Cromer v. State

• Decision Date: 01 October 1984
• Docket Number: No. 40841,40841
• Citation: 320 S.E.2d 751,253 Ga. 352
• Parties: CROMER v. The STATE.
• Court: Georgia Supreme Court

Page 751

320 S.E.2d 751

253 Ga. 352

CROMER v. The STATE.

No. 40841.

Supreme Court of Georgia.

Oct. 1, 1984.

Donald L. Lamberth, Chew & Lamberth, Montezuma, for Robert Lewis Cromer.

Robert L. Croner, pro se.

John R. Parks, Dist. Atty., Americus, Michael J. Bowers, Atty. Gen., Eddie Snellings, Jr., for the State.

BELL, Justice.

The appellant, Robert Cromer, was convicted of the murder of Harold McKinnon and received a life sentence. His motion for new trial was denied, and he now appeals. We affirm.

Testimony established that Harold McKinnon went home about 4:00 a.m. on the morning of June 20. Paul Hawke, who had been with Harold that evening, testified that he stopped by Harold's home about 6:00 a.m., and that, although Harold's car was there, no one answered the door. Kim McKinnon, the victim's daughter, testified that at about 11:30 a.m. on June 20 she stopped by her father's home and found him lying in his bed, with a gunshot wound to the head. Dr. Larry Howard of the State Crime Lab testified that Harold died from a single gunshot wound to the head, and that the muzzle to target distance was 12 to 18 inches. A bullet was recovered from the pillow under Harold's head.

Cromer and Kim McKinnon, lived together in a trailer near Oglethorpe, Georgia. As of the date of the murder they were planning to marry, and have now become engaged. On Saturday night, June 19, 1982, they went to Jimmy Mac's Lounge in Americus, Georgia, where they saw Mary Green. Green testified that she and Kim discussed the problems of Kim's father's disapproval of her relationship with Cromer and of his plan to take her out of his will because of that relationship. She said that Cromer was listening to the conversation, and interjected that "he didn't want nothing the son-of-a-bitch had anyway." Although Cromer confirmed that he and Kim saw Mary Green at Jimmy Mac's Lounge, and admitted that he told Kim and Mary Green that he did not need anything Harold had, he denied having called Harold McKinnon a son-of-a-bitch. Kim testified that she and Cromer stayed at Jimmy Mac's until approximately 11:30 p.m., at which time they went home and went to bed. She said that Cromer did not leave home that night. Cromer testified to the same sequence of events as Kim, but added that after he and Kim arrived home from Jimmy Mac's, he stayed there until about 11:30 a.m. on June 20.

William Marvin Lund, Cromer's brother-in-law, was granted immunity by the state in exchange for his testimony. He testified that approximately one and one-half weeks before the shooting, Cromer told him that he could make some easy money by getting rid of somebody. He said that Cromer did not specify who the person was, and that the conversation went no further. According to Lund, however, the Wednesday following that initial discussion Cromer told him he could make easy money by killing Harold McKinnon. Lund testified that Cromer said he wanted Harold dead because Kim would recover a large sum of insurance money. Lund agreed to help, and Cromer picked him up about 2:00 a.m. on June 20. He testified that Cromer had a pistol, and requested that Lund kill McKinnon. According to Lund, however, he told Cromer that he could not kill Harold, and Cromer then stopped the car and said that "he had to get the job done because he heard that Harold ... was going to knock Kim out of his will." Lund switched to driver and Cromer to passenger, and they proceeded to Harold's house, where Lund let Cromer, armed with a pistol, out of the car. Lund testified that he then drove to a nearby church, where he waited for Cromer about an hour, before leaving and driving by McKinnon's house. Not seeing Cromer or any activity at the house, he returned to the church. Shortly thereafter he saw Harold McKinnon's black Lincoln Continental drive by, headed toward McKinnon's house. Lund testified that about a half hour later Cromer came running to the car, jumped in, and said "let's go, the job's done." They then drove to Lund's residence, where Cromer gave Lund the gun, saying that if Lund got rid of it and did not talk, Cromer would give him $5,000. Lund testified that he took the gun with him to his mother's home in Burnsville, Minnesota, where he cleaned and hid it in a heating duct in her garage.

