Opinion
A93A0237.
DECIDED FEBRUARY 26, 1993.
Aggravated assault. Polk Superior Court. Before Judge Cummings.
Mundy Gammage, Miles L. Gammage, for appellant.
William A. Foster III, District Attorney, Donald N. Wilson, Blanchette C. Holland, Assistant District Attorneys, for appellee.
Defendant Pope appeals his conviction of the offense of aggravated assault. Held:
The sole enumeration of error alleges a violation of defendant's rights as stated in Brady v. Maryland, 373 U.S. 83 ( 83 SC 1194, 10 L.Ed.2d 215), in that the trial court refused to order that defendant be permitted to examine the pre-trial statement of a State's witness. "Brady v. Maryland, 373 U.S. 83, 87, [supra] and Moore v. Illinois, 408 U.S. 786 [(92 SC 2562, 33 L.Ed.2d 706)] (1972), ruled that due process was violated where the prosecution suppressed requested evidence which was favorable to the accused and material either to guilt or punishment. Our cases require that to prevail on such a point, an appellant must indicate the materiality and the favorable nature of the evidence sought. Pryor v. State, 238 Ga. 698, 706 ( 234 S.E.2d 918) (1977); McGuire v. State, 238 Ga. 247, 248 ( 232 S.E.2d 243) (1977); Wisdom v. State, 234 Ga. 650, 652 ( 217 S.E.2d 244) (1975); Hicks v. State, 232 Ga. 393, 396 ( 207 S.E.2d 30) (1974)." Stevens v. State, 242 Ga. 34, 35 (1), 36 ( 247 S.E.2d 838). In the case sub judice, defendant has failed to carry this burden. Indeed, defendant's trial counsel stated that he did not know whether the statement in issue was exculpatory or not. While appellate counsel now contends that the statement at issue was exculpatory, no particulars are provided such as might satisfy defendant's burden. "`Georgia law does not provide that statements given prior to trial by key prosecution witnesses be generally made available for discovery by the defendant in a criminal case.' Walter v. State, 256 Ga. 666, 668 ( 352 S.E.2d 570). It is well-recognized that ` Brady does not require the prosecution to open its files for general inspection by the defense or for pre-trial discovery.' Hicks v. State, 232 Ga. 393, 396 ( 207 S.E.2d 30); Julian v. State, 134 Ga. App. 592 (3) ( 215 S.E.2d 496)." Boatright v. State, 192 Ga. App. 112 (2), 113 ( 385 S.E.2d 298). Defendant having failed to show any type of Brady violation or prejudice arising therefrom, the enumeration of error is without merit. Cromer v. State, 253 Ga. 352, 358 (6) ( 320 S.E.2d 751); Brown v. State, 201 Ga. App. 98 (1) ( 410 S.E.2d 196). Judgment affirmed. Cooper, J., concurs. Beasley, J., concurs in judgment only.