Conner v. State

Decision Date24 May 1983
Docket NumberNo. 39325,39325
Citation303 S.E.2d 266,251 Ga. 113
PartiesCONNER v. The STATE.
CourtGeorgia Supreme Court
W. Dennis Mullis, Cochran, for John Wayne Conner

James L. Wiggins, Dist. Atty., Eastman, Michael J. Bowers, Atty. Gen., Janice G. Hildenbrand, Staff Asst. Atty. Gen., for the State.

GREGORY, Justice.

Appellant, John Wayne Conner, was indicted in Telfair County for murder, armed robbery and motor vehicle theft. Because the state sought the death penalty for the murder, Conner's trial was conducted under the Unified Appeal Procedures set forth at 246 Ga. A-1 (1980), as amended, 248 Ga. 906 (1982).

At the time of the murder, Conner lived with his girlfriend, Beverly Bates, in Milan. On the evening of January 9, 1982, they rode with friends, including the victim, J.T. White, to a party in Eastman. After spending the evening drinking and smoking marijuana, the group returned to Milan around midnight. J.T., described by one witness as "humble and satisfied" and by another as "mellow," exited the vehicle with Conner and Ms. Bates at their house. Soon afterwards, Conner and J.T. left the house on foot, taking with them a nearly empty bottle of bourbon that Conner had purchased the night before. They walked to the home of Pete Dupree, woke him up, and asked him to take them to get more whiskey. He refused.

Then, according to Conner: "[M]e and J.T. left and went down the road. J.T. made the statement about he would like to go to bed with my girlfriend and so I got mad and we got into a fight and fought all the way over to the oak tree and I hit him with a quart bottle. He run over there to the fence trying to get through or across, I reckon, so I run over there and grabbed him and pulled him back and hit him again and he fell in the water and he grabbed my leg. I was down there at him right there in the ditch where he was at and he was swinging trying to get up or swinging at me to try to hit me one, and there was a stick right there at me, and I grabbed it and went to beating him with it."

The next day, J.T.'s body was found in a drainage ditch near the Milan Elementary School. Injuries on his forehead bore the pattern of the sole of a tennis shoe. His nose was broken, both his cheekbones were fractured, his eyes were swollen, and his left ear was severely damaged. He had been hit so hard in the face with a blunt object that teeth, as well as portions of the bone to which they were attached, were broken away from his upper and lower jaws. Dr. Larry Howard, who conducted the autopsy, testified that the trauma to J.T.'s head and face caused brain damage and bleeding in and around the brain which extended into his lungs, causing him to drown in his own blood.

Beverly Bates had gone to bed when Conner and J.T. left. When Conner returned, he woke her up and told her that they had to leave; he had had a fight with J.T. and thought he was dead. Conner ripped off his shirt and threw it into the fire. He told Ms. Bates that he knew where a car was with its keys in it.

The car was parked in front of the school. Before they left town, Conner told Ms. Bates that "he had to be sure," and walked toward the ditch. She heard a thud. Conner returned, and said now he was sure, let's go. They stopped to get gas in Eastman. Ms. Bates gave Conner $20 to buy gas with; in return, he gave her a bloody $5 bill. They were caught in Butts County.

The $5 bill, as well as a whiskey bottle and a tree limb found near the body, were subsequently analyzed and found to have blood on them that was consistent with that of the victim and inconsistent with that of Conner (understandable, since Conner suffered no injuries during the "fight").

Conner presented no evidence, either at the guilt-innocence phase, or (against the advice of his attorney) at the sentencing phase of his trial. He was found guilty on all three counts and sentenced to death for the murder.

1. Appellant does not challenge the sufficiency of the evidence. However, Rule IV(B)(2) of the Unified Appeal Procedure

                requires this court to "determine whether the verdicts are supported by the evidence according to law."   We find the evidence sufficient to support appellant's convictions for murder and motor vehicle theft, but we are unable to conclude that any rational trier of fact could have found all of the elements of the offense of armed robbery beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2181, 61 L.Ed.2d 560) (1979)
                

"A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or immediate presence of another by use of an offensive weapon ..." OCGA § 16-8-41 (Code Ann. § 26-1902). The "taking of property is an essential element of the crime of armed robbery." Woodall v. State, 235 Ga. 525, 533, 221 S.E.2d 794 (1975). The property alleged by the state to have been taken in the armed robbery was the bloody $5 bill which appellant subsequently gave to Ms. Bates.

