Opinion
68221.
DECIDED SEPTEMBER 13, 1984.
Aggravated assault. Bryan Superior Court. Before Judge Harvey.
Lloyd D. Murray, for appellant.
Dupont K. Cheney, District Attorney, Charles P. Rose, Jr., Assistant District Attorney, for appellee.
The defendant appeals his conviction for aggravated assault. Held:
1. The defendant contends he is entitled to a new trial because of newly discovered evidence. The defendant proceeded to trial with a co-defendant who, at the close of the State's evidence, pleaded guilty. It is contended that the co-defendant would now offer exculpatory testimony on behalf of the defendant. Originally, defendant's attorney represented both defendants. However, because of a potential conflict of interest, counsel for defendant withdrew as counsel for the co-defendant and another attorney represented him at trial.
OCGA § 5-5-23 is primary authority for the grant of a new trial based on the discovery of material evidence after a jury verdict. The requirements for a new trial based on newly discovered evidence have been so often reiterated we deem it superfluous to recite them herein. See Benefield v. State, 140 Ga. App. 727, 735 ( 232 S.E.2d 89); Timberlake v. State, 246 Ga. 488, 491 ( 271 S.E.2d 792).
The factual situation here closely resembles that of Highfield v. State, 163 Ga. App. 599 ( 295 S.E.2d 350), where defendant's brother, after entering a guilty plea, offered an exculpatory affidavit regarding the defendant. This court pointed out that the defendant was present at the scene of the crime (as was the defendant in this case) and the only issue was whether he participated. The holding there sustained the trial judge's denial of a motion for new trial.
Here, as in the Highfield case, 163 Ga. App. 599, supra, the defendant failed to meet the strict criteria prerequisite to obtaining the grant of a new trial based on newly discovered evidence.
2. The defendant filed three motions seeking discovery predicated on Brady ( 373 U.S. 83), Giglio ( 405 U.S. 150), and Jencks ( 353 U.S. 657).
Our cases hold that Jencks is applicable primarily in the Federal domain. Mahone v. State, 120 Ga. App. 234 ( 170 S.E.2d 48); Odom v. State, 156 Ga. App. 119, 120 ( 274 S.E.2d 117). Moreover, statements of witnesses in the prosecutor's file generally may not be reached under our rules of practice. Stevens v. State, 242 Ga. 34, 37 ( 247 S.E.2d 838). Here the trial judge conducted an in camera search for exculpatory material in the prosecutor's files and found nothing except that already revealed on cross-examination.
There being compliance with the essential elements of Tribble v. State, 248 Ga. 274 ( 280 S.E.2d 352), and defendant having failed to establish how his case was materially prejudiced, the denial of the three motions evinces no error.
Judgment affirmed. Birdsong and Carley, JJ., concur.