Birt v. State
| Citation | 236 Ga. 815,225 S.E.2d 248 |
| Decision Date | 20 April 1976 |
| Docket Number | No. 30638,30638 |
| Parties | Billy Sunday BIRT v. The STATE. |
| Court | Supreme Court of Georgia |
H. Reginald Thompson, Dist. Atty., Swainsboro, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Asst. Atty. Gen., Atlanta, for appellee.
This is a death case. Following trial by jury in Jefferson County, Billy Sunday Birt was found guilty of one count of burglary, two counts of armed robbery by use of offensive weapons and two counts of murder. He was sentenced to twenty years for burglary, to life for each of the offenses of armed robbery (to be served concurrently), and to death for each of the offenses of murder. These offenses all related to Mr. and Mrs. Reid Oliver Fleming, Sr., and occurred on December 22, 1973. The defendant was found not guilty of the December 21st burglary of the home of Jerry Haymon.
The case is before this court on appeal and for review of the death sentences. The State presented evidence from which the jury was authorized to find the following:
Carswell Tapley was employed by George Leisher on Leisher's farm in Washington County, Georgia. Leisher lived in Marietta and operated a used car lot. He made occasional visits to his farm. In late 1973, Leisher informed Tapley that if Tapley knew anyone who had money, Leisher knew some men who would 'look into it' and pay 20% for help in 'setting up a job.' Tapley informed Leisher that a Mr. Fleming kept from $50,000 to $60,000 in his home.
Leisher saw Billy Wayne Davis, also in the used car business and formerly a business partner of Leisher's, and informed him that Tapley had information for him and gave Davis Tapley's phone number and a means of identification, the code word 'hogs.' 1 According to Davis' testimony, defendant Billy Sunday Birt had previously told Davis that he would be well paid for such information, and Davis passed the information to the defendant and instructed him how to contact Tapley.
When Leisher returned to the farm he told Tapley that he had gotten 'in touch with the boys' who would contact Tapley shortly. Later, a person who identified himself as Jim Gordon called Tapley and stated he was calling from Leisher's car lot. The caller said he would be by for Tapley at nine o'clock that evening 'to go get the hogs.' Upon his arrival Tapley showed him the Flemings' residence in Wrens. Gordon asked Tapley what he knew about Jerry Haymon and where he lived.
According to Davis, a few days later Birt described two houses in Wrens, Georgia, to Davis. Davis contacted Larry Bethune who operated a body shop in Austell, and asked Bethune if he wanted to 'pick up some money.' Bethune indicated interest and on December 19, 1973, Bethune followed Davis to Wrens. Once they reached Wrens, Bethune got into Davis' car in which they drove by the Fleming residence and stopped at Haymon's filling station. An unfamiliar car was in the Fleming driveway and they left Wrens.
According to Davis, on Friday, December 21, 1973, Birt called Davis and asked him to come to a motel in Atlanta. Davis found Birt, Bobby Gaddis and Charles Reed at the motel. Birt explained to Davis that the three of them were planning a trip to Wrens to 'take care of the business.' Birt borrowed a car from Davis for the trip and also borrowed Davis' pistol.
The following morning, Saturday, December 22, 1973, Birt was waiting when Davis arrived at his car lot in Austell. According to Davis, Birt said that he had been awake all night, and that he planned to get some rest before going back to Wrens that evening. Further, Birt told Davis that he needed to have another car, as the one he had borrowed had already been seen in Wrens.
On Saturday afternoon, December 22, 1973, Davis took his car to Bethune to swap.
When Bethune examined the trunk, it contained three guns and some coins which were identified as being stolen from Jerry Haymon's house. Bethune traded with Davis who received a 1971 green Cadillac, which, according to Davis, he turned over to defendant Birt.
Before Mr. Fleming closed his used car business on December 22, 1973, Bobby Gene Gaddis went to the car lot and made inquiries about a pickup truck. A customer who was in Mr. Fleming's office at the time made an in-court identification of Gaddis in a lineup.
In the early morning hours of Sunday, December, 23, 1973, Davis drove a motor home to the interchange at I-20 and Route 11 where he met Birt, Gaddis, and Reed at about 2 a.m. Birt revealed that they had had difficulty in Wrens and had killed the Flemings. He said they had tortured Mr. Fleming to make Mrs. Fleming divulge where their money was hidden.
Davis asked for the return of his pistol and Reed remembered last seeing it in the Flemings' home. According to Davis, he and Birt and Gaddis then drove the '71 Cadillac to Wrens to retrieve the gun. Approximately twelve miles outside of Wrens they experienced car trouble and Birt flagged down a passing car by use of his flashlight.
