Duckworth v. State
| Decision Date | 05 November 1980 |
| Docket Number | No. 36612,36612 |
| Citation | 272 S.E.2d 332,246 Ga. 631 |
| Parties | DUCKWORTH v. The STATE. |
| Court | Georgia Supreme Court |
Huff & Phillips, B. Wayne Phillips, P. Samuel Huff, Edwin J. Wilson, Marietta, for appellant.
Thomas J. Charron, Dist. Atty., Debra Halpern, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., William B. Hill, Jr., Asst. Atty. Gen., for appellee.
Donald Bruce "Duck" Duckworth was convicted and sentenced to life imprisonment for the murders of James Daniel "Bear" Graham and Richard David Boyd, the two life sentences to be served consecutively. This is his appeal.
The jury heard evidence authorizing the following to be found as facts beyond a reasonable doubt: Duckworth, Graham Boyd and others dealt in marijuana. Duckworth purchased marijuana from or through Graham, as did others including Bobby Allen Wilson, Mark Snipes, Randy Saxon, Mark Ammons, Gregory Lee, Wyatt "Rabbit" Bagwell, and Raymond East. Boyd was Graham's friend.
Wilson, Snipes and Saxon had provided Duckworth some "front money" with which to purchase marijuana but Duckworth neither had obtained the marijuana nor returned the money. Ammons and Lee drove to Duckworth's apartment either to get the marijuana or to bring back the money. Duckworth and Ammons telephoned Graham, who told them he had the marijuana and would make the transfer to them that evening.
Ammons had brought his .22 caliber Ruger semi-automatic pistol with him at Duckworth's request. Duckworth loaded the pistol with hollow-point rounds and left for his connection with Graham.
Graham divided the shipment of marijuana and left to make his connections with Duckworth, Bagwell and East. East and his girlfriend, Marsha Adkinson, drove to the C & M Quick Market to make their connection with Graham. When East and Adkinson arrived, an empty pick-up truck and a light-colored late-model automobile were in the parking lot of the market. A white male with curly or wavy brown hair, who was wearing wire-rimmed glasses, was sitting in the parked car. Graham and Boyd arrived, and Graham got into the light-colored automobile. Graham signaled East not to follow. The light colored automobile with Graham and the white male left followed by Boyd in his automobile. East and Adkinson remained in the parking lot. Approximately 15 minutes later, East and Adkinson heard fireworks or gunfire. When Graham did not return, they left.
A witness testified that he saw two automobiles traveling down the Old Dallas Highway "real close together." Approximately three to five minutes later he heard gunfire, after which one of the automobiles returned up Old Dallas Highway.
Duckworth returned to his apartment with the pistol and ten to eleven pounds of marijuana. He unloaded the pistol and returned it to Ammons, commenting that he had shot some possum. He delivered the marijuana to Wilson the next day, as promised.
East went to look for Graham's automobile, found it together with Graham's and Boyd's bodies, and arranged for the police to be notified.
Medical evidence indicated Graham's death was caused by a bullet in the brain fired at close range from behind. Boyd died from two gunshot wounds, one in the back of his head fired at close range, and another fired at greater range. The medical examiner testified that scrape marks on Boyd's body indicated that he was shot once while running away then shot again in the back of the head at close range.
Duckworth was contacted by the investigating officers through his girlfriend and agreed to come to police headquarters for questioning. He was stopped by officers at his apartment when he arrived there instead of at police headquarters. He signed a consent to search, pursuant to which a pair of wire-rimmed eyeglasses were removed from his automobile. Pursuant to a search warrant, marijuana, $200.00 and a CCI brand .22 caliber cartridge were removed from his apartment. He was arrested, read his rights and questioned.
East and Adkinson immediately identified Duckworth's automobile, parked in the police lot among some seventy-five other automobiles, as the vehicle in which they saw Graham leave the C & M Quick Market.
