Opinion
S95A1640.
DECIDED NOVEMBER 6, 1995. RECONSIDERATION DENIED DECEMBER 4, 1995.
Discovery; expert opinion evidence. Richmond Superior Court. Before Judge Overstreet.
George B. Snelling, Jr., Elizabeth C. Calhoun, for appellant.
Daniel J. Craig, District Attorney, Barbara A. Smith, Assistant District Attorney, for appellee.
The State is seeking imposition of the death penalty against Robert Eugene Fielding for the murder of Mary Stewart, an employee of the Department of Family and Children's Services in Augusta, Georgia, where Fielding worked as a maintenance supervisor. We granted Fielding's application for interim appeal pursuant to OCGA § 17-10-35.1 to consider whether an order of the trial court regarding discovery by the prosecution comports with Rower v. State, 264 Ga. 323 (5) ( 443 S.E.2d 839) (1994). We hold that it does not.
Fielding was also indicted for robbery in connection with the murder.
The trial court, relying upon Sabel v. State, 248 Ga. 10, 18 ( 282 S.E.2d 61) (1981), issued an order requiring Fielding to have the opinions of all experts whom he intends to call at trial reduced to writing and to supply those opinions to the State at least ten days prior to trial. For the reasons set forth in our opinion in Johnson v. State, 265 Ga. 833 ( 463 S.E.2d 123) (1995), we hold that the trial court's order is overbroad and in clear violation of the rule articulated in Rower. Because the trial court's order is in error to the extent that it requires the defense to reduce unwritten opinions to writing and to produce written reports which it does not intend to introduce at trial, we remand the order to the trial court with direction to modify the order to comport with Rower. Reversed and remanded. All the Justices concur.
DECIDED NOVEMBER 6, 1995 — RECONSIDERATION DENIED DECEMBER 4, 1995.
I concur fully in the majority's opinion. I write separately to address the admissibility of the prior robbery and murder. Although the majority did not consider this a significant issue, I believe the trial court erred in determining that Fielding's shooting of a gas station attendant during a robbery 25 years ago is admissible and I would reverse on this issue as well.
The state's argument that the similarities between the present case and the prior murder are "chilling" and show "criminal signature" is utter nonsense. Even if the number of similarities were dispositive, only prosecutorial overreaching can explain the state's claim that numerous significant similarities exist between these incidents. When Fielding was 17 years old, he and three other youths robbed a secluded gas station in the middle of the night and Fielding shot the attendant. Having served 20 years in prison for that crime, Fielding was employed as supervisor of the cleaning crew at the DFACS office where the victim worked. The state's theory is that the victim was killed in some unknown manner at her office while working late and that her body was left in a trash dumpster outside the DFACS office. Committing a murder at the very place you are employed while others might be around is completely dissimilar to targeting a secluded gas station.
Farley v. State, 265 Ga. 622, 624 (1995) (test of admissibility is not number of similarities between incidents).
The state's "analysis" of the robbery aspects of the two crimes is also unpersuasive. Gas stations are targets of robbery because they are known to have cash on the premises and robbery was clearly the motive in the prior incident. The facts of this case, however, do not suggest that robbery was the primary motive. While jewelry the victim was wearing was taken, there is no evidence that the victim's car, cash, checkbook, or credit cards were taken.
The trial court must exclude evidence of an independent crime "unless the prejudice it creates is outweighed by its relevancy to the issues on trial." Because the state's strained efforts to show similarity cannot withstand the bright light of logical analysis, it is clear that whatever minimal probative value the prior crime has, it does not outweigh the prejudice to the defendant. The trial court should exclude this evidence in the trial of the case.
Robinson v. State, 246 Ga. 469, 470 ( 271 S.E.2d 786) (1980).
See Farley, 265 Ga. at 627-28 (Fletcher, J., and Sears, J., specially concurring).
I am authorized to state that Justice Sears joins in this concurrence.