Lipham v. State, 44868

Citation364 S.E.2d 840,257 Ga. 808
Decision Date12 February 1988
Docket NumberNo. 44868,44868
PartiesLIPHAM v. The STATE.
CourtSupreme Court of Georgia

Arthur Mallory, Dist. Atty., William G. Hambrick, Jr., Asst. Dist. Atty., LaGrange, Michael J. Bowers, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., for the State.

GREGORY, Justice.

Appellant, William Anthony Lipham, was convicted in Coweta County of murder, rape, armed robbery and burglary. He was sentenced to death for the murder. He appeals. 1

1. Kate Furlow, the 79-year-old victim, was last seen by her daughter-in-law at 6:00 p.m. on December 4, 1985. The next day, the victim's son tried to telephone her but she did not answer. He went to her home and observed that the glass had been broken out of the front door and that the living room was in disarray and called the police.

Investigators searched the house and found the victim lying on her bed, nude from the chest down, with a gunshot wound in her head. A .25 caliber bullet was discovered in the mattress underneath her head.

Investigators interviewed the victim's neighbors. One of them stated that a young man had been in her kitchen at 12:30 a.m. on December 5. This neighbor testified that when she asked the man why he was there, he responded only by shouting "Ronnie," and then leaving. She identified Lipham as the man who had been in her home.

Ronnie Simon testified that he gave Lipham a ride the night of December 4, and dropped the defendant off near the victim's home. The defendant had with him a .25 caliber pistol. Simon's girlfriend testified that the defendant came by Simon's trailer early the next morning, carrying his gun, and a small bag containing some change and some costume jewelry. The defendant told her, "Not bad for a night's work ..."

Police recovered a .25 caliber pistol from the defendant's brother which was shown by ballistics examination to be the murder The defendant gave a statement to the police admitting that he entered and ransacked the victim's home looking for something to steal. However, he claimed that another person was present and used the defendant's gun to kill the victim.

weapon. The defendant was arrested in Douglasville, Georgia, on January 14, 1986.

a. The defendant contends that his conviction for rape is not supported by the evidence because the evidence does not show that sexual intercourse occurred. We disagree.

The victim's body was found lying on her bed, nude from the chest down, with her legs spread apart. She had a "pressed-contact" gunshot wound on the left side of her head, the location of which suggests that the killer was at least on the bed and very possibly lying on top of the victim when he shot her. The autopsist testified that he discovered a large amount of fluid in the victim's vagina that could not be positively identified as seminal, but would have been unusual in the absence of sexual intercourse. A pubic hair discovered on the victim's housecoat was consistent with that of the defendant. We conclude that the evidence, although circumstantial, was sufficient to support a finding that the defendant had carnal knowledge of the victim.

b. The defendant further argues that even if the evidence is sufficient to support a finding that he had sexual intercourse with the victim, it does not show whether it occurred before or after her death.

He contends that if he first killed the victim and only then had sexual intercourse with her, he is not guilty of rape. His authority for this proposition is a federal district court opinion, Gibson v. Jackson, 443 F.Supp. 239 (Middle Dist.Ga.1977), which states: "For the petitioner to be guilty of rape, the victim must have been a person, a living human being; if dead before the act--as terrible and disgusting as it may be--the act is not rape." Id. at 247. We are not persuaded by this authority.

The offense of rape is defined in our Code as follows: "A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ." OCGA § 16-6-1(a).

There is nothing in this code section which precludes a finding of rape if the victim is not alive at the moment of penetration. What the jury must find is that the defendant had carnal knowledge of the victim "forcibly and against her will." Id.

We have not heretofore addressed the effect of the use of deadly force to overcome the victim's resistance in a rape case. However, with respect to the offense of armed robbery, we have held that where the defendant has used an offensive weapon first to kill his victim and then to take his money, so that the victim is dead when the theft actually is consummated, the theft occurred nonetheless with the "benefit of force or fear which is the essence of armed robbery as defined in OCGA § 16-8-41." Prince v. State, 257 Ga. 84, 85, 355 S.E.2d 424 (1987).

