Lee v. State

• Citation: 270 Ga. 798,514 S.E.2d 1
• Decision Date: 01 March 1999
• Docket Number: No. S98P1498.,S98P1498.
• Parties: LEE v. The STATE.
• Court: Georgia Supreme Court

514 S.E.2d 1

270 Ga. 798

LEE v. The STATE.

No. S98P1498.

Supreme Court of Georgia.

March 1, 1999.

Reconsideration Denied April 2, 1999.

John B. Adams, James Kelly Brooks, Adams & Brooks, Folkston, for James Allyson Lee.

Richard Ernest Currie, Dist. Atty., Waycross, Thurbert E. Baker, Atty. Gen, Christopher L. Phillips, Asst. Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.

CARLEY, Justice.

A jury found James Allyson Lee guilty of malice murder, felony murder, armed robbery, and possession of a firearm during the commission of a crime. For the murder, the jury recommended a death sentence, finding the following aggravating circumstances: that Lee had committed the murder while engaged in the commission of armed robbery and kidnapping with bodily injury; that Lee had committed the murder for himself or another for the purpose of receiving money or any other thing of monetary value; and that the offense of murder was outrageously or wantonly vile, horrible or inhuman, in that it involved an aggravated battery to the victim before death. OCGA § 17-10-30(b)(2) (4), (7). Lee's motion for new trial was denied and he appeals.¹

The Guilt-Innocence Phase of Trial

1. The evidence presented at trial authorized the jury to find the following: Lee and an accomplice broke into a gun store on May 25, 1994, and stole several guns, including a ten millimeter Glock pistol. Afterwards, Lee and his girl friend decided to drive to Pierce County to kill Lee's father and steal his father's Chevrolet Silverado pickup truck. When Lee learned that his father was not home, he decided to kill his father's live-in girl friend, Sharon Chancey. In the early morning hours of May 26, 1994, Lee's girl friend lured the victim from the house by claiming that her Toyota had broken down nearby. When Ms. Chancey pulled up to the Toyota in the Silverado and got out, Lee shot her in the face and threw her in the back of the pickup. Lee then drove the truck to a secluded area in Charlton County. After dragging Ms. Chancey into the woods, Lee reached down to strip two rings from her. She was still alive, and grabbed his arm. Lee responded by shooting her two more times and killing her.

After swapping the Silverado and Toyota license plates, Lee and his girl friend drove to Florida in the pickup truck. While in Florida, Lee made several incriminating remarks to friends and his girl friend's sister. At about 11:30 p.m. on May 26, 1994, Lee was stopped for a broken taillight and, after a check revealed that the Silverado was stolen, he was arrested. The ten millimeter Glock pistol was recovered from the Silverado, and this gun was determined by a firearms expert to be the murder weapon. The police also found Ms. Chancey's purse and identification in the Silverado. Lee gave several incriminating statements to various law enforcement officials in Florida and Georgia, including a videotaped confession at the crime scenes in Charlton and Pierce counties.

The evidence was sufficient to enable a rational trier of fact to find proof of Lee's guilt of malice murder, felony murder, armed robbery, and possession of a firearm during the commission of a felony beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence was also sufficient to authorize the jury to find beyond a reasonable doubt the four statutory aggravating circumstances which supported his death sentence for the murder. Jackson v. Virginia, supra; OCGA § 17-10-35(c)(2).

2. Lee complains that the incriminating statements he made to the police on May 26-27, 1994, were not voluntary. OCGA § 24-3-50.

"`The standard for determining the admissibility of confessions is the preponderance of evidence. To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.'" [Cit.]

Gober v. State, 264 Ga. 226, 228(2)(b), 443 S.E.2d 616 (1994). Lee was 19 years old, in police custody only a short time, not under the influence of drugs or alcohol, not subjected to any physical or psychological coercion, and he was informed of and waived his Miranda rights on several occasions. After Lee admitted to killing his father's girl friend and stealing the truck, a police officer asked him if he would make another statement on audiotape. Lee agreed, but when the recording began Lee asked the officer, "What should I do? Should I talk?" The officer replied, "That's up to you, man. All you're going to do is help yourself out." Contrary to Lee's assertion, the officer's comment was not a "hope of benefit" that would render Lee's statement involuntary under OCGA § 24-3-50. See Gilliam v. State, 268 Ga. 690, 692(3), 492 S.E.2d 185 (1997) (encouraging a suspect to tell the truth is not a "hope of benefit" under OCGA § 24-3-50); Gober, supra at 228(2)(b), 443 S.E.2d 616; Caffo v. State, 247 Ga. 751, 756-757(3), 279 S.E.2d 678 (1981) (telling a suspect he would "feel better" if he confessed is not a "hope of benefit" under OCGA § 24-3-50). Considering the totality of the circumstances, we conclude that the trial court correctly found that Lee's incriminating statements on May 26-27, 1994, were voluntary and admissible. Gilliam, supra at 692-693(3), 492 S.E.2d 185; Gober, supra.

