Waters v. State

247 S.E.2d 555, 146 Ga. App. 813, 1978 Ga. App. LEXIS 2540

Opinion

Banke, Judge.

The defendant appeals his conviction of voluntary manslaughter. Held:

1. The defendant enumerates as error the trial judge’s failure to instruct the jury on the defense of justification. The attorney representing the defendant at trial stated in response to inquiry by the judge that he had no objection to the charge as given, and there is no indication in the record that he requested a charge on justification. Under these circumstances, omission of the charge did not constitute reversible error. See Hill v. State, 237 Ga. 523 (3) (228 SE2d 989) (1976); White v. State, 146 Ga. App. 810 (4) (1978).

2. Relying on United States v. Agurs, 427 U. S. 97 (96 SC 2392, 49 LE2d 342) (1975), the defendant enumerates as error the prosecutor’s failure to disclose, without request, an allegedly exculpatory statement contained in the police file. He claims the statement proves he did not have possession of the pistol, thereby supporting his testimony that the victim was the protagonist.

Argued June 6, 1978 Decided July 10, 1978. Garland, Nuckolls, Radish, Cook & Weisensee, Mark J. Radish, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. David Petersen, Jerry Baxter, Assistant District Attorneys, for appellee.

The statement referred to¹ is ambiguous; and, under the Agurs decision, there is no duty on the prosecutor to disclose information simply because it might be of aid to the defense. There was no violation of the defendant’s due process rights because the omitted evidence fails to create ". . . a reasonable doubt that did not otherwise exist.” United States v. Agurs, supra, p. 112.

Judgment affirmed.

Deen, P. J., and Smith, J., concur.

1 "The gun belonged to Bill and he had given the gun to W. T. after they came in the house. I first saw the gun, Bill had about five minutes after he had been in the house and he pulled it out of his left coat pocket and pointed it at me and threatened me. W. T. was trying to hold down trouble and he asked Bill for the gun and he later tried to get it back, but they left.”