Clarke v. State

• Decision Date: 14 July 1965
• Docket Number: No. 22950,22950
• Citation: 221 Ga. 206,144 S.E.2d 90
• Parties: Johnny Lee CLARKE v. The STATE.
• Court: Georgia Supreme Court

Page 90

144 S.E.2d 90

221 Ga. 206

Johnny Lee CLARKE v. The STATE.

No. 22950.

Supreme Court of Georgia.

July 14, 1965.

Rehearing Denied July 26, 1965.

Syllabus by the Court

1. The general grounds of the motion for new trial are without merit.

2. The testimony of a witness relating a conversation with the deceased, which occurred less than a minute before the homicide and within 50 feet from the scene of the tragedy, was admissible as part of the res gestae and as explaining the conduct of the deceased.

3. The conversation, regarding a gun, overheard by a police officer and related by the officer in his testimony constituted a declaration by one of the co-conspirators made concerning the subject matter of the conspiracy and during its pendency, and was sufficient to authorize the jury to find that such conversation related to an act done in pursuance or furtherance of the conspiracy.

4. A remark by counsel for the defendant that 'the proper way to impeach this witness is to introduce copies of crimes involving moral turpitude' does not constitute a technically sufficient objection to evidence sought to be elicited on cross examination of the defendant's witness. However, even if the statement be favorably construed as a valid objection it is not meritorious for two reasons: (1) the objection was made to the whole of the evidence, certain portions of which were, without question, admissible; (2) substantially the same evidence was introduced by the defendant's counsel on re-direct examination of the same witness.

Johnny Lee Clarke was indicted by the grand jury of Fulton County for a homicide committed during the robbery of a service station in the City of Atlanta. Glen M. Howell, the owner of the station, was the victim. On the trial of the case the following evidence was adduced.

On the morning of the homicide, August 18, 1964, the defendant Clarke and Tommy Laverne Davis, who shared the same apartment with him, were joined by George Charles Jones and Robert Moore. The four then proceeded to go out riding, pursuing a wandering course around Atlanta and environs. According to the testimony of Davis and the defendant's statement, they were unemployed and looking for construction work. They ultimately returned to the apartment before noon and remained there a short time. Then Jones, Moore and Clarke went out again in an automobile, leaving Davis behind.

According to the attendant at the service station where the crime occurred, at around 2:15 p. m. on August 18, 1964, Jones came into the station and ordered six packs of cigarettes. When the attendant turned to get the items, Jones stuck a gun in his back and told him to get on the floor. The attendant was forced to kneel or crouch on the floor of the station. At this time, Clarke came in the door and said: 'Let him have it and tie him and put him in the bathroom.' Jones took some money belonging to the service station out of the attendant's pocket. Clarke then stated, 'Here he is,' and ran out of the building. Jones also started to leave, but going out the door he encountered the victim entering the station and there shot him. Despite some question made as to his vantage point and resultant view he had of the perpetrators of the crime, the attendant positively identified both Jones and the defendant Clarke, and related that a few days after the crime he picked them both out of a police lineup. On cross examination the attendant admitted he was 'not looking at the people from where the voices came.'

After the culprits left, the attendant ran next door and told William Corey that Mr. Howell had been shot. In this connection, Corey testified (over objection) that just prior to the fatal shooting Mr. Howell was at his office in a building which was approximately 50 feet from the service station (30 feet from one building to the other) and stated to him: 'There are some suspicious looking Negroes around here at the station. I am going around to see about them.' Howell departed for the station and 'not even a minute' later Corey heard shots.

Two women testified that around 2:30 to 3 that afternoon the defendant Clarke came by their house which was 'three and one-half good blocks' from the service station. Clarke asked for a glass of water which was given to him, asked to borrow a dollar which was refused and then used the telephone to call a taxicab. One of the witnesses related that Clarke was nervous and his trousers were torn. Clarke rode a taxi back to his aunt's house where, according to his statement, he lay in bed until he heard news of the murder. He then called Moore, they met and drove out to the 'scene of the crime' and then returned to the vicinity of the apartment.

At around 3 the same afternoon Jones returned to the apartment where Davis had stayed. He had a gun wrapped in a rag which he left there, and told Davis there had been a robbery and 'they had to shoot a man.' Jones denied he had killed a man and remained with Davis until they heard the news of the killing, when he left. Just before dark Moore and Clarke came to the apartment where they discussed the events that transpired that day.

