In 2008, a Jones County jury found appellant Robert Danenberg guilty of malice murder arising out of the 1988 fatal shooting of Deborah Penland Lamb.
1. The State presented evidence that appellant was estranged from his wife in 1988 and that she took their infant child with her to Jones County to stay with friends, Carey and Deborah Penland Lamb. Appellant drove his mother’s red Suzuki Samurai to the Jones County home of the Lambs in November 1988 to visit his child. While there, he shot Deborah Lamb multiple times in front of her three- and five-year-old sons while she was sitting in a chair and holding Danenberg’s infant son. The medical examiner who performed the autopsy testified that Mrs. Lamb died as a result of the gunshot wounds to her head, with a gunshot wound to her chest a secondary cause of death. A person identifying himself as Bob Danenberg called for emergency help and told responding personnel that he had shot the victim. Wipings of appellant’s hands tested positive for gunshot residue. The evidence was sufficient to authorize the jury to find appellant guilty beyond a reasonable doubt of the malice murder of Deborah Lamb. Jackson v. Virginia,
2. Appellant contends the trial court wrongfully denied him his constitutional right to represent himself at trial. See Faretta v. California,
After excusing prospective jurors for lunch on November 13, 2008, the first day of voir dire in appellant’s trial, the trial court placed on the record its receipt of a communication from appellant in which the trial court was made aware of appellant’s desire to dismiss
3. Appellant contends the trial court erred when it allowed the State to play for the jury videotapes of the 1988 interviews conducted by the Jones County sheriff’s investigator of the victim’s young children, ages three and five, two days after the victim was killed. Grown men at the time of appellant’s 2008 trial, the victim’s two sons testified. Mrs. Lamb’s younger son remembered nothing but Mr. Danenberg walking into and then exiting the house. The older son recalled that “Dale,” who was Mr. Danenberg’s estranged wife, and her infant son were living with the Lambs; that his mother was sitting in a chair while she bottle-fed the infant and talked on the phone; that his mother requested he look out the window and report what he saw; that he told her Dale was being chased around a vehicle; that Mr. Danenberg came into the house and pointed a pistol at his mother, said something, and fired the gun; and that he and his young brother found a place to hide under the couch cushions in the living room and then hid under the baby’s crib in a bedroom, where they were found by Dale and removed from the scene. The older son’s testimony was interspersed with his statement that he could not recall certain details. Defense counsel did not cross-examine either of the victim’s sons. Citing Manning v. State,
4. Appellant contends the trial court abused its discretion when it allowed a pharmacologist to be called as an expert witness for the State despite the fact that the State purportedly had violated OCGA § 17-16-4, the reciprocal discovery statute, by failing to list the pharmacologist as an expert witness and failing to provide defense counsel with a summary of the expert’s oral report. See OCGA § 17-16-4 (a) (4). The trial court recessed in order for defense counsel to interview the expert witness, after which defense counsel, the assistant district attorneys, and the trial court discussed the matter outside the presence of the jury. Appellant’s trial counsel agreed to the trial court’s suggestion that the State’s witness be treated as a rebuttal witness testifying out of order.
5. Appellant contends the trial court denied him his constitutional and statutory right to testify in his own defense (see Mobley v. State,
“[T]he right to testify on one’s own behalf in defense to a criminal charge is a fundamental constitutional right” (Rock v. Arkansas,
6. Appellant contends the trial court abused its discretion when it denied the request for continuance made by defense counsel on the opening day of trial. Counsel’s request was based on: the State’s production, 35 days before trial commenced, of over 11,000 pages of appellant’s medical records,
“All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require. . . .” OCGA § 17-8-22. Since a motion for continuance is addressed to the sound discretion of the trial court, the trial court’s refusal to grant a continuance will not be disturbed on appeal absent a clear abuse of discretion. Blackshear v. State,
7. Appellant contends the trial court erred when it permitted the State to present “similar transaction” testimony from two witnesses who were not listed on the notice of intent to present such evidence (see Uniform Superior Court Rule 31.3) and were not part of the pre-trial hearing on the issue of similar transaction evidence. We conclude that the trial court’s failure to strike the testimony, summarized below, was not an abuse of discretion as the incidents to which the witnesses testified did not qualify as “similar transactions” since they were not sufficiently similar to or connected with the fatal shooting of the victim “so that the proof of the former tends to prove the latter.” See Reed v. State,
(a) The first witness was an attorney who employed appellant in the mid-to-late 1980s. He testified that he had terminated appellant’s services after appellant had told him he had carried a loaded gun into a local courthouse and a courthouse employee had reported to the witness that appellant had “badgered” a witness who was leaving the courtroom after appellant had lost the case. The witness also testified that appellant had told him he had been “thrown out” of a local weight-lifting gym and had suggested to another attorney in the office that he take steroids. After the defense declined to cross-examine the witness, counsel and the trial court engaged in a bench conference at which defense counsel described the witness’s testimony as similar transaction evidence not raised in the pre-trial notice and sought an instruction to the jury that they disregard it.