Five CCI brand .22 caliber shell casings were recovered at the murder scene by investigating officers. Markings on these casings indicated that they had been fired from the .22 caliber pistol recovered from Ammons' house. The location of three of these shell casings indicated that they had contained the death bullets. Graham and Boyd had been shot with hollow-point bullets consistent with CCI brand ammunition.
Duckworth testified that he knew Graham but not Boyd. He admitted his involvement in the drug dealings. He denied he made money from the sale of marijuana but the state's evidence revealed he made only $148.00 per week and that approximately $1,200.00 had passed through his checking account very recently during a four day period. He testified that the arrangements for the marijuana connection on the evening of the murders were made by him and Graham, and that he drove a van that night and did not carry a gun. He swore he made the deal with Graham then went home. He admitted that he does occasionally wear glasses for driving but was not sure if he had them with him that night. He admitted that he may have purchased some hollow-point .22 caliber cartridges.
1. He first enumerates as error the denial of the general grounds. The foregoing evidence amply supports the verdicts under the current legal standard. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Rutledge v. State, 245 Ga. 768, 267 S.E.2d 199 (1980).
2. Duckworth next contends that the trial court erred in setting his two life sentences to run consecutively rather than concurrently. He relies upon the rationale of Wade v. State, 231 Ga. 131, 200 S.E.2d 271 (1973), as extended and applied by a majority of the members of this court in Anglin v. State, 244 Ga. 1(1), 257 S.E.2d 513 (1979), to cases in which the death penalty is sought but two recommendations of mercy are returned by the jury without a specification as to whether the life sentences to be fixed by the court shall run concurrently or consecutively. When the death penalty is sought, the judge and jury proceed in accordance with Code Ann. §§ 27-2503(b) and 27-2534.1. The rationale of Wade as extended and applied in Anglin is that Code Ann. § 27-2510(a) requires that the two life sentences fixed by the court pursuant to the two recommendations of mercy of the jury be served concurrently unless the jury specifies that they be served consecutively.
The Anglin principle does not apply in the present case because the state did not seek the death penalty; hence, Code Ann. §§ 27-2503(b) and 27-2534.1 were inapplicable and the court sitting without a jury pursuant to Code Ann. § 27-2503(a) was authorized to fix Duckworth's two life sentences to run either concurrently or consecutively. Setting the count two sentence to run consecutively to the count one sentence was not error. The second enumeration of error is without merit.
3. In support of his third and fourth enumerations of error, Duckworth contends that his motion so suppress certain evidence should have been sustained since the warrant to search his residence was defective because the state failed to establish the reliability of the confidential informants and failed to show probable cause to believe the items sought were located in his residence. He relies on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). During a hearing on a motion to suppress, the burden rests upon the state to prove that the search and seizure were lawful. Code Ann. § 27-313(b). However, unless the factual or credibility findings of the trial court on the motion to suppress are shown to have been clearly erroneous, those findings must be accepted by this court. Johnson v. State, 233 Ga. 58, 209 S.E.2d 629 (1974); Tucker v. State, 245 Ga. 68(3), 263 S.E.2d 109 (1980).
The reliability of the confidential informants was established primarily by testimony of the investigating officer presented to the justice of the peace prior to his issuing the warrant. The reliability of the information obtained from one confidential informant had been verified through an independent source. Another informant had been a friend of the investigating officer for over twelve years, and also was the brother of one of the two murder victims. Statements of other informants were verified by polygraph tests. Two of the informants risked criminal prosecution by divulging information because they were some of the other persons who were supposed to have received a "drop" from the victims on the night of the homicides. The latter two informants had observed one of the victims get into Duckworth's automobile at the C & M Quick Market and had observed Duckworth drive away from the market with one of the victims in his automobile, accompanied by the other victim following in a second automobile. The finding of the trial court regarding reliability of the confidential informants is not clearly erroneous.
Neither is the trial court's finding regarding probable cause clearly erroneous. The pistol used in the commission of the crimes had not been located during the consent search of Duckworth's automobile. Duckworth was reputed to have returned to his home after the homicides. Personal items were missing from the...
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