Fugitt v. State
| Decision Date | 23 September 1986 |
| Docket Number | No. 43315,43315 |
| Citation | 256 Ga. 292,348 S.E.2d 451 |
| Parties | FUGITT v. The STATE. |
| Court | Georgia Supreme Court |
Robert E. Keller, Dist. Atty., Jonesboro, Michael J. Bowers, Atty. Gen., Paula K. Smith, Asst. Dist. Atty., for the State.
Including one interlocutory appeal, this is the fourth appearance of this death-penalty case. Twice before, we have reversed Fugitt's conviction and death sentence for the murder of John Evans. 1 For the third time, Fugitt has been convicted and sentenced to death. This time, finding no error in the conduct of the trial, and no unfairness in the imposition of the death penalty, we affirm. 2
Fugitt, better known by his friends and acquaintances as Bill Wallace, had been friends with the victim, Johnny Evans, for years. They lived together until shortly before Evans' death, when their trailer was destroyed in a fire. Afterwards, Evans moved in with his brother Richard.
Evans spent the afternoon of August 14, 1981, visiting back and forth between Richard's apartment, his mother's house in East Point, and his brother Gene's residence in Stockbridge. The defendant stopped by Gene's place a few minutes after Evans had left, looking for him. He next went to Evans' mother's house, arriving again shortly after Evans had left. Fugitt told Fugitt finally located Evans at Richard's apartment. Richard had to leave for a brief period. Before he left, he saw Fugitt and Evans talking in the bedroom. Evans looked angry. When Richard returned, the other two had left.
Mrs. Evans that Johnny was sick and ready to die, and predicted that something would happen to him that weekend, probably at the racetrack.
At midnight that night, Evans' body was discovered, lying face down by the side of Lee's Mill Road in Clayton County. He was shirtless and, although he had just been paid that day, his pockets were empty. Death was later determined to have been caused by asphyxia from ligature strangulation.
At 11:30 p.m., Fugitt bought some beer in Riverdale, telling the cashier, whom he knew, to remember that he had been there at 11:30 p.m.
Shortly after midnight, Fugitt stopped by the home of a friend, Don Ralph. He told Ralph that his arms hurt and that he had just killed somebody. He showed Ralph a wad of money and stated that he had robbed the "boy" to make it look like that had been the reason he had been killed, and he told Ralph that he would get $15,000 for it. Then he asked Ralph to help him establish an alibi, to say that he had been at Ralph's house all evening. Ralph declined, since he had not been at home himself that evening. Next, Fugitt called a friend who worked at night and asked if he could visit the friend at work. The friend declined on the ground that such a visit was against company rules. The next day, Fugitt saw the friend and unsuccessfully sought her assistance in establishing an alibi for the evening of the 14th.
Fugitt also visited Mrs. Evans and the victim's brothers Richard and Grady the next day. He told Mrs. Evans that her son was not far away and that he was not going anywhere. He told Grady that he was supposed to have met Evans at the races, and suggested that Evans might have passed out in a ditch in the infield area and, since it had rained heavily, could have drowned. He told Richard that he had been with Evans early in the evening, but had let him out at a liquor store and had not seen him since. Fugitt and Richard spent most of the day looking for Evans. (Although the body had already been discovered, it was not identified until August 16.)
It was shown at trial that a life insurance policy had been issued to the victim on July 10, 1981, in the amount of $15,000. Fugitt was the beneficiary (ostensibly so that he would be able to care for the victim's minor daughter).
It was further shown that after Fugitt had been arrested for the murder of Johnny Evans, he had attempted to hire a fellow inmate to murder Don Ralph, whose testimony, the defendant feared, would get him convicted.
Fugitt's conviction for murder is amply supported by the evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
1. First, the defendant complains that the court erred by allowing the state to present evidence which reflected adversely upon the defendant's character, when the defendant had not injected the issue of his character into the case.
(a) The defendant argues vigorously that the state should not have been allowed to prove that he had solicited a fellow inmate to murder Don Ralph, because not only was the evidence in any event irrelevant, but this court ruled in a previous appeal that such evidence was inadmissible and the ruling is now the law of the case.
We cannot agree on either count. In the most recent appeal of this case, we ruled that a portion of a tape-recorded interview with a witness, Kenneth Frady (whose admitted perjury led to the reversal of the first conviction in this case), wherein the law enforcement officer conducting the interview had referred to a previous conversation The question before us now is the admissibility of testimony by Earl Wesley Stocks that the defendant had solicited him to murder Don Ralph. Stocks' testimony is no "bald assertion of a third party." On the contrary, he directly observed the events to which he testified. Moreover, this was not a crime bearing no relationship to the issues at hand; Don Ralph was a major witness in this case.
in which Frady had alleged that the defendant had hired Frady's brother to "kill a witness," was highly prejudicial and should have been excluded, absent a proper foundation for the introduction of such evidence. We pointed out that the state had presented only "the bald assertion of a third party" that the defendant had hired Frady's brother to commit murder, and that there was no showing that such an attempt, if made, bore any connection whatever to the case at hand. Fugitt v. State, 254 Ga. 521(6), 330 S.E.2d 714 (1985), and cits
McCormick on Evidence (2nd ed. 1972), § 190, pp. 447-448 (footnote omitted).
