Conley v. State, 55185

• Decision Date: 14 July 1978
• Docket Number: No. 55185,55185
• Parties: CONLEY v. The STATE.
• Court: Georgia Court of Appeals

Page 562

247 S.E.2d 562

146 Ga.App. 739

CONLEY v. The STATE.

No. 55185.

Court of Appeals of Georgia.

Submitted Feb. 1, 1978.

Decided July 14, 1978.

William T. Straughan, McRae, for appellant.

Phillip R. West, Dist. Atty., James L. Wiggins, Asst. Dist. Atty., for appellee.

SMITH, Judge.

Charles Conley and Raymond McDonald were jointly tried for the murder of Willie Boone, Jr. They presented no evidence. McDonald was convicted of murder and given a life sentence. Conley was convicted of voluntary manslaughter and a given a twelve-year sentence.

The state contended that the homicide of Boone was the result of a conspiracy between Conley and McDonald. Conley assigns six enumerations of error. Only the first and sixth need to be dealt with in disposing of this case. The first contends that "the evidence is insufficient to support the verdict" and the sixth that "the court erred in allowing the jury to return repugnant verdicts for the same offense, murder (McDonald) and voluntary manslaughter (Conley). We reverse.

1. Conley's contention that the verdict of murder as to McDonald and voluntary manslaughter as to him are repugnant verdicts is without merit, Smith v. State, 142 Ga.App. 810, 812, 237 S.E.2d 216 (1977) (Judge McMurray dissenting), to the contrary notwithstanding. The Supreme Court in McDonald v. State, 241 Ga. 112, 243 S.E.2d 53 (1978), in affirming McDonald's murder conviction, held that the verdicts were not repugnant, citing 95 A.L.R.2d 177, 189; and Brown v. State, 28 Ga. 199 (1859).

2. However, Conley's contention that the evidence is insufficient to support his conviction of voluntary manslaughter Is meritorious. The state based its case upon a charge that Conley and McDonald conspired to bring about the murder of Boone. The jury did not believe the state had carried the burden of proving the conspiracy, inasmuch as it convicted Conley of voluntary manslaughter, not murder. The state spent its entire effort on proving a conspiracy to murder Boone. There was no attempt to prove a conspiracy to commit voluntary manslaughter. Perhaps the reason was two-fold: First, there was no evidence to support a voluntary manslaughter verdict; second, one simply cannot conspire to kill another in the heat of passion. We must now examine the evidence to determine if Conley was guilty of killing Boone in the manner proscribed by Code § 26-1102. This section provides, "A person commits voluntary manslaughter when he causes the death of another human being, under circumstances which would otherwise be murder, if he acted Solely as the result of a Sudden, violent, and Irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person . . ." (Emphasis supplied.)

On the night of April 16, 1976, Charles Conley rode with Raymond McDonald in McDonald's truck to the store owned and operated by Willie (Junior) Boone. Prior to arrival, two of Boone's close friends, Harris Malloy and William Marchant, came by, arriving at approximately 9 p. m. Malloy and Marchant stayed a few minutes then left and were gone about 45 minutes. Upon returning to the Boone store, they noticed two men on the outside. Malloy spoke to them as he and Marchant entered the store. Upon entering the store Boone handed Malloy a .25 caliber automatic pistol. As Boone handed him the pistol the two men that were on the outside entered the store. As they entered Boone greeted them by saying "go on I don't want no trouble." He repeated this several times as the two men (McDonald and Conley) walked up to the counter behind which Boone was standing and leaned on the counter with their hands. Neither McDonald nor Conley said anything. After Boone handed Malloy the .25 caliber automatic, Boone reached under the counter and got a .38 revolver. He held this gun in his hand down by his side. McDonald started to move one of his hands and Boone told him not to do that. As Boone said this he (Boone) placed the .38 caliber pistol on the counter and pulled a 30-30 automatic rifle from under the counter and held it in a more or less menacing manner and told McDonald and Conley to leave. When Boone placed the .38 pistol on the counter Malloy handed the .25 automatic to Marchant and picked up the .38 pistol. When Boone pulled the rifle and told McDonald and Conley to leave, they started backing toward the front door. As they were backing away McDonald said, "Alright, we'll see you, Mr. Boone." As they neared the front door two people were coming in and McDonald said, "Come on in." McDonald went out the front door as the two people (Buddy Man and Dee) were entering. Conley in the meantime backed in between the milk counter and bread counter directly in front of Boone. As Buddy Man and Dee crossed between Boone and McDonald, and as McDonald backed out the door, Boone shouted, "Get out of the way, Buddy Man." When he shouted this, Buddy Man and Dee took off running toward the back of the store. Boone was still behind the counter holding the rifle in the general direction of the door; Malloy was toward the end of the counter with the .38 pistol; Marchant was in the back of the store with the .25 automatic; and Conley was still between the milk and bread counters as McDonald stepped out the door and the two people ran toward the rear of the store.

After McDonald stepped out of the front door and was on the porch, he turned, and shot through the open door, striking Boone in the chest. As Boone staggered backwards and fell he fired the automatic rifle several times as McDonald attempted another shot through the store window. When the firing of guns began Marchant, Buddy Man and Dee went out the back door of the store into an enclosed passageway that connected the store and living quarters; Conley squatted down between the bread and milk counters; and Malloy got behind the freezer locker. Immediately after the shooting ceased, Conley pushed the wooden front door closed leaving him on the inside of the store along with Malloy, Marchant and Boone. Marchant yelled to Malloy to keep down, that one of them (McDonald or Conley) was still in the store. Malloy started hollering at Conley to get out and when he did Conley said, "Don't shoot me, don't shoot me, I'm just a second." When he said this Malloy fired one shot from the .38 pistol into the ceiling, and when he did this Conley yelled, "Don't shoot me," and ran out of the store. Within minutes, he and McDonald left in McDonald's truck. Shortly thereafter and several miles away Conley tried unsuccessfully to buy a pistol.

When the shooting was over Marchant heard a loud knocking on the door that opened into the yard in back of the store. This door was in the enclosed passageway leading from the store to the living quarters. The person was shouting to open the door, that she was Boone's wife. When Marchant opened this door a lady came in. No one knew where she had been before or during the shooting. When she saw what had happened she became hysterical. No one knew who she was, but she was later identified as Mrs. Christine McDonald, the wife of Raymond McDonald. Only Marchant had seen her before; he stated he had seen her at Boone's store two or three times in the past two months. Also, none of the witnesses in the store immediately before and during the shooting knew McDonald or Conley. One person on the outside, but who never came into the store, recognized Conley as a man he had worked with a short while sometime prior to this incident. At least three witnesses who were on the outside stated that McDonald, while outside the door on the porch and immediately before he shot Boone, had the handle of a pistol sticking out of his side pocket. This was after McDonald had been in the store and backed out. No one In the store ever saw a pistol or any other type weapon in the hands of or on the person of McDonald or Conley while they were in the store. Nor did anyone ever see a weapon of any kind or nature at anytime in Conley's hands or on his person.

" When a homicide is neither justifiable nor malicious, it is manslaughter, and if intentional, it is voluntary manslaughter." Starr v. State, 134 Ga.App. 149, 213 S.E.2d 531 (1975) and cits. Insofar as Conley is concerned the jury determined that the killing of Boone was not malicious. This disposes of the state's contention that a conspiracy to murder Boone existed between Conley and McDonald. Certainly there could not be a conspiracy between Conley and McDonald for McDonald to murder Boone and Conley to commit voluntary manslaughter. One cannot conspire to kill in the Heat of passion. Voluntary manslaughter is the result of one causing the death of another "acting solely 'as the result...