Kesler v. State
| Decision Date | 18 May 1982 |
| Docket Number | Nos. 38372,38484,s. 38372 |
| Citation | 291 S.E.2d 497,249 Ga. 462 |
| Parties | Jimmy Woodson KESLER v. STATE. Clark Doster CRUMPLER v. STATE. |
| Court | Georgia Supreme Court |
James L. Wiggins, Dist. Atty., Eastman, Michael J. Bowers, Atty. Gen., Atlanta, for the State in both cases.
Tony Hight, Asst. Dist. Atty., Decatur, for the State in No. 38372.
Dennis Mullis, Cochran, for Clark Doster Crumpler.
Jimmy Woodson Kesler and Clark Doster Crumpler appeal their convictions and life sentences imposed by the Superior Court of Dodge County for the murder of Jan Veal Evans, a 21 year old divorcee employed at the factory managed by defendant Kesler.
At trial, the state's chief witness was co-indictee Johnny Michael Faircloth, who was granted immunity from prosecution in exchange for his testimony. The state's theory of the case was that defendant Kesler enlisted the aid of defendant Crumpler to kill the victim and that Crumpler in turn enlisted the aid of Faircloth. Faircloth testified that in the latter part of April, 1979, at a time when he and his wife had just divorced and he was mad at the world, defendant Crumpler came to his place of employment in Warner Robins and asked him to help him kill someone. He agreed because of the hate he felt and as a favor to his friend. No action was taken for about three weeks, until Thursday, May 24, 1979, when defendant Crumpler, with his ward, Melinda McMullen, and another friend, Emory Spring, picked up Faircloth in a pool hall in Warner Robins and took him to Milan in Dodge County in defendant Kesler's blue Cadillac. They drove to defendant Crumpler's sister's house and left Melinda, then went across the street to defendant Jimmy Kesler's house. Defendant Crumpler showed Faircloth around defendant Kesler's house and made a call to Eastman to the victim's apartment, but did not reach her. A copy of defendant Kesler's phone bill indicates such a call was made at about 4:30 in the afternoon. 1 Defendant Kesler then arrived at the house and, after a conversation between defendants Kesler and Crumpler, Crumpler and Faircloth left. They spent the night at defendant Crumpler's trailer in Rhine.
On Friday morning, May 25, 1979, after they took Melinda to catch the school bus, they placed some beer, a metal club with white tape covering it, a brown paper bag containing marijuana, and some gloves in the trunk of defendant Crumpler's green chevrolet which already contained a concrete block and a chain. Defendant Crumpler and Faircloth drove down the Eastman highway hoping to intercept the victim on her way to work. They did not see her.
After they bought gas and some liquor, they went to a restaurant in Rhine to eat, and to the factory in Milan at which defendant Kesler worked. Defendant Crumpler went in and when he returned reported that the victim would be at defendant Kesler's house. Defendant Kesler and another man in a van passed them en route. They stopped and spoke and defendant Kesler got out of the van and looked in the trunk of defendant Crumpler's car.
When Faircloth and defendant Crumpler arrived at defendant Kesler's house, they began calling and searching for the victim. They found her behind a door in the laundry, and defendant Crumpler gave her the marijuana "she wanted to try." As she walked away from them with the bag, defendant Crumpler gave Faircloth the sign to hit her over the head. Faircloth knocked her to the floor and held her down while defendant Crumpler started choking her. Crumpler put the club over her throat and stood on it, rolling back and forth, saying, "Die, you little bitch, die", until she strangled. (Dr. Larry Howard's autopsy corroborated Faircloth's statement as to the cause of death.) The body was then put in the trunk of the green Chevrolet. Faircloth followed defendant Crumpler in the victim's car to a dirt road outside of Milan where he drove her car into the woods. The brown bag of marijuana was left in it.
They then proceeded to a river in which to dump her body, but, seeing someone On the way back to Warner Robins, Faircloth threw the victim's pocketbook in the Ocmulgee River near Bonaire. When it merely floated on the surface, Faircloth jumped into the water and sank it. (In February, 1981, divers retrieved the bag and several objects from it at the spot described by Faircloth.)
there, they drove to Turnpike Creek in Telfair County and threw her body into the creek with the cement block chained to her legs. A piece broken off a cement block and a broken chain link, which matched the chain wrapped around the victim's body, were later found in defendant Crumpler's car. As they left, they met the van with defendant Kesler and another man in it. Faircloth reported that defendant Kesler asked him how things had gone, to which he replied, "Yeah, she sank like the Titanic." Later, on their way again, defendant Crumpler handed Faircloth $400 with a promise of more to come around Christmas. (Faircloth later testified, as did Melinda McMullen, that he did receive more money and a good price on an El Camino truck from defendant Crumpler, which he considered to be payments for helping to kill the victim.)
