Legare v. State, 34444

Decision Date22 June 1979
Docket NumberNo. 34444,34444
Citation257 S.E.2d 247,243 Ga. 744
PartiesLEGARE v. The STATE.
CourtGeorgia Supreme Court

G. L. Dickens, Jr., Milledgeville, for appellant.

Joseph H. Briley, Dist. Atty., Arthur K. Bolton, Atty. Gen., William B. Hill, Jr., Staff Asst. Atty. Gen., for appellee.

UNDERCOFLER, Presiding Justice.

The appellant, Andrew Phillip Legare, was tried and convicted on charges of armed robbery, burglary, and malice murder, and sentenced to life for armed robbery, twenty years for burglary, and death for murder. He comes to this court on direct appeal and for mandatory review of the death sentence imposed.

I. Summary of the Evidence.

Essentially the evidence was as follows:

Appellant, age 17 years, and Roger Horne, age 18 years, escaped from the Youth Development Center in Milledgeville, Georgia, about 1:30 a. m. on May 27, 1977, they tied their clothes in two bundles and threw them out the window of the building in which they were confined. Later they exited the building from an upper story window by climbing down sheets which had been tied together to form a rope. Both were dressed only in undershorts. Horne climbed down first. Appellant climbed down about ten seconds later. A security guard was alerted by a noise, observed Horne escaping and gave chase. He stated Horne was carrying some sort of bundle. The guard discontinued the chase and as he turned around appellant had jumped or fallen to the ground and was running off. He stated Horne and appellant disappeared into the bushes about fifty feet apart.

On May 27, 1977, about 12:30 p. m., a neighbor heard a scream from the victim's house and saw a boy get into the victim's car and drive off. He called members of the family who resided elsewhere. They arrived in about fifteen minutes, entered the house, and found the victim on the living room floor bleeding profusely. He had been beaten severely about the head and died about twelve hours later without regaining consciousness. A blood spattered crowbar and a wooden stick were found under the sofa.

Appellant was apprehended in Tampa, Florida, on June 1, 1977, while driving the victim's car. He testified that after the escape he and Horne came upon the victim's house about dawn. They hid in the woods until about 8 a. m. when they observed the victim drive off in his car. Then they entered the house, took some clothes, drank some milk, and divided $30 which they found in a bureau drawer and kitchen drawer. Appellant trimmed his hair. Appellant stated he had gone to sleep beneath a bed when he heard a car come into the driveway, the door open, and a loud "crack." He went into the living room and observed the victim "on all fours" with a crowbar in his hand with Horne straddling him and heating him with a wooden stick. There was a "good bit of blood" on the floor. Appellant stated he became excited and wanted to get out of there. As he left he saw the victim's car keys on the floor. He picked them up and the victim or Horne bumped the front of his sneaker, he also picked up a jug of water, ran out, and fled in the victim's car. His fingerprints were found in the victim's house. Appellant admitted blood stained sneakers found in the car were his.

Horne testified that after he escaped from the Youth Development Center he did not see appellant again. He thought appellant had been captured by the security guard who chased him. He stated he abandoned appellant's clothes in the woods, put on his state pants and shirt, and kept his personal clothes; that he stayed in the woods that night; the next day he walked down some railroad tracks, changed into his personal clothes, and hitchhiked to Savannah where he was apprehended a week and a half later. His fingerprints were not found at the victim's house. Hair samples found at the victim's house were not Horne's. Horne led police officers to the locations where he discarded certain clothing and a location where he had smoked cigarettes. Police recovered the clothing and evidence of smoking.

II. Enumerations of Error.

1. In Enumeration 1, the appellant alleges: "The court below erred in its charge to the jury on sentencing in that said charge, considered as a whole, did not make it clear that the jury could recommend mercy, i. e., a life sentence, even if the jury found that the existence of statutory aggravating circumstances had been proven."

We have examined the sentence charge and conclude that it made clear to the jury that it could recommend mercy, i. e., a life sentence even if the jury found that the existence of statutory aggravating circumstances had been proved. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977); Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977); Spivey v. State, 241 Ga. 477, 246 S.E.2d 288 (1978).

