Llewellyn v. State
| Decision Date | 03 April 1978 |
| Docket Number | No. 33088,33088 |
| Citation | 241 Ga. 192,243 S.E.2d 853 |
| Parties | Robert LLEWELLYN v. The STATE. |
| Court | Georgia Supreme Court |
Thompson & Petrella, Frank J. Petrella, J. Roger Thompson, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., Atlanta, for appellee.
Appellant was tried and convicted on three counts of murder. He was given a life sentence on each count to run concurrently. His motion for new trial was overruled and he appeals.
Appellant and the victim Winokur were competitors in the homosexual nightclub business. Appellant hired Schneider to set fire to Winokur's nightclub. Schneider set the club on fire, causing very little damage. The next day when Schneider went to collect from appellant, he was informed that he would have to do the job over before he would be paid. In addition, appellant wanted Winokur killed. Schneider enlisted the aid of two friends, Day and Millirons. Another unsuccessful attempt to burn Winokur's nightclub was made. Schneider was informed by appellant that Winokur would have to be killed immediately. Schneider was told by appellant that Winokur was in Florida buying a new car and would return late on a certain night; that Schneider was to conceal himself in Winokur's home and kill him when he arrived at the house. When Schneider, Day and Millirons went to Winokur's house, they found King and Stamm, two of Winokur's friends. The three tied up King and Stamm. When Winokur came home, he also was tied up. Winokur, King and Stamm then were transported to a wooded area where they were shot several times in the backs of their heads by Schneider and Millirons. Their decomposed bodies were found several weeks later covered with brush. Schneider and Day testified as State witnesses at appellant's trial.
1. The first enumeration of error contends the trial court erred in failing to direct a verdict of not guilty and in failing to enter a judgment of acquittal on all three counts because the testimony of the accomplice Schneider was not sufficiently corroborated.
Specifically, appellant argues in his brief that the record does not establish that the testimony of Schneider was corroborated as to the identity and participation of appellant in the crimes committed. An accomplice's testimony must be corroborated by independent evidence as to the identity and participation of the accused which tends to connect the accused with the crime. Code Ann. § 38-121; Birt v. State, 236 Ga. 815, 824-26, 225 S.E.2d 248 (1976). In denying the motion, the trial court found slight evidence of corroboration connecting the accused with the crime. See Carter v. State, 237 Ga. 617, 618, 229 S.E.2d 411 (1976). The issue before this court, therefore, is whether or not that finding is supported by any evidence. Mitchell v. State, 236 Ga. 251, 257, 223 S.E.2d 650 (1976).
The accomplices Day and Schneider corroborated each other's testimony as to conversations with the appellant. Hackney v. State, 233 Ga. 416(7), 211 S.E.2d 714 (1975); Jones v. State, 235 Ga. 103(3), 218 S.E.2d 899 (1975). Furthermore, there was evidence of appellant's efforts to silence Day and Schneider or to influence them not to testify against him from which a conclusion could have been reached that appellant was attempting to conceal the conspiracy of which he was a part. See Hamby v. State, 82 Ga.App. 7, 13, 60 S.E.2d 635 (1950). Additionally, there was evidence of recent threats made by appellant against Winokur. See Jackson v. State, 64 Ga. 344(5) (1879).
There is no merit in this enumeration of error.
2. The second enumeration of error contends the trial court erred in not declaring a mistrial after it was discovered that portions of the court's charge were sent out with the jury. On the third day of jury deliberation and just before the verdict, it was discovered that a copy of two of the charges given by the court and one of appellant's requests to charge were inadvertently mixed up with the documentary exhibits and were in the possession of the jury. The charges involved were those given by the court on corroboration and conspiracy and the requested charge by defendant was that no inference should arise from defendant's failure to testify. Appellant made no objections to the court's charge and his requested charge was favorable to his case, to say the least.
In Estes v. United States, 5 Cir., 335 F.2d 609, cert. denied 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1964), the jury requested a recharge on fraud and conspiracy to defraud. The court drafted and sent to the jury a definition of fraud and conspiracy. The appeals court held at p. 618: "We conclude, however, that the matters complained of were not error to reverse, it not being apparent from the record that there was prejudice to appellant's substantial rights." In Copeland v. United States, 80 U.S.App.D.C. 308, 309, 152 F.2d 769, 770, cert. denied 328 U.S. 841, 66 S.Ct. 1010, 90 L.Ed. 1815 (1946), the court held: Since there is no contention that the charges were not correct statements of the law and the requested charge was favorable to the appellant, the error, if any, is harmless. This enumeration of error is without merit. See Proctor v. State, 235 Ga. 720, 724, 221 S.E.2d 556 (1975).
3. The third enumeration of error contends the trial court erred in failing to direct a verdict as to Counts Two and Three of the indictment. Appellant argues that since the conspiracy was only to kill Winokur, the killing of King and Stamm was an original undertaking of Schneider, Day and Millirons and was not imputable to him.
In Handley v. State, 115 Ga. 584, 41 S.E. 992 (1902), the accused, his son, and others went to the home of the prosecutor for the purpose of helping the prosecutor's daughter run away with and marry the accused's son. When the daughter did not appear on time according to the plans, one of the group other than the accused cursed within the hearing of the prosecutor and his wife. The accused was indicted and convicted for cursing in the presence of a female. This court held that assuming, without deciding, that the common purpose of the group in assisting with the elopement and marriage was unlawful, that the cursing was not only not contemplated by those who entered into the common purpose or design but, as well, was not in furtherance thereof nor was it the natural or necessary consequence thereof; hence, that only the person who actually committed the act would be legally responsible.
In Smith v. State, 230 Ga. 876, 199 S.E.2d 793 (1973), the appellant was convicted of the murder of two persons who were killed by another person because t...
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