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Docket Number

52467, 52498.

Attorney(S)

James E. Lundy, pro se (case no. 52467). Robert C. Ray, for appellant (case no. 52498). Lewis R. Slaton, District Attorney, Joseph J. Drolet, Donald J. Stein, Assistant District Attorneys, for appellee.

Judges

QUILLIAN, Judge.

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Smart Summary

Lundy v. The State (two cases) — Court of Appeals of Georgia, decided Sept. 10, 1976 (Quillian, Judge)

Docket Nos.: 52467, 52498. Submitted July 15, 1976. Trial court: Fulton Superior Court (Judge Wofford). Appellants: James E. Lundy (pro se) and appellate counsel Robert C. Ray (for case no. 52498). Appellee: Lewis R. Slaton, District Attorney, with assistants Joseph J. Drolet and Donald J. Stein.

Factual and Procedural Background

The defendant was convicted in Fulton Superior Court for unlawfully selling heroin to an undercover police detective, in violation of the Georgia Controlled Substances Act. The undercover detective sought out a person known to him only by the alias "Babe," whom he had seen two to three times before the attempted purchase. The detective recognized "Babe" across the street, asked whether he had anything to sell, and purchased two "decks" of heroin for $10. Arrest was delayed because the detective was conducting an ongoing plan to identify and seek out drug sellers while keeping his identity secret.

Some two or three weeks after the purchase, at police headquarters, the detective was shown approximately ten photographs for the purpose of determining the correct name of the person known as "Babe." He identified the photograph of the defendant.

Prior to trial the defendant's counsel filed a "Motion for Discovery and Inspection and Production of Evidence Favorable to the Accused." Counsel was shown the prosecution's file in the assistant district attorney's office; that file did not contain the photographs shown later to the detective. At that time counsel indicated the inspection satisfied the motion, and no hearing was requested; the motion was therefore never ruled on by the trial court.

On the morning of trial the assistant district attorney advised the court of the procedure used to determine the defendant's name. When the photographic identification was brought out at trial, the defendant moved to dismiss until a hearing could be held on the lineup/pictures; the court denied that motion. The defendant also later argued on appeal that the trial court failed to define "controlled substance" and the exceptions to the statute in its jury charge. The Court of Appeals affirmed the judgments of conviction.

Legal Issues Presented

Whether the trial court erred in failing to comply with the defendant's pretrial "motion for discovery and inspection and production of evidence favorable to the accused," specifically regarding photographs shown to the undercover detective (a Brady-type claim of suppressed evidence).
Whether the trial court erred by failing to define the term "controlled substance" and to explain statutory "exceptions" in the jury charge, when the defendant did not object or request additional instructions at trial.

Arguments of the Parties

Appellant's Arguments

The defendant contended the prosecutor had suppressed evidence favorable to the accused — namely the photographs shown to the undercover detective — and that disclosure of that material could have allowed the defense to question the identity of the seller. He argued this warranted either a hearing or dismissal until the matter could be adjudicated.
On appeal the defendant also argued that the trial court erred by failing to define "controlled substance" and to instruct on the statutory exceptions that might exempt a defendant from the Act.

