Gilreath v. State

• Decision Date: 30 June 1981
• Docket Number: No. 37255,37255
• Citation: 279 S.E.2d 650,247 Ga. 814
• Parties: Fred Marion GILREATH v. STATE.
• Court: Georgia Supreme Court

Page 650

279 S.E.2d 650

247 Ga. 814

Fred Marion GILREATH v. STATE.

No. 37255.

Supreme Court of Georgia.

June 30, 1981.

Rehearing Denied July 15, 1981.

[247 Ga. 841] Tyrus R. Atkinson, Jr., Land, Atkinson & Schane, Atlanta, for Fred Marion Gilreath, Jr.

Debra Halpern Bernes, Asst. Dist. Atty., Thomas J. Charron, Dist. Atty., Marietta, Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Asst. Atty. Gen., for the State.

HILL, Presiding Justice.

This is a death penalty case. Fred Marion Gilreath, Jr., appeals his convictions and sentences to death for the murders of his wife and his father-in-law.

On May 11, 1979, Dempsey Wolfenbarger went to the Mableton Precinct of the Cobb County Police where he spoke with Corporal J. E. Davis. Wolfenbarger told Davis he was concerned about the safety of his stepdaughter, Linda Gilreath. He explained that Linda was in the process of obtaining a divorce from her husband, Fred Marion Gilreath, Jr., and that several days previously she had left their home to stay with her mother (Wolfenbarger's wife). Earlier on the 11th she had returned with her father to the Gilreath home, indicating that she would pick her stepfather up at work at 3:30 p. m. When Linda had not returned, her mother asked a friend, Shirley Harrell, to pick Wolfenbarger up at work. Once he arrived home, his wife (Linda's mother) called Linda's attorney for advice. He suggested that the Wolfenbargers go over to the house; Dempsey Wolfenbarger decided instead to go to the police station. He told Corporal Davis that he feared there might be "domestic trouble", and that Fred Gilreath had threatened Linda's life as well as the lives of the Wolfenbargers, and had threatened to burn the Wolfenbargers' trailer. Wolfenbarger also told Davis his tires had been slashed and he believed Gilreath had done it. Finally, he said that Linda was driving a blue Plymouth Duster and Gilreath drove a red truck. ¹

Cpl. Davis radioed for a backup unit; Officer Roy Rogers responded and the two police officers arrived at the Gilreath residence at approximately 5:00 p. m. The blue Duster was not in sight. Cpl. Davis knocked on the front door; no one answered. Rogers knocked at the side door to a screened-in porch; no one answered. Davis then peered into the enclosed garage looking for the Duster. He rejoined Rogers by the side screened porch and they observed that both the porch door and the sliding glass door inside the porch were ajar, that the sound of music could be heard, and that Detective Julian Deal arrived at about 5:33 p. m. He walked through the house, interviewed Dempsey Wolfenbarger, and then reentered the house to complete his investigation, i. e., locate evidence, take measurements and make drawings. ³ Deal testified that upon checking he discerned no signs of forcible entry into the house. He found a green army-type gas can sitting by the door to the screened porch. He entered through the sliding glass doors and found Linda Gilreath's body lying between a coffee table and a love seat in the living room; a pink towel covered her face and a white medium-sized suitcase sat by the end table. The evidence showed that Linda had been shot five times along her right side with a .30-30 lever action rifle from approximately two to three feet away. She had been shot in the face from approximately five to six feet away with a .12 gauge shotgun. Matter from her face was splattered across the love seat, carpet and walls.

                a strong odor of gasoline permeated the area.  The two officers then entered the screened porch (which Davis described as looking like an enclosed carport) and looked through the sliding glass door.  From that vantage point, Rogers saw a man's body.  He then stepped inside the glass door and saw Linda's body.  Rogers told Davis he had found a second body and Davis entered, too.  The two officers could see large puddles of gasoline in the kitchen and toward the living room; they also saw a shotgun and a shell lying on the floor.  They then checked the other rooms of the house looking for the Gilreaths' two children.  2 Finding no one, the officers called the detectives, secured the crime scene (they disturbed nothing except that they opened the front door to disperse the gas fumes) and went outside to await the detectives.  Wolfenbarger arrived shortly after Davis and Rogers discovered the bodies but was not allowed to enter the house
                

Gerritt Van Leeuwen was lying a short distance away; he had sustained a .30-30 wound to his right thigh, a shotgun wound to his left chest, and two .22 caliber wounds to his head. Gasoline had been poured on and around the victims as well as on the kitchen floor.