William Lund's sister, Jackie Lund, who lives in Minnesota near her mother, testified that in July, 1982 William came to their mother's home. She testified that she saw William cleaning a .38 caliber pistol, and that when she asked him about it, he told her that it "was his ace in the hole" and that he was to receive $4,000 from Cromer for hiding it because it was used in a murder. She testified that William told her that Cromer was to receive $20,000, and that Cromer had masterminded the plan and he had been the lookout.

Lund was arrested when he returned to Georgia. According to Sheriff Charles Cannon of the Macon County Sheriff's Department, Lund initially denied any knowledge of the murder, and a search of his car did not reveal a .38 caliber pistol. However, on August 9, 1982, Lund, although denying any personal involvement in the murder, admitted that he knew of the murder; that Cromer gave him a .38 caliber revolver on the morning of June 20, 1982 and asked him to dispose of it; and that he left that revolver at his mother's home in Minnesota. The revolver was recovered from Minnesota, and a state crime lab analyst testified that the bullet found in the victim's pillow could have been fired from that revolver.

Carla Lund, the appellant's sister and William Lund's wife, testified that the appellant told her he had killed McKinnon.

1. Although Cromer does not contest the sufficiency of the evidence, we find that, viewing the evidence in a light most favorable to the jury's verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. a. In his first enumeration of error Cromer raises two related issues. He first argues that the trial court erred in denying his request for state funds to hire an investigator to interview two prospective witnesses in Minnesota and to fly those same two witnesses to Georgia to testify. At a pre-trial hearing Cromer argued to the court that his motion should be granted because the two witnesses, Delores Batzlaff, Cromer's mother, and John Soulier, Cromer's brother-in-law, had information helpful to the defense. Specifically, he alleged that William Lund had made statements to the two witnesses incriminating himself as the murderer of Harold McKinnon, and that those two witnesses might also offer testimony which would impeach certain aspects of the testimony of William Lund.

We find no error. The grant or denial of Cromer's motion for funds lay within the sound discretion of the trial court, and unless the trial court abused its discretion in denying that motion, we will not disturb its decision on appeal. Tucker v. State, 249 Ga. 323(3), 290 S.E.2d 97 (1982); Ennis v. State, 249 Ga. 222(2), 290 S.E.2d 50 (1982); Cunningham v. State, 248 Ga. 558(4), 284 S.E.2d 390 (1981). Here, the defense alleged Batzlaff and Soulier could provide material information. When asked by the trial court to substantiate those allegations, defense counsel responded that he could not do so without the witnesses present. In an effort to assist the defense, the trial court ordered that a telephone conference be set up between defense counsel and Batzlaff, and stated that if the conference uncovered any information favorable to the defendant, it would consider having her flown to Georgia to testify. It appears, however, that the defense neither availed itself of that opportunity nor took the further step of seeking a conference with John Soulier as well as Batzlaff. Additionally, interviews of John Soulier and Delores Batzlaff by police investigators in Minnesota, which were provided to defense counsel, revealed no information similar to the testimony the defense alleged those witnesses would offer.

Under these circumstances, we find that the trial court did not abuse its discretion in denying Cromer's request for funds.

b. It appears that in his first enumeration of error Cromer is also arguing that the trial court should have granted his motion for a continuance so that Batzlaff and Soulier could be flown to Georgia and interviewed by him before trial. Whether to grant or deny a motion for a continuance lies within the discretion of the trial court. Wiley v. State, 250 Ga. 343(3), 296 S.E.2d 714 (1982). As has already been noted, Cromer failed to demonstrate the defense's need to have these two witnesses present, despite the opportunity granted by the trial court to do so; therefore, we cannot conclude that the trial court abused its discretion in denying Cromer's motion for a continuance.

3. In his second enumeration of error Cromer argues that the trial court erred in permitting the state to introduce testimony that it conditioned its recommendation for a grant of immunity to William Lund upon his submission to a polygraph examination.

During the cross-examination of Sheriff Cannon, defense counsel questioned the sheriff about discrepancies in a series of statements given by Lund to the police, about whether the sheriff now felt Lund was telling the truth, and about the circumstances surrounding the sheriff's promise to recommend immunity for Lund. Immediately following the defense's cross-examination of Sheriff Cannon, the state requested a hearing out of the jury's presence. At that hearing the state contended that the defense had raised an issue concerning Sheriff Cannon's conduct in promising to recommend immunity for Lund. The state contended that because the defense raised that issue, the state had the right, pursuant to Herlong v. State, 236 Ga. 326(3), 223 S.E.2d 672 (1976), to question Sheriff Cannon concerning the conditions precedent...