Appellee's (State's) Position

The assistant district attorney produced the prosecution file for inspection; the photographs later shown to the detective were not in that file and there is no evidence of purposeful suppression by the State.
The State maintained that the identity of the seller was not in question, only the true name; the undercover detective had seen and recognized "Babe" on prior occasions, so the photographs used only to learn the name were immaterial and not favorable evidence under Brady.
Regarding jury instructions, the State pointed out the defendant made no contemporaneous objection or request for further instructions, and that the charge on the statutory elements was sufficient; any omission regarding exceptions could not have harmed a defendant who testified he was not involved in the sale.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chenault v. State, 234 Ga. 216	Referenced for the proposition that there is no Georgia statute or rule of practice allowing discovery in criminal cases.	Cited to support the statement that Georgia law does not provide a statutory right to discovery in criminal cases.
Nations v. State, 234 Ga. 709	Referenced for the proposition that the accused is not entitled as a matter of right to receive copies of police reports and investigation reports.	Used to show that routine disclosure of police investigative materials is not a matter of right under Georgia law.
Brady v. Maryland, 373 U.S. 83 (1963)	Principle that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment.	The court applied the Brady standard to evaluate whether nondisclosure of the photographs was material and prejudicial; it concluded no such prejudice occurred.
Moore v. Illinois, 408 U.S. 786	Holds there is no constitutional requirement that the prosecution make a complete and detailed accounting of all police investigatory work; and that certain evidentiary items (photographs shown to identify an alias) are not material under Brady.	The court treated Moore as controlling on the present facts, concluding the photographs would not materially impeach the eyewitness identification and therefore were not material Brady material.
Pass v. State, 227 Ga. 730	Used to support the Moore principle that the prosecution need not make a complete accounting of police investigatory work.	Cited to reinforce the point that nondisclosure of investigatory materials is not per se constitutional error.
Napue v. Illinois, 360 U.S. 264 (1959)	Condemns knowing use or suppression of false testimony or evidence by the prosecution.	The court found no knowing suppression of false testimony or evidence under Napue.
Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964)	Referenced in the context of Brady materiality and good/bad faith considerations.	Cited as supporting authority in the discussion of Brady and materiality standards.
Wisdom v. State, 234 Ga. 650	Stated that the defendant bears the burden of showing that denial of evidence so impaired his defense that he was denied a fair trial under Brady.	Applied to hold the defendant failed to meet the burden of showing the missing photographs so impaired his defense as to require reversal.
United States v. White, 450 F.2d 264 (5th Cir. 1971), cert. den. 405 U.S. 1072	Cited as authority on the burden to show materiality under Brady.	Used alongside Wisdom to support the proposition that the defendant failed to prove material prejudice from any nondisclosure.
United States v. Agurs, ___ U.S. ___, 19 Cr. L. 3159 (June 6, 1976)	Discusses a strict standard of materiality: suppressed evidence must create a reasonable doubt that did not otherwise exist to warrant a new trial; mere possibility of helpful evidence is insufficient.	The court quoted Agurs and applied its materiality standard, finding no reasonable doubt would have been created by disclosure of the photographs.
Spear v. State, 230 Ga. 74	Explains that despite some relaxation of preservation rules, a defendant must still request instructions or make timely objections to preserve jury instruction errors, except where omission is clearly harmful as a matter of law.	Cited to support the court's holding that the defendant could not raise on appeal an instruction omission when no request or timely objection was made at trial.
Welch v. State, 130 Ga. App. 18	Same principle as Spear regarding preservation of jury instruction issues.	Used to reinforce the proposition that failure to request or object at trial precludes appellate review absent clear harm.
United States v. Register, 496 F.2d 1072 (5th Cir. 1974), cert. den. 419 U.S. 1120	Cited in the context that omission to instruct on exceptions cannot harm a defendant who testifies he did not commit the act.	Applied to support the holding that even if the court erred in not charging on exceptions, no prejudice resulted because the defendant's own testimony denied participation in the sale.
United States v. Williamson, 482 F.2d 508 (5th Cir. 1973)	Same general point as Register regarding lack of prejudice where defendant's testimony negates the factual predicate for exceptions.	Cited to support the conclusion that omission of instruction on exceptions did not harm the defendant.
Martin v. State, 57 Ga. App. 346	Cited for the proposition that a charge stating the acts proscribed and the words of the statute can be sufficient.	Used to support the court's conclusion that the trial court's charge on the statute was sufficient in the absence of a request for further elaboration.
West v. State, 74 Ga. App. 453	Supports sufficiency of a statutory charge when no additional instructions are requested.	Cited as part of the authority confirming the adequacy of the jury charge given.
Stone v. State, 78 Ga. App. 555	Also cited in support of the sufficiency of a statutory charge under similar circumstances.	Applied as supporting precedent for the charge's sufficiency.
Caldwell v. State, 82 Ga. App. 480	Another authority cited for the adequacy of a charge that states the statutory elements.	Used to bolster the court's conclusion that the jury was properly instructed on the Acts' elements.

Court's Reasoning and Analysis

The court addressed the two main contentions in turn.

1) Discovery and alleged Brady violation: The court first observed the procedural posture: defendant's counsel filed a discovery motion, inspected the prosecutor's file in the assistant district attorney's office, and told the assistant that the inspection satisfied the motion; no hearing was requested and the motion was never ruled upon. The prosecutor had not included the photographs in the file that was shown to defense counsel.

The court found no evidence of purposeful suppression by the State. It emphasized that the issue was not identity of the person seen by the detective (the detective had recognized "Babe" from prior sightings), but only the true name, which the photographs were used to determine. The court characterized the photo display as neither a "lineup" nor a "showup" but simply an effort to discover the real name of a person already identified by sight and alias. The court reasoned that whether the detective was shown one or many photographs of dissimilar persons was immaterial to identifying a known individual.

The court acknowledged that Georgia does not provide for broad discovery in criminal cases and that the Brady rule governs the constitutional duty to disclose favorable, material evidence. Applying Brady and its progeny (including the materiality standard articulated in United States v. Agurs), the court required the defendant to show that nondisclosure of the photographs so impaired his defense that he was denied a fair trial. The court concluded the defendant failed to meet that burden: no reasonable possibility existed that the photographs would have affected the outcome or created a reasonable doubt about guilt. Moore v. Illinois was treated as directly controlling because it involved similar facts (photographs shown to identify an alias) and held such items were not material under Brady.

