# Barnes v. State > Court of Appeals of Georgia · January 6, 1981 · 157 Ga. App. 582 URL: https://www.frixlaw.com/law-library/cases/5638149 ## Case - **Full name:** BARNES v. State - **Court:** Court of Appeals of Georgia - **Decided:** January 6, 1981 - **Citations:** 157 Ga. App. 582; 277 S.E.2d 916; 1981 Ga. App. LEXIS 1924 - **Precedential status:** Published - **Opinion:** Dissent by Shulman - **Judges:** Birdsong, McMurray, Shulman - **Cited by:** 40 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5638149 ## Opinion text Shulman, Presiding Judge, dissenting. Because I believe the majority’s holding in Division 2 amounts to an abdication of this court’s appellate responsibility, a responsibility belatedly shouldered in Plemons v. State, 155 Ga. App. 447 ( 270 SE2d 836 ), I must dissent. The majority opinion reflects the widespread confusion between compliance with constitutional mandates and the mechanics for securing such compliance. Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 214), requires that exculpatory evidence in the hands of the prosecution be disclosed to criminal defendants. From that requirement have grown “Brady motions” and a procedure at the trial level, i.e., the in camera inspection by the trial judge of the prosecution’s file, for determining whether there has been compliance with the disclosure requirement. Collins v. State, 143 Ga. App. 583 (2) ( 239 SE2d 232 ), without clearly so holding, implied that performance of the mechanics established to monitor compliance with Brady constituted such compliance and no appellate review was necessary. It was to eliminate that confusion between procedure and substance that we overruled Collins in Plemons . I believe we were right in so ruling and that we cannot now turn back from this obligation. The majority correctly states the problem: “. . . a defendant’s Brady rights may be denied by the trial court and are unprotected on appeal, because he cannot ask for what he does not know exists.” At bottom, that is a matter not of law but of policy. The policy question is whether, in this particular context, appellate courts will review a trial court’s decision. We must ask ourselves, as did Juvenal, “But who is to guard the guards themselves?” Every other decision of a trial judge in a criminal case is subject to review. For every other decision of a trial court in a criminal case, there is a record made, or an opportunity exists for the defendant to cause a record to be made. Now the Supreme Court in Wilson v. State, 246 Ga. 62 (1) ( 268 SE2d 895 ), has clearly required that a record be made when an in camera inspection of the prosecution’s file has been conducted. The expressed purpose of that requirement was to make possible appellate review when appropriate. In Plemons , building on Wilson , we decided that review would be proper whenever an appellant enumerated as error the trial court’s decision that there was nó exculpatory material in the file. That decision was not lightly reached. Nor was it considered inherently desirable to create the potential for the administrative burden the majority in this case fears. Such fears are justified. But, a policy decision was made that the right of an appellant in a criminal case to *591 have an appellate review of a trial court’s decision outweighs the countervailing consideration of judicial economy. I adhere to that position. Insisting that a trial court’s judgment be subject to review is not equivalent, as the majority implies it is, to presuming the failure of the prosecutor and the trial judge in their respective duties. The fact that a trial judge’s decision in a motion to suppress is subject to review on the record does not reflect a presumption that all evidence is illegally seized. It is imperative that we view the issue here clearly and not cloud it with issues of good faith vs. bad faith and substantive standards of review. ,The question before us is whether we will review a trial court’s decision, a decision based on a record to which defense counsel has not had access, without requiring that counsel to first demonstrate the existence of error. To perform that review does not transform this court into a fact-finder. A review of a trial court’s decision is perfectly consistent with this court’s constitutional role, the correction of errors of law. We would no more be improperly substituting our judgment for that of the trial court in this context than we are in the course of making any other review on the record built below of a trial court’s application of law to facts. I must emphasize again that this case involves only the question of whether an appellant shall have, as a matter of right, a review of a particular judgment of a trial court. The majority correctly analyzes the standard for determining whether there has been, in the Brady context, constitutional error: there must have been a suppression of material evidence. But the majority then holds that the record below will not be called up for review “. . . unless an appellant can show cause, by showing that particular evidence was suppressed which was material.” I cannot accept as proper or fair a procedure which requires that, as a prerequisite to appellate review of the record below, an appellant demonstrate constitutional error without access to the record on which the allegedly erroneous decision was based. There are, of course, sound policy reasons for denying criminal defendants free access to the prosecution’s file, either before, during or after trial. I do not, however, believe there are any valid reasons for cutting off appellate review of a decision made by the trial judge. The appellant in this case enumerated as error the refusal of the trial court to make a record on which review could be had. I believe the trial court’s failure is contrary to the express direction of the Supreme Court in Wilson that such a record be made and thwarts the right of review for which we established a procedure in Plemons . For those reasons, I would vacate the judgment of the trial court and remand this case with direction that the trial judge prepare a record *592 of his in camera inspection in accordance with the procedure established in Plemons . Assuming that such a record could be prepared by the trial court, a new judgment could be entered on the jury’s verdict, whereupon appellant would be free to file a new appeal. If, however, the trial court should be unable to certify to this court a record of its inspection of the state’s file, appellant’s conviction would have to stand reversed. I am authorized to state that Chief Judge Quillian and Judge Carley join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5638149. Public record. Not legal advice.