249 S.E.2d 524 (Ga. 1978), 33523, Westbrook v. State

Docket Nº:33523.
Citation:249 S.E.2d 524, 242 Ga. 151
Opinion Judge:NICHOLS, Chief Justice.
Party Name:WESTBROOK v. The STATE.
Attorney:[242 Ga. 157] Denmark Groover, Jr., Macon, Frank D. Farrar, Jr., Gray, for appellant. [242 Ga. 158] Joe Briley, Dist. Atty., Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., for appellee.
Case Date:September 05, 1978
Court:Supreme Court of Georgia

Page 524

249 S.E.2d 524 (Ga. 1978)

242 Ga. 151




No. 33523.

Supreme Court of Georgia.

September 5, 1978

Page 525

Argued May 8, 1978.

Rehearing Denied Sept. 26, 1978.

Page 526

[242 Ga. 157] Denmark Groover, Jr., Macon, Frank D. Farrar, Jr., Gray, for appellant.

[242 Ga. 158] Joe Briley, Dist. Atty., Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., for appellee.

NICHOLS, Chief Justice.

Appellant Johnny Mack Westbrook was indicted in Jones County for two counts of murder and two counts of kidnapping with bodily injury. He was convicted on all counts and was sentenced to death for each murder and to life imprisonment for each kidnapping.

The case is before this court on appeal and for mandatory review of the death sentences.

The state presented evidence from which the jury was authorized to find the following facts:

On September 23, 1977, appellant and one Eddie William Finney went to the home of Mrs. Thelma Kalish in Macon, Georgia, to cut her lawn. Shortly after appellant and Finney began cutting the grass, they decided that they did not desire to work and conceived the idea of robbing Mrs. Kalish. They lured Mrs. Kalish from her home on a pretext concerning the lawnmower, grabbed her, stuck a pistol in her side, and took her back into her house where they tied her up and both of them raped her.

Mrs. Kalish did not have any cash at home, so they forced her at gunpoint to drive to her bank, to withdraw $600 in cash, and to give it to them. When they arrived back at her house, Mrs. Kalish jumped out of the car, [242 Ga. 152] screamed, and began running toward her neighbor, Mrs. Ann Kaplan, who was standing nearby. Appellant caught Mrs. Kalish and hit her over the head with his pistol. Finney grabbed Mrs. Kaplan and hit her with his fists and a pistol.

Appellant and Finney put the two women into the back seat of Mrs. Kalish's car and drove to a remote, wooded area in Jones County. There they took both women into the woods and tied and gagged them with pieces of Mrs. Kaplan's clothing. Appellant and Finney beat the two women to death with a two-by-four piece of lumber. Appellant killed Mrs. Kaplan and Finney killed Mrs. Kalish. An autopsy revealed that Mrs. Kaplan died of torn lacerations in the heart. Mrs. Kaplan also had bruises on her upper trunk, shoulders and chest. Mrs. Kalish had a three-inch laceration in her forehead, a fractured jaw, a fractured rib, a fractured arm, and several broken teeth. Both women died of the blows inflicted by the appellant and Finney.

Appellant and Finney returned to Macon and abandoned Mrs. Kalish's car at the Fifth Street Bridge. Appellant went back to his apartment where he left Mrs. Kaplan's jewelry and his pistol.

That night appellant and Finney took a cab to Mrs. Kalish's house. However, when they saw several police cars, appellant directed the cab driver back to the place where the driver had picked them up. When appellant paid the bill, the cab driver noticed that appellant had a large roll of bills which were still in the band from the bank.

Appellant and Finney were identified through an informer and were placed under arrest. When he was arrested, appellant had $500 in $20 bills in his right sock. A search of appellant's apartment revealed a .32 pistol and loaded clip under the mattress and Mrs. Kaplan's charm bracelet on top of the vanity.

After Finney was arrested, he took law enforcement officers to Jones County where they found the bodies and Mrs. Kalish's purse. Inside the purse was a savings withdrawal slip for $600, dated September 23, 1977.

Finney's fingerprints were found on drinking glasses in Mrs. Kalish's bedroom. Both appellant and Finney [242 Ga. 153] confessed to the crimes.

Page 527

In order to lay the foundation for his legal arguments, the defendant presented his entire criminal and prison record during the sentencing phase of the trial.

1. In his first enumeration of error, appellant alleges that the trial court erred in refusing to...

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