The court also noted there was no Napue-type knowing suppression of false testimony or evidence and cited authorities (Wisdom, White, Barbee) reinforcing that the defendant must show actual material prejudice. Given the evidence in the record — in particular the undercover detective's prior recognition of "Babe" and his positive identification at trial — the court had "no doubt as to defendant's guilt" and found the undisclosed photographs would not have affected the verdict.

2) Jury instructions on "controlled substance" and exceptions: The court observed that the defendant did not object to the instruction given nor request additional explanatory instructions at trial. It cited Georgia authority that, while somewhat relaxing the strict civil preservation rules for criminal cases, still requires a defendant to request instructions or make a timely objection to preserve such claims on appeal unless the omission is plainly harmful as a matter of law. The court further reasoned that any failure to instruct regarding statutory "exceptions" could not have harmed the defendant because the defendant's own testimony was that he did not meet the undercover detective, did not sell him anything, and was not a drug seller — facts which provided no theoretical basis for an exception to the unlawful sale statute to aid the defendant. The court concluded the charge, which set out the acts proscribed and the statutory words (Code Ann. § 79A-811), was a sufficient and correct statement of the law in the absence of a request for further elaboration.

Holding and Implications

Holding: The Court of Appeals affirmed the judgments of conviction. JUDGMENTS AFFIRMED.

Implications:

Direct effect on the parties: The defendant's convictions for unlawful sale of heroin were upheld and his appellate challenges — that the prosecutor suppressed favorable evidence (the photographs) and that the trial court failed to define "controlled substance" and exceptions — were rejected.
The Court applied the Brady materiality standard (as refined by Agurs and illustrated by Moore) and concluded nondisclosure of photographs used only to learn the true name of an already-identified person was not material and did not prejudice the defendant's right to a fair trial.
The opinion does not announce or claim to establish a new broad rule; it applies existing Georgia and federal precedents to the facts and finds no reversible error. The decision thus affirms the existing lines of authority regarding discovery limits in Georgia criminal cases, Brady materiality, and preservation of jury instruction claims when no timely request or objection is made.

Opinion by Quillian, Judge. Judgments affirmed. Deen, P. J., and Webb, J., concur.

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LUNDY v. THE STATE (two cases).

QUILLIAN, Judge.

Defendant appeals his conviction for the unlawful sale of heroin to an undercover police detective in violation of the Georgia Controlled Substances Act (Code Ann. Ch. 79A-8; Ga. L. 1974, p. 221 et seq.). Held:

1. The defendant contends that the trial court erred in failing to comply with his "timely motion for discovery and inspection and production of evidence favorable to the accused." We do not agree.

An undercover police detective sought out a person known to him only by the alias of "Babe." He had seen "Babe" on "two to three occasions" before the day he was to attempt a purchase of heroin. He saw "Babe" across the street, recognized him, and asked him "if he was straight . . . [meaning] if he . . . had anything he wanted to sell." The detective purchased two "decks" of heroin for $10. As this was a continuing plan to seek out all drug pushers and the detective did not want his identity known at that time, action was delayed on arresting the defendant. "Two or three weeks later" at police headquarters, the detective was shown "approximately ten photographs" for the purpose of determining the correct name of the person known as "Babe." The detective identified the photograph of the defendant.

Prior to trial, counsel for defendant filed a "Motion for Discovery and Inspection and Production of Evidence Favorable to the Accused." The certificate of service shows opposing counsel was served with a copy. The attached rule nisi and acknowledgment of service were not filled in. Defendant's counsel visited the assistant district attorney in his office and was shown the complete file. The file did not contain the photographs presented to the undercover detective when he attempted to determine the name of defendant. At the time of the inspection of the prosecution's file defendant's counsel was asked: "[D]oes that satisfy your motion?" Counsel said that it did. Thus defendant's counsel did not ask for a hearing on his motion and it was never ruled upon by the court.

The assistant district attorney was advised on the morning of the trial of the procedure followed to determine the name of defendant. When the information came to light during the trial defendant asked the court "to dismiss the present proceedings until the hearing can be held on the lineup and pictures shown to" the undercover detective. Defendant asserted that if he had known this information it would have allowed him "to question the identity because now what he has done is place my man on a one-to-one situation. I think the evidence possibly could have been favorable to the accused and it was purposely suppressed by the State." The defendant's motion was denied.

We find no evidence of purposeful suppression by the state. Neither can we determine how such evidence could be favorable to the defendant. The identity of defendant was not in question. Only his name was unknown. The undercover detective had seen and recognized "Babe" on several occasions. This was not a "lineup" or a "showup." Its sole purpose was to discover the name of a known drug seller. Whether the detective was shown one or one hundred photographs of completely dissimilar persons is immaterial in determining the name of an identified person known only by his alias.

