Smith appeals the denial of his motion for new trial after being tried and convicted by jury of burglarizing the Folkston Golf Club in Charlton County. OCGA § 16-7-1.
1. Smith first contends there was insufficient credible evidence to convict him of the crime beyond a reasonable doubt. The evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of
Jackson v. Virginia,
Gibson, an admitted accomplice, testified that Smith was involved in the burglary. Gibson claimed he knew nothing of the burglary but was merely asked by his friend, Maxwell, to drive to a road near the golf course. When Gibson and Maxwell arrived, Smith came out of the woods and loaded the car with an air compressor, a welder, a jigsaw, and other tools. Smith told Gibson to drive to his house where the equipment was unloaded. The jigsaw was left in Gibson’s car, and
The State called Lloyd to testify he had called Detective Jones of the Charlton County Sheriff’s Office about three weeks after the burglary and told Jones that Smith offered to sell him a welder and an air compressor stolen by Smith. Lloyd testified instead that he told Jones that Gibson, not Smith, contacted him and wanted to sell him a car full of tools. Detective Jones testified as to Lloyd’s prior inconsistent statement.
Pamela Smith, the defendant’s niece, was called to testify that she had seen a welder and an air compressor in Smith’s house, where she was living. She instead testified she told Jones she had not seen such items in the house. When recalled, Jones testified as to Pamela Smith’s original statement.
Davis testified on Smith’s behalf. He identified the stolen welder as having been sold to him by a black man he did not know and by a white man whom he had recognized. He stated neither Smith nor Gibson was the black man. Jones testified that Davis identified two persons in a photo lineup other than Gibson and Smith as the two men who attempted to sell him the welder stolen from the golf club.
“Conflicts in the testimony of the witnesses, including the [S]tate’s witnesses, is a matter of credibility for the jury to resolve. [Cits.] As long as there is some [competent] evidence, even though contradicted, to support each fact necessary to make out the [S]tate’s case, the jury’s verdict will be upheld. [Cit.]”
Searcy v. State,
2. Smith’s next enumeration also challenges the sufficiency of the evidence and is reviewed under that standard. He cites OCGA § 24-4-8, which provides that in “felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity
Gibbons v. State,
We find no Georgia case prohibiting conviction solely upon an accomplice’s testimony corroborated by Gibbons-type testimony. Cases that have addressed the issue of corroboration evidence under OCGA § 24-4-8 have favored a finding of sufficiency: “If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient. (Cit.) The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime. [Cits.]” (Punctuation omitted.)
Bradford v. State,
3. Smith enumerates as error that, in violation of
Brady v. Maryland,
(a) Smith contends the prosecution had information suggesting two individuals other than Smith and Gibson actually possessed and sold the stolen welder to Davis. The State had submitted Davis’s written statement to Smith before trial, but withheld the fact that Davis had identified in a photo lineup someone other than Smith as the man who tried to sell the equipment to him.
This error was not preserved for appeal. Smith objected on the basis of hearsay and not on the grounds of a
Brady
violation. A defendant may not raise an alleged
Brady
violation for the first time on appeal.
Carter v. State,
Even if properly preserved,
Brady
was not violated since it does not require
pretrial
disclosure of exculpatory material. It applies only to the discovery
after trial
of information which had been known to the prosecution but unknown to the defendant. See
Smith v. State,
Smith argues
Brady
is violated if the defendant is able to show that pretrial disclosure would have benefitted him and that the delayed disclosure denied him a fair trial. He cites
Dennard v. State,
Furthermore, the information is not exculpatory, since it shows only that two other
(b) Smith asserts the State committed an additional Brady violation by not following up on Gibson’s statement that he was at his girl friend’s house prior to the burglary of the golf club. Smith’s counsel contacted Gibson’s girl friend, Ford, after trial and discovered she had not been interviewed by the State. Ford’s post-trial affidavit stated Gibson was not at her house prior to driving to the pickup point. Smith maintains he was harmed in that he could not impeach Gibson with a pretrial statement from Ford which the State was obliged to obtain.
