Broomall v. State, s. S90A0350

• Decision Date: 31 May 1990
• Docket Number: Nos. S90A0350,S90A0351,s. S90A0350
• Citation: 391 S.E.2d 918,260 Ga. 220
• Parties: BROOMALL v. STATE. BOOHER v. STATE.
• Court: Georgia Supreme Court

Page 918

391 S.E.2d 918

260 Ga. 220

BROOMALL v. STATE.

BOOHER v. STATE.

Nos. S90A0350, S90A0351.

Supreme Court of Georgia.

May 31, 1990.

Alton G. Hartley, Hartley, Puls & O'Connor, Decatur, for broomall.

Robert E. Wilson, Dist. Atty., Eleni Ann Pryles, Asst. Dist. Atty., Decatur, Michael J. Bowers, Atty. Gen., Leonora Grant, Asst. Atty. Gen., Atlanta, R. Stephen Roberts and Desiree L. Sutton, Asst. Dist. Attys., Decatur, Leonora Grant, for State.

Darel C. Mitchell, Decatur, for Booher.

HUNT, Justice.

Nora V. Broomall and Cecil Eugene Booher were convicted of the contract killing of her husband, George Broomall, at Callanwolde Fine Arts Center where the victim, a DeKalb County maintenance man, worked. Booher was also convicted of burglary with intent to commit theft. ¹ They appeal, raising the general grounds and several separate enumerations of error regarding the admission of evidence and the charge to the jury. We affirm both cases.

The jury was authorized to find that in order to obtain life insurance proceeds on the victim's life, defendants Broomall and Booher conspired to kill him at Callanwolde and to remove some items, including several cases of liquor and some stereo equipment, from the premises to make it appear that the victim had been killed when he surprised a burglary in progress as he came to work on Friday, October 9, 1987. Booher stabbed the victim twice in the chest, then slit his throat. Recovery of the victim's belt buckle, his wallet and its contents, and the items taken from Callanwolde from the defendants' possession independently supported the first custodial statement of defendant Broomall in which she stated that for $25,000.00 from the expected life insurance benefits, Booher agreed to stab her husband with the knife she had purchased from a flea market.

Booher contended, however, that he assisted the victim, at the victim's insistence, in committing suicide at Callanwolde, while making it appear he had been killed during a burglary, so that his wife would benefit from the insurance money. No evidence in the victim's personal life from sources other than the defendants' testimony indicated he was currently depressed or contemplating suicide. The victim, according to Booher, had promised to leave a note in a safe deposit box instructing defendant Broomall to pay Booher $25,000.00 from the life insurance proceeds. No safe deposit box or note from the victim was discovered.

When she was told that Booher had not implicated her in the crime, defendant Broomall recanted her earlier statement and insisted she knew nothing about either her husband's plan to commit suicide or Booher's plot to kill her husband.

1. Having reviewed the evidence in the light most favorable to the jury's determination, we conclude that a rational trier of fact could have found both defendants guilty of malice murder, and Booher guilty of burglary, beyond a reasonable doubt. ² Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Crawford v. State, 245 Ga. 89, 90, 263 S.E.2d 131 (1980).

Nora Broomall's Appeal.

2. Defendant Broomall contends the trial court erred in allowing an insurance agent to testify to a statement defendant Broomall made to her over the telephone while in custody on October 20, 1987. She contends the statements were inadmissible because the state failed to comply with OCGA § 17-7-210(a), requiring the prosecution to serve the defendant with copies of her in-custody statements at least ten days before trial. During the telephone call, defendant Broomall told the insurance agent that she was in jail because "they caught the guys that did it. I guess they talked."

The state had interviewed the insurance agent in November 1987, but the focus of that interview had been on the circumstances surrounding the purchase of the victim's life insurance rather than on the contents of the telephone conversation. When the prosecution reinterviewed the agent a few days prior to trial, however, defendant Broomall's statement was first revealed. Defense counsel were immediately notified by telephone of the incriminating statement and subsequently served in writing in accordance with the statute. OCGA § 17-7-210.

When an objection was raised to this evidence at the trial, the trial court decided the evidence was newly discovered and was revealed as soon as practicable after its discovery. Defense counsel were then afforded an opportunity to question the witness outside the presence of the jury. OCGA § 17-7-210(e). Pretermitting whether this comment qualifies as an in-custody statement subject to the statute, the trial court's decision that it was governed by OCGA § 17-7-210(e) was not erroneous. See, Blanchard v. State, 247 Ga. 415, 419, 276 S.E.2d 593 (1981).

3. Defendant Broomall's contention her initial in-custody statement was induced by hope of benefit and fear of injury is meritless. After a thorough Jackson v. Denno hearing, the trial court specifically found that her statement was not the result of duress or coercion; that decision is not clearly erroneous and must be upheld on appeal. Lobdell v. State, 256 Ga. 769, 773, 353 S.E.2d 799 (1987); James v. State, 257 Ga. 62, 63, 355 S.E.2d 60 (1987).

4. Defendant Broomall complains of the trial court's refusal to give three of her requests to charge. The requests not given were:

(a) I charge you that if a defendant mistakenly believes that his conduct is lawful, such mistake shall be no defense to the offense[;] however, such mistake may be germane to the issue of the defendant's intent. The state is still required to prove that the defendant had the criminal intention to commit the offense beyond a reasonable doubt.

(b) I charge you that the consent of the victim may be a defense to murder if the defendant in the instant case had no evil disposition toward the victim but acted only at the victim's own earnest request to save him from what the victim considered to be a greater evil.

(c) Suicide is not a crime in the state of Georgia.

The gist of these requests to charge is to suggest to the jury that certain conduct, involved in aiding the commission of a suicide, ³ may not amount to malice, and consequently would not support a malice murder conviction. As to (a) and (b), to the extent they are not incorrect statements of law, ⁴ they are argumentative and the trial court did not err in refusing them. Ballard v. State, 11 Ga.App. 104(1), 74 S.E. 846 (1912). Moreover, the trial court gave the jury extensive instructions on malice, criminal intent and parties to a crime. ⁵ It charged, additionally, that:

Should you find beyond a reasonable doubt that the defendant had knowledge that the crime of murder was being committed, and that she knowingly and intentionally participated, aided or abetted in the commission thereof, then you would be authorized to convict that defendant. [Emphasis supplied.]

Thus, the principles relating to the intent element of murder were adequately and fairly presented in the charge given by the court and it was not error to refuse to present the substance of (a) and (b) in the manner requested. See, e.g., Irwin v. State, 244 Ga. 850, 853, 262 S.E.2d 99 (1979).

Although the statement "suicide is not a crime in Georgia" is a true statement, it was not, in view of our analysis involving requests (a) and (b), an appropriate legal instruction and no error was committed in refusing to give it.

5. The trial court committed no error in admitting the complained of photographs. Leggett v. State, 256 Ga. 274, 275, 347 S.E.2d 580 (1986); Goss v. State, 255 Ga. 678, 680, 341 S.E.2d 448 (1986).

Eugene Booher's Appeal.

6. Booher also challenges the use of his custodial statement at the trial of their case. While being transported to the jail, Booher was read his Miranda rights, and commented: "I wonder where I could get an attorney at this time of night." After arriving, he signed a waiver of his rights and gave a statement to the police. He complains on appeal that after having made an admittedly equivocal request for an attorney, the police erred in questioning him on any aspect of his case before clarifying that request. Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981).

Booher testified at the Jackson- Denno hearing, however, that when he reached the interrogation room, he...