Larry v. State

• Citation: 466 S.E.2d 850,266 Ga. 284
• Decision Date: 19 February 1996
• Docket Number: No. S95A2013,S95A2013
• Parties: LARRY v. The STATE.
• Court: Georgia Supreme Court

Page 850

466 S.E.2d 850

266 Ga. 284

LARRY v. The STATE.

No. S95A2013.

Supreme Court of Georgia.

Feb. 19, 1996.

Murder. Richmond County Superior; Hon. Carl C. Brown, Jr., Judge.

Stanley C. House, Augusta, for Larry.

Michael J. Bowers, Atty. Gen., Department of Law, Atlanta, Daniel J. Craig, Dist. Atty., Augusta, Charles R. Sheppard, Asst. Dist. Atty., Augusta, Susan V. Boleyn, Senior Asst. Atty. Gen., Marla-Deen Brooks, Asst. Atty Gen., Department of Law, Atlanta, for the State.

HINES, Justice.

Marquett Larry was convicted of felony murder while in the commission of armed robbery and aggravated assault, kidnapping, and possession of a firearm during the commission of certain crimes in connection with the shooting death of Ronald Paul Ray. Larry was also convicted of the kidnapping and armed robbery of Soloman Walker and of possession of a firearm during the commission of those crimes. ¹

The evidence at trial, considered in the light most favorable to the verdict, showed that Larry and co-defendant Overstreet were armed with handguns when they entered Ray's tire business. Overstreet drew a semiautomatic weapon on Ray and forced him to his knees. Larry pointed a .9 millimeter handgun at Walker, ordered him to the back of the store, and made him kneel and give whatever cash he had. Larry searched Walker's pockets and directed him to lay face down on the floor. Larry returned to where Ray was kneeling. Ray had a handgun and Larry and Ray exchanged gunfire. Larry was wounded and was hospitalized. Ray sustained multiple gunshot wounds and bled to death from a bullet which transected his aorta.

1. Larry contends that the trial court erred in denying his motion for new trial based upon the general grounds because his convictions for the armed robbery and kidnapping of Ray cannot be sustained. He urges that there was no evidence that he pulled a gun on Ray in order to rob him or that he forced Ray to move, and that he could not be convicted as a party to Overstreet's acts against Ray because the jury found Overstreet guilty only of the armed robbery of Walker. Overstreet's acquittal on the charges does not provide Larry with a basis for attacking his convictions. Lucas v. State, 264 Ga. 840(2), 452 S.E.2d 110 (1995); Parker v. Mooneyham, 256 Ga. 334, 335, 349 S.E.2d 182 (1986); Milam v. State, 255 Ga. 560, 341 S.E.2d 216 (1986). The evidence was sufficient to authorize a rational trier of fact to find Larry guilty beyond a reasonable doubt of all of the crimes with which he was charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Larry challenges the admission into evidence of two tape-recorded statements he made to police while he was in the hospital recovering from his gunshot wounds. Following a Jackson- Denno ² hearing, the trial court found by a preponderance of the evidence that the statements were freely and voluntarily given and that Larry was advised of his constitutional rights.

(a) Larry contends that the first statement made the day after the shooting was not voluntary because it was the result of police interrogation after he had invoked his right to remain silent.

The evidence at the Jackson- Denno hearing along with the transcript of the interview reveals the following: Larry did not execute a written waiver of counsel because the intravenous and other medical treatment he was receiving made it physically difficult for him to sign. An investigator turned on the tape recorder and read Larry each of the Miranda rights. ³ Larry responded that he understood each right, but when asked whether he wished to talk, he replied "no." The investigator turned off the tape recorder and the interview ended. The police prepared to leave the room and informed Larry of the impending charges. The interview resumed approximately two minutes later after Larry began to talk about the incident and stated to the investigators that he had no objection to speaking briefly with them because he wanted to tell "his side of what happened." The investigator asked Larry if it was correct that he wanted to speak with them. Larry responded, "[a] little bit, yeah" although "I really don't feel like talking because I'm hurting ... in my stomach and stuff." Larry spent the next twenty-eight minutes recounting alleged circumstances of the shooting.

The evidence supports the trial court's findings in favor of admissibility. See Short v. State, 256 Ga. 165, 167 (3), 345 S.E.2d 340 (1986) regarding the deference on review to be given to the trial court's conclusions. "[T]he right to silence is not protected by a per se rule of 'permanent immunity' against further police-initiated interrogation." Hatcher v. State, 259 Ga. 274, 277(2), 379 S.E.2d 775 (1989), quoting Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). Here, Larry initiated further dialogue with the investigators after the break in the interview, clearly evincing his intent not to remain silent. Hatcher 259 Ga. at 277(2), 379 S.E.2d 775. Although Larry later complained about his physical discomfort in speaking, this was not an equivocation of his decision to put on record his version of events. Regardless, any error in admitting the statement would have to be deemed harmless because the statement was echoed by Larry's testimony at trial. Callaway v. State, 257 Ga. 12, 14(2), 354 S.E.2d 118 (1987).

(b) Larry maintains that the second statement, made four days after the shooting, was inadmissible because the fact that he was recovering from painful gunshot wounds rendered the statement involuntary as a matter of law. The fact that a defendant is in pain or taking pain medication does not, in and of itself, render any statement made involuntary. See Fulmer v. State, 205 Ga.App. 679, 680(2), 423 S.E.2d 300 (1992); Evans v. State, 176 Ga.App. 818, 819(1), 338 S.E.2d 48 (1985). Nor does the circumstance of a defendant being hospitalized and undergoing treatment require such a finding. "The question of whether a waiver of rights and a subsequent statement have been voluntary and knowing depends on the totality of the circumstances. [Cit.]" Reinhardt v. State, 263 Ga. 113, 115(3)(b), 428 S.E.2d 333 (1993). Larry signed a written waiver. He was read each of the Miranda rights and responded that he understood and that he would talk with the investigators. At no time did he indicate that he wished to remain silent or to speak with an attorney or have counsel present. He appeared healthier and well on the road to recovery. The evidence supports the finding that the thirteen-minute statement was voluntary.

3. Larry contends that the trial court's charge to the jury that it "may take into consideration the fact that he is interested in the result of the prosecution" improperly singled out his testimony and applied a different standard to the prosecution and defense in violation of due process and equal protection under the Federal Constitution. Such an instruction, which was approved in Johns v. State, 239 Ga. 681, 684(4), 238 S.E.2d 372 (1977), "merely stated the self-evident fact of [Larry's] interest in the outcome of the case." Woods v. State, 265 Ga. 685, 687-688, 461 S.E.2d 535 (1995); see also Phelps v. State, 245 Ga. 338, 341(6), 265 S.E.2d 53 (1980). Moreover, the court made it plain that the defendant's testimony was not to be given different treatment. The court also charged, "when the accused testifies he at once becomes the same as any other witness and his...