Conway v. State

• Decision Date: 19 March 2007
• Docket Number: No. S06A1650.,No. S06A1649.,S06A1649.,S06A1650.
• Citation: 281 Ga. 685,642 S.E.2d 673
• Parties: CONWAY v. The STATE. Bates v. The State.
• Court: Georgia Supreme Court

281 Ga. 685

642 S.E.2d 673

CONWAY v. The STATE.

Bates v. The State.

No. S06A1649.

No. S06A1650.

Supreme Court of Georgia.

March 19, 2007.

Randolph Frails, Augusta, for Appellant.

Daniel J. Craig, Dist. Atty., Madonna Marie Little, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Paula Khristian Smith, Asst. Atty. Gen., Edwina M. Watkins, Asst. Atty. Gen., for Appellee.

HINES, Justice.

These appeals arise from criminal prosecutions in connection with the deaths of Timothy Hale and Rhonda Warren. In case number S06A1649, Katherine Melissa Conway ("Conway") appeals from her convictions for two counts of malice murder, and in case number S06A1650, Keane Alan Bates ("Bates") appeals from his convictions for two counts of malice murder. For the reasons that follow, we affirm in both cases.¹

Construed to support the verdicts, the evidence showed that until June 1995, Conway was the girlfriend of victim Hale; they broke up, but Conway attempted to renew the relationship. However, Hale began a relationship with Warren. On September 29, 1995, Conway and two female friends came to the trailer park where Hale lived. Conway stated that "we're going to kick [Warren's] ass." The women then rushed into Hale's trailer, but Hale prevented them from reaching Warren.

Hale and Warren were seen by a neighbor at 1:00 p.m. on Saturday, November 4, 1995; that evening, and again on Sunday, they did not answer telephone calls to the trailer, or knocks at the door. Their bodies were discovered on Monday morning, November 6, 1995. They had been killed by gunshots to the head. Forensic evidence showed that they were seated on a sofa bed when shot, and their bodies were then moved to prone positions on the bed.

Testimony concerning the details of Conway's and Bates's involvement in the murders is not identical in every respect, but it showed that David Arlen Bates ("David"), the father of defendant Alan Bates, assisted in the hiring of Richard Scott Breedlove ("Breedlove") to kill Hale.² Bates hired Breedlove after Bates and Conway developed a romantic relationship.

Specifically, David testified that: on Friday, November 3, 1995, Bates told David that he was "going to kill" a man named Tim, and asked to be put in touch with Breedlove, who was a dealer of illegal drugs; Conway was positioned where she could hear the conversation; David located Breedlove and told him that Bates wanted to see him about "some trouble with somebody"; Breedlove asked if Bates wanted the person's "butt kicked," and David said that Bates was saying that he wanted the person killed; late the next evening, David was at the home of Donna Szatkowski, a paramour of his; Bates and Conway arrived, and while Conway remained in the living room, Bates went into the bedroom where David was; David asked Bates "did you get your problem solved? He taking care of it?"; Bates responded, "Yeah, they're dead"; David asked who was dead, and Bates responded "Tim" and "Rhonda"; Breedlove arrived, went to the bedroom where Bates and David were, and said that he had "agreed to help" Bates because of Breedlove's relationship with David; David exited the room, and when he returned, heard the sum of $700 discussed; David saw Conway washing her shirt in the sink; during the next week, Breedlove telephoned David and said that Bates owed him $7,500 for a loan; Bates told David it would "look good" if David went to Warren's funeral; and while incarcerated, Bates told David that it would be Breedlove that would get a deal, not David, and that David should accept responsibility for the crimes to allow Bates "a life."

Breedlove testified that: he was approached by David and Bates, and told that they "had a job" for him to do; he took this to mean either that they wanted someone beaten, or killed, and "[t]hey didn't act like they wanted to have him beaten up"; the sum of $4,000 was agreed upon; Conway participated in the discussion about the "job"; he went to Hale's trailer with two pistols; he committed the murders at about 8:30 p.m. on November 4, 1995; he went to Bates's tattoo parlor, and discussed payment; Conway was at the tattoo parlor at this time; he then went to Szatkowski's home; and he later told police that "the girl with Alan Bates" said that shooting the bodies "made [her] quiver like a fish."