We think this reasoning is equally applicable in a rape case. If the element of force is satisfied where the defendant has used less than deadly force to overcome the victim's resistance so as to allow him to have carnal knowledge of the victim, the element of force is surely no less satisfied when the defendant has used deadly force to accomplish his aim.

As for the remaining element, "against her will" has been interpreted to mean "without her consent," and has been satisfied in cases in which the victim was drugged, asleep, unconscious, or in a coma. See, e.g., Brown v. State, 174 Ga.App. 913, 331 S.E.2d 891 (1985). We see no reason why it should be any less applicable in a case in which the defendant has rendered the victim permanently unconscious by killing her.

The facts here differ fundamentally from a case in which one happens upon the corpse of a female and engages in sexual intercourse with it. The use of force in the former and the absence of force in the The evidence in this case supports the jury's finding that the defendant had carnal knowledge of Kate Furlow forcibly and against her will notwithstanding that it is unclear whether the defendant first raped the victim and then killed her, or first killed the victim and then raped her. Compare Ross v. State, 254 Ga. 22, 23, 34, 326 S.E.2d 194 (1985).

latter is the difference. One is rape and the other necrophilia, made a crime under OCGA § 16-6-7.

c. The defendant also contends that the evidence is insufficient to support the conviction for armed robbery. He argues that the evidence fails to show that a hand gun was used in the taking of the victim's property or that it was even present when the victim's property was taken. We disagree.

It is undisputed that the victim was killed with a handgun. The jury was entitled to infer from the evidence that this defendant, "with intent to commit theft, [took] property of another from the person or the immediate presence of another by use of an offensive weapon...." OCGA § 16-8-41, whether "the victim [was] shot before the taking ... [or] after the taking...." Young v. State, 251 Ga. 153, 160, 303 S.E.2d 431 (1983) (Hill, C.J., concurring in part and dissenting in part). Accord, Prince v. State, supra.

d. The evidence supports the defendant's conviction on all four counts. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. At a pre-trial hearing, Michael Dowd, a member of the Bar of the State of New York, requested permission to represent the defendant pro hac vice. The defendant concurred in this request. The trial court ruled that Dowd could participate in the trial of the case, question witnesses, argue any motions, or make closing arguments on behalf of the defendant, but that Steven Fanning would remain lead counsel for the defendant. The court stated that he knew Mr. Fanning to be an experienced, capable attorney familiar with Georgia law and procedure, while Mr. Dowd's knowledge and abilities were unknown to the court.

Dowd refused to accept any limitations on his representation of the defendant, and left, refusing to participate further in the case.

The defendant argues that the trial court's ruling deprived him of his right to decide for himself who his lead attorney would be.

Of course, an indigent defendant has no right to compel the trial court to appoint an attorney of his own choosing. Kesler v. State, 249 Ga. 462(12), 291 S.E.2d 497 (1982). On the other hand, if an indigent defendant can make his own arrangements for attorney representation, whether with the financial assistance of family or friends, or by persuading an attorney to represent him pro bono, he ordinarily may do so.

In this case, however, the attorney whose assistance the defendant sought was not a member of the bar of this state, and neither the attorney nor the defendant had a constitutional right to demand that the attorney be allowed to represent the defendant in this case. Williams v. State, 157 Ga.App. 494(2), 277 S.E.2d 781 (1981). It was, rather, a matter governed by the trial court's sound exercise of discretion, which will not be disturbed on appeal unless abused.

Dowd failed to submit a proper application for admission to practice in the trial of this case pursuant to Rule 4.4 of the Uniform Rules for the Superior Courts, 253 Ga. 799, 814, and the defendant was already well-represented by two qualified members of the Georgia bar. In these circumstances, the trial court would have acted within the limits of its discretion had it refused altogether to allow Dowd to participate in the trial of this case. It follows, then, that the trial court did not abuse its discretion by offering Dowd a limited admission to practice in this case.

3. The trial began over a year after the crime was committed. Compare Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Although many of the jurors had heard something 4. Nor do we find any...

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