Kilgore v. State
| Decision Date | 28 June 1983 |
| Docket Number | No. 39437,39437 |
| Citation | 305 S.E.2d 82,251 Ga. 291 |
| Parties | KILGORE v. The STATE. |
| Court | Georgia Supreme Court |
James A. Meaney III, Auman & Meaney, Trenton, for William Raymond kilgore.
David L. Lomenick, Jr., Dist. Atty., Herbert F. Franklin, Asst. Dist. Atty., LaFayette, Michael J. Bowers, Atty. Gen., Janice G. Hildenbrand, Staff Asst. Atty. Gen., for the State.
Kilgore was convicted in the Dade County Superior Court on April 29, 1982 for the murder of Roger Norman and was given a life sentence. He appeals.
In the early morning hours of July 8, 1981, the victim, Roger Norman, was traveling south on Interstate 59 (I-59) through Dade County to his home in Alabama. While driving, he was shot in the head and killed. George Lee, a trucker, testified that on this morning he was driving north on I-59 when he observed two cars traveling beside each other going south. He testified that he heard a shot and saw Norman's car veer off the highway. Norman was driving a 1980 burgundy colored Lincoln.
At trial, the state introduced evidence of a conspiracy to kill Roger Norman. In particular, it introduced evidence of three previous attempts on Norman's life. As to the first attempt, David Oldaker testified that on February 6, 1981 Greg Benton, his cousin, asked him to go with him to Menton, Alabama, Norman's home. He testified that the purpose of the trip was to kill Norman and that Benton told him a crippled man named Tom who sold pharmaceuticals and lived in Soddy-Daisy, Tennessee, was the man who wanted Norman killed. This testimony was admitted over the hearsay objection of defense counsel. Tom Carden, who died on July 16, 1981, was Norman's brother in law and lived in Soddy-Daisy. He was a paraplegic. Oldaker and Benton went to Norman's home, where they unsuccessfully attempted to kill him. Kilgore was in no way implicated in this attempt.
Evidence did specifically connect Kilgore with the second attempt. Ed Williams, an employee of a truck stop located just off the interstate near Trenton, Georgia, testified that on the evening of June 8, 1981 he saw two cars traveling close to each other while crossing a bridge over I-59; that he heard sounds like a car backfiring; and that Norman's car pulled into the truck stop while the other car turned north on I-59. Norman, who had been on his way home from work, had been shot in the upper back. Sheriff Steele of Dade County testified that based on what Norman told him, he posted a lookout for a 1962 or 1963 Rambler with a dark bottom, white top, and Tennessee tags.
Constance Chambers, Kilgore's ex-girlfriend who lived with him from April through September of 1981, testified that on June 8, 1981, Kilgore and his cousin, Lee Berry, borrowed her 1964 Rambler. It had a dark green body, white top, and Tennessee tags. She testified that Kilgore returned to her apartment around 4:00 a.m. the next morning and told her they had killed a man near Trenton, Georgia. Later that day, Chambers testified that Kilgore received a phone call from Tom Carden, during which she heard Kilgore say "apparently we didn't get him" and "there is no need in getting anybody else to do it, we'll take care of it." After this call, Chambers accompanied Kilgore to a wooded area near Tom Carden's trailer where Kilgore picked up nine hundred dollars.
Concerning the circumstances leading up to Norman's death on July 8, 1981, Chambers' testimony shows the continuation of a conspiracy to kill Norman. She testified that on June 15, 1981 Kilgore received a phone call from Carden, during which she heard Kilgore tell Carden he needed more money to obtain a faster car and another man to help him. Shortly thereafter, Kilgore went to Carden's and picked up fifteen hundred dollars. Chambers also testified that on July 5, 1981 Kilgore received another call from Carden, after which she and Kilgore drove to Carden's trailer where Kilgore took fifteen thousand dollars from the mailbox. According to her testimony, they left Carden's and drove to a V.F.W. post where they met a friend of Kilgore's, Bob Price. She testified that Kilgore took a rifle out of his car, put it in Price's van, and left with him, while she drove home alone. The next day Kilgore told Chambers that he and Price had attempted to kill a man between Knoxville and Chattanooga but were unsuccessful. Norman had a furniture store in Knoxville, and Chambers testified that Kilgore and Price made the attempt after getting directions to the victim's place of business. Chambers' description of the location they were directed to fits Norman's store.