(b) The second witness was a man employed as an assistant to appellant’s mother in her real estate business from June 1988-2000, who testified that he saw appellant in the office several times a week and described him as having a temper. The witness stated that, shortly after the victim was killed in 1988, he was instructed by his employer to remove appellant’s personal items from the office’s basement apartment and discard the items in a trash receptacle in another residential complex in which appellant’s mother had an interest. The witness testified that appellant’s mother owned a red Suzuki Samurai that was equipped with a cellular telephone in 1988, that appellant’s mother had described appellant as very bright and as having a temper and that, in talking with the witness about the murder charge against appellant, she had told the witness she did not think her son was guilty because “they had pushed him too hard” by trying to keep his son from him and the victim “deserved it or got what she deserved.”
8. When, as in this case, a defendant files notice of an insanity defense, OCGA § 17-7-130.1 requires a trial court to appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at trial after presentation of evidence by the State and the defense. Both the prosecution and the defense are entitled to cross-examine the court-appointed witness at trial and to introduce evidence in rebuttal of the testimony of the witness. Id. The court-appointed medical expert is “an independent and impartial witness” who “cannot be classified as an agent of the state____” Tolbert v. State,
Appellant contends in conclusory fashion that the statutory procedure violates due process and the separation of executive and judicial powers because the appointed expert was an employee of the executive branch at Central State Hospital, was appointed at the suggestion of the assistant district attorney and testified, when cross-examined by the State, “as though she were another prosecution
Judgment affirmed.
Notes
Mrs. Lamb was killed on November 13, 1988, and appellant was arrested shortly thereafter. In 1989, after the State filed notice of intent to seek the death penalty, appellant pled guilty to charges of malice murder and aggravated assault and was sentenced to life imprisonment and a term of years. Appellant’s petition for a writ of habeas corpus was granted in 2005 when the habeas court found appellant’s trial counsel had provided ineffective assistance in failing to investigate possible side effects of medication Danenberg had been taking at the time of the crimes, and for operating under a conflict of interest when, at the time of the plea, trial counsel was also representing the district attorney in an unrelated matter concerning his exercise of peremptory challenges. This Court affirmed the grant of relief due to the conflict of interest. Howerton v. Danenberg,
In agreeing to the trial court’s suggestion, defense counsel observed that the defense would learn the content of the rebuttal testimony prior to the defense presenting the testimony of its expert, a point the trial court described as being to the defense’s advantage.
After the State had rested, appellant stated his interest in making a statement of apology and remorse to the victim’s family that did not subject him to cross-examination. The trial court denied his request.
The State turned over the documents to appellant’s attorneys on the same day the State received the documents from Central State Hospital.
Two of the fifteen “new” witnesses testified at trial, and the two witnesses were retired scientists who, as employees of the Georgia State Crime Lab, had done tests (lifting fingerprints from a Colt .45 and testing handwipings for gunshot residue) on material submitted to them. No fingerprints with value for comparison purposes were found, and the handwipings tested positive for gunshot residue. The defense did not cross-examine either witness.
The witness was permitted to testify to the contents of his employer’s out-of-court statements after it was ascertained that the witness was under subpoena and was going to he called as a witness by either the State or the defense.