No competent evidence was presented to show that prior to his murder, J.T. had money, or that appellant did not. Compare Rivers v. State, 250 Ga. 288(1), 298 S.E.2d 10 (1982). The only circumstances which would support an inference that appellant took $5 from J.T. or from his immediate presence are two: (1) The money had J.T.'s blood on it, and (2) an empty leather pouch was found approximately eight and one-half feet from his body.

Appellant offered an explanation for the presence of blood on the money: In a pre-trial statement, appellant told an investigator that the $5 bill had been in the breast pocket of his shirt and had become saturated with the victim's blood during the fight. The leather pouch, which was not connected to J.T. except by its proximity to his body, had no blood on it.

"To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-4-6 (Code Ann. § 38-109). The evidence in this case does not meet this standard. "Only by speculation and conjecture could we assume that [appellant] ... took the money, and speculation and conjecture will not sustain a conviction." Woodall v. State, supra.

Appellant's armed robbery conviction must be reversed.

2. Appellant enumerates as error the trial court's refusal to give three of his requests to charge:

(a) The trial court did not err in refusing to charge on self-defense. See OCGA § 16-3-21 (Code Ann. §§ 26-902, 27-207). Appellant's own statement refutes a theory of self-defense and no other evidence in the record supports such a claim.

Nor should the trial court have charged on self-defense because "self-defense [was] the only defense raised." See, e.g., Jackson v. State, 154 Ga.App. 867(2), 270 S.E.2d 76 (1980). Where there is no evidence to support a theory of self-defense, it is no more "raised" than any other defense not supported by evidence.

(b) For the same reasons, the trial court did not err in refusing to charge on good character as a defense.

"[A] defendant may present evidence of his good character as a substantive fact indicative of his innocence." Waters v. State, 248 Ga. 355, 366(5), 283 S.E.2d 238 (1981). Where he fails to do so, however, to charge on good character would give the defendant the benefit of evidence which was never introduced, and if it had been, it might have been disputed. Jones v. State, 156 Ga.App. 56, 58(3), 274 S.E.2d 99 (1980). See also, McDaniel v. State, 248 Ga. 494, 496(4), 283 S.E.2d 862 (1981); OCGA § 24-9-20 (Code Ann. §§ 38-415, 38-416).

(c) The trial court did not err by failing to charge involuntary manslaughter, misdemeanor grade.

"A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner

likely to cause death or great bodily harm ..." OCGA § 16-5-3(b) (Code Ann. § 26-1103). Appellant's theory in support of this charge is that he acted in self-defense (the lawful act) but used excessive force (the unlawful manner). However, not only was there no evidence that appellant acted in self-defense, "[t]he number of wounds inflicted leaves no doubt on the question of intent or voluntariness." Anderson v. State, 248 Ga. 682, 683(1), 285 S.E.2d 533 (1982).

SENTENCE REVIEW

3. The jury found the following statutory aggravating circumstance: "The offense of murder was outrageously and wantonly vile, horrible and inhuman in that it did involve depravity of mind and aggravated battery to the victim." OCGA § 17-10-30(b)(7) (Code Ann. § 27-2534.1).

The evidence supports this finding. Appellant chased an unarmed, intoxicated victim 1 (who failed to leave a mark on his assailant) from the road, across a drainage ditch and into a barbed wire fence; 2 dragged him back to the drainage ditch; used a whiskey bottle, a heavy stick and his feet to beat and stomp the victim to death; and left him to die, lying in the water. The evidence shows that the defendant unnecessarily and wantonly inflicted serious physical abuse upon the victim prior to his death. 3 The facts of this case distinguish it from those cases in which a finding of § (b)(7) would not be appropriate. Compare, Phillips v. State, 250 Ga. 336(6), 297 S.E.2d 217 (1982).

4. Appellant contends that the trial court committed error requiring reversal of his sentence when the court charged: "Please be mindful of the previous instruction that whether or not you find the aggravating circumstances, you still then have the further duty to decide whether or not the death penalty should be imposed or whether the defendant should be sentenced to life imprisonment". (Emphasis supplied.)"

The italicized portion of the instruction was incorrect. If the jury had failed to find at least...

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