Jolley v. State
| Decision Date | 19 June 1985 |
| Docket Number | No. 41963,41963 |
| Citation | 254 Ga. 624,331 S.E.2d 516 |
| Parties | JOLLEY v. The STATE. |
| Court | Georgia Supreme Court |
James A. Eidson, Sparrow & Eidson, P.C., E. Wayne Wallhausen, East Point, for Charles Albert Jolley.
Lewis R. Slaton, Dist. Atty., Richard Hicks, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Atlanta, for the State.
Charles Albert Jolley was convicted of the aggravated assault of Robert Temple and the felony murder of David Reid Corley. He appeals, and we affirm. 1
On August 18, 1983, co-workers David Corley and Robert Temple finished work at noon and began drinking. At approximately 5:00 p.m. Corley and Temple went to a bar where Corley's estranged wife Dianne worked as a nude dancer. Dianne and another nude dancer agreed to have supper and spend the evening with Corley and Temple in exchange for one hundred dollars apiece. While waiting for Dianne's shift to end at 8:00 p.m., Corley and Temple were joined by Albert Jolley, who was Dianne's current boyfriend. Corley and Jolley had been friends for fifteen years, and even though Corley knew that his wife was living with Jolley, the two men showed no signs of animosity at that time. At the end of Dianne's shift Corley had an altercation with her and threw a punch that missed Dianne but hit Jolley in the mouth, splitting his lip. Dianne kicked at Corley and then ran with Jolley to a car driven by Jolley's niece, Wanda Suttles. As Ms. Suttles attempted to drive out of the parking lot, Corley tried to kick the car. Jolley testified that Corley challenged him to get out of the car and threatened to kill him.
Wanda Suttles, Dianne Corley, and Albert Jolley all testified that after they left the bar they took a friend home, visited other friends, and finally went to Jolley's mother's house, where they all lived. The three arrived home at about 9:30 p.m., and ate. Jolley and Dianne then went to bed.
Robert Temple testified that after Corley scuffled with Dianne he was not visibly upset or angry. Temple stated that Corley and he left the bar, bought and drank some beer, and took some drugs. According to Temple, at about 11:00 p.m. they went over to Jolley's house to pick up Dianne for the dinner that they thought was still planned. Temple testified that when they drove by Jolley's house, no one appeared to be home, so Corley drove about one hundred feet down the road, turned around, and parked to wait for Jolley and Dianne to come home. Approximately twenty to thirty minutes later, Jolley and Dianne drove up, and Corley then slowly drove past the house. Temple testified that he saw the two getting out of their car. Corley parked the car sixty to one hundred feet down the street and told Temple that he was going to get Dianne. Temple testified that Corley showed no signs of being upset or angry. Temple stayed in the car as Corley walked out of sight toward Jolley's house. Temple stated that after about forty seconds he heard one gun shot. Since he could not see Corley or what was occurring in the yard, Temple decided to leave the car and investigate. Upon entering Jolley's yard, Temple was surprised by Jolley, who suddenly appeared from behind a tree and confronted him with a gun. According to Temple, Jolley held the gun to Temple's head and told him he had no business there. Jolley ordered Temple to go with him, and asked Temple what he wanted to do. Temple told Jolley that he wanted a drink. Temple said that at that time he did not know that Corley had been shot and that, in fact, he never saw Corley again. Jolley and Temple got into Corley's car, and Jolley drove Temple to a bar near Hartsfield Airport. Jolley left Temple at the bar and drove off in Corley's car. Temple stated that he hitched a ride home with a patron of the bar at which he had been dropped off.
Jolley and Dianne denied the validity of Temple's testimony. Jolley testified that he was in bed with Dianne at about 11:30 p.m. when he heard a car driving up and down the street in front of his house. Jolley stated that he became suspicious and decided to go outside to investigate. For protection, Jolley took his mother's .22 pistol with him. Jolley testified that the car drove by once more, stopped just down the street from his house, and Corley and Temple got out. The two men split up and approached Jolley's yard from different directions. According to Jolley, he confronted the first to enter his yard, Temple, and told him to leave. Jolley testified that Temple took his advice and walked away.
Jolley said he then proceeded to intercept Corley. Jolley stated that he stepped into the illumination of the street light in order to make his gun visible to Corley. Pointing his gun at Corley, Jolley told him that he had no business causing trouble there and ordered him to leave. Jolley said that at some point in this confrontation he cocked the gun for audible effect. Jolley testified that Corley said "screw you wimp" and reached for his back pocket. Fearing that Corley was reaching for a weapon, Jolley jumped behind a tree and fired his gun. Corley fell to the ground, mortally wounded. After checking Corley for a pulse and finding him to be still alive, Jolley called Temple over and told him to get Corley into Corley's car and take him to the hospital. Jolley testified that he knew that Corley was still alive at that time because when Temple and Jolley were putting him in the car, Jolley dropped him on his head, causing him to moan. Jolley told Temple to telephone if Corley was hurt seriously. Temple never did.
Jolley testified that during this time he noticed that Dianne was on the porch and told her to go inside. Dianne testified that she had come outside after being awakened by "a noise". She stated that when she went out on the porch she saw Jolley motioning a man to go up the street. When Jolley told her to go inside she obeyed, and went back to bed. She did not see Jolley again until he woke her up about an hour later. Jolley testified that after he told Dianne to go inside and helped Temple put Corley into Corley's car, he got into his own car and began following Temple. Shortly thereafter, he discontinued following Temple and went directly to Terry Watson's house to hide his gun. He testified that he returned home about an hour later at about 1:00 a.m. Jolley never called the police to report the incident.
Terry Watson testified that night at approximately 10:30 p.m. Jolley and Dianne visited him. Jolley showed Watson his swollen lip and told Watson about the scuffle with Corley at the bar. Watson also testified that Jolley returned at about 1:00 a.m. that same night and asked him to hide a .22 caliber pistol.
Corley's body was found beside a secluded road in Fulton County, about two and one-half miles from Terry Watson's house. Corley's car was discovered abandoned about three and one-half miles from where his body was found.
On August 20 Jolley and Dianne turned themselves in to the police after they learned of an outstanding murder warrant for their arrest. Once in custody, according to the testimony of Detective Jack Lambert, Jolley confessed to the shooting but stated that Dianne had nothing to do with the killing.
1. Although Jolley does not challenge the sufficiency of the evidence, we find that viewing the evidence in a light most favorable to the prosecution a rational trier of fact could have found the elements of the crimes of murder and aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. In his first enumeration of error Jolley, relying on McCrary v. State, 252 Ga. 521, 314 S.E.2d 662 (1984), contends that the trial court erred when it allowed the jury to consider a verdict of felony murder because the indictment did not give him sufficient notice of that possibility. The malice murder indictment charged that Jolley "did unlawfully and with malice aforethought, cause the death of David Reid Corley, a human being, by shooting him with a pistol." The trial court charged the jury on felony murder, with aggravated assault as the underlying felony.
In McCrary v. State, supra, 252 Ga. at 524, 314 S.E.2d 662, we held that "a defendant indicted only for malice murder cannot be convicted of felony murder unless the defendant has been put on notice of the felony by the facts alleged to show how the murder was committed." In Middlebrooks v. State, 253 Ga. 707(2), 324 S.E.2d 192 (1985), although we noted that the better method...
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