3. Lee's contentions that the State failed to prove the identity of the victim or that Charlton County was the proper venue for the murder conviction are without merit. Viewed in the light most favorable to the prosecution, the evidence was clearly sufficient to support a jury finding beyond a reasonable doubt that Sharon Chancey was the murder victim, and that Ms. Chancey was still alive in Charlton County when she was fatally shot two more times. Jackson v. Virginia, supra.

4. After the State rested its case in the guilt-innocence phase, the trial court directed a verdict of acquittal on the charge of kidnapping with bodily injury because the evidence showed that the inception of the kidnapping was in Pierce County. Potts v. State, 261 Ga. 716, 720(2), 410 S.E.2d 89 (1991) (venue for kidnapping with bodily injury lies within the county where the victim is seized); Krist v. State, 227 Ga. 85, 91(4), 179 S.E.2d 56 (1970). The trial court, however, refused to direct a verdict of acquittal on the charge of felony murder even though the felony murder indictment specifies that kidnapping with bodily injury is the underlying felony. Lee asserts that this denial was error.

A person commits the offense of felony murder "when, in the commission of a felony, he causes the death of another human being irrespective of malice." OCGA § 16-5-1(c). "A murder may be committed in the commission of a felony, `although it does not take place until after the felony itself has been technically completed, if the homicide is committed within the res gestae of the felony.' " Diamond v. State, 267 Ga. 249, 250(2), 477 S.E.2d 562 (1996). We conclude that Lee's murder of Ms. Chancey was within the res gestae of the kidnapping with bodily injury, since Ms. Chancey was under the continuous control of the defendant until she was killed. To hold otherwise would lead to the absurdity that a defendant who commits kidnapping with bodily injury in one county, and abducts the victim to a second county where he kills her without malice aforethought, could not be charged with felony murder in either county. See OCGA § 17-2-2(c) (venue for homicide lies in county where cause of death is inflicted); Potts, supra. The trial court did not err in denying Lee's motion for a directed verdict of acquittal of felony murder. In addition, Lee can show no harm resulting from the denial of this motion. "[S]ince the jury returned a verdict specifying that it found the defendant guilty of `malice murder,' any issue of felony murder is moot." Holiday v. State, 258 Ga. 393, 398(12), 369 S.E.2d 241 (1988).

5. The evidence was sufficient to support Lee's conviction for armed robbery, despite Lee's contention that he did not take the victim's rings until after she was dead. Jackson v. Virginia, supra. It is well-settled that a defendant commits a robbery if he kills the victim first and then takes the victim's property. Francis v. State, 266 Ga. 69, 70-71(1), 463 S.E.2d 859 (1995); Crowe v. State, 265 Ga. 582, 594(21), 458 S.E.2d 799 (1995); Prince v. State, 257 Ga. 84, 85-86(1), 355 S.E.2d 424 (1987). Moreover, as pointed out in Division 3, the evidence was sufficient to authorize the jury to find that Ms. Chancey was alive when the robbery took place. 6. Lee requested a charge in the guilt-innocence phase that a corpse is not a person. See Lawson v. State, 68 Ga.App. 830, 24 S.E.2d 326 ( 1943), overruled by McKee v. State, 73 Ga.App. 815, 38 S.E.2d 184 (1946). Lee wanted this instruction in order to support his contention that, if Ms. Chancey was dead when her rings were removed, there was no taking from a person, and therefore no armed robbery. Since this charge is not an accurate statement of the law, the trial court correctly declined to give it. Francis, supra at 70-71(1), 463 S.E.2d 859; Crowe, supra at 594(21), 458 S.E.2d 799.

The Sentencing Phase of Trial

7. While awaiting trial, Lee escaped from jail on July 25, 1995. He stole a Lincoln Town Car and drove to Florida, picking up a hitchhiker on the way. At about 5:00 a.m. on July 26, Boynton Beach Police Officer Jerry Rodriguez, a 17-year police veteran, was on routine patrol when he observed the Lincoln exiting a gravel road that led to a marina and business center. No businesses were open at that time of day in the area from which Lee was emerging and there were no residences in the vicinity. Because the vehicle was coming out of an area "where no one should...