Allen v. State

196 S.E.2d 660, 128 Ga. App. 361, 1973 Ga. App. LEXIS 1480

• Court: Court of Appeals of Georgia
• Decided: March 1, 1973
• Docket: 47510, 47511
• Status: Published

Opinions

Hall, Presiding Judge.

It is well settled that evidence of an expectation of leniency by a prosecution witness who is or could be charged or convicted of a crime is relevant to the question of his credibility. 62 ALR2d 610-668. The issue here involved the extent of the duty owed by a prosecutor to disclose information he has concerning such an expectation.

In our opinion this case is controlled by Giglio v. United States, 405 U. S. 150, 153 (92 SC 763, 31 LE2d 104) which states: "As long ago as Mooney v. Holohan . . . this court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with 'rudimentary demands of justice.’ This was reaffirmed in Pyle v. Kansas ... In Napue v. Illinois ... we said, 'the same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears’. . . Thereafter Brady v. Maryland ... held that suppression of material evidence justifies a new trial 'irrespective of the good faith or bad faith of the prosecution.’ . . . When the 'reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule. ... A new trial is required if 'the false testimony could ... in any reasonable likelihood have affected the judgment of the jury. . . .’ Napue v. Illinois, supra. .. [W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. . . . Here the Government’s case depended almost entirely on Tal-, iento’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento’s credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.” Giglio, supra, p. 108.

Taylor knew of the prosecutor’s promise of leniency through his attorney, yet he denied on cross-examination that he had been promised anything. The true facts did not emerge until after the trial. The state contends that Giglio is distinguishable on the ground that here the prosecutor did not know that the promise had been relayed to the witness by his attorney contrary to the prosecutor’s instructions. In view of the fact Giglio and Brady hold that the good faith of the prosecutor is immaterial, we fail to see any distinction. As we read Giglio, evidence of any understanding or agreement as to future prosecution of an accomplice, on whose testimony the state’s case almost entirely depends, is relevant to his credibility; the jury is entitled to know of it; the prosecutor has a duty to disclose it; and the failure to make this disclosure violates due process and requires the reversal of the conviction and a remand for a new trial.

The holding here means simply that prosecuting attorneys cannot do indirectly (promise the witness’s attorney) what they cannot do directly (promise the witness himself). Even if an attorney does not relay the actual promise to his client, his tactical advice to his client will, of course, be affected by his knowledge of it. The mandate of the Supreme Court of the United States cannot be circumscribed by a patent subterfuge. The way to insure swift criminal justice and a valid conviction is for the state to disclose to the jury evidence of any understanding or agreement as to the future prosecution of a witness. Where this evidence is withheld from the jury, the conviction will be in jeopardy.

The state contends that even if Giglio requires disclosure by the prosecutor, his failure does not require a reversal because there was sufficient independent proof to sustain the conviction. It is true that failure to disclose does not automatically require a new trial. However, a new trial is required if the evidence is material and could in any reasonable likelihood have affected the judgment of the jury. Taylor was the sole eyewitness testifying for the state to the aggravated battery. It follows that there is a reasonable likelihood his evidence could have affected the judgment of the jury. The court erred in denying the motions for new trial.

Judgments reversed.

Bell, C. J., Eberhardt, P. J., Deen, Evans, Clark and Stolz, JJ., concur. Pannell and Quillian, JJ., dissent.