¶1In the Supreme Court of Georgia
¶2 Decided: December 14, 2021
¶3 S21A1079. HINES v. THE STATE.
¶4 WARREN, Justice.
¶5 Lee Hines was tried by a Fulton County jury and convicted of
¶6malice murder and felony murder in connection with the stabbing
¶7death of Lacharity Gaines. Hines’s sole contention on appeal is that
¶8the trial court erred when it allowed the State to present a “surprise
¶9witness” who was not disclosed to the defense until the day of trial.
¶10Seeing no error, we affirm. 1
¶11 1 Gaines was killed on or about February 26, 2003. On October 5, 2010, a Fulton County grand jury indicted Hines, charging him with malice murder and felony murder predicated on aggravated assault. Hines was tried in November 2014, and a jury found him guilty of both counts. The trial court sentenced Hines to life in prison for malice murder, and the felony murder count was vacated by operation of law. Hines timely filed a motion for a new trial on November 17, 2014. He amended the motion through new counsel on May 20, 2019, and again amended it through new counsel on August 20, 2020. After a hearing, the trial court denied the motion on April 5, 2021. Hines filed a timely notice of appeal, and this case was docketed in this Court for the August 2021 term and submitted for a decision on the briefs. 1. The evidence presented at trial showed the following. Hines
¶12lived in New York and met Gaines while on a visit to Atlanta. The
¶13two developed a relationship, and after a few weeks, Hines left New
¶14York and moved into Gaines’s apartment in Atlanta, where she lived
¶15with her two minor children. Testimony showed that the couple’s
¶16relationship deteriorated shortly after Hines moved in. Among
¶17other things, Gaines confided to a friend that she wanted Hines to
¶18“move out instantly” because they “weren’t getting along,” that
¶19Hines was “rude” to her and her children, that he “threatened” her,
¶20and that she was “afraid” and “scared” of him.
¶21 On February 26, 2003, after Gaines and her children returned
¶22home from a shopping trip, she and Hines started arguing loudly,
¶23and one of the children saw that Hines “pushed” or “shoved” Gaines.
¶24Around 8:00 that evening, Gaines called her friend and told her, in
¶25a “whispering” voice, that Hines was in the apartment “still doing
¶26the same thing, being rude,” and that Gaines was “scared.” That
¶27same night, Sarah Raven, who lived directly below Gaines’s
¶28apartment, heard noises coming from above “like someone was
¶29 2 wrestling or having some kind of tussle,” and she also “heard
¶30[Gaines] scream,” after which “everything was silent.” Raven
¶31testified that, just an hour or two earlier, she had gone into Gaines’s
¶32apartment and had seen Hines there.
¶33 The next morning, Gaines’s children woke up to find both
¶34Hines and Gaines missing. Hines’s personal belongings were not in
¶35the apartment, and Gaines’s newly purchased Toyota was gone. The
¶36police were contacted, but Gaines was not found until days later,
¶37when her uncle entered the apartment and discovered her
¶38decomposing body in the pantry, wrapped in a rug. An autopsy
¶39revealed that Gaines died from a stab wound to the back that
¶40punctured her lung.
¶41 A police investigation revealed no signs of forced entry into
¶42Gaines’s apartment. Her car was discovered in Charlotte, North
¶43Carolina, where it had been impounded after being parked illegally
¶44near a Greyhound bus station. One of the items found in her car—
¶45a CD—contained Hines’s fingerprint. Nail clippings collected from
¶46Gaines contained DNA that was consistent with Hines’s. At trial,
¶47 3 multiple witnesses identified Hines in court as the man who had
¶48lived with Gaines before her murder.
¶49 On the first day of trial, before the presentation of any
¶50evidence, the parties learned about a new witness who had
¶51incriminating information about Hines. More specifically, the
¶52prosecutor informed the trial court that, earlier that morning, he
¶53learned that one of the State’s witnesses, Sarah Raven, had brought
¶54her niece, Ashley Johnson, to the courthouse. According to the
¶55prosecutor, Johnson had overheard a discussion about the case and
¶56told him that she “was there the night [Gaines] went missing,” and
¶57she “relayed what she’s going to testify to, if she’s allowed to testify.”
¶58The prosecutor told the court that he previously was aware that
¶59Raven’s niece “had been in [Gaines’s] apartment a couple of times,”
¶60but that he did not know the niece’s name or contact information
¶61and “didn’t think she knew anything about the case that was
¶62relevant.”
¶63 The prosecutor further told the court that defense counsel had
¶64been informed about Johnson and had the chance to talk to her:
¶65 4 In the middle of [Johnson] talking to me I stopped her, because I know [defense counsel]—I had just spoken to him, and he was at the end of the hallway. I said, I’m going to stop you right now, come with me. She walked with me, and I introduced her to [defense counsel]. I said tell him what you were telling me; if he has any questions, please answer them.
¶66The prosecutor informed the court that Johnson had been outside
¶67the courtroom for two hours, “subject to any further interviews that
¶68needed to be taken.”
¶69 Defense counsel did not contest the prosecutor’s version of
¶70events, but objected to Johnson testifying, arguing that the State
¶71failed to disclose her as a witness at least ten days before trial. The
¶72trial court overruled the objection, finding that Johnson was “newly
¶73discovered” by the State and had been made available to the defense.
