Castell v. State

Decision Date16 March 1983
Docket NumberNo. 39080,39080
Citation250 Ga. 776,301 S.E.2d 234
PartiesCASTELL v. The STATE.
CourtGeorgia Supreme Court

V.D. Stockton, Dist. Atty., Michael H. Crawford, Asst. Dist. Atty., Clayton, Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Asst. Dist. Atty. Gen., for the State.

MARSHALL, Presiding Justice.

Stephens County Tax Commissioner Elizabeth Williams was murdered at her home early in the morning of July 31, 1980. After investigation, authorities suspected that former Tax Commissioner Donald Addison and Raymond McJunkin had hired John Michael Jones and the defendant in this case, James Everett Castell, to kill Mrs. Williams. The four of them were jointly indicted but tried separately. Castell was tried first, convicted, and sentenced to death. 1 Jones was convicted and given a life sentence. His conviction was affirmed in Jones v. State, 250 Ga. 11, 295 S.E.2d 71 (1982). Addison and McJunkin were acquitted.

Jones was the state's key witness against Castell. He testified as follows. Castell and Jones were residents of South Carolina. At Castell's request, Jones drove him to Roger Dean's garage in Toccoa, Georgia Jones' testimony as to Castell's participation was corroborated primarily by Burris Holbrooks, who testified as follows. Holbrooks worked in July and part of August, 1980, at Roger Dean's garage. Sometime during the third week in July, Addison, whom Holbrooks had known for 12 to 15 years, approached Holbrooks and asked him if he would break into the tax office and destroy records. Addison said that when the books were audited, he wanted it to look as though Mrs. Williams was trying to hide something. Holbrooks told Addison that he wouldn't do it. Later, Addison, who was running for tax commissioner, said the only way he could get elected was to get rid of Mrs. Williams. He asked Holbrooks if he would kill her for $1,500. Holbrooks again refused. Holbrooks later observed Addison talking to McJunkin and Castell. A day or two later, Addison told Holbrooks that Castell was his man and the job would be done before Friday. At lunchtime on Thursday, the day of the murder, Holbrooks observed the arrival of Jones and Castell at Roger Dean's garage. Castell made a telephone call. Ten or 15 minutes later, Addison arrived and talked with Castell, out of Holbrooks' hearing. When Holbrooks heard that Mrs. Williams had indeed been murdered, he went to the authorities with the foregoing information.

                the Sunday before Mrs. Williams was killed.  They returned Monday.  Donald Addison was at the garage Monday, and after introducing him to Jones, Castell took Addison out of Jones' hearing and talked to him for several minutes.  Later, Castell retrieved an envelope, containing $1,000 in $100 bills, from Raymond McJunkin's wrecker.  Castell gave Jones $100.  They returned Tuesday and Castell picked up an additional $500.  At Castell's request, Jones again drove Castell to Toccoa early Thursday morning.  When they arrived in Toccoa, they stopped and Castell made a call from a public telephone.  Then he directed Jones to Mrs. Williams' residence.  Jones parked in the driveway.  Castell went to the front door and Mrs. Williams let him in.  Jones heard a scream and then two shots.  Castell exited the house, used his shirt to wipe off the doorknob, and came back to the car.  They drove back to South Carolina, but returned to Toccoa the same day;  Castell said he needed to pick up more money.  On the way in, Castell threw his pistol into Lake Hartwell. 2  Jones dropped Castell off at Roger Dean's garage, returned later, and the two drove back to South Carolina.  Castell gave Jones an additional $200 for getting him involved

In addition to the foregoing, the state offered evidence that on July 28, 1980, the Bank of Toccoa had loaned Addison $1,500; that during July and early August, 1980, a number of long distance telephone calls had been placed from the residence of T.R. McJunkin to that of Joan Chapman (Castell's ex-wife, with whom he was living at the time), and vice versa; and that when Castell was arrested on August 12, he had seven $100 bills in his back pocket.

Castell testified that he did not kill Mrs. Williams; that he and Jones came to Georgia on the afternoon of July 31 because Jones wanted to see McJunkin about getting his job back; that the $700 in his pocket was part of $1,100 he had borrowed from his sister in the latter part of July to purchase a truck; and that, because his credit was no good, McJunkin was going to co-sign the note on the truck.