Brady
would be implicated only if the State had a duty to check with Ford to determine if Gibson was telling the truth on this point. Apparently, Gibson’s whereabouts prior to the burglary were of little or no importance to the State, so Ford simply was not contacted. “The State is under no requirement to conduct an investigation on behalf of a defendant. [Cit.]” (Punctuation omitted.)
Wright v. State,
4. The State was permitted to impeach Lloyd, its own witness, because he had made a previous contradictory statement to Detective Jones. OCGA § 24-9-81. Smith alleges the trial court erred in admitting a certified copy of an indictment, plea bargain agreement, and probation order for Lloyd for possession of a firearm by a convicted felon and for a drug charge. The weapons charge had been dismissed in exchange for a guilty plea to the drug charge, but the entire document was admitted into evidence without redaction.
A witness may be impeached by showing a conviction of a crime of moral turpitude.
Syfrett v. State,
As to the weapons charge, admitting the indictment was error since Lloyd had never been convicted of that crime; a conviction must be shown. Woods, supra. Smith argues the error was harmful in that the indictment and probation dealt with a completely different crime than that earlier acknowledged by Lloyd. Smith also argues that because Lloyd’s testimony was helpful to Smith and was challenged by a law enforcement officer, Lloyd’s credibility was critical, as evidenced by the jury’s difficulty on the issue of credibility of witnesses.
Prior to the State’s introduction of the document, Lloyd admitted on cross-examination that he had “been in trouble and got on probation,” and acknowledged he had handled “hot” merchandise in the past. Given that the document was cumulative of other evidence as to Lloyd’s character which he himself introduced, no harm occurred.
1
Since the information did not add measurably to impeachment, it is highly probable that it did not contribute to the jury’s verdict against Smith. Cf.
Stewart v. State,
The trial court found the request untimely, since Smith did not submit it until just before closing arguments. Uniform Superior Court Rule 10.3 requires, “All requests to charge shall be . . . submitted to the court ... at the commencement of trial, unless otherwise provided by pre-trial order; provided, however, that additional
requests may be submitted to cover unanticipated points which arise thereafter.” The issue of Gibson as an accomplice was not unanticipated. Refusing to give the requested charge was not error on this basis.
Gen. Warranty Corp. &c. v. Cameron-Hogan, Inc.,
Nor is this an instance “where there has been a substantial error in the charge which was harmful as a matter of law.” OCGA § 5-5-24 (c). The charges given essentially covered Smith’s requests, including instructions on OCGA § 24-4-8 and on the jury being the exclusive judge of credibility. If instructions substantially relate the principles in the requested charge, there is no reversible error.
Wright v. State,
6. Smith’s final enumeration is that the court erred in failing to grant a new trial on the basis of newly discovered evidence. “ ‘ “It is incumbent on a party who asks for a new trial on [this] ground ... 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.” [Cits.]’
Timberlake v. State,
With regard to Davis’s identification of the two men in the photo lineup, the standard is not met as to the first prong, since this evidence was disclosed at trial by Jones. Further, as discussed in Division 3 (a), Smith failed to exercise due diligence to ensure that the two other men were present to testify once they were identified at trial, and the information at issue is neither exculpatory nor material.
As to Ford’s affidavit, while her contradicting Gibson’s testimony on his whereabouts before the burglary did not come to light until after trial, as discussed in Division 3 (b), Smith failed to exercise due diligence to follow up when he heard the details. In addition, Ford’s affidavit would have been used solely to impeach Gibson, thus running afoul of the sixth part of the test.
The conditions necessary for granting a new trial were not present as to either piece of “newly discovered” evidence. Denial óf the motion for a new trial on this ground was proper.
Judgment affirmed.
Notes
Because we determine that admission of the document was harmless error, we do not address the issue of whether any portion of the document, such as the guilty plea on the drug charge, would have been admissible if inadmissible portions were redacted. See, e.g.,
Stewart v. State,