Fugitt v. State
| Decision Date | 13 September 1983 |
| Docket Number | No. 39816,39816 |
| Parties | FUGITT a/k/a Wallace v. The STATE. |
| Court | Georgia Supreme Court |
Philip Louis Ruppert, Terry L. Shaw, Jonesboro, for John Thomas Fugitt a/k/a Billy Jo Wallace a/k/a and William Wallace.
Robert E. Keller, Dist. Atty., Jonesboro, Clifford A. Sticher, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Nicholas G. Dumich, Asst. Atty. Gen., for the State.
Fugitt--known throughout this trial as Wallace--was indicted for the murder of John Evans. The jury returned a verdict of guilty and thereafter found two aggravating circumstances: that the murder was committed for the purpose of receiving money (the proceeds of a life insurance policy on the victim), and during the commission of another capital felony, towit, kidnapping with bodily harm. Wallace was sentenced to death.
Evans and Wallace were close friends, and had lived together for about two years. Evans had taken out a life insurance policy for $15,000, naming Wallace as beneficiary. About two weeks prior to his death, the mobile home where Evans and Wallace lived burned to the ground. The two moved into a motel and on Sunday, prior to his death on Friday, Evans moved in with his brother Richard. On the day of his death Evans left work about 11:00 A.M. and began drinking. Wallace, after looking several places, found Evans at his brother's apartment at about 7:00 P.M. The two had planned to attend the races on Friday night and asked Evans' brother to go with them. He accepted, but first went to their mother's house to obtain their clean clothes. When he returned both Evans and Wallace had left the apartment. Evans' body was found just off the edge of a road in Clayton County a little after midnight, dressed in the same manner as last seen by his brother.
At Wallace's trial, the state called Kenneth Frady as a witness in rebuttal to Wallace's testimony. The state gave as a reason for not calling him earlier that his statement had just been corroborated. Frady testified that on the night of Evans' death he lent Wallace his car in exchange for $300; that he met Wallace and Michael Denney (Frady's brother) at an unidentified apartment complex where the two placed a man, bound and gagged, in the rear seat; that Wallace returned the car three days later; and when he asked Wallace what happened to the man, Wallace answered that he had choked him to death and abandoned his body.
Following Frady's testimony, the state called Charles Harris, who testified that, while incarcerated with Wallace, he overheard Wallace and Denney discussing how they had killed Evans.
It was later discovered that Frady was incarcerated in Cobb County at the time of the killing. Denney produced work records showing that he was employed in New Mexico at the time of the killing. Wallace filed an extraordinary motion for new trial on this factual base.
After hearing, the trial court overruled the motion, holding:
1. One of the two aggravating circumstances found by the jury was kidnapping with bodily harm. Frady's testimony was the only evidence of kidnapping.
The materiality of the perjured testimony to Wallace's conviction cannot be questioned. Nor does Frady's testimony fall within that group of cases where a witness recants his testimony, after trial and conviction. See Drake v. State, 248 Ga. 891, 287 S.E.2d 180 (1982). Nor is Frady's testimony such as that contemplated by OCGA § 24-9-85(a) (Code Ann. § 38-1806), where, when a witness' testimony is successfully contradicted, or impeached for general bad character or for contradictory statements, his credit shall be for the jury. Rather, Frady's testimony comes within the provisions of OCGA § 24-9-85(b) (Code Ann. § 38-1806): "If a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence." For the background of this rule see Ivey v. State, 23 Ga. 576 (1857), and Skipper v. State, 59 Ga. 63 (1877).
It will be understood that a line exists between cases of impeachment (which can be any diminution of the credibility of a witness) and cases of knowing and wilful false swearing (which, when material, is perjury). The statute, accordingly, directs itself in its two parts to this division, and as to OCGA § 24-9-85(b) (Code Ann. § 38-1806), it must be understood that the testimony which must be disregarded in its entirety is only that testimony which is wilfully and knowingly false. Alexander v. State, 247 Ga. 780, 785, 279 S.E.2d 691 (1981); United States v. Holland, 526 F.2d 284 (5th Cir.1976); Campbell v. State, 237 Ga. 76, 77, 226 S.E.2d 601 (1976) (Hill, now C.J., concurring); Gordy v. State, 236 Ga. 723, 225 S.E.2d 287 (1976).
Here, there can be no doubt of any kind that Frady's testimony in every material part is purest fabrication. It cannot be said, therefore, that the new evidence establishing his perjury is "merely impeaching." To the contrary, it goes to the heart of our system of criminal justice, and we find that a new trial must be ordered. "We do so because we cannot and will not approve the corruption of the truth-seeking function of the trial process." Williams v. State, 250 Ga. 463, 466, 298 S.E.2d 492 (1983).
2. As this case is reversed for the above-stated reasons, it is not necessary to address the remaining enumerations of error, except for one. In this fifth enumeration, Wallace contends that he was denied a fair trial because of prosecutorial misconduct, in four particulars:
(a) After being informed by an inmate that Wallace had solicited him to kill a key witness for the state, the district attorney's staff instructed the witness to make a false report to local police that an attempt had been made upon his...
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