Green v. State

368 Ga.App. 74

889 S.E.2d 190

GREEN v. STATE.

A23A0477

Court of Appeals of Georgia.

June 8, 2023

Gerard Bradley Kleinrock, Decatur, for Appellant.

Sherry Boston, District Attorney, Deborah D. Wellborn, Assistant District Attorney, for Appellee.

Pipkin, Judge.

Following a jury trial, Appellant William Darnold Green was convicted of aggravated assault and possession of a firearm during the commission of a felony. On appeal, Appellant argues that the trial court erroneously excluded certain evidence as a consequence of an alleged discovery violation. We agree, and, for the reasons that follow, we reverse the judgments of conviction and remand for a new trial.

1. When viewed in a light most favorable to the verdicts, see Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence adduced below established as follows. In late December 2015, the victim, Talon Green, was living at his grandparents’ residence in Decatur, Georgia. Appellant was also temporarily living at this house, along with his son, Christian. ¹ During the last week of the year, a party was held at the residence; by all accounts it was a large, raucous affair, with guests consuming alcohol, smoking marijuana, and gambling. In the days following the party, Appellant became aggravated with Talon, believing that he was disrespecting the house with on-going parties and a continuous stream of guests.

On the morning of December 30, while Appellant, Talon, and Christian were in the garage of the residence, Appellant and Talon got into a "heated" and "intense" exchange of words. Talon testified that, following the confrontation, Appellant pulled a pistol out of his waistband, aimed the firearm at his chest, and shot him. According to Talon, the gun did not go off during a physical confrontation or because the two men were "grappling"; instead, Talon told the jury that Appellant "had the gun at [his] chest, and bang." After being shot, Talon attacked Appellant, and Appellant shot him at least one more time.

The State also presented Christian as a witness. Christian testified that, after the verbal exchange between the two men, Talon attacked Appellant and that it was only after Talon "struck" Appellant that the gun "went off" and "fired off." According to Christian, Talon struck Appellant in the face and tried to choke him, and it was during the resulting "tussle" that Appellant was shot; Christian testified that Talon continued to fight Appellant after the initial shot and that additional shots rang out in quick succession. The State impeached Christian with his prior statement to law enforcement that Talon had hit Appellant only after Appellant had aimed the pistol at him. The jury learned that, shortly after the shooting, Christian had told authorities there was a delay between shots and that, after the first shot, Talon had asked Appellant to call for help, but, "in a midst of rage," Appellant had shot him again. Nevertheless, Christian maintained at trial that the shooting was "unintentional."

Appellant testified in his own defense. In his testimony, Appellant recounted that, while he and Talon "did have a few words," it was Talon who became aggressive and punched Appellant in the face "like he was trying to ... knock somebody out." Appellant testified that the two men fought ² and that he, Appellant, pulled the gun out of his pocket when Talon began choking him; in response, Talon threw him across the garage, and, Appellant says, it was then that "the gun went off." Appellant told the jury that the subsequent shots occurred after he was thrown; Appellant testified that he was "in the defense mode" and did not "know if [Talon] was trying to jump on [him] or if [Talon] was just coming to attack [him]." Appellant denied pointing the gun at Talon at any time before the shooting.

Like his son, Appellant was impeached with his previous statements to law enforcement. In statements made shortly after the shooting, Appellant told investigators that it was Talon who was armed -- indeed that Talon had tried to scare Appellant with the weapon before the two men started to fight -- and that the gun had gone off while Appellant was attempting to take the gun away from Talon.

Although not enumerated as error, we conclude that the evidence adduced at trial was sufficient to sustain Appellant's convictions. See, e.g., Lomax v. State , 319 Ga. App. 693, 694 (1), 738 S.E.2d 152 (2013).

2. Before trial, the State moved in limine to exclude "a handwritten note that [was] purport[ed] to have been written by [Talon] to [Appellant]." The State complained to the trial court that the defense had not produced the note until the morning of trial despite the parties having engaged in reciprocal discovery. The handwritten note, which Talon ultimately authenticated, states as follows:

Give Uncle [ ] William this[.] I forgive him[,] and I hope he forgives my attitude and smart attitudes. I know you didn't mean to shoot me. Just know out of everything I love you, you fought so hard to be where were [sic] you and your kids. P.S. I [ ] love you Uncle William.

The trial court reserved ruling on the issue.

Later, while cross-examining Talon, the defense brought the note to his attention, and Talon acknowledged that he had written the note in the days following the shooting. When the defense asked to have the note admitted into evidence, the trial court held a bench conference, during which the court expressed surprise that the note -- which had been written at some point between December 30, 2015, and February 16, 2016 -- had not been provided to the State by the time of the October 2017 trial. At the conclusion of the bench conference, the trial court stated that the note "ha[d] some time on it," and ultimately granted the State's motion to exclude the evidence on the basis of "a discovery violation." Now, on appeal, Appellant argues, among other things, that the trial court abused its discretion in this regard. ³ We agree.

"Once a criminal defendant opts into reciprocal discovery, the provisions of OCGA § 17-16-1 et seq. apply to the case, and the trial court has broad discretion to remedy violations of those provisions." (Citations omitted.) Phillips v. State , 347 Ga. App. 147, 151 (2), 817 S.E.2d 711 (2018). Specifically, OCGA § 17-16-6 provides, in relevant part, as follows:

If at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of this article, the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

(Emphasis supplied.) "Exclusion of evidence pursuant to OCGA § 17-16-6 is a particularly harsh sanction that should be imposed only where there is a showing of bad faith by the party that has failed to comply with its discovery obligation and prejudice to the other party." (Citation and punctuation omitted.) Parker v. State , 309 Ga. 736, 742-743 (4), 848 S.E.2d 117 (2020). We review the trial court's exclusion of evidence for abuse of discretion. Id. at 743, 848 S.E.2d 117.

Here, the trial court excluded the note merely on the basis of its age, without reference to either bad faith or prejudice, and the record does not support a finding of bad faith or prejudice. While the State argued in passing that it was necessarily bad faith for the defense to have failed to turn over the note during reciprocal discovery, the record is thin with respect to the note's history; Talon testified only that he gave the note to his grandmother , and the State vaguely alleged -- without any evidentiary support or explanation -- that "the defendant[ ] [has] had it, his girlfriend has had it, [d]efense witnesses have had it." In short, nothing in the record indicates when the defendant became aware of the note or was able to exercise control over it. ⁴

Moreover, even presuming that the mere possession of the note and the passage of time is sufficient to infer bad faith -- which it is not, see Phillips , 347 Ga. App. at 152 (2), 817 S.E.2d 711 -- neither the State nor the trial court ever mentioned the issue of prejudice. The State argues for the first time on appeal that it was prejudiced by the delayed disclosure because, according to the State, it was unable to investigate the circumstances of the note. However, the State never requested any additional time to investigate the note, and nothing in the record suggests that it could not have conferred with Talon concerning the note before trial.

Based on the foregoing, the trial court abused its discretion when it excluded the note without requiring the State to make a showing of bad faith and prejudice. See Phillips , 347 Ga. App. at 152 (2), 817 S.E.2d 711 ; Mitchell v. State , 326 Ga. App. 899, 901 (1) (a), 755 S.E.2d 308 (2014). This...