Szatkowski testified that Conway told her that she wanted her former boyfriend dead, and that "someway, somehow, I'm going to have him fixed to where he's not going to bother me anymore." Szatkowski also heard conversations between Bates, David, and Conway that it would take $5,000 to have "Tim taken out." When Breedlove entered Szatkowski's home after the murders, he said "[t]he whole damn thing's been blown all to pieces . . . . It was supposed to be one person. There was two people there. Kathy wasn't even supposed to be there." When Bates and Conway arrived at Szatkowski's home, there were brown stains on Conway's shirt. And, Conway told Szatkowski "this was better than an orgasm, watching them get blown away."

A friend of Conway's, Linda Mora, testified that, the night of the murders, Conway said that "they had done it . . . that [Tim] and [Rhonda] were dead."

Case No. S06A1649.

1. Conway asserts that the evidence adduced at trial was insufficient to sustain guilty verdicts of malice murder. More specifically, she argues that there was insufficient evidence to show that she was a party to these crimes. A party to a crime is one who intentionally aids or abets the commission of the crime, or intentionally advises, encourages, hires, counsels, or procures another to commit the crime. OCGA § 16-2-20(b)(3) & (4). "Whether a person is a party to a crime may be inferred from that person's presence, companionship, and conduct before, during, and after the crime." (Citation and punctuation omitted.) Hewitt v. State, 277 Ga. 327, 329(1)(a), 588 S.E.2d 722 (2003).

Conway contends that the evidence showed nothing more than that she was present when Bates and Breedlove discussed the murders, but did not participate in the killings, or any planning for them. However, the record belies this contention. There was testimony that: she had previously acted violently toward Hale and Warren, expressing the desire and intention that Hale die; she participated in at least one conversation planning the murders; she was at the scene of the murders; she washed brown stains off her shirt after their commission; and she told two people of the murders before the bodies were discovered. There was ample evidence for the jury to find that Conway was at least a party to these crimes. Hewitt, supra.

Nonetheless, Conway asserts that Breedlove's testimony must be discounted, because he confused her and Szatkowski in his testimony. The portion of his testimony to which Conway refers is that where he states that he met Bates at Bates's house that "turned out later to be her house." When asked for clarification, Breedlove said he had later been informed the house was Conway's or Szatkowski's, "one of the two." However, this merely shows that he was uncertain of the ownership of the house, which is reinforced by his later reference to the house with the phrase, "whoever owns it, I don't know." Further, Breedlove knew Szatkowski for "a couple of years" before the murders, and Conway for "months" before their commission, also indicating that he knew which woman was which. In any event, any such confusion was for the jury to resolve, and it was authorized to find that Breedlove knew which woman was Conway when he named her in his testimony.

Conway also argues that the fact that the jury did not convict her of conspiring to commit a crime, see OCGA § 16-4-8, shows that the jury did not believe her to have been involved in the killings. First, Conway did not request that the jury be instructed it could find the offense of conspiracy to commit a crime, and no such option was placed on the verdict form; the trial court's instruction on conspiracy was in the context of the jury's use of the statements of co-conspirators. See OCGA § 24-3-5. Second, even if the jury had rejected a conspiracy offense, it does not aid Conway as "Georgia has rejected the inconsistent verdict rule, [and] `a defendant cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count.' [Cit.]" Lawrence v. State, 274 Ga. 794(2), 560 S.E.2d 17 (2002). The only question is whether the evidence was sufficient to sustain convictions for the crimes of which Conway was convicted. Kolokouris v. State, 271 Ga. 597, 598(2), 523 S.E.2d 311 (1999). And, the evidence was sufficient to enable a rational trier of fact to find Conway guilty beyond a reasonable doubt of both malice murders. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The trial court instructed the jury that identity was a question of fact for the jury's determination, and that when "assessing reliability of identification," the jury could consider, among other things, "the level of certainty shown by the witness about his or her identification." After the trial in this case, this Court declared in Brodes v. State, 279 Ga. 435, 614 S.E.2d 766 (2005), that it could "no longer endorse" the pattern jury instruction on the witness's "level of certainty," and "advise[d] trial courts to refrain from informing jurors they may consider a witness's level of certainty when instructing them on the factors that may be considered in deciding the reliability of that identification." The Brodes opinion evaluated whether giving the instruction in that case could be considered harmless error, and concluded it was not.

Conway contends that in her case, the instruction caused harm. Again, Conway characterizes Breedlove's testimony as demonstrating that he was confused as to the identity of Conway and Szatkowski, and asserts that the jury thus had to resolve his identification evidence under the "level of certainty" jury...