The legitimate purpose justifying the admission of Stocks' testimony is that it was evidence of a criminal act by the defendant, constituting an admission by conduct, intended to obstruct justice or avoid punishment for the crime on trial. McCormick, supra at 451; Ross v. State, 255 Ga. 1(2b), 334 S.E.2d 300 (1985).
The testimony complained of on this appeal comes from a different witness and describes a different event from that dealt with previously. Whatever the parameters of the law-of-the-case rule, nothing in our previous opinion precluded the use of Stocks' testimony in the latest retrial of this case. The trial court did not err by allowing Stocks to testify.
(b) Stocks also testified that the defendant had talked "[a]bout this guy cheating [at cards] and he didn't care about killing him." The defendant now argues that the trial court should not have permitted this testimony. However, although this testimony was of questionable relevance, the defendant did not object to it, and the trial court did not err by failing to exclude it on the court's own motion.
(c) Relying upon OCGA § 24-9-1, the defendant argues that Evans' mother should not have been allowed to testify about a conversation between the victim and the defendant concerning the life insurance policy, since she was "in the broadest sense" a party in interest, standing to receive the proceeds of the policy in the event the defendant was convicted.
It is not necessary that we determine whether Mrs. Evans was a party in interest "in the broadest sense" or otherwise, inasmuch as OCGA § 24-9-1 states that interest shall not be a ground for the exclusion of evidence.
The defendant also argues that the conversation was inadmissible hearsay and not admissible under any exception to the hearsay rule, as, for example, a dying declaration.
Mrs. Evans testified that after a fire destroyed the trailer shared by the victim and the defendant, a brief discussion of the insurance policy occurred. Mrs. Evans thought that the defendant had a $20,000 insurance policy on the victim's life. The defendant said it was not $20,000. The victim then asked, "[W]ell if you don't have $20,000, how much is it?" The defendant answered "$15,000."
What the victim said simply does not fall under the hearsay rule, since it was not offered "as an assertion to show the truth of the matters asserted therein." McCormick, supra, § 246, p. 584.
The statements by the victim, and by his mother, were significant only insofar as they illuminated the defendant's responses, which were admissible to show his knowledge of the policy, of the amount of the policy, and of his status as a beneficiary on the policy. See id. at 586. (The factual existence of the policy and its terms was proven by a representative of the insurance company that issued the policy.)
(d) Finally, the defendant complains of testimony offered at the sentencing phase of the trial that he was running "a store," buying items from the canteen while it was open and then selling them at a higher price while it was closed, and selling liquor and marijuana brought to him during contact visits. According to the witness who testified to this activity, the defendant had stated that "his lawyer's secretary would bring [the liquor and marijuana] to him." The witness...
To continue reading
Request your trial
-
Riley v. State
...and attitude ... [are] admissible in the sentencing phase."); McMichen, 265 Ga. at 607(12), 458 S.E.2d 833; Fugitt v. State, 256 Ga. 292(1)(d), 348 S.E.2d 451 (1986) ("[A] defendant's character in general ... [is] relevant to the question of 17. The death sentences in this case were not imp......
-
Isaacs v. State
...prior crime may be proven in aggravation despite the lack of a conviction, so long as there has not been a previous acquittal. See Fugitt v. State, 256 Ga. 292(1 d) (348 SE2d 451) Jefferson v. State, 256 Ga. 821(8 B), 353 S.E.2d 468 (1987). See also, Potts v. State, 259 Ga. 96(14), 376 S.E.......
-
Burgess v. State
...cannot be characterized as an attempt to impute guilt to appellant by impugning the character of his counsel. Fugitt v. State, 256 Ga. 292, 295(1)(d), 348 S.E.2d 451 (1986). Later in his closing argument, the prosecutor stated that appellant's actions "involved some conning of some lawyers,......
-
Frazier v. State
...of exclusion is simply inapplicable.' McCormick on Evidence (2nd Ed. 1972) § 190, pp. 447-448 (footnote omitted)." Fugitt v. State, 256 Ga. 292, 294, 348 S.E.2d 451 (1986). In this case, appellant admitted being at the scene of the crimes, but denied killing the victims himself, and tried t......