Drake v. State, 35817
| Decision Date | 20 May 1980 |
| Docket Number | No. 35817,35817 |
| Citation | 245 Ga. 798,267 S.E.2d 237 |
| Parties | DRAKE v. The STATE. |
| Court | Georgia Supreme Court |
James B. Hamilton, Fayetteville, Larry King, Robert C. Dotson, Jonesboro, for appellant.
William F. Lee, Jr., Dist. Atty., Arthur K. Bolton, Atty. Gen., W. Davis Hewitt, Asst. Atty. Gen., for appellee.
This is the direct appeal of Luther Thomas Drake, who was convicted and sentenced to life imprisonment for the murder of Donald Evans. The State did not seek the death penalty.
On September 9, 1972, Donald Evans, the pastor of the McIntosh Baptist Church in Newnan, Georgia, was found dead near the doorway of his home. He had been shot four times with a .32 caliber pistol. Death was caused by a gunshot wound through his head. The homicide appeared to be murder but the crime went unsolved for approximately six years.
During 1978, Jack Beckom and Drake were arrested and indicted for conspiracy to steal tires. Beckom proposed to tell the authorities about the Donald Evans murder in exchange for a probated sentence in the tire case and immunity for his part in the murder. The state accepted these terms.
Beckom testified in substance as follows during Drake's trial for the murder of Donald Evans: Drake told Beckom that Drake loved Evans' wife and would pay to have Evans killed. Beckom contacted Herman Leroy Drowdy, who agreed to kill Evans for one thousand dollars plus expenses. Drake accepted these terms. Drowdy flew into the Atlanta Airport on the night of September 8, 1972, where he met Beckom. The victim was alone in his home that night because his wife and daughter were in the hospital. Beckom drove Drowdy from the airport to the victim's home in Newnan. When the victim opened the door of his home, Drowdy shot him with a .32 caliber pistol belonging to Beckom, which subsequently was wiped clean of fingerprints and thrown into the Chattahoochee River. Beckom and Drowdy then met with Drake, who paid Drowdy nine hundred dollars.
The jury also heard evidence from Evans' widow that Drake was a deacon in Evans' church and a pallbearer in his funeral; that Drake had told her he loved her and had tried to kiss her on more than one occasion before the homicide. Drake admitted to the investigating officer that he had told her he loved her.
The jury also heard testimony that the remaining one hundred dollars was paid to Drowdy by Beckom by certified letter mailed from White, Georgia.
After telling the investigating officers about his participation in the murder, Beckom agreed to have an electronic transmitting device placed on his person. Conversations between Beckom and Drake were recorded using this device and tapes of the conversations were played for the jury over Drake's objections. The gist of the conversations was that Drake and Beckom, through Beckom's arrangements, were going to get Drowdy to kill Hart, the witness against them in the tire conspiracy case, just like they had killed Donald Evans. Drake was not aware that Drowdy had died before Drake's recorded conversation with Beckom. During the taped conversations, Drake repeatedly asked Beckom to remain silent about the Evans murder.
When considered in the light favorable to the verdict, the foregoing evidence is sufficient to enable any rational trier of the facts to find each element of the crime of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Crawford v. State, 245 Ga. 89, 263 S.E.2d 131 (1980); Stinson v. State, 244 Ga. 219, 259 S.E.2d 471 (1979).
1. Drake first contends that the trial court erred in failing to suppress the tape recordings in their entirety because they were made in violation of his Sixth Amendment right to counsel. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Massiah speaks to circumstances in which incriminatory statements are elicited from a defendant without permission of his counsel employed or appointed in a case in which he already has been indicted. Gibson v. Ricketts, 244 Ga. 482(2), 260 S.E.2d 877 (1979); Jackson v. State, 236 Ga. 895(1), 225 S.E.2d 908 (1976). Although Drake had been indicted and was being represented by Mr. Hamilton in the tire conspiracy case at the time the electronic listening device was utilized to obtain the tape recordings, he was not then under indictment for the murder of Donald Evans; nor was he then represented by Mr. Hamilton in regard to the murder investigation. Six years earlier he had been represented by Mr. Sanders in connection with the early stages of the murder investigation, but Mr. Sanders did not thereafter represent him either in the tire conspiracy case or in the present murder case. Massiah does not forbid interrogation of a witness known to be represented by counsel in another case. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); United States v. Crook, 502 F.2d 1378 (3d Cir. 1974). The first enumeration of error is without merit.
2. Drake next contends that the trial court erred in failing to suppress the tapes because they were made in violation of Code Ann. §§ 26-3001 through 26-3006, and because Beckom did not voluntarily consent to use of the electronic device.
Drake's consent to the secret recordings was not required. Beckom's consent was all that was required albeit that the conversations did not come under any exception set out in Code Ann. § 26-3006 and no warrant was obtained under Code Ann. § 26-3004. State v. Birge, 240 Ga. 501, 241 S.E.2d 213 (1978).
Relying on the law relating to the voluntariness of confessions, Drake contends that Beckom's consent to utilization of the listening device was not voluntary because his cooperation with the investigating officers was induced by a "hope of benefit", that is, by an offer of immunity from prosecution for the murder of Donald Evans. Code Ann. § 38-411; Smith v. State, 222 Ga. 438(3), 150 S.E.2d 676 (1966); Phillips v. State, 206 Ga. 418, 420(c), 57 S.E.2d 555 (1950).
The question of whether or not the test utilized to determine the voluntariness of a confession should be used to determine the voluntariness of consent to employ the listening device is not presented for decision in this case because the transcript does not support Drake's assertion that immunity was offered in return for use of the device. Immunity was offered in return for Beckom's statement. Immunity did not depend upon whether or not Beckom consented to use of the device. Beckom's testimony on this point is clear and uncontradicted. No error has been made to appear in this regard. United States v. Osser, 483 F.2d 727, 730 (3d Cir. 1973); cert. den. 414 U.S. 1028, 94 S.Ct. 457, 38 L.Ed.2d 221. The second enumeration of error is without merit.
3. Enumerations of error three through eight will be discussed together since each of these enumerations involves the question of whether or not Drake's reputation or character improperly was put in issue by the state's introducing evidence of Drake's involvement in two other crimes: the tire stealing conspiracy and the attempt to kill Hart, the witness to the tire stealing conspiracy.
The third, fourth and fifth enumerations of error complain of the failure of the trial court to expunge from the tapes all discussions between Drake and Beckom as to these other crimes. The sixth, seventh and eighth enumerations of error complain of questions asked to, and answers elicited from, respectively, the investigating officer, GBI agent Paul Musick, defendant's accomplice, Jack Beckom, and the defendant himself by the district attorney. All these questions and answers contained references to the other two crimes.
Drake argues at length that the tire stealing conspiracy offense and the attempted witness elimination offense are entirely separate from the murder of Donald Evans, the tire stealing offense having been separately indicted and the witness elimination offense having been severed on defendant's motion that was unopposed by the state. The separateness of the three offenses is not, however, the critical point in the present case. Evidence that is otherwise relevant or material to the issues in a...
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