Moore v. State

• Decision Date: 07 February 1978
• Docket Number: No. 32744,32744
• Parties: Carzell MOORE v. The STATE.
• Court: Georgia Supreme Court

Page 1

243 S.E.2d 1

240 Ga. 807

Carzell MOORE v. The STATE.

No. 32744.

Supreme Court of Georgia.

Feb. 7, 1978.

Rehearing Denied Feb. 28, 1978.

W. Franklin Freeman, Jr., Forsyth, for appellant.

E. Byron Smith, Dist. Atty., Kenneth R. Waldrep, Asst. Dist. Atty., Barnesville, Arthur K. Bolton, Atty. Gen., James L. Mackay, Asst. Atty. Gen., Atlanta, for appellee.

UNDERCOFLER, Presiding Justice.

Carzell Moore was indicted on February 15, 1977, in the Superior Court of Monroe County, Georgia, for the rape and murder of Teresa Carol Allen on December 12, 1976. Following a trial by jury in which the jury found statutory aggravating circumstances the appellant was sentenced to death for both offenses. He is before this court on appeal and for mandatory review of the death sentences imposed.

I. SUMMARY OF THE EVIDENCE

The State presented evidence from which the jury was justified in finding the following:

At approximately 3:00 p. m. on December 12, 1976, 18 year old Teresa Allen arrived at her place of part-time employment, the Majik Market in Cochran, Georgia. Shortly before 7:00 p. m. the store was found to be empty. The cash register and the safe were open and empty and Miss Allen's automobile, a late model Pontiac Grand Prix was missing. The Majik Market area supervisor determined that $466 was missing from the store.

On December 14, 1976, Miss Allen's body was discovered lying in a wooded grassy area just off a dirt road near Highway 41 in Monroe County, Georgia. Footprints, two 30.06 cartridge hulls, a 30.06 metal jacket of a bullet, parts of Miss Allen's flesh, teeth and bone, tire tracks and a nylon stocking were found near the body. The cause of her death was determined to be loss of blood from bullet wounds.

Examination of the body disclosed bruising on the inside of one thigh, a laceration of the vagina, and blood and mucous like matter in the vaginal canal. A pathologist testified that the wounds in the abdomen, arms and face were caused by a high-powered missile, and that the location and nature of the wounds were consistent with the theory that Miss Allen had her arms crossed across her stomach and was shot with a high-powered bullet which passed through both arms and the abdomen. Miss Allen was also shot by a high-powered bullet entering the left side of the neck, penetrating the lower face and exiting the right side of the head.

An acquaintance of the appellant, Johnny Johnson, was with the appellant and another friend at the appellant's home on Thursday just prior to Sunday, December 12, 1976. The appellant asked Johnson and the friend, "Do you know a place we can hit?" The word "hit" was understood to mean rob. The appellant stated that he "had the material to hit a place with." He explained that he had a "high powered rifle and a couple of shells to go with it." Mr. Johnson and the friend told the appellant that they did not know of a place to rob.

In the early evening of the day of the robbery the appellant and Roosevelt Green were let off at the appellant's house. The appellant's house was four blocks from the location of the Majik Market. Green was wearing high-heeled shoes.

In early January, 1977, Thomas Pasby accompanied the appellant to check out an automobile that the appellant intended to purchase. At that time, the appellant asked Pasby how Pasby felt about killing when Pasby was in Viet Nam. During their discussion, the appellant told Pasby, "Well, I killed somebody, too," and then related the following: The appellant said that he and Green went to the Majik Market in Cochran. The appellant told Green to go in and take Miss Allen to the meat counter in order to attract her attention so that the appellant could come in the front of the store with a rifle. This was done, and Green and the appellant robbed the Majik Market. When they left the store, they took Miss Allen with them forcibly. They left in her car with the appellant driving. Shortly after leaving the store Green turned to Miss Allen and said, "Bitch, take off your clothes." Miss Allen told Green that she was a virgin and pleaded with him not to rape her. Green raped her anyway. Green then changed places with the appellant, and Green drove. The appellant, Carzell Moore, then raped Miss Allen. After driving further, the appellant told Green to stop the car. The appellant then told Miss Allen to get out. Miss Allen and the appellant then got out of the car. The appellant told Green to drive to a gas station to get gas for the car. After Green left, Miss Allen begged the appellant not to kill her. Miss Allen crossed her arms over her stomach to protect herself. The appellant shot her in the abdomen with the rifle. He then shot her in the face. The appellant stated that he shot Miss Allen in the face in an attempt to disfigure her so as to make it difficult to identify her. When Green returned, the two of them picked up Miss Allen and threw her into the bushes. The appellant told Pasby that one of her hands was so mangled by the rifle blast that he thought it was going to fall off.

