Hardy v. State

• Decision Date: 20 February 1980
• Docket Number: No. 35588,35588
• Parties: HARDY v. The STATE.
• Court: Georgia Supreme Court

Page 209

264 S.E.2d 209

245 Ga. 272

HARDY v. The STATE.

No. 35588.

Supreme Court of Georgia.

Argued Jan. 14, 1980.

Decided Feb. 20, 1980.

L. Eddie Benton, Jr., Commerce, for appellant.

Nat Hancock, Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Staff Asst. Atty. Gen., for appellee.

CLARKE, Justice.

Kenneth Hardy was convicted for the murder of Lewis J. Ingram in Banks County, Georgia, and was given a death sentence.

Summary of Facts

From the evidence presented at the trial, the jury was authorized to find the following facts.

Driving his pickup truck, the 60-year-old victim, Lewis J. Ingram, left his home in Thomasville, North Carolina, on July 26, 1977, en route to Commerce, Georgia, for the purpose of visiting relatives and friends. Upon arriving in Commerce, he visited his sister and spent one night in her home. The following day, he moved into a motel near Commerce and for the next four days spent a great part of his time at Willie Brown's Produce Stand on Highway 441 near Commerce. During the hours spent at the produce stand, the victim became acquainted with those persons who were operating the business and had the opportunity of talking with old acquaintances from Commerce, which was his boyhood home.

Upon leaving North Carolina, the victim had in his possession more than $1,000, mostly in one hundred dollar bills. His possession of a number of bills in large denomination became quickly known by several people. On the first night he was in Commerce, his sister saw the money he was carrying. An employee of the motel where he was staying also noticed a large amount of bills on the nightstand in his motel room. During his visits at Willie Brown's Produce Stand, the victim made several purchases from Dub Hardy, an employee at the stand, but did not pay for the purchases at the time because Mr. Hardy was unable to change the large bills being carried by Mr. Ingram. Dub Hardy is the father of the appellant in this case. Both he and his wife, Mary, worked at the produce stand.

During most of the time Mr. Ingram spent at the produce stand, he had exhibited indications of having consumed alcoholic beverages. On Saturday, being the fourth day of his visits at the stand, the victim met a number of people at the stand, including Dub and Mary Hardy, Billy Hardy, Carolyn Hardy, Edwin and Patsy McGill and Buster and Betty Minish. By the late afternoon, the victim was showing the effects of having consumed a considerable amount of alcohol. During Saturday evening, the victim, along with Buster Minish, left the produce stand to play poker at Billy Hardy's trailer. Buster Minish drove the victim's truck and his wife, Betty Minish, followed in another vehicle. Billy Hardy's trailer is situated only a few yards from the home of Dub Hardy. Billy Hardy and Kenneth Hardy the appellant here, are sons of Dub and Mary Hardy. Betty Minish is the wife of Buster Minish and a cousin of Mary Hardy. When Dub and Mary Hardy arrived at their home, Lewis Ingram's truck was located in the yard next to Billy Hardy's trailer. Mary Hardy became concerned that trouble was about to develop and urged Dub Hardy to get the victim out of the trailer. The victim, Buster Minish and the appellant, who had arrived upon the scene, had been arguing. Dub Hardy went to his son's trailer and found the victim on a couch in a very drunken state. He took the victim by the arm and led him to the door where he missed one of the steps and fell into the yard. The appellant then attacked the victim with a wrench wrapped in a rag and severely beat him about the head. Dub Hardy made an attempt to stop the fracas but was restrained by Buster Minish. At this point, the appellant got a shotgun and he, together with Billy Hardy and Buster Minish took the victim into the woods where appellant attempted to force the victim to tell where his money was. This attempt was not successful. Having failed in this effort, appellant and his companions brought the victim back to the yard and put him in the back of his own truck where he was joined by appellant. Billy Hardy drove the victim's truck and Buster Minish followed in another vehicle for a distance of some ten miles to a secluded area. At some point, gasoline was poured on the victim and there is evidence that the victim begged, "Please don't pour that gasoline on me."

Appellant shot and killed the victim and then his body was burned, along with the truck.

