Hill v. State

• Decision Date: 05 October 1982
• Docket Number: No. 38423,38423
• Citation: 295 S.E.2d 518,250 Ga. 277
• Parties: HILL v. The STATE.
• Court: Georgia Supreme Court

Page 518

295 S.E.2d 518

250 Ga. 277

HILL v. The STATE.

No. 38423.

Supreme Court of Georgia.

Oct. 5, 1982.

Thomas J. Charron, Dist. Atty., Marietta, Michael J. Bowers, Atty. Gen., for the State

Al Johnson, Julian M. Treadway, Marietta, for Floyd Ernest Hill.

SMITH, Justice.

Appellant, Floyd Ernest Hill, was convicted for the malice murder of Austell police officer Greg Mullinax and for the On the evening of February 8, 1981, Virginia Barber and Edward "Tweet" Saffo, who lived together in a trailer behind appellant's residence off Paper Mill Road in Austell, began to argue. Saffo twice fired a .32 caliber pistol and then left, to cool off, he claimed. ¹ Ms. Barber went inside her trailer to call the police, then grabbed a pair of scissors and set out after Saffo.

felony murder of Darryl Toles. Appellant was sentenced to death for the murder of Mullinax and received a life sentence for the murder of [250 Ga. 278] Toles. He raises in his appeal thirteen enumerations of error. We affirm the conviction and the sentence of death for the murder of Mullinax but reverse the conviction for the murder ofToles.

Appellant, meanwhile, was sitting in his automobile in his driveway, drinking and listening to tapes with his friend Wayne Lockett. Janice Miller, sister of the victim Darryl Toles, approached appellant and asked for his help. Appellant declined, saying he was too drunk to intervene. After Ms. Miller left, however, appellant asked one of his daughters to go into his house and get his gun.

Virginia Barber caught up to Saffo just as he reached Paper Mill Road and just as officers Greg Thames and Greg Mullinax of the Austell Police Department arrived. Saffo, at this time, was relatively calm, but Ms. Barber was cursing and lunging at Saffo. When Officer Thames attempted to subdue and disarm her, she told him, "Turn me loose. I'm not the one you are supposed to be getting." By this time, several of Ms. Barber's children had arrived, including a 15 year old son armed with a butcher knife. As the officers were placing Ms. Barber into the police car, her son attacked the officers. When they responded to this new threat, Ms. Barber exited the police vehicle and rejoined the fight. Then Saffo hit one of the officers and told them to leave his wife alone.

Into this melee arrived appellant, who had driven up and parked immediately behind the police vehicle. Appellant got out and walked towards the action. Officer Thames hollered, asking appellant to help clear the young children out of the area before someone got hurt. Appellant failed to respond. Officer Mullinax then yelled, "Floyd, get out of here." As Officer Thames was standing by the left rear door of the police car struggling with Janice Miller, he heard a shot and then a series of shots that "sounded like a string of firecrackers." Everyone scattered. Officer Thames saw Mullinax stagger and fall. Thames radioed for help, picked up Mullinax's shotgun and covered him until help arrived. After the shooting, Thames saw Darryl Toles for the first time, lying in the street.

When the investigators arrived, they followed a trail of blood which led into and out of appellant's house, back to the Saffo trailer and into the woods behind the trailer. There they found appellant, armed with a .32 caliber pistol and suffering from several gunshot wounds. Two days later, a .38 caliber pistol was discovered next to a tree between the Hill and Saffo residences. The pistol contained three empty cartridge cases and one misfired round. It was later determined that all three bullets which struck Officer Mullinax had been fired from this pistol.

One of Mullinax's wounds was fatal. Darryl Toles also died. The two bullets removed from Toles had been fired from Officer Mullinax's revolver.

Appellant testified that he had come down to help out and was caught in the crossfire between Officer Mullinax and someone to his rear. He claimed that he had, in fact, been struck at least once from the rear. Afterwards he wandered off, dazed and confused, retrieved a .32 caliber pistol from his residence for protection, and stumbled past Saffo's trailer and into the woods. Appellant claimed not to have had Medical testimony offered in rebuttal, however, established that all of appellant's entry wounds were frontal. Moreover, the testimony of the other witnesses was unanimous that Darryl Toles had no weapon and that only appellant and Officer Mullinax were involved in the shooting. Several witnesses recognized the pistol that appellant used as a .38 that they had seen before in appellant's possession. All who were in a position to see who shot first agreed that appellant did.

a weapon while down at the road where the shooting took place.

