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Burton v. State

Court of Appeals of Georgia

December 18, 2014

BURTON
v.
THE STATE

Discovery. Richmond Superior Court. Before Judge Blanchard.

Trotter Jones, James S. V. Weston, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

ANDREWS, Presiding Judge. McFadden and Ray, JJ., concur.

OPINION

Andrews, Presiding Judge.

Following a jury trial, Samuel Burton was convicted on three counts of criminal damage to property in the first degree. He appeals following the denial of his motion for new trial, arguing that the trial court erred in denying his motions for a mistrial based on the State's discovery violations. For the reasons that follow, we affirm.

[330 Ga.App. 504] Viewed in the light most favorable to the jury's verdict, Maloney v. State, 317 Ga.App. 460 (731 S.E.2d 133) (2012), the evidence at

Page 511

trial showed that while Jerry Roberts was driving home from work in the early evening on Richmond Hill Road on February 18, 2011, a young man on the side of the road threw a brick at his 2004 Toyota 4 Runner and struck the vehicle, breaking the windshield on the passenger side and tearing the antenna. The impact of the brick caused Roberts to swerve and nearly strike an oncoming vehicle. Roberts turned around to follow the young man and called 911. As he followed the young man, Roberts saw him jump up and hit a crosswalk sign and then kick a large trash can into the road in front of an SUV. Roberts also saw the man yell at the occupants of a car as the car turned into a fire station. At trial, Roberts identified Burton as the man who had thrown a brick at his car.

On the same day, Toi Jackson was driving her 1999 Pontiac Grand Am on Richmond Hill Road with her 11-year-old daughter in the passenger seat when a young man threw a large brick or rock at her car, shattering the windshield on the passenger side. When the object hit her car, Jackson swerved to the other side of the road, but there was no oncoming traffic. Jackson turned around, drove up beside the man, and asked him why he threw the rock. Jackson testified that the man " just went ballistic" and started cursing and picking things up from the ground. Jackson called 911 and drove to a nearby fire station where she thought she would be safe. At trial, Jackson and her daughter identified Burton as the man who had thrown an object at Jackson's car.

Alice Foote was driving on Richmond Hill Road in her 2002 Toyota Echo on the date in question with her sister in the passenger seat of the car when a man wearing a yellow hooded jacket threw a rock at her vehicle and hit the windshield support, almost causing Foote to have an accident. Foote drove to a convenience store to call the police.

Deputy James Ouzts of the Richmond County Sheriff's Office responded to Foote's call. He met Foote, and she provided a description of the suspect as a black male, approximately five feet, eight inches tall and 160 to 170 pounds, wearing a yellowish or tan jacket and headphones. Deputy Ouzts instructed Foote to wait at the store while he attempted to locate the suspect. After leaving Foote, Deputy Ouzts received two more calls regarding incidents similar to the one Foote reported. Deputy Ouzts then encountered Burton in the road in front of Fire Station No. 6 holding pieces of broken concrete. Burton matched the description of the suspect, and Deputy Ouzts ordered [330 Ga.App. 505] him to the ground and took him into custody. Deputy Ouzts asked another deputy to summon Foote and her sister to the fire station. Foote and her sister testified that the person in custody in a police vehicle at the fire station was wearing the same clothing as the person who threw a rock at Foote's vehicle. Burton testified at trial and denied throwing objects at cars.

The record reflects that on direct examination, Foote testified that she gave a written statement once she arrived at the fire station. Similarly, Foote's sister stated that she gave a statement at the fire station. During his subsequent cross-examination of Deputy Ouzts, Burton's counsel asked him if he took any handwritten statements from witnesses, and Deputy Ouzts responded: " I believe there [were] two statements that were written and Ms. Foote, her passenger, I believe, filled out a statement." Deputy Ouzts stated that the statements should be with the report turned in to records but that he did not have them with him at trial. When asked if he had access to the statements, Deputy Ouzts responded that he could probably locate them. On redirect, Deputy Ouzts stated that the copy of the incident report turned over to the district attorney's office did not include any witness statements. The State then recalled Roberts, and on recross, Roberts stated that he gave a written statement to police in which he described the individual who threw a brick at his car. According to Roberts, he described the suspect as a black male wearing a yellowish hoodie and jeans who was about five feet eight inches tall and weighed approximately 150 to 160 pounds.

After Roberts testified the second time, the State rested its case, and Burton then moved for a mistrial based on the State's failure to provide written witness statements. ...


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