Taylor v. State

532 S.E.2d 669, 272 Ga. 562, 2000 Fulton County D. Rep. 2505, 2000 Ga. LEXIS 528
CourtSupreme Court of Georgia
DecidedJuly 5, 2000
DocketS00A1191
StatusPublished

This text of 532 S.E.2d 669 (Taylor 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
Taylor v. State, 532 S.E.2d 669, 272 Ga. 562, 2000 Fulton County D. Rep. 2505, 2000 Ga. LEXIS 528 (Ga. 2000).

Opinion

Hunstein, Justice.

Toma Wesley Taylor was convicted of malice murder in the shotgun killing of Robert M. Johnson. He appeals from the denial of his motion for new trial.1 Finding no error, we affirm.

1. The evidence adduced at trial authorized the jury to find that appellant and two friends, King and Lee, were driving around drinking beer, when the victim waved them down. There was evidence that appellant disliked the victim and had previously stated he was going to “mess [the victim] up.” A heated verbal argument began between the victim and Lee which ended after appellant fired his shotgun in the air. The four men left the victim’s house, with appellant and the victim in appellant’s truck followed by King and Lee in Kang’s truck. The men stopped in a secluded spot and a fight between the victim and Lee ended when Lee knocked the victim to the ground. As Lee was walking away, appellant reached into his truck, retrieved his [563]*563shotgun, and shot the victim as he struggled to get up. Expert testimony established that the victim died as a result of the shotgun blast fired from a distance between two to fifteen feet. Appellant then drove quickly away but wrecked his truck in a ditch. He and the other two men left in the other vehicle, dropped off Lee, got a chain, and returned with appellant’s brother to get the truck out of the ditch. Appellant’s brother went to look at the victim, returned to tell appellant that the victim was dead, and urged appellant and King to “do something with” the body. King, who until that time had been unaware appellant had actually shot the victim, refused to help dispose of the body. Instead, after dropping appellant off, King went to his cousin, who is a deputy sheriff, and told him what had happened. Appellant’s brother took appellant’s shotgun and threw it into a creek; he later showed police where to recover it.

In a statement to police appellant said the shooting was an accident and claimed that when he opened his truck door, the shotgun fell over and fired. A firearms expert, who examined the shotgun and determined it was the murder weapon, testified that he could not make the shotgun fire accidentally.

We find this evidence sufficient to enable a rational trier of fact to find appellant guilty of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by denying his motion for a new trial based on an improper communication between Chief Deputy Sheriff Bill Parker and the jury. The record reflects that at the conclusion of the trial, the court handed the evidence and indictment to the bailiff and the deputy sheriff, who was also a sworn bailiff for the court, and told them in the presence of counsel, and without objection by counsel, to deliver the items to the jury. Appellant saw the deputy sheriff entering the jury room with the evidence and made no objection. It is uncontroverted that the deputy sheriff, in the three minutes he was in the jury room, did not engage any juror in any discussion of the case. It is also uncontroverted that the deputy sheriff was not a witness or otherwise involved in the prosecution of the case.

Appellant contends that the deputy sheriff’s presence in the jury room by itself constituted an improper communication. Pretermitting appellant’s waiver of this error by failing to object when counsel saw the deputy sheriff entering the jury room, see generally Miller v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996), nothing in McMichael v. State, 252 Ga. 305 (4) (313 SE2d 693) (1984), on which appellant relies, supports his position that the presence in the jury room of a law enforcement officer who has not served as a witness for the State constitutes an impermissible communication. We find no merit in this enumeration.

[564]*5643. OCGA § 17-16-7 provides in pertinent part that

No later than ten days prior to trial or at such time as the court permits, . . . the prosecution or the defendant shall produce for the opposing party any statement of any witness that is in the possession, custody, or control of the state or prosecution or in the possession, custody, or control of the defendant or the defendant’s counsel that relates to the subject matter concerning the testimony of the witness that the party in possession, custody, or control of the statement intends to call as a witness at trial.

Appellant contends that the State violated OCGA § 17-16-7 and that the trial court should have granted his motion in limine regarding the testimony of ten witnesses. Six of the ten witnesses did not testify at trial and thus their statements were not subject to OCGA § 17-16-7, which by its terms requires production only of the statements of those witnesses whom “the party in possession, control, or custody of the statement intends to call as a witness at trial or at such post-indictment pretrial evidentiary hearing.” As to the remaining witnesses, the prosecution uncontrovertedly produced théir statements for defense counsel, who was given the opportunity to review and make notes from the statements.

Appellant, however, contends that reversible error was committed because defense counsel was not allowed to photocopy the witnesses’ statements. Unlike other discovery statutes, OCGA § 17-16-7 does not contain the express language requiring the party in possession, control or custody of the discoverable statement to allow the item to be photocopied. Compare OCGA § 17-16-4 (a) (1) (the State shall “make available for inspection, copying, or photographing” any statement by the defendant); id. at (a) (3) (State to permit defense to “copy or photograph” physical evidence); id. at (a) (4) (State to permit defense to “copy or photograph” scientific and medical reports).2 Nor [565]*565is there any language in OCGA § 17-16-7 comparable to its civil counterpart, OCGA § 9-11-34 (a), which provides that a party “may serve on any other party a request: (1) To produce and permit the party making the request ... to inspect and copy any designated documents.” See OCGA § 9-11-124 (form for motion for production of documents provides for production request and permission to inspect and copy requested documents); see also 27 CJS Discovery § 71 (“[u]nder a statute or rule expressly so providing, the court may order a party to permit the copying or photocopying of the document or thing in issue,” id. at 138).

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Miller v. State
475 S.E.2d 610 (Supreme Court of Georgia, 1996)
Bishop v. State
486 S.E.2d 887 (Supreme Court of Georgia, 1997)
McMichael v. State
313 S.E.2d 693 (Supreme Court of Georgia, 1984)
Stevens v. State
444 S.E.2d 840 (Court of Appeals of Georgia, 1994)
Lawson v. State
481 S.E.2d 856 (Court of Appeals of Georgia, 1997)

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Bluebook (online)
532 S.E.2d 669, 272 Ga. 562, 2000 Fulton County D. Rep. 2505, 2000 Ga. LEXIS 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-state-ga-2000.