Knight v. State
| Citation | 239 Ga. 594,238 S.E.2d 390 |
| Decision Date | 08 September 1977 |
| Docket Number | No. 32179,32179 |
| Parties | Gregory Bernard KNIGHT et al. v. The STATE. |
| Court | Georgia Supreme Court |
John Edward Smith, III, Fitzgerald, for appellants.
D. E. Turk, Dist. Atty., Abbeville, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.
This is an appeal from the Ben Hill Superior Court following the conviction of both defendants for the offense of armed robbery, in which one victim was severely beaten. Defendants filed identical motions for judgment notwithstanding the verdicts, or in the alternative, for new trials. The motions of both defendants were overruled and the appeal here is from those rulings. Both defendants were sentenced to 15 years.
We affirm.
1. Enumerations of error Nos. 1, 2, 3 and 9 address themselves to the general grounds. Both defendants contend that the trial court erred in not granting their motions for directed verdicts of acquittal; their motions for judgment notwithstanding the verdicts of guilty; and their motions for new trial. All questions require an examination of the evidence.
We have carefully reviewed the evidence, and although there are sharp conflicts, the jury chose to believe the witnesses for the State, and with that we must consider the same in the light most favorable to support the verdicts rendered. Harris v. State, 234 Ga. 871, 873, 218 S.E.2d 583 (1975). The rulings of the lower court, approving the verdicts will not be disturbed unless they are not supported by any evidence, as a matter of law. Harris v. State, 236 Ga. 766, 225 S.E.2d 263 (1976); Myers v. State, 236 Ga. 677, 225 S.E.2d 53 (1976); Fleming v. State, 236 Ga. 434, 224 S.E.2d 15 (1976); Proctor v. State, 235 Ga. 720, 221 S.E.2d 556 (1975).
Both appellants argue that their guilt, if proven at all, was proven only by the testimony of a witness who was unworthy of belief because of his numerous brushes with the law. The credibility of a witness is a matter which is left to the jury to resolve. Rini v. State, 236 Ga. 715, 225 S.E.2d 234 (1976); Carruth v. State, 232 Ga. 644, 208 S.E.2d 464 (1974). The witness Taylor's identification of the appellants as two of the robbers provided direct evidence of their guilt, which the jury could believe, and they chose to do so. Ward v. State, 233 Ga. 251, 210 S.E.2d 772 (1974); Andrews v. State, 232 Ga. 423, 207 S.E.2d 61 (1974). Eyewitness Taylor's description of the robbery scene is consistent with the testimony given by the robbery victims. Even though the money from the robbery and the guns used by the robbers to carry out their plan were never recovered, the corpus delicti of a robbery was sufficiently established. Mydell v. State, 238 Ga. 450, 233 S.E.2d 199 (1977).
For these reasons the aforementioned enumerations of error are without merit.
2. Appellants' enumeration No. 4, complaining that the trial judge erred in admitting into evidence over objection certain testimony regarding threats originally made by an alleged co-conspirator not on trial to one of the victims some three months before the crime occurred, presents a more difficult question. The testimony objected to was elicited from one of the owners of the business where the robbery occurred, and involved a conversation he had with Tracy Ryan a co-indictee whose trial was severed. It had been established at that point in the trial that Ryan was a former employee of the business and the specific question asked by State's counsel follows:
Defendants' counsel objected as follows:
Defendants' counsel in his argument to this court points out there had been no evidence of a conspiracy presented up to that time. Further, that the prosecution was attempting to use the hearsay evidence to show a conspiracy, and to show an involvement between Ryan and the other two defendants on trial. He contends that the State must show a conspiracy existed when these remarks were made before they can be admissible against the other two defendants in a separate trial.