¶74The trial court also found that defense counsel “has spoken to
¶75[Johnson] and has opted not to speak to her for the last hour-and-a-
¶76half, at least, so I don’t know how a continuance at this time for
¶77another couple days would make any difference.”
¶78 At trial, Johnson testified that she spent two days in Gaines’s
¶79apartment braiding Gaines’s and Hines’s hair, working on Gaines’s
¶80 5 hair one day and on Hines’s hair the next. Johnson said that her
¶81work was interrupted because Hines and Gaines “were arguing
¶82back-and-forth repeatedly.” Johnson further recalled Hines saying:
¶83“I don’t even like black girls, that’s why my baby mama Puerto
¶84Rican, yo, shut up talking to me, yo, you don’t know what I do to you,
¶85I’ll hurt you, yo, I’ll kill you, yo.” And, according to Johnson, Hines
¶86was using “the B word” to refer to Gaines. 2
¶87 2. On appeal, Hines essentially contends that the State
¶88violated OCGA § 17-16-8 (a) by failing to disclose Johnson as a
¶89witness at least ten days before trial, 3 and that the trial court abused
¶90its discretion when it failed to exclude her testimony pursuant to the
¶91 2 It is not clear from Johnson’s testimony on which days—or how long before the murder—she was in Gaines’s apartment and overheard Hines threaten to kill Gaines.
¶92 3 OCGA § 17-16-8 (a) provides: The prosecuting attorney, not later than ten days before trial, . . . shall furnish to the opposing counsel . . . the names, current locations, dates of birth, and telephone numbers of that party’s witnesses, unless for good cause the judge allows an exception to this requirement, in which event the counsel shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.
¶93 6 remedial provisions contained in OCGA § 17-16-6.4 In this regard,
¶94Hines asserts that Johnson was a “surprise witness” and that he
¶95received insufficient time to investigate her and prepare for her
¶96testimony. We disagree.
¶97 To begin, we discern no violation of OCGA § 17-16-8 (a) with
¶98respect to Johnson. We have stated that the “witness list rule” set
¶99forth in that statute is “designed to prevent a defendant from being
¶100surprised at trial by a witness that the defendant has not had an
¶101opportunity to interview.” Rose v. State, 275 Ga. 214, 217 (563 SE2d
¶102865) (2002) (citation and punctuation omitted). Moreover, the trial
¶103court “may allow an exception to the rule where good cause is shown
¶104and counsel is afforded an opportunity to interview the witness.” Id.
¶105See also Gabriel v. State, 280 Ga. 237, 239 (626 SE2d 491) (2006).
¶106 4 OCGA § 17-16-6 provides, in relevant part: If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. 7 Here, the trial court determined that the State established
¶107good cause for not disclosing Johnson at least ten days before trial.
¶108The prosecutor told the court that the State previously was not
¶109aware of Johnson’s name or contact information and did not know
¶110that she had relevant information about Gaines’s murder; the State
¶111only learned that Johnson was a potential witness when she came
¶112forward on the day of trial. Defense counsel did not dispute the
¶113prosecutor’s explanation, which the trial court accepted, finding that
¶114Johnson was “newly discovered.” Moreover, the transcript shows
¶115that the trial court complied with OCGA § 17-16-8 (a) by affording
¶116Hines “an opportunity to interview” Johnson before she was called
¶117to testify. Under these circumstances, the trial court did not abuse
¶118its discretion in allowing an exception to the ten-day requirement
¶119under OCGA § 17-16-8 (a). See, e.g., DeVaughn v. State, 296 Ga.
¶120475, 478 (769 SE2d 70) (2015) (trial court “did not abuse its
¶121discretion in ruling that the State had established good cause for
¶122allowing an exception to the ten-day rule” where, after substantial
¶123efforts to find the witness, the State “was able to identify and speak
¶124 8 with [him] for the first time as the jury was being selected”).
¶125 Because the requirements of OCGA § 17-16-8 (a) were satisfied
¶126with respect to Johnson, we need not decide whether the trial court
¶127also abused its discretion when it declined to exclude Johnson’s
¶128testimony under OCGA § 17-16-6, which provides certain remedies
¶129when the State “has failed to comply with the requirements of this
¶130article.” See Cockrell v. State, 281 Ga. 536, 539 (640 SE2d 262)
¶131(2007) (“OCGA § 17-16-6 sets forth the remedies available to a
¶132defendant upon the State’s failure to comply with discovery.”).5 For
¶133the foregoing reasons, we affirm.
¶134 Judgment affirmed. All the Justices concur.
¶135 5 To the extent Hines contends that the trial court abused its discretion in not granting him a continuance—and assuming he requested such a continuance below—this claim also fails. “All applications for continuances are addressed to the sound legal discretion of the court and . . . shall be granted or refused as the ends of justice may require.” OCGA § 17-8-22. “Without a clear showing of abuse of this broad discretion, this Court will not disturb a trial court’s decision to deny a motion for continuance.” Phoenix v. State, 304 Ga. 785, 788 (822 SE2d 195) (2018). In light of Hines’s failure to use all of the time he received to interview Johnson—among other facts in the record—we cannot say that the trial court abused its discretion in declining to grant Hines a continuance. See Terrell v. State, 304 Ga. 183, 187 (815 SE2d 66) (2018); Norris v. State, 289 Ga. 154, 157 (709 SE2d 792) (2011). 9