About 4 a.m. on December 23, 1973, Mr. John Alley was flagged down by at least two motorists with car trouble a few miles outside Wrens, Georgia. Mr. Edgar Chance who worked with Mr. Alley also stopped. Defendant Birt accompanied Mr. Chance and Mr. Alley to their place of employment to obtain jumper cables. They both identified Birt. Mr. Chance identified the automobile used by Birt as a Cadillac and testified that Birt stated that they were going to Florida.
Davis testified further that after the car was started, Davis, Gaddis and the defendant proceeded to the Fleming residence, where Davis obtained tools to repair the Cadillac from the Flemings' garage. Birt failed to find the missing pistol in the Fleming home but later found it down the road where the Flemings' automobile had been abandoned.
They repaired the Cadillac and left Wrens. En route back to the motor home at I-20 and Route 11, Birt and Gaddis described the events of that evening to Davis. According to Davis they said that after dark defendant Birt, Gaddis and Reed approached the Fleming residence. When Mr. Fleming responded to their knocks at his door they told him they wished to purchase the pickup truck Gaddis had looked at earlier. When Mr. Fleming told them to return in the daylight hours, they forced their way into the house and proceeded to tie their victims. While Gaddis stood guard, Birt and Reed drove the Cadillac and the Flemings' car down a side road away from the Fleming home and returned in the Flemings' automobile. They then proceeded to torture Mr. and Mrs. Fleming. With mirth they reported to Davis that Mrs. Fleming was hard of hearing but that her hearing improved considerably when a coat hanger was tightened about her throat. Gaddis and Birt also told Davis that they had obtained $4,000 from the Flemings. The money had been buried in fruit jars in the Flemings' smokehouse.
Davis drove the motor home and Birt and Gaddis followed Davis to Austell, where Birt paid Davis $850 in cash for a car. Birt insisted that the bill of sale be made out to his son. The only witness for the state who testified as to the events of the night of December 22 and morning of December 23, with the exception of Mr. Alley and Mr. Chance, was Billy Wayne Davis.
On Sunday morning, December 23, 1973, when his father failed to attend church services, Hugh Fleming drove to his parents' home to investigate. Arriving at their residence, Hugh recognized that something was wrong when he found that the back door was unlocked and that the interior of his parents' home had been ransacked. Hugh found his 73-year-old mother lying face down on her bed with a coat hanger twisted around her neck. Hugh reported to law enforcement officials and they found his 75-year-old father at the foot of his Dr. Larry Howard of the State Crime Laboratory performed the autopsies on Mr. and Mrs. Fleming. Dr. Howard determined that Mr. Fleming's death was due to strangulation performed quite abusively. Dr. Howard found severe abrasions and contusions around the throat of the deceased. He also observed two lines on Mr. Fleming's throat which were caused by repeated applications of a ligature. There were multiple hemorrhages about the throat, face and scalp. In addition, Dr. Howard noted abrasions on the deceased's right ear and cheek, as well as multiple contusions about Mr. Fleming's eyes. Dr. Howard observed that other head injuries were possibly caused by multiple impacts of Mr. Fleming's head against the floor. Dr. Howard also noted that Mr. Fleming's left thumb nail was split down the middle. The injuries to the structure of Mr. Fleming's throat, and the signs of oxygen deprivation, indicated that there several episodes of asphyxia due to oxygen deprivation prior to Mr. Fleming's death. The injuries around Mr. Fleming's neck indicated that his bonds were tightened, and loosened, only to be tightened again.
wife's bed. The elder Fleming had a coat hanger and the cords to an electric drill and an electric clock wrapped around his neck. The hands and feet of both victims had been bound by bedsheets.
Mrs. Fleming's death also resulted from strangulation. Dr. Howard noted that her eyes were bulging and hemorrhaged and that her tongue was pushed forward. He noted a bruise on her neck that had been caused by the friction created by the rubbing of the coat hanger around her neck. Blood and fluid were found in Mrs. Fleming's nose and mouth.
Dr. Howard concluded that the deaths of the two victims were not instantaneous, but resulted from prolonged episodes of abuse. He expressed the opinion that the time of death was about 10 to 11 p.m. on December 22.
Police officers testified that the Flemings' home had been completely ransacked, that the lock on the smokehouse door had been broken and that fruit jars were found inside, and that the Flemings' Ford automobile was found about 2 miles from their home.
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