One of Miss Allen's hands was almost severed from her body. The attendant at a nearby gas station recalled selling gas for an automobile like that of the victim with a Georgia county tag that showed only the letters RENS from Laurens. The tag on the victim's car was in a similar condition. Green later arrived in South Carolina in possession of the car with a large amount of change and a roll of bills, asked a friend to burn the car for him (which request the friend refused), and traded the 30.06 rifle for a .25 caliber automatic.

A Cochran florist testified the rifle was stolen from him about the time and in the vicinity the appellant was seen with it.

When appellant was informed while in jail that Green had been arrested with the Allen car in South Carolina he stated, "Damn, I told Green to get rid of that car and that rifle." Later, the appellant stated to Pasby again, "You know, Green was supposed to have gotten rid of that rifle and the car."

A plaster cast of a footprint found near Miss Allen's body was of similar size and impression as a flat Hushpuppy shoe taken from the appellant's room. Tire tracks found near her body were similar in size and tread design to the tires found on Miss Allen's car.

There was other forensic evidence that circumstantially connected the appellant to the crimes.

The appellant testified in his own behalf that he met Green in an Alabama prison in 1975. On December 11, 1976, he saw Green in Cochran looking for him. Green, out on escape, was using the name Jerome Miller. The appellant loaned Green some of his clothes and shoes. They went to various places on December 11, and on the day of the robbery, they went to Rosa Crawford's house to watch the football game. Rosa's parents drove the appellant and Green to the appellant's house, where Green borrowed the Hushpuppy shoes from the appellant. Green left and the appellant began drinking, watched Sonny and Cher, and then became nauseated and passed out. He awoke late that night, and went outside. The cafe was closed so he just sat under a tree and smoked. A friend came along and they smoked together. Then he went home and went to sleep. He denied making the statement to Pasby about robbing the Majik Market, raping Teresa Allen, and killing her. He denied getting a 30.06 rifle. He denied Johnson's testimony concerning the appellant's asking about a place to rob. He denied Johnson's testimony concerning his statements about the rifle. He denied that he made the statement to Pasby while in jail. The appellant explained the forensic evidence by stating that he had skinned himself while having intercourse with his girlfriend. He also testified that Green exchanged his high platform shoes for appellant's Hushpuppys prior to the evening of the robbery.

In rebuttal, the State presented testimony that when Green visited in South Carolina the morning following the robbery he was wearing high-heeled shoes and not Hushpuppys.

The evidence will be developed more fully if necessary to address the enumerations of error.

II. ENUMERATIONS OF ERROR

1. In Enumeration 1, the appellant alleges the evidence is insufficient to support the verdict.

Without any narration of the evidence other than that set forth in the summary of the evidence above we conclude that there was sufficient evidence to support the verdict of the jury. Harris v. State, 234 Ga. 871, 218 S.E.2d 583 (1975); Harris v. State, 236 Ga. 766, 225 S.E.2d 263 (1976); Myers v. State, 236 Ga. 677, 225 S.E.2d 53 (1976).

Enumeration 1 is without merit.

2. In Enumeration 2, the appellant alleges the court erred in overruling defendant's motion to suppress as amended.

In support of this motion, the appellant alleges that the affidavit of the sheriff and the testimony before the issuing magistrate were insufficient to support a finding of probable cause for the issuance of a search warrant.

The sheriff's affidavit to the superior court judge who issued the warrant set forth matter that can be summarized as follows:

1. Footprints at the scene matched with Hushpuppy shoes of the appellant.

2. A bath towel observed in appellant's bedroom matched one found near the murder scene containing forensic evidence.

3. An informant stated to the sheriff that Carzell Moore had stated that he had a 30.06 rifle and some ammunition and that he (the appellant) was looking for a place to "hit."

4. Roosevelt Green, a companion of appellant until sometime the day of the offenses, was established to have been in possession of the victim's automobile and the murder weapon.

5. The murder weapon was a high powered rifle.

6. Roosevelt Green's clothes were also observed in the appellant's bedroom.

There was also testimony before the judge issuing the warrant by law enforcement officers that included the fact that a filling station operator observed two persons in the victim's car shortly after the robbery.

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