There is no Georgia statute or rule of practice which allows discovery in criminal cases ( Chenault v. State, 234 Ga. 216 ( 215 S.E.2d 223)), nor is the accused entitled as a matter or right to receive copies of police reports and investigation reports made in the course of preparing the case against a defendant. Nations v. State, 234 Ga. 709 ( 217 S.E.2d 287). However, Brady v. Maryland, 373 U.S. 83 ( 83 SC 1194, 10 L.Ed.2d 215) (1963), has established a rule of law which holds that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 87.

We find no prejudice to the defendant in the procedure followed for a number of reasons. First, there is "no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case." Moore v. Illinois, 408 U.S. 786, 795 (92 SC 2562, 33 L.Ed.2d 706) (1972); Pass v. State, 227 Ga. 730 (12) ( 182 S.E.2d 779). Second, there was no knowing suppression of any false testimony or evidence condemned by Napue v. Illinois, 360 U.S. 264 ( 79 SC 1173, 3 L.Ed.2d 1217) (1959). Third, pretermitting the question of good or bad faith (Brady v. Maryland, 373 U.S. 83, 87; see also Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964)), even if there had been a suppression of evidence defendant would still have the burden of showing that the denial of these photographs to him "so impaired his defense that he was denied a fair trial within the meaning of the Brady rule." Wisdom v. State, 234 Ga. 650, 652 ( 217 S.E.2d 244); United States v. White, 450 F.2d 264 (5th Cir. 1971), cert. den. 405 U.S. 1072. This — he failed to prove on appeal. Fourth, in the U.S. Supreme Court's most recent treatment of a discovery issue, United States v. Agurs, ___ U.S. ___, 19 Cr. L. 3159 (June 6, 1976), they reviewed their earlier cases noting, "[i]n those cases the Court has applied a strict standard of materiality... Implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial... The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense... It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means the omission must be evaluated in the context of the entire record... If there is no reasonable doubt about guilt, whether or not the additional evidence is considered, there is no justification for a new trial." (Emphasis supplied.) We have no doubt as to defendant's guilt and the additional evidence would not have affected the outcome of the trial nor have created a doubt as to defendant's guilt.

In Moore v. Illinois, 408 U.S. 786, supra, among the items not produced after a demand by the defendant, was a photograph of the defendant which was shown to a government witness to determine whether that witness could identify a person known to him by the alias of "Slick." The witness identified the photograph of a person other than defendant as "the `Slick' I know." There the court held that "[t]hese evidentiary items are not material under the standard of Brady." 408 U.S. at 786. We find Moore controlling as to the instant case. The photographs not shown to defendant's counsel do not serve to impeach in any way the positive identification of defendant by the government witness. Moore v. Illinois, 408 U.S. 786, 796, supra. There is no merit to this enumeration of error.

2. The court charged the jury on the meaning of the Georgia Controlled Substances Act. Defendant did not object nor request additional instructions but now contends that the failure of the court to define the words "controlled substance" and what "exceptions" would exempt a defendant from the statute was error.

"While present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the giving of or the failure to give instructions to the jury (Ga. L. 1968, pp. 1072, 1078; Code Ann. § 70-207), this does not relieve him from the necessity of requesting instructions, or making timely objection in the trial court on the failure to give instructions, except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence." Spear v. State, 230 Ga. 74 (1) ( 195 S.E.2d 397); Welch v. State, 130 Ga. App. 18 (5) ( 202 S.E.2d 223).

As to defendant's contention that the court failed to define what "exceptions" might exempt him from the statute, suffice it to say that defendant testified that he was not a drug seller, he never met the undercover police detective, nor did he sell him anything. Defendant has advanced no theory how he might come under an exception to the unlawful sale statute if he did not sell the narcotics to the detective. Accordingly, even if it was error to fail to charge on the exceptions it could not have harmed the defendant who testified he took no part in the sale. United States v. Register, 496 F.2d 1072 (5th Cir. 1974), cert. den. 419 U.S. 1120; United States v. Williamson, 482 F.2d 508 (5th Cir. 1973).

The court charged the jury on the acts of the accused and the words of the statute proscribing the sale of a controlled substance. Code Ann. § 79A-811 (Ga. L. 1974, pp. 221, 243; 1975, pp. 1112, 1113). This is a sufficient and correct charge, and in the absence of a request for further elaboration, we find no prejudice to the defendant. Martin v. State, 57 Ga. App. 346 (1) ( 195 S.E. 313); West v. State, 74 Ga. App. 453, 458 ( 40 S.E.2d 156); Stone v. State, 78 Ga. App. 555, 557 ( 51 S.E.2d 578); Caldwell v. State, 82 Ga. App. 480 (3) ( 61 S.E.2d 543).

Judgments affirmed. Deen, P. J., and Webb, J., concur.