The shotgun was thrown into a lake from which it was later recovered and ballistic tests determined the shotgun to have been the murder weapon. Upon returning to the Billy Hardy home, Billy and Kenneth Hardy, as well as Buster Minish, were seen to have blood on their clothing and a considerable amount of blood was on the ground in the yard near the Billy Hardy home.

On the following day, Billy Hardy and Minish, together with Minish's wife planned the story to be told by each of the parties in order to avoid implication in the murder. During the early morning hours of Sunday just following the murder, Buster Minish told his wife that the pickup truck in which the victim and Kenneth Hardy were riding went across a little bridge and one shot went off and as they went up the road farther, there was another shot. At this point, Billy Hardy jumped out of the truck and dragged Kenneth Hardy out of the back and said "You ain't got no damn sense. You didn't have to do that." Buster Minish also at this time told his wife that Kenneth Hardy fired the shot which killed the victim.

A few days later, Buster Minish committed suicide.

Enumerations of Error

1. In his first enumeration of error, the appellant complains of a failure on the part of the trial court to exercise its discretion as required by law. The investigating officer was allowed to remain in the courtroom after the rule of sequestration had been invoked but was not required to be the first witness to testify. Appellant does not argue that the trial court abused his discretion in allowing this to occur. See McNeal v. State, 228 Ga. 633, 187 S.E.2d 271 (1972). Instead, it is argued that the trial court did not use its discretion at all but rather decided as a matter of policy that the officer could be called to testify at such time as the prosecutor pleased. Stuart v. State, 123 Ga.App. 311, 180 S.E.2d 581 (1971). In Stuart, it was held that the trial court should exercise its discretion both as to permitting exceptions to the sequestration of witnesses and as to the sequence of calling unsequestered witnesses. The exercise of the trial court's discretion should be based upon a showing that the state has some need not to call the unsequestered witness as the first to testify.

In the instant case, the state requested that GBI agent Pat Patterson be allowed to remain in the courtroom for the purpose of assisting the district attorney in the trial of the case. The state went further and stated, "his testimony will all be from investigation and nothing in the chronological order of the evidence we present." Appellant's attorney then objected to the witness being allowed to stay in the courtroom unless he be required to testify first. The court overruled the objection and in response to further argument of defense counsel on the point, the trial judge stated " . . . because I'm not going to dictate to the state in which manner the state introduces its evidence." The orderly presentation of evidence being a proper reason for an exception to the rule of sequestration, and the trial judge having based his ruling upon this exception, we find no error. McNeal v. State, supra.

2. The state called Mary Hardy who testified as to statements made to her by Billy Hardy which incriminated the appellant. She testified that upon his return from the murder scene, Billy Hardy told her that the appellant had "cut the victim all to pieces." Furthermore, the state offered the testimony of Betty Minish consisting of statements made to her by her now deceased husband the day after the killing. In these statements, Minish named appellant as the person who shot the victim. Attorney for appellant objected to the testimony of both witnesses on the grounds that the statements were hearsay. Appellant argues in his second and third enumerations of error that the trial court committed reversible error in overruling his objections and admitting the statements.

"After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all." Code Ann. § 38-306. The conspiracy is deemed in progress until its ultimate purpose is accomplished. It may include acts performed and declarations made after the commission of the crime. Conspiratorial efforts to conceal the fact of the crime and the identity of the perpetrators are a continuation of the conspiracy so that the parties to such a conspiracy would be considered so much of a unit that the declarations of either are admissible against the other. Crowder v. State, 237 Ga. 141, 227 S.E.2d 230 (1976); Evans v. State, 222 Ga. 392, 150 S.E.2d 240 (1966); Chatterton v. State, 221 Ga. 424, 144 S.E.2d 726 (1965).

There was evidence sufficient to establish a prima facie case of conspiracy to rob and kill the victim and thereafter conceal the murder. The statements of Billy Hardy and Buster Minish were made during the pendency of the conspiracy in that the concealment phase of the conspiracy was plainly pending.

Appellant argues however that even though the conspiracy had not ended, the statements lack the "indicia of reliability that would afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement" which is required for admissibility. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Mooney v. State, 243 Ga. 373, 254 S.E.2d 337 (1979). We do not agree. The...