Some time after the crime, Clarke carried some 'snagged' trousers to his aunt's house and, using her scissors, cut them off. The police found a remmant of cloth on a fence about a block from the filling station. It was compared with the cut-off trousers which were found in the apartment occupied by the defendant. Upon comparison the remnant was identified as being of the same color, type and color series as the threads and material in the cut-off trousers.

A doctor testified the cause of the victim's death was a gunshot or bullet wound. A .38 caliber Smith & Wesson was identified by a ballistic test to be the murder weapon. Concerning this, Davis testified that after Jones gave him the pistol wrapped in a 'dirty rag' he subsequently gave the weapon to another named individual who pawned it. A police officer who arrested Clarke testified, over objection, that he overheard a conversation 'about a gun' in the apartment where only Clarke and Moore were present. He related that someone said when the police first came by, 'I had a gun and went in the alley and got rid of it.' The officer could not say who made the statement. No showing was made as to where the murder weapon was found.

In his unsworn statement the defendant denied any prior knowledge that Jones planned to rob the service station. He explained that he thought Jones was going into the station to purchase some cigarettes and the first he knew of it was when Moore told him Jones had a gun on the attendant. The defendant recited he then went to the door to attempt to dissuade Jones from committing the robbery but was unable to accomplish this and when he saw someone approaching he fled. Davis testified that Jones told him: 'They [Clarke and Moore] didn't know Jones was going to do this.' He further related that Clarke told him: 'the man * * * tricked us. * * * We didn't know he was going to rob that man.'

The jury found the defendant guilty of murder without a recommendation of mercy. The defendant filed a motion for new trial on the general grounds and later added three special grounds by way of amendment. The trial judge overruled the motion for new trial, as amended, the defendant excepted and the case is here for review.

Hester & Hester, Frank B. Hester, Richard M. Hester, Atlanta, for plaintiff in error.

William T. Boyd, Sol. Gen., Carter Goode, Paul Ginsberg, Eugene Cook, Atty. Gen., J. R. Parham, Atlanta, for defendant in error.

QUILLIAN, Justice.

1. The verdict was supported by sufficient competent evidence. The record discloses no merit in the general grounds of the motion for new trial.

2. Ground 4 of the amended motion for new trial complains that, over timely objection of movant's counsel, the trial judge admitted the following testimony of a State's witness: 'I had just walked in the office and was on the telephone at the time. Mr. Howell came in the door, my office door from outside and he told me * * *. 'There are some suspicious looking Negroes around here at the station,' and I was listening to him, I put my hand on the phone. He said, 'I am going around here to see about them.'' The objection was that the testimony of the witness was hearsay and not admissible under any exception to the hearsay rule. Ordinarily the reason of the deceased for seeking the defendant or his purpose in going to the scene of the homicide expressed to another, but not communicated to the defendant, is hearsay and not admissible under Code § 38-302 to explain the conduct of the deceased. Woolfolk v. State, 81 Ga. 551, 8 S.E. 724; Tiget v. State, 110 Ga. 244, 34 S.E. 1023; McCray v. State, 134 Ga. 416(7), 68 S.E. 62. But the testimony of the witness in the present case relating the conversation with the deceased, which occurred less than a minute before the homicide and within about 50 feet from the scene of the tragedy, was admissible as part of the res gestae (Thomas v. State, 67 Ga. 460(3)) and as explaining the conduct of the deceased. Warrick v. State, 125 Ga. 133(1), 53 S.E. 1027; Smith v. State, 148 Ga. 467, 96 S.E. 1042; Thompson v. State, 166 Ga. 512, 143 S.E. 896; Shirley v. State, 168 Ga. 344(1), 148 S.E. 91.

The ground is without merit.

3. Special ground 5 of the amended motion for new trial complains that the trial judge erroneously admitted over the timely objection of the defendant, now movant, the testimony of a State's witness, Detective J. L. Shattles, to wit: 'Well, when we were going up the rear steps [to the defendant's apartment] we heard a discussion going on. * * * We overheard them talking about a gun. He said when the police first came by I had the gun and I went up in the alley. The next time I seen the police I had already gotten rid of the gun.' The witness admitted that he did not know whether the defendant himself made the statement, but stated that the...