CARRUTH v. THE STATE

Supreme Court of Georgia1996-10-21No. S96A1403

267 Ga. 221476 S.E.2d 739

Summary · law.co

Holding. The trial court did not abuse its discretion in denying Carruth's motion to reopen the evidence, and the judgments of conviction and sentences are affirmed.

John Dexter Carruth was convicted by jury of malice murder and attempted armed robbery and received a life sentence for the murder and ten years for the attempted robbery. On appeal, Carruth challenged only the trial court's denial of his motion to reopen evidence after the prosecution's case concluded. Carruth sought to introduce a defense witness who would have testified that a prosecution witness made a prior statement identifying someone other than Carruth as the shooter.

The appellate court examined whether the trial court abused its discretion in refusing to reopen the evidence. The court found that the defense had adequate opportunity to identify the proposed witness before trial ended, since she was Carruth's first cousin and allegedly had family knowledge of the prosecution witness's inconsistent statements. The defense offered no explanation for failing to call her or investigate her availability earlier. Additionally, the late disclosure prejudiced the prosecution by preventing it from preparing rebuttal testimony.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a trial court abuses discretion by refusing to reopen evidence to allow late disclosure of impeachment testimony
Whether a defense's failure to identify a witness prior to closing evidence supports denial of a reopening motion
The relevance of prejudice to the prosecution when impeachment evidence is offered after the close of evidence

Procedural posture

Carruth appealed his convictions and sentences following denial of his motion for new trial, challenging only the trial court's refusal to reopen evidence to permit additional defense testimony.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Carley, Justice.

A jury found John Dexter Carruth guilty of malice murder and attempted armed robbery. After entering judgments of conviction, the trial court imposed a life sentence for the murder and a ten-year sentence for the attempted armed robbery. The trial court denied Carruth’s motion for new trial and he appeals from the judgments of conviction and sentences entered on the jury’s guilty verdicts.

During the trial, the State called Gary Harper as one of its witnesses. Harper testified that Carruth shot the victim. After the close of the evidence, but before closing arguments and the jury charge, Carruth moved to reopen the evidence so as to call Rosemary Harper as a defense witness. Ms. Harper had been in the courtroom and, after hearing Harper’s testimony inculpatory of Carruth, she contacted defense counsel and offered to testify that Harper had made a prior inconsistent statement implicating someone other than Carruth as the shooter. After conducting a hearing, the trial court denied the motion and that is the only ruling which Carruth enumerates as error on appeal.

Whether to reopen the evidence is a matter which rests within the sound discretion of the trial court. Carter v. State, 263 Ga. 401, 402 (2) (435 SE2d 42) (1993). A trial court’s ruling in this regard will not be reversed in the absence of an abuse of discretion. Page v. State, 249 Ga. 648, 651 (2) (c) (292 SE2d 850) (1982). Whether there has been a reversible abuse of discretion requires a consideration of the totality of the circumstances. Gresham v. State, 204 Ga. App. 540, 542 (2) (420 SE2d 71) (1992).

Decided October 21, 1996.

Donna L. Avans, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, Michael J. Bowers, Attorney General, Allison Goldberg, Assistant Attorney General, for appellee.

Here, the purported impeachment evidence did not relate to matters occurring only after Harper’s sworn testimony. Compare Hollins v. State, 133 Ga. App. 183 (1) (210 SE2d 354) (1974) (offer of State’s witness to impeach herself by recanting her prior testimony). Instead, Ms. Harper offered to impeach Harper by testifying to an inconsistent statement he allegedly made prior to testifying. Accordingly, it is only if the defense had no reason to know of Harper’s purported pre-trial inconsistent statement that Ms. Harper’s belated proffer truly could be characterized as a surprise which could not have been discovered prior to the close of the evidence. See Scott v. State, 166 Ga. App. 240, 241 (2) (304 SE2d 89) (1983). Ms. Harper was the first cousin of both Carruth and Harper and, according to her, Harper had “been telling the whole family the whole time the incident took place [Carruth] didn’t do it, [Carruth] didn’t do it. He been telling everybody, anybody and everybody.” However, Ms. Harper did not come forward when Harper first was identified as a witness for the State, rather than for Carruth. Even after hearing Harper’s actual inculpatory testimony, Ms. Harper still did not come forward until after the close of the evidence. Moreover, defense counsel offered no explanation why Ms. Harper or some other member of the family having knowledge of the purported exculpatory statement attributed to Harper had not been identified previously as a potential defense witness. See Johnson v. State, 254 Ga. 591, 597 (8) (331 SE2d 578) (1985); Killens v. State, 184 Ga. App. 717, 721 (5) (362 SE2d 425) (1987); Buffington v. State, 171 Ga. App. 919, 922 (6) (321 SE2d 418) (1984). According to the State, the delay in identifying Ms. Harper as a defense witness until after the close of the evidence left it without the means to rebut her proposed testimony. See Castell v. State, 250 Ga. 776, 790 (9) (301 SE2d 234) (1983). Under the totality of these circumstances, we find no abuse of discretion requiring reversal of the trial court’s denial of Carruth’s motion to reopen the evidence.

Judgments affirmed.

All the Justices concur.

The crimes were committed on March 14, 1994 and Carruth was indicted for those crimes during the April 1994 term of court. On October 18, 1995, the guilty verdicts were returned and, on that same day, the judgments of conviction were entered and the sentences were imposed. The motion for new trial was filed on October 25, 1995 and was denied on February 12, 1996. Carruth’s notice of appeal was filed on March 7, 1996 and the case was docketed in this Court on May 24, 1996. The appeal was submitted for decision on July 15, 1996.