The court overruled the objection and allowed the witness to testify. The witness then testified that co-indictee Ryan, upon being discharged because of his failure to do his work properly, told the witness, "If I wanted the silverware I could get it myself." With this the witness told Ryan he could "punch the clock and go." The witness then testified that Ryan came rushing over like he was fixing to grab him and kill him and said, "I'll get you, I'll get you, I'll get you." "He said to me, he said, you (expletive deleted) and said I'll get you." Said "Don't you never be on the street." Defendants' counsel renewed his objection and moved to strike that response on the grounds that it contained hearsay and on the grounds of relevancy. The court again overruled the objection.
The trial court acknowledged that the testimony was prejudicial and we agree. Most testimony against an accused is prejudicial but we must determine whether or not it was admissible.
In McCluskey v. State, 212 Ga. 396, 93 S.E.2d 341 (1956), this court held: "A conspiracy not being shown prima facie, it was error to admit in evidence declarations of a co-defendant and to charge the jury the law as to principals in the first and second degrees." See, Kennemore v. State, 222 Ga. 362, 149 S.E.2d 791 (1966); Fleming v. State, 236 Ga. 434, 441, 224 S.E.2d 15 (1968).
In order to properly admit the declaration of a co-conspirator made pending the criminal project, there must be sufficient evidence aliunde the declaration to establish the conspiracy at least prima facie and prove its existence beyond a reasonable doubt. But the trial judge having sound discretion as to the order of proof, if a prima facie case of conspiracy is shown from the whole evidence, does not err in admitting such a declaration. Wortham v. State, 184 Ga. 674, 192 S.E. 720 (1937). The order of proof is in the sound discretion of the court. See, Fallings v. State, 232 Ga. 798, 209 S.E.2d 151 (1974), citing Coleman v. State, 141 Ga. 731, 733, 82 S.E. 228 (1914).
Other evidence introduced showed that the three defendants, on the night in question, were together at the same time that the robbery occurred, participated therein, and immediately fled together. This is sufficient for the jury to consider under proper instructions from the court, whether or not a conspiracy existed between them.
We get down to the critical question as to whether or not the declarations of Ryan, made three months prior to the night of the robbery under investigation, would be admissible against the other two over their objection that such declarations were hearsay and irrelevant.
The Federal rule regarding the admission of hearsay evidence as to statements of a co-conspirator is stated in the Federal Rules of Evidence, Rule 801(d)(2) (E) which provides that any statement by one co-conspirator made in furtherance of the conspiracy and during its pendency is admissible against each co-conspirator provided that a foundation for its admission is laid by independent proof of a conspiracy. Thus, under the Federal rule, in order for such evidence to be admissible, one must first establish that the declaration was made in furtherance of the conspiracy and, secondly, establish that the declaration was made during the pendency of the conspiracy.
Many state jurisdictions, either by statute or case law, have adopted variances of the co-conspirator rule. These variances fall into several categories. Some require that the evidence "relate to the conspiracy" (e. g. Cal.Code Civil Practice § 1870(6)) while others require only that statements be made "during the pendency of the criminal project." Georgia follows this latter variance and by statute provides, "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. (Emphasis supplied.)
In regard to post conspiracy statements, if the conspiracy contemplates actions beyond an initial criminal act such as concealment, the conspiracy is deemed in progress until its ultimate purpose is accomplished, and admissions made by one conspirator while attempting to conceal the case may be admissible against the other conspirators. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). This is the Georgia rule. 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); Burns v. State, 191 Ga. 60, 11 S.E.2d 350 (1940).
In regard to pre-conspiracy statements, the requirement of pendency under the Georgia statute presents a unique problem. The conspiracy begins with the criminal agreement, but the point in time of its formation may be difficult to place, particularly if the agreement may be inferred retroactively from a series of overt acts. Conspiracy is often formed in secret, and therefore, the date of its initial formation is oftentimes difficult, if not impossible to prove. In this case, we know on the night in question, there are three parties acting in concert who flee together after carrying out a criminal enterprise. We can infer that the conspiracy was in existence at that particular time, and from human experience we can reasonably consider it was in existence...
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