Chambers testified that on July 7, 1981, the day preceding the murder, Kilgore and Price left her apartment about 6:00 p.m., each in a separate vehicle but driving in the same direction. She did not see Kilgore until noon the next day, July 8, when, she testified, he returned driving a blue Lincoln. She testified that at about 3:00 p.m. that day she and Kilgore left to go to Florida, and Chambers' mother testified that before they left Kilgore gave her sixty dollars from a wad of money he said contained five thousand dollars.
Kilgore and Chambers spent several days in Florida, and Chambers testified that on the way home Kilgore told her that "all mighty hell is going to break loose .... we killed a man"; that they [he and Price] had killed him on I-59 just outside of Trenton Georgia; that the man had been driving a new burgundy colored car; that the car left the road; that he was sure the man did not survive this time; and that the murder was over a drug deal.
On July 16, 1981, Tom Carden died at his trailer in Soddy-Daisy. No autopsy was performed, and the death certificate lists the cause of death as acute fulminating respiratory infection. Dr. Dawson of the Georgia Crime Laboratory testified that generally this means the deceased died from asphyxiation, probably from fluid in the lungs. He testified that an overdose of depressant drugs usually causes death by asphyxiation, and that if it was only known that a death was caused by asphyxiation, there would be no way to know the mechanism which triggered the asphyxiation. In one of Kilgore's statements, he said that Brenda Norman, Carden's sister, told him there was something suspicious about his death. Chambers testified that Kilgore told her he and Price had given Carden a drug overdose because "he knew too much."
Several statements of Kilgore were admitted after a determination that they had been freely and voluntarily given. In one, Kilgore first stated that "this is one rap I'm not going to take myself, somebody else is going down with me", but later stated he "was going to keep his mouth shut, because he didn't want to end up in a fifty-five gallon drum." In another statement, Kilgore said that he was a business associate of Tom Carden and Roger Norman, that he was in their employment and was participating in a drug smuggling operation, but that he was in Florida when the deaths of Carden and Norman occurred. In yet another statement, Kilgore stated that before he left to go to Florida, he picked up two thousand dollars from Carden for "look alike type of drugs"; that he worked for Carden, "trading synthetic type [sic] of drugs for real drugs;" and that he went to work for Norman through Carden, doing "basically the same thing, swapping good dope for bad dope." In all of his statements, Kilgore denied any knowledge of the deaths of Norman and Carden.
Agent Bonnell of the Georgia Bureau of Investigation testified that while trying to locate Bob Price, he received information that Price might be living at the Norman residence with the victim's wife. As a result, a search of the residence was conducted and partially burned pieces of letters were recovered from a garbage can. One had a sticker with Price's name on it, another contained the words and another was signed "Bob."
Kilgore appeals and enumerates fifty-one errors.
1). In his first four enumerations of error, Kilgore contends that the evidence was insufficient to satisfy the requirements of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Kilgore bases this contention on several different arguments.
a). First, he contends that the only evidence linking him to the crime is the uncorroborated testimony of an accomplice, Constance Chambers, which, as a matter of law, is insufficient to sustain a conviction. OCGA § 24-4-8 (Code Ann. § 38-121). He argues that Chambers was an accomplice since, among other things, she accompanied him to retrieve money from Carden; since after June 9, 1981 she knew that Kilgore had tried to kill a man; and since she went with him to Florida. We disagree and hold that these circumstances do not elevate Chambers to the status of an accomplice. Moore v. State, 240 Ga. 210(1), 240 S.E.2d 68 (1977); Ford v. State, 232 Ga. 511(7), 207 S.E.2d 494 (1974). There is no evidence that Ms. Chambers was a party to the crime within the meaning of OCGA § 16-2-20 (Code Ann. § 26-801). She did not know who the intended victim was, or when the various attempts on his life were to be made, and she did not in any way participate in or encourage the murder of Roger Norman. Consequently, she is not an accomplice within the meaning of OCGA § 24-4-8 (Code Ann. § 38-121). Moore v. State, supra; Ford v. State, supra.
b). Kilgore also argues that Chambers' testimony that he told her "all mighty hell is going to break loose, ... we killed a man" is the only evidence linking him to the crime, amounts only to an admission, and is insufficient to convict because it is uncorroborated. He reasons that if an uncorroborated confession is insufficient to convict, an uncorroborated admission is likewise insufficient. OCGA § 24-3-53 (Code Ann. § 38-420). In this...
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