Mrs. James Williams testified that she observed one of the defendant's sisters lend him $1,100 in $100 and $20 bills. Vicki Castell (the defendant's sister-in-law) testified that, in July of 1980, she was living with Dale Upton and Michael Jones. Jones and Upton left the house together at 6:00 a.m. on the 31st and returned about dinner time. Mary Watkins (defendant's sister, but not the one who allegedly loaned him $1,100) testified that Jones had a reputation for violence and dishonesty.

1. We address, first, the defendant's contentions that the declarations of alleged co-conspirator Addison were erroneously admitted, that the state failed to sufficiently corroborate the testimony of co-defendant Jones, and that the evidence was insufficient to support the verdict.

(a) If a prima facie case of conspiracy is shown on the whole evidence, exclusive of declarations by an alleged co-conspirator, it is not error to admit such declarations over an objection that they are inadmissible hearsay. OCGA § 24-3-5 (Code Ann. § 38-306); Knight v. State, 239 Ga. 594(2), 238 S.E.2d 390 (1977); Fallings v. State, 232 Ga. 798(1), 209 S.E.2d 151 (1974).

We do not agree with the defendant that, aside from the declarations, the only evidence of a conspiracy was "Jones witnessing the appellant and Addison conversing together, and the Addison bank loan." The circumstances, considered in their entirety, include: (a) several trips by Castell to Roger Dean's garage, where he obtained at least $1,500 in $100 bills from McJunkin's truck; (b) conversations between Addison and Castell, one of which occurred immediately prior to Castell's receipt of $1,000 and another of which occurred on the afternoon of the murder after Castell had made a special trip back to Toccoa; (c) payment of $300 by Castell to Jones; (d) the loan of $1,500 by the Bank of Toccoa to Addison, three days before the murder; (e) a number of long-distance telephone calls between McJunkin and Castell shortly before and after the murder; and (f) the seven $100 bills in Castell's back pocket when he was arrested.

The evidence of conspiracy was sufficient to allow the introduction of declarations of the alleged co-conspirator Addison under OCGA § 24-3-5 (Code Ann. § 38-306).

(b) The defendant contends that if the admission of these declarations did not violate OCGA § 24-3-5 (Code Ann. § 38-306), it violated his Sixth Amendment right of confrontation. See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).

We note, first, that the defendant's right of confrontation was not abridged by Holbrooks' testimony that Addison had requested Holbrooks' assistance in committing a burglary and had offered him $1,500 to murder Mrs. Williams. The importance of these statements lies in the fact that they were made; it does not depend upon the veracity of the out-of-court declarant, Addison. 3 "Neither a hearsay nor a confrontation question would arise [from use of testimony] to prove merely that the statement had been made. The hearsay rule does not prevent a witness from testifying to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements. From the viewpoint of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only to what he has seen but also to what he has heard." Dutton v. Evans, supra, 400 U.S. at p. 88, 91 S.Ct. at p. 219 (footnote omitted).

The confrontation issue arises in this case because the jury was invited to infer that Addison had implicitly identified Castell as the murderer when he told Holbrooks that Castell was his man and the job would be done before Friday. The thrust of Dutton v. Evans, supra, is that in cases involving a co-conspirator exception to the hearsay rule, the admission of the statement of a co-conspirator does not violate the confrontation clause if the statement and the circumstances surrounding it contain sufficient "indicia of reliability." Mooney v. State, 243 Ga. 373(3), 254 S.E.2d 337 (1979). 4

Dutton v. Evans identified at least four factors indicative of reliability: "(1) The declarations contained no assertion of a past fact, and consequently carried a warning to the jury against giving it undue All of these factors are present in this case. We conclude that the defendant's Sixth Amendment rights were not violated by introduction of Addison's declarations.

                weight;  (2) the declarant had personal knowledge of the identity and role of participants in the crime;  (3) the possibility that the declarant was relying on faulty recollection was remote;  and (4) the circumstances under which the statements were made did not provide reason to believe that the declarant had misrepresented the defendant's involvement in the crime."   United States v. Fielding, 630 F.2d 1357, 1366 (9th Cir.1980)

(c) In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8 (Code Ann. § 38-121). The corroboration must be independent of the accomplice's testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. Allen v. State, 215 Ga. 455, 111 S.E.2d 70 (1959). "However, the corroborating evidence need not of itself be...

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