.2d 436 (1979).

Brady v. Maryland, supra, requires that, on motion for production of specific material, the defendant be furnished exculpatory information; i. e., information favorable to the defendant and material either to guilt or punishment. ⁷ Where a Brady motion is made and the prosecutor does not make the specified material available to defense counsel, the trial judge should make an in camera inspection of the material sought. Payne v. State, 233 Ga. 294, 296, 210 S.E.2d 775 (1974); Fleming v. State, 236 Ga. 434, 438, 224 S.E.2d 15 (1976); Watts v. State, 239 Ga. 725, 727, 238 S.E.2d 894 (1977). On motion by the defendant the material examined in camera should either be sealed and filed, Durham v. State, 239 Ga. 697(3b), 238 S.E.2d 334 (1977); or an inventory or record of the examined material made, so as to permit appellate review, Dickey v. State, 240 Ga. 634, 637, fn. 1, 242 S.E.2d 55 (1978). ⁸ Once the material is sealed or inventoried by the trial court, the appellate court can, upon the defendant's showing cause, exercise its discretion and call for the examined material.

In the case before us the defendant moved that the examined materials be sealed and filed for appellate review and we have ordered that those materials which the trial judge examined in camera be sealed and transmitted to this court under certificate of the judge as to whether the file contains all the materials examined by him. The trial judge had initialed the materials he examined and he has certified that to the best of his knowledge and belief those materials he examined, excluding any admitted into evidence during the trial, have now been transmitted to this court, together with other materials later placed in the files. In addition, the trial judge's certificate is supported by affidavits of the prosecuting attorney and the investigating officer. Subpart four (4) of defendant's enumeration of error, above (failure to make a record of the examined materials so as to permit appellate review), has been rendered moot. ⁹

We have examined the material furnished to us and find no exculpatory material, with one possible exception (not examined by the trial judge prior to trial). A Georgia Crime Information Center report reflects that one David Burns was convicted on four counts of dangerous drugs and bad check and was given three months probation and...