Burnett v. State

242 S.E.2d 79, 240 Ga. 681, 1978 Ga. LEXIS 807
CourtSupreme Court of Georgia
DecidedJanuary 24, 1978
Docket32684
StatusPublished
Cited by76 cases

This text of 242 S.E.2d 79 (Burnett v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnett v. State, 242 S.E.2d 79, 240 Ga. 681, 1978 Ga. LEXIS 807 (Ga. 1978).

Opinions

Bowles, Justice.

This appeal is from the conviction of Billy J. Burnett for the offense of murder. He was indicted in Hall Superior Court along with Larry Looney and Coy Michael Sullens for the malice murder of Colie Bowen. All defendants were tried separately, and we have previously affirmed the convictions of the co-defendants. Looney v. State, 240 Ga. 691 (1978); Sullens v. State, 239 Ga. 766 (236 SE2d 864) (1977).

[682]*682Statement of Facts

On September 1,1976, the body of a man identified as Colie Bowen was found in a wooded area off a dirt road in Hall County, Georgia. The deceased was 61 years of age and had been employed by the defendant’s father, J. C. Burnett, as a pulpwood cutter. The victim had six bullet wounds in his face and head, and three other wounds in the shoulder and hand. The examining pathologist testified that the victim was shot between six and ten times. There was powder tatooing around the wound under the left eye indicating that the gun’s muzzle had been fired less than three inches away.

At the trial of appellant, Hoyt Sullens, the father of co-defendant Mike Sullens and father-in-law of co-defendant Larry Looney, testified that he had loaned his station wagon to Looney the evening of August 31. Appellant Burnett left the witness’ trailer with Looney and Mike Sullens about 6 or 7 p. m. in the station wagon and returned an hour later.

Cathy Looney, wife of co-defendant Looney and sister of co-defendant Sullens, testified that when Burnett, Looney and Mike Sullens returned that evening to the trailer, Burnett told her he had "put the pedal to the metal” and killed "the old man.” Cathy Looney and her two small children then got into the car with the three defendants and drove to Burnett’s home where they told his mother about the murder. When the mother replied she did not believe it because it was too good to be true, appellant insisted upon showing her the body. Appellant Burnett, Looney, Mike Sullens, Cathy Looney, and appellant’s sister and brother then drove to the location where they viewed Bowen’s body lying on its right side. While in the car Mrs. Looney asked where the gun was, and one of the three men told her it was in the lake.

Freddie Joe Cristy testified that while he was riding with appellant and Looney on September 1, 1976, he asked if they had heard about Bowen’s murder. Appellant and Looney replied that they knew what had happened and proceeded to tell Christy that Bowen was drunk and had called appellant names. Further, the victim approached appellant to commit an unnatural sex act [683]*683which appellant refused to do. Upon the victim continuing to make sexual requests of appellant the latter got a pistol from the car and shot him. Sullens told Christy the gun was in the lake.

A Jackson-Denno hearing was held during the trial, at the conclusion of which the court ruled that two statements made by appellant to Detective Tony Carter on September 2, 1976, were admissible in evidence. Detective Carter also took a statement from appellant on September 2, 1976, in which appellant denied knowing anything about the victim’s death. On September 4,1976, appellant told Carter he had been too drunk to remember if he had been involved in a murder. Also on that date appellant gave a second statement to GBI Agent Walt Stowe, claiming that the three principals were taking the victim to town when Bowen made a sexual remark to Looney. Appellant stated that "they” shot Bowen and that Mike Sullens threw the gun in the lake.

Investigators were directed by Mike Sullen to an area of the lake where he had thrown the gun. The gun was recovered by a diver and found to contain six spent .22 shells. Ballistics tests showed that two bullets removed from the victim’s body were definitely fired from the gun and a third bullet was probably fired from the gun.

The defense presented several members of appellant’s family to testify in support of appellant’s contention that it was Looney who had murdered Bowen. Appellant testified in his own behalf and admitted that he, Looney and Sullens were taking Bowen to town, but placed the actual blame of the killing on Looney. He testified that Sullens later threw the gun into the lake. He testified about their plans to move the body after the shooting. He claimed that Cathy Looney offered him $2,500 to confess to the murder. He denied his statements to Christy and also denied portions of his statement made to Agent Stowe.

Enumerations of Error

Appellant assigned thirteen separate enumerations of error. We will deal with each assignment separately.

1. The trial court did not err in denying appellant’s motion for continuance based upon lack of adequate time to prepare a defense and prejudicial pre-trial publicity. [684]*684The record indicates that on September 16, 1976 counsel was appointed to represent appellant. The case came on for trial on October 12, 1976, at which time appellant’s counsel filed his motion for a continuance. Following his appointment, counsel for appellant had personally attended the co-defendants’ trials, and had an opportunity to preview the expected testimony of the state’s witnesses against appellant. Notwithstanding, appellant’s counsel requested the delay in the proceedings so that he could obtain a copy of the trial transcripts to assist in his representation of appellant.

Such motions for a continuance predicated on the basis that counsel had not had sufficient time to prepare for trial address themselves to the sound discretion of the trial court, and the ruling of the trial judge in denying a motion for a continuance will not be interfered with unless the court has abused its discretion in denying the motion. Brawner v. State, 221 Ga. 680 (146 SE2d 737); Shaw v. State, 239 Ga. 690 (238 SE2d 434) (1977). See also Chenault v. State, 234 Ga. 216, 221 (215 SE2d 223) (1975).

In his motion for continuance appellant also argued that because of certain adverse newspaper articles concerning appellant’s trial and his co-defendants’ trials a level of local prejudice attached, denying him the right to a fair trial. However, appellant made no showing that a fair and impartial trial could not be obtained in Hall County, nor did he show that the jurors selected had read the inflammatory newspaper articles or . that they had formed an opinion as to guilt or innocence of appellant from having read these newspaper articles. Absent such a showing, his motion for continuance for that reason was properly denied. Krist v. Caldwell, 230 Ga. 536 (2) (198 SE2d 161) (1973); Jarrell v. State, 234 Ga. 410, 416 (216 SE2d 258) (1975); Dobbs v. State, 236 Ga. 427, 429 (224 SE2d 3) (1976).

2. Appellant contends that the trial court’s refusal to grant appellant’s motion for discovery and inspection was error. Counsel for appellant, prior to trial, filed his motion for discovery based upon Brady v. Maryland, 373 U. S. 83, seeking, inter alia, written statements of all persons who had been interviewed by the police in connection with this case. The statement of Cathy Looney, wife of Larry [685]*685Looney, a co-defendant, was specifically requested.

Counsel for appellant admits that the state had permitted him to look over the transcribed statement of Cathy Looney which was in the prosecution file.

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Bluebook (online)
242 S.E.2d 79, 240 Ga. 681, 1978 Ga. LEXIS 807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnett-v-state-ga-1978.