Jeffrey Cordell Owen was convicted in Cobb County Superior Court of the malice murder of Ted Stamm and of possession with intent to distribute more than one ounce of marijuana. 1
He was sentenced to life imprisonment on the malice murder conviction and ten years imprisonment on the possession with intent to distribute, to be served concurrently with the life sentence on the murder conviction. For the reasons that follow, we affirm.
1. When considered in the light most favorable to the verdict, we find that the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that Owen shot Stamm to gain possession of about 100 pounds of marijuana. We thus conclude that the evidence is sufficient to support Owen's convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Before the trial Owen filed several motions with the state requesting the disclosure of any agreements, deals, considerations, promises, or expectations of leniency between any state's witness, including Joe Tays and Robin Tays, and any state's agent, including the District Attorney's office, the Cobb County Police Department, the GBI, and any other law enforcement agency involved in the investigation, that might affect the credibility of any particular witness. In his third enumeration of error, Owen contends that the trial court erred in denying his motion for a new trial due to the failure of the prosecution to disclose audiotapes that he alleges contain evidence of plea arrangements and grants of immunity to Joe and Robin Tays. The state, on the other hand, responds that the taped conversations do not reveal that the detective made a deal with the Tayses, and that even if the detective did so, the failure to reveal the deal does not amount to reversible error.
The state is under a duty to reveal any agreement, even an informal one, with a witness concerning criminal charges pending against that witness, and a "failure to disclose such an agreement constitutes a violation of the due process requirements of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972)." Owens v. State, 251 Ga. 313 (1) (305 SE2d 102) (1983)
Our review of the tapes reveals that Joe and Robin Tays both expressed reluctance to testify that nearly 100 pounds of marijuana
had been stored in their garage without some assurance that they would not be prosecuted in either Gwinnett County, where they lived, or in Cobb County. The audiotape shows that Officer Hunton of the Cobb County Police Department told Joe Tays that
we've reached an agreement with your attorney, even if you don't use this attorney in the future, this attorney, you know, we've reached an agreement with him. There is no way, absolutely no way, that we could prosecute you for anything to do with this dope. Now, if I wanted to, I couldn't do it, irregardless of whether a letter is written or not, there is no way that I could do it or anybody else could do it, in Gwinnett County, in Cobb County, the GBI, the FBI, can't do it. That has been taken care of.
Officer Hunton made similar statements to Robin Tays in response to her statement that she needed an agreement not to be prosecuted before she spoke to him.
We conclude that the audiotape conversations with Officer Hunton and Joe and Robin Tays reveal the type of information that is required to be disclosed under Giglio and Brady, as evidence of this understanding between Officer Hunton and the Tayses would be relevant to their credibility. 2
See Patillo, 258 Ga. at 260.
However, a failure to disclose does not "automatically require a new trial. . . ." Giglio, supra, 405 U. S. at 154. Rather, reversal is required "only if the [undisclosed] evidence is material in the sense that its suppression undermines confidence in the outcome of the trial, i.e., "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, [473 U. S. 667, 682] (105 SC 3375, 3381 and 3384, 87 LE2d 481) (1985).
Patillo, 258 Ga. at 261.
We find that reversal is not required. First, Owen contends that the most damaging aspect of the Tayses' testimony was that they specified definitively that he put the marijuana in their garage on April 15. However, the Tayses were in fact very equivocal about the date that Owen placed the marijuana in their garage, stating that it could have been April 13, 14, or 15. They stated that it was possible it was April 15, but that they could not be sure. Further, Officer Hunton's representation to the Tayses that they would not be prosecuted was not contingent on the Tayses testifying favorably to the government or on the government being satisfied with the result of the prosecution of Owen. See Bagley, 473 U. S. at 683 (the fact that the witnesses stakes in the prosecution of Bagley were contingent on the government's satisfaction with the prosecution made evidence of the government's agreements with the witnesses critical to the jury's assessment of the witnesses' credibility). In addition, some of the Tayses' testimony, such as the fact that Joe Tays sold Owen a .22 caliber High Standard pistol the first week in April, was corroborated by other evidence. See Patillo, 258 Ga. at 261. 3
For these reasons, we conclude that a new trial is not required by the failure to provide the defense the audiotapes in question.
3. We find no merit to Owen's other enumerations of error, in which he contends that the trial court erred in permitting the state to introduce certain hearsay statements of the victim and that the trial court erred by failing to grant him a new trial based on newly discovered evidence.
Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Kenneth T. Israel, Assistant District Attorneys, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paige M. Reese, Assistant Attorney General, for appellee.