Drane v. State

• Decision Date: 17 March 1995
• Docket Number: No. S94P1594,S94P1594
• Citation: 455 S.E.2d 27,265 Ga. 255
• Parties: DRANE v. The STATE.
• Court: Georgia Supreme Court

Page 27

455 S.E.2d 27

265 Ga. 255

DRANE v. The STATE.

No. S94P1594.

Supreme Court of Georgia.

March 17, 1995.

Reconsideration Denied March 30, 1995.

Robert W. Lavender, Lavender & Lavender, Elberton, for Drane.

Michael J. Bowers, Atty. Gen., Atlanta, Lindsay A. Tise, Jr., Dist. Atty., Hartwell, Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Peggy R. Katz, Asst. Atty. Gen., Dept. of Law, Atlanta, for State.

Joseph L. Chambers, Sr., Pros. Attys.' Council, Smyrna, Patsy Morris, Georgia Resource Center, Atlanta, for other interested parties.

HUNT, Chief Justice.

Leonard M. Drane was convicted of malice murder, felony murder and aggravated battery in connection with the death of Renee Blackmon. The jury recommended the death penalty for malice murder, finding that the murder had been committed during the course of an aggravated battery, OCGA § 17-10-30(b)(2), and that it was wantonly vile, horrible or inhuman in that it involved depravity of mind and an aggravated battery to the victim, OCGA § 17-30-10(b)(7). The trial court imposed the death sentence. ¹ Drane raises a number of enumerations of error, including the exclusion, in the guilt-innocence phase of the trial, of his co-indictee's alleged confession. We remand to the trial court for a hearing to determine: (1) whether the prosecutor's peremptory strikes were gender-neutral and (2) whether there are exceptional facts and circumstances in this case so that the exclusion of the alleged confession deprived Drane of due process. We affirm the trial court regarding Drane's remaining enumerations of error.

Drane and his co-indictee, David Robert Willis, were roommates. On the evening of the murder, they went to a liquor store in Willis's truck. Outside the store, they met Renee Blackmon, who asked them for crack cocaine and then agreed to ride in the truck and drink with the two men. Willis drove the truck to a spot near a lake, where he had sex with the victim in the truck while Drane stood in front of the truck. Willis and the victim then walked together to the back of the truck, where Willis shot the victim in the head. The bullet blew off part of the victim's skull and detached her brain. Thereafter, the victim's throat was slashed at least six times. There is contradictory evidence whether Drane or Willis slashed her throat and whether she was still breathing at the time.

After the murder, Drane assisted Willis in concealing the evidence and in disposing of the body. Drane continued to live with Willis for a few weeks until the two were arrested.

1. Construing the evidence in the light most favorable to the verdict, a rational trier of fact could have found Drane guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The parties agree that this case must be remanded to the trial court for a hearing to determine whether the prosecutor's reasons for using peremptory challenges to strike female jurors were gender-neutral. Of the thirty-nine prospective jurors on the panel, twenty-two were women. The state used all its peremptory challenges to strike female jurors. Prior to the jury being sworn, Drane raised a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), contending that the prosecutor's strikes were gender-biased. The state responded that Batson did not apply to gender, and the trial court denied Drane's challenge. J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), in which the U.S. Supreme Court held that the equal protection clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender, had not been decided at the time of Drane's trial in September 1992. Because Drane raised his objection at trial, J.E.B. v. Alabama requires a hearing in accordance with Batson, to permit the state to explain its use of the peremptory challenges and to allow the trial court to make findings under Batson v. Kentucky. See Smith v. State, 263 Ga. 224, 227, 430 S.E.2d 579 (1993). If the trial court determines that the prosecutor's use of peremptory strikes was not gender-biased, then Drane shall be entitled to file a renewed appeal on this issue.