1. Appellant's first three enumerations of error are the general grounds.

(a) The evidence, viewed in the light most favorable to the prosecution, is more than sufficient to convince a rational fact finder beyond a reasonable doubt that appellant is guilty of the murder of officer Greg Mullinax. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(b) Appellant's conviction for the murder of Darryl Toles must, however, be set aside.

Count two of the indictment charged that appellant, "while in the commission of a felony, to wit: murder, cause[d] the death of Darryl Toles ... by shooting at Greg Mullinax, a police officer, and when said Greg Mullinax returned gunfire towards [appellant,] said Darryl Toles was inadvertently struck and killed."

Count two is predicated upon a killing committed by one resisting a felony. Our felony murder statute provides: "A person ... commits the crime of murder when in the commission of a felony he causes the death of another ... irrespective of malice." Code Ann. § 26-1101(b). In a case of first impression, this court unanimously concluded that our felony murder statute as it is presently written does not penalize the killing of one of the parties to the underlying felony by the intended victim of the underlying felony. State v. Crane, 247 Ga. 779, 279 S.E.2d 695 (1981).

In the instant case, the victim of the alleged felony murder was not one of the parties to the underlying felony, but was an innocent bystander. The result, however, must be the same. As we said in State v. Crane, supra, "The key words of the statute are 'he causes.' These words can be read either to include or to exclude the homicide in the present case. One construction would be that the words 'he causes' require the death to be caused directly by one of the parties to the underlying felony. Another construction would be to include also those deaths indirectly caused by one of the parties ..." Although we favored the latter construction we felt obliged to adopt the former. ² Applying the former construction to this case, it is clear that appellant did not directly cause the death of Darryl Toles and may not be convicted therefore. ³ If this result be viewed as a defect in our felony murder statute, the remedy lies with the legislature.

2. In his ninth enumeration of error, appellant contends the trial court erred in charging Code Ann. § 26-801(b), defining parties to a crime. Appellant argues that there was evidence presented to support his theory that Toles was not an innocent bystander but was a party to the crime.

Since the jury's verdict does not specify whether it found Toles to have been an innocent bystander as alleged, it is possible, appellant argues, that because of the court's charge on parties to a crime, the jury found Toles to be a co-felon, in which event State v. Crane, supra, would bar his conviction for the murder of Toles.

Since we have already set aside appellant's conviction for the murder of Toles, we need not further consider this enumeration of error.

3. In his fourth enumeration of error, appellant claims the trial court erred in failing to excuse for cause a juror who was a retired supervisor of industries at the Atlanta Federal Penitentiary.

The juror stated that he could listen to the evidence and make an impartial decision based thereon. Appellant offers no reason other than the juror's former employment for his claim that the juror should have been excused. However, a supervisor of industries at a federal penitentiary is not a police officer who must be excused when challenged for cause in a criminal case. Moreover, the juror here was no longer so employed at the time of the trial. Hutcheson v. State, 246 Ga. 13, 268 S.E.2d 643 (1980), is therefore inapplicable and there is no merit to this enumeration of error. See Depree v. State, 246 Ga. 240(2), 271 S.E.2d 155 (1980), and Jordan v. State, 247 Ga. 328, 340 (fn. 16), 276 S.E.2d 224 (1981).

4. In his fifth, sixth, seventh and eighth enumerations of error, appellant complains of the court's failure to grant a mistrial and later, a new trial, based upon improper references to appellant's exercise of his right to remain silent after being given Miranda warnings.

Before the trial began, appellant filed a motion in limine, asking that the state be precluded from introducing evidence of an "alleged statement by defendant requesting assistance of counsel prior to giving any statements to investigating officers."

At the hearing on the motion, appellant's contentions and the court's response were as follows:

Mr. Johnson (for appellant): ... Now, my motion goes to this. I am attempting to prevent the police officer from testifying, "Well, we arrested Floyd and right off the bat he said, "I don't want to talk to anybody until I see my lawyer.' " That type of statement in and of itself, rather than the fact that he made no statement, "He gave us no statement--"

The Court: ... Usually it is handled this way ... the state just simply says, "Did the defendant so and so give you a statement?" "No, sir." That's it. I think they can go that far.

Mr. Johnson: That's fine. (Emphasis supplied.)

In the court's written order on the motion in limine, the...