Sgt. Deal seized numerous items which were in plain view, among them a .22 caliber short shell casing, six .30-30 caliber shell casings, two shotgun shell casings, a .22 caliber rifle and a .12 gauge shotgun. Two days later he returned with a search warrant and recovered another .22 caliber shell casing.

Prior to diagramming the crime scene, Sgt. Deal had placed a southeastern regional lookout on Fred Gilreath and on the blue Duster. Upon receiving the message, the dispatcher for the sheriff's department in Hendersonville, North Carolina, contacted Mike Gilreath who lived and worked in Hendersonville, told him about the message, and asked him to let the sheriff's department know if he saw or heard from his brother Fred. Fred Gilreath arrived at his brother's office, driving the blue Duster, at approximately 7:30 p. m. Mike Gilreath immediately asked one of his business associates to go tell the sheriff that his brother had arrived. The business associate, being new in town, went first to the police station from whence he was directed to the sheriff's office. Three officers arrived at Mike Gilreath's office at 8:00 or 8:05 p. m. By then Fred Gilreath had showered with his clothes on and was wearing only his still wet cut-off shorts. ⁴ The officers arrested him, explaining that he was wanted for questioning in relation to a double homicide in Georgia; Gilreath asked if he could call his wife.

Sgt. Deal arrived in Hendersonville the next day. Pursuant to a warrant he searched the Duster that afternoon and again on May 14th. In the latter search a partial box of .22 caliber short ammunition was recovered. While in North Carolina, Sgt. Deal travelled to a cabin, purportedly belonging to Fred Gilreath, located in a mountainous area. Deal testified that he went to get a description of the property in order to procure a search warrant. Upon reaching the area, Deal walked down an old road to the cabin. While standing out front, he picked up several shotgun shell cases, .30-30 caliber cartridge cases, and .22 caliber cartridge cases which were lying in the drive. Three shotgun shell cases and eleven .30-30 caliber Browning shell cases which Deal retrieved at this time were later introduced into evidence.

The shotgun and the .22 caliber rifle which were found at the scene were identified as the murder weapons by a firearms examiner from the State Crime Laboratory. The firearms examiner also established that the .30-30 caliber shells which were fired at the victims were fired by the same firearm which had fired the .30-30 shells found in the drive of the cabin in North Carolina.

The Gilreath's next door neighbor testified that he heard muffled gunshots coming from the direction of the Gilreath's home between 1:30 p. m. and 2:40 p. m. on May 11. ⁵ He paid little attention to them because it was not uncommon to hear gunshots in the neighborhood. This neighbor also reported having seen water in the street. When police contacted the Cobb County Water Department they found three workmen who had bled a water hydrant directly across the street from the Gilreath residence on May 11th. The workmen had arrived at approximately 1:30 p. m. and left at approximately 1:50 p. m. One workman testified he heard five rapid-fire shots from what sounded like a high-powered rifle emanate from the Gilreath residence. He also testified that he was busy doing paperwork and didn't see anyone. Another of the workmen testified that he saw a Volkswagen and a van or truck in back of the garage at the Gilreath residence when he arrived. After he arrived, he noticed that a blue car, probably a Dodge, had driven up and parked in the driveway. Because he was getting something from the truck, he did not see the blue car arrive. After the blue car arrived, he saw an old man walk around the house, come back, and go back around the house. He then heard the five shots and did not see the old man again. Shortly thereafter the water crew left; the blue car was still there. The third workman testified that he saw a dark blue over light blue Duster drive up and saw two people get out. One of the two (the passenger) was an elderly man. He saw the elderly man walking around the yard; about a minute after the elderly man disappeared behind the house, he heard the five shots. The worker was unable to say whether the driver of the blue Duster was a man or a woman. He did testify that at the time he heard the shots there were four cars at the Gilreath residence: the blue Duster, a gold Volkswagen, an old red pickup truck, and another old car on blocks. ⁶ From the foregoing, the jury was authorized to find that the murders occurred between 1:30 (or 1:40) and 1:50 and that the blue Duster was at the scene when the shots were fired.

Fred Gilreath testified in his own defense. He stated that he was home on May 11th with his father-in-law. His father-in-law left about 11:30 to go to his ex-wife's home. He was downstairs in his father-in-law's apartment when he heard his wife and her father come in. He heard his wife in the bedroom; he went upstairs and started out the door, telling his father-in-law he'd be back in a few minutes. His father-in-law said "Linda's here and she wants to Gilreath identified the .22 caliber rifle and the shotgun as his, as well as the gas can...