Johnson v. State
| Decision Date | 13 March 1990 |
| Docket Number | No. S89A0086,S89A0086 |
| Citation | 389 S.E.2d 238,260 Ga. 17 |
| Parties | JOHNSON et al. v. The STATE. |
| Court | Georgia Supreme Court |
William A. Erwin, Hodges, Erwin, Hedrick & Kraselsky, Betty S. Frazer, George P. Donaldson, Ripley Bell, Jr., Brimberry, Kaplan, Campbell & Donaldson, Albany, for appellants.
Britt R. Priddy, Dist. Atty., Albany, Michael J. Bowers, Atty. Gen., Robert E. Baynard, Asst. Dist. Atty., C. A. Benjamin Woolf, Atlanta, for the State.
Appellants, Roderick L. Johnson and James L. Cutts, were each charged with armed robbery, motor-vehicle theft, malice murder and felony murder. 1 They were jointly tried before a jury. They were acquitted on the malice murder and armed robbery charges, but were convicted of felony murder and motor-vehicle theft. 2
1. Late in the evening of September 6, 1987, the two defendants, along with Kirby Taylor and Reginald Roberts, were stopped for a traffic offense in Sylvester, Georgia. Defendant Cutts was driving the car, which belonged to Roberts. Because Roberts could produce no proof of insurance, the car was impounded and placed in an unfenced parking lot adjacent to the police station. Later that night, the two defendants took the car from the impound lot. They were spotted by a Sylvester policeman, and a high-speed chase ensued that ended when the defendant's car crashed.
As the police prepared to tow away the car, it was discovered that the keys in the ignition did not fit the car; one key would work the ignition switch because the switch was broken, but none of the keys would unlock the doors or the trunk.
The next day, a body was found in an alley in Albany, Georgia (which is some 20 miles west of Sylvester). The victim apparently had been dead two to three days. He died from a gunshot wound to the forehead. His car was discovered abandoned two and one-half miles away. Acting on a tip, Albany police discovered that the keys in the possession of the two defendants fit the victim's car and apartment. The victim's watch was recovered from defendant Cutts after his arrest.
Kirby Taylor testified at trial that the two defendants had told him on September 6 that they had killed a homosexual man, and showed him the watch they had taken. Janet Taylor, a cousin of defendant Johnson, testified that defendant Johnson admitted to her that he and another had killed a homosexual man by beating him with a pipe and by shooting him between the eyes. A friend of the victim's testified the victim was homosexual.
Before the body was discovered, defendant Johnson, who was 14 at the time, was interviewed in the presence of his mother by a Sylvester police officer about the taking of the car from the impound lot. He was allowed to leave with his mother, with instructions to return later that day (September 7). See OCGA §§ 15-11-17 through 15-11-21 (). Before Johnson returned, however, the officer learned that the Albany police wanted to question Johnson about a murder. When Johnson and his mother showed up, they were told to go to Albany and talk to the police there about a homicide. As they were leaving, the officer asked Johnson why he had said nothing about the homicide. Johnson answered, "I wanted to, but I was afraid."
2. The defendants contend the evidence is not sufficient to support the conviction for motor-vehicle theft and, hence, is also insufficient to support the conviction for felony murder. They contend there is only hearsay evidence to identify the victim's car as his, and further contend that hearsay testimony, even when admitted without objection (as they concede occurred here) cannot establish any fact. Our review of the record, however, shows that there was some positive testimony by police officers identifying the victim's car as his and stating that the keys recovered from the defendants fit the victim's car. The defendants did not object to this testimony on the ground of lack of foundation to show personal knowledge. The evidence, when viewed in the light most favorable to the state, is sufficient to support the defendants' convictions for felony murder and motor-vehicle theft. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
3. Defendant Johnson was not in custody when he stated to the Sylvester police, just before he left, that he had wanted to talk about the homicide the evening before but was afraid to. Therefore, the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are inapplicable, and the trial court did not err by admitting Johnson's statement. Findley v. State, 251 Ga. 222(1), 304 S.E.2d 898 (1983).
4. Thirteen-year-old Terrell Cutts was called as a state's witness. He testified that he was a cousin of defendant Cutts. He denied that defendant Cutts ever told him anything about the crime, and denied ever telling his fifth-grade class about the crime.
Over objection, Terrell Cutts' fifth-grade teacher...
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