3. We also remand this case to the trial court because it is unclear from our review of the record whether, in excluding from the guilt-innocence phase ² testimony of the alleged confession by Willis, Drane's co-indictee, the trial court adequately considered the elements of reliability and necessity which would require admission of that evidence under Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) (failure to admit evidence of another's confession, offered during guilt-innocence phase of trial, constituted a violation of due process). See also Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (failure to admit co-indictee's confession offered at punishment phase of trial violated due process because testimony was highly relevant to a critical issue in punishment phase and substantial reasons existed to assume its reliability). While this type of evidence is generally inadmissible, see Guess v. State, 262 Ga. 487, 488, 422 S.E.2d 178 (1992), it may, nevertheless, be admitted in exceptional circumstances under Chambers and Green when it is both reliable and necessary. Accordingly, on remand, Drane must demonstrate, and the trial court is directed to fully consider, following the analysis in Chambers and Green, the reliability and necessity of this evidence at the guilt-innocence phase. ³

4. Drane contends the trial court erred in charging the law of conspiracy, claiming there was no evidence to support it. A person commits conspiracy "when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy." OCGA § 16-4-8. The essence of conspiracy under OCGA § 16-4-8 is an agreement, and that agreement (unlike its meaning in contract law) may be a mere tacit understanding. Kurtz, Criminal Offenses and Defenses in Georgia (3rd Ed.), at 91-92 (1991). Here, there was evidence that Drane and Willis lived together and picked up the victim together, that both men concealed the evidence and disposed of the body, and that Drane was living with Willis three weeks after the crime when Drane was arrested. There was also evidence that Drane bragged about having had sexual intercourse with the victim and that Drane said he had cut the victim's throat. This evidence, though slight, is sufficient to support an inference that Drane and Willis had a tacit understanding to murder the victim. See Jones v. State, 242 Ga. 893, 252 S.E.2d 394 (1979). See also OCGA § 16-2-6 (the factfinder may find criminal intention "upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted."). ⁴

5. There was no error in the admission of testimony regarding statements Drane made to an examiner prior to commencement of an unstipulated polygraph examination. Before making the statements, Drane had been read his Miranda warning and had signed a waiver of rights form. The trial court ordered that there could be no comment referring to the polygraph examination, and Drane does not complain of any. In Stack v. State, 234 Ga. 19, 25, 214 S.E.2d 514 (1975), overruled on other grounds in State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977), we noted that admissions which are otherwise competent and admissible are not to be excluded simply because the admissions were made after the taking of a lie detector test. ⁵ The same rule applies to admissions made before commencement of the test. Williams v. State, 144 Ga.App. 130, 135, 240 S.E.2d 890 (1977).

6. The trial court did not err in denying Drane's request to charge that one who is guilty only of concealing evidence after a crime is not a party to the crime. The court's other charges conveyed to the jury that, unless it found Drane either to have inflicted the mortal wound or to have participated in the felonious design, it should find Drane not guilty.

7. Drane argues the trial court erred in failing to grant his motion for directed verdict on the issue of the death penalty because there is no evidence supporting any aggravating circumstance under OCGA § 17-10-30. The jury found as aggravating circumstances that the offense of murder was committed during commission of an aggravated battery, OCGA § 17-10-30(b)(2), and that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity or an aggravated battery to the victim, OCGA § 17-10-30(b)(7). Drane argues that there is no evidence to support the contention that the cutting of the victim's throat, the aggravating battery, occurred during life.

Post-mortem mutilation of a body may show depravity of mind. Conklin v. State, 254 Ga. 558, 565, 331 S.E.2d 532, cert. denied, 474 U.S. 1038, 106 S.Ct. 606, 88 L.Ed.2d 584 (1985); Hance v. State, 245 Ga. 856, 862, 268 S.E.2d 339 (1980), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 611 (1980). We find no merit to Drane's contention that the court erred in failing to define "malice" for the jury. Therefore, the evidence supported a finding of depravity as an aggravating circumstance under OCGA § 17-10-30(b)(7).

Furthermore, although the state concedes that the medical examiner's testimony was inconclusive as to whether the victim was alive when her throat was cut, and although it was clear from the medical examiner's testimony that the victim could not have survived the gunshot wound more than momentarily, Drane's own statements indicated that the victim was gasping when her throat was cut. While it is unclear whether the gasping was an indication of life, it does constitute some evidence of an aggravated battery sufficient to support a finding of...