Baker v. State, 31834
| Decision Date | 09 February 1977 |
| Docket Number | No. 31834,31834 |
| Citation | 233 S.E.2d 347,238 Ga. 389 |
| Parties | Clarence James BAKER v. The STATE. |
| Court | Georgia Supreme Court |
Floyd M. Buford, Macon, Alfred D. Fears, Jackson, for appellant.
E. Byron Smith, Dist. Atty., Jackson, Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.
Clarence James Baker appeals from his conviction and life sentence for murder. He was tried jointly with two other codefendants in a trial at which a fourth defendant was granted immunity to testify for the State. The other two codefendants', Eddie Albert and Ralph Pullin, Jr., convictions were affirmed at 235 Ga. 718, 221 S.E.2d 413 (1975). We also affirm Baker's conviction.
1. In his first enumeration of error, the defendant contends that the evidence is insufficient to support his conviction for murder, because the testimony of the defendant granted immunity was not adequately corroborated. West v. State, 232 Ga. 861, 864-5, 209 S.E.2d 195, 197 (1974). Accord, Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (1976); Smith v. State, 236 Ga. 12, 222 S.E.2d 308 (1976). In reviewing this question on appeal, we may consider all the evidence introduced at trial. Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975).
The State's evidence against Baker reveals that Baker, at the request of Eddie Albert, gave Albert a ride in his Volkswagen to a rendezvous with Ralph Pullin, Jr., at a Tenneco station. There they met Darry Lewis Moseley and invited him along, and the four of them proceeded to an apartment across the street. Witnesses in the apartment corroborated Moseley's testimony at trial that Baker and Albert, with guns, accosted the victim, Richard Thomas, as he attempted to leave the apartment, that while struggling to tie him up with a telephone cord, severely beat him, and that a shot was fired that went through a wall without injuring anybody. Ralph Pullin stood in the doorway and was seen with a gun. Albert and Baker then dragged their victim to Moseley's Pontiac and put him in the trunk. Albert drove the car to a deserted house in Henry County off the Kelleytown road. Baker and Moseley followed in the VW with Pullin proceeding behind them in his own car. Thus only the four defendants were present at that site.
Moseley, who was granted immunity, testified for the State. Pullin testified in his own defense, but neither Albert nor Baker took the stand. Detective David Wynn reported the confession of Albert, but it, of course, was not admissible against Baker. See division two of this opinion. Moseley stated that Albert and Baker tied a cement block to the victim and held him over an open well; then, that Baker shot him under the left arm at close range before he was dropped head first into the well.
Pullin also testified that Albert and Baker held the victim over the well, that Moseley was standing several feet behind Baker and that from Pullin's vantage point out of earshot near the parked cars, it appeared that Baker, whom he did not see with a gun, was trying to talk Albert out of harming the victim further. Albert had nevertheless shot him in the back of the head. The autopsy showed that the victim had been shot in the back of the head.
Moseley's testimony as to the presence of Baker at the apartment was clearly corroborated by the persons present there when Thomas was abducted. On the other hand, the only evidence tending to support Baker's participation at the well was offered by another accomplice, Pullin. It is well settled, however, that the testimony of one accomplice may be corroborated by the testimony of another. Jones v. State, 235 Ga. 103, 218 S.E.2d 899 (1975); Hackney v. State, 233 Ga. 416, 211 S.E.2d 714 (1975); McCormick v. State, 176 Ga. 21, 166 S.E. 762 (1932); Pope v. State, 171 Ga. 655, 156 S.E. 599 (1930). We therefore hold that accomplice Pullin's testimony sufficiently corroborated Moseley's statements as to Baker's participation. Accordingly, the trial court did not err in failing to direct a verdict of acquittal or to grant a new trial.
2. Baker's second enumeration of error raises the question whether the trial court erred in refusing to grant his motion for severance. Since the grant or denial of a motion to sever is left in the discretion of the trial court, its ruling will only be reversed for an abuse of discretion. Mathis v. State, 231 Ga. 401, 202 S.E.2d 73 (1973). In the exercise of that discretion, the trial court Cain v. State, 235 Ga. 128, 129, 218 S.E.2d 856, 857 (1975). The burden is on the defendant requesting the severance to "make a clear showing of prejudice . . . ." Cain v. State, supra, p. 129, 218 S.E.2d p. 857; Stovall v. State, 236 Ga. 840, 225 S.E.2d 292 (1976).
Baker argues that the admission of Albert's confession, since Albert did not testify at trial, constituted a violation of his right of confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), that he was thereby prejudiced, and the severance should have been granted. The United States Supreme Court has held, however, that even though a codefendant's confession is admitted at a joint trial in violation of Bruton, supra, that error may be harmless. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). We think that is the case here. Albert's statement, as related by Detective Wynn, clearly paralleled the testimony of Moseley and Pullin, who both testified and thus were available for cross-examination at trial. The only significant fact which differed between these accomplices was whether Albert or Baker had shot Thomas. Since Albert, in his statement, admitted he had shot Thomas accidentally, when he cocked the gun behind Thomas' head to scare him, the admission of his statement could not have prejudiced Baker. "(T)he 'minds of an average jury' would not have found the State's case significantly less persuasive had the testimony as to . . . (the) admissions been excluded." Schneble v. Florida, supra, p. 432, 92 S.Ct. p. 1060. The admission of Albert's confession was thus harmless error as to Baker, and thus not prejudicial so as to require a severance of the trials.
Baker further argues that "the disruptions and the confusion caused at the trial...
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