Faircloth remained silent as to the incident when questioned by investigators until he heard that defendant Crumpler had implicated him as the murderer. Then, in January, 1981, he agreed to testify in exchange for immunity.
Other testimony was also introduced as follows: R. C. Thompson said he rode to Warner Robins with defendant Crumpler who talked to someone at an insulation company. Jack Humphrey, owner of the Warner Robins insulation company where Faircloth worked, testified that defendant Crumpler came to see Faircloth on two occasions, once in a blue Cadillac and once in a Corvette, but that Faircloth was not there. Humphrey also presented his work records showing that Faircloth was absent from work on Thursday and Friday, May 24 and 25, 1979.
Terry Lupin testified that he went to defendant Kesler's house with Billy Smith, a friend of defendant Kesler, to pick up a truck in June, 1979. At that time, defendant Kesler, Faye Brown Floyd, Tommy Baker, Lupin and Smith were visiting when defendant Crumpler came in quite drunk. Lupin stated that defendant Crumpler made the statement that he had killed the victim and that he expected to be arrested the next morning when he was to report to the sheriff's department. Defendant Kesler told defendant Crumpler to go home. Then defendant Crumpler said to Mrs. Floyd she better watch her step or she would wind up in the creek, too. Smith, Floyd and Baker all testified for the defense. They all denied hearing any such statement by defendant Crumpler that he had killed the victim and expected to be arrested. They also consistently stated that defendant Crumpler had joked to Baker that if Mrs. Floyd ended up in the creek, they would all know who did it (i.e., killed the victim).
In deciding this appeal, we first consider the sufficiency of the evidence as to each defendant (divisions 1 and 2), then we will address other enumerations of error common to both appeals (3 through 6) before deciding those issues raised by defendants Kesler (7 through 9) and Crumpler (10 through 16), individually.
1. In his appeal, defendant Crumpler enumerates as error that the verdict is contrary to law and unsupported by the evidence. At trial, defendant Crumpler said he had known Faircloth since they had worked in a construction job together in Warner Robins in 1972 and 1973. He considered Faircloth a friend, that on Wednesday, May 23, 1979, he went to Warner Robins to see Faircloth, who wanted him to appear in court with him because his mother was upset with him and would not go, but that defendant Crumpler had gone on the wrong day. With Melinda, in defendant Kesler's blue Cadillac, he visited his friend Emory Spring; then stopped by a pool hall to get a beer, where he ran into Faircloth. Faircloth said he wanted to get away for awhile and asked defendant Crumpler to take him home to Rhine with him. In Rhine, Faircloth helped defendant Crumpler move into his new trailer on Thursday, May 24. On Friday, May 25, defendant Crumpler loaned Faircloth his green Chevelle to run some personal errands, while defendant Crumpler himself went about his usual morning schedule.
When he returned home later that day, he found Faircloth there and very nervous. Faircloth indicated he had raped 2 and killed the victim in a drug deal because she was going to "rip him off" and that she was now at the bottom of the river. Defendant Crumpler never reported this to the police because he was afraid of Faircloth and his "connections". Defendant Crumpler also stated that he kept blocks and chains to tie up his Doberman dogs, and that he had called Jack Humphrey's insulation business from defendant Kesler's telephone to get prices for insulating defendant Kesler's home. We find, however, that a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560) (1979); Tucker v. State, 249 Ga. 323, 290 S.E.2d 97 (1982). Faircloth's testimony about Crumpler's participation in the murder is corroborated by the pieces of cement block and chain found in his car and his statement to Terry Lupin.
2. Defendant Kesler concedes that, except for Code Ann. § 38-121, Faircloth's testimony is sufficient to support the verdict against him. See Jackson v. Virginia, supra, 443 U.S. at 319, 99 S.Ct. at 2789. He argues strenuously, however, that in view of Code Ann. § 38-121, the evidence is insufficient to convict him. Code Ann. § 38-121 provides: ...
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