Enumeration 1 is without merit.

2. In Enumeration 2, the appellant alleges, "The court below erred in its charge to the jury on sentencing because the charge was confusing, self-contradictory, and did not include a proper charge on non-statutory mitigating circumstances."

In addition to reading from the statute, the trial court charged the jury, "(n)ow, in arriving at the determination for the punishment for murder you are authorized to consider all the evidence received in court, presented by both the state and the defendant throughout the trial before you. You are authorized to consider the facts and circumstances, if any, in extenuation, mitigation, or aggravation of punishment which may have been submitted to you." The trial court also charged "there was no evidence of either aggravation on behalf of the state or mitigation on behalf of the defendant that has been admitted into evidence, except the argument of both, the state, and the defendant." This latter charge obviously referred to the sentencing phase of the trial. We have held that it is not required that the trial court single out mitigating circumstances for consideration of the jury. Thomas v. State, 240 Ga. 393, 242 S.E.2d 1 (1978); Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978); Spivey v. State, supra.

Enumeration 2 is without merit.

3. In Enumeration 3, the appellant alleges: "The court below erred in its charge to the jury on sentencing by charging repealed Georgia Code Ann. § 27-2534 and failing to charge the substance of Georgia Code Ann. § 27-2503(b)."

The appellant contends the trial court committed reversible error by not instructing the jury as follows: "Upon the conclusion of the evidence and the arguments, the judge shall give the jury appropriate instructions, and the jury shall retire to determine whether any mitigating and aggravating circumstances as defined in § 27-2534.1, exist and whether to recommend mercy for the defendant."

The trial court charged the jury that it was their duty "to consider any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence" and that "in arriving at the determination for the punishment for murder you are authorized to consider all the evidence received in court, presented by both the state and the defendant throughout the trial before you. You are authorized to consider the facts and circumstances, if any, in extenuation, mitigation, or aggravation of punishment which may have been submitted to you," as well as clearly informing the jury that if they found the defendant guilty of count number one (murder) and statutory aggravating circumstance or circumstances were found by the jury they could recommend mercy or that the defendant's punishment be life imprisonment.

When viewed in the context of the overall charge, Spivey v. State, supra, the trial court's charge fully and properly informed the jury that they were authorized to determine the existence of any mitigating or aggravating circumstances, and that they too were authorized to make a recommendation of mercy for the defendant, in reaching their decision on the issue of punishment. This accords with this court's decisions in Fleming, Hawes, and Spivey, supra.

Enumeration 3 is without merit.

4. In Enumeration 4, the appellant alleges: "The trial court erred in submitting to the jury two statutory aggravating circumstances."

The trial court charged the jury on three statutory aggravating circumstances. The appellant's objection is directed to the following two: "1. That the offense of murder was committed while the offender was engaged in the commission of another capital offense, to wit, armed robbery. 2. That the offense of murder was committed while the offender was engaged in the commission of burglary."

Appellant contends that the crimes of armed robbery and burglary are lesser included offenses of the crime of murder under the facts of this case and these crimes merged into the conviction for murder; that they were "figuratively exhausted," and could not serve as statutory aggravating circumstances to predicate a recommendation of death as punishment.

In Stanley v. State, 240 Ga. 341, 241 S.E.2d 173 (1977) this court held that a second crime, such as armed robbery, may be used as an aggravating circumstance for imposition of the death penalty, and that a lesser included offense may constitute an aggravating circumstance, even though it may not be punished separately. See Pryor v. State, 238 Ga. 698, 234 S.E.2d 918 (1977). This case does not involve mutually supporting aggravating circumstances and the case of Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974) is not applicable.

Enumeration 4 is without merit.

5. In Enumeration 5, the appellant alleges: "The court below erred in refusing appellant's requested charge for a special verdict."

The appellant contends that the jury did not specify in its verdict whether they found appellant guilty of malice murder, or murder on a conspiracy theory, and there exists the possibility that appellant was found...

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