Lobdell v. State

• Decision Date: 12 March 1987
• Docket Number: No. 43545,43545
• Citation: 256 Ga. 769,353 S.E.2d 799
• Parties: LOBDELL v. The STATE.
• Court: Georgia Supreme Court

Page 799

353 S.E.2d 799

256 Ga. 769

LOBDELL v. The STATE.

No. 43545.

Supreme Court of Georgia.

March 12, 1987.

William E. Glisson, Aurora, Ill., for Kevin Lobdell.

E. Bryon Smith, Dist. Atty., Hugh D. Sosebee, Jr., Asst. Dist. Atty., Forsyth, Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Asst. Atty. Gen., for the State.

BELL, Justice.

Kevin Lobdell was tried and convicted of the malice murder of Roy Collins. ¹ He appeals, and we affirm. The evidence, viewed most favorably to the state, is as follows.

On March 31, 1982, Lobdell and a friend named Jerry Mask left Atlanta in a pickup truck. Lobdell fell asleep, and was awakened by Mask in a freeway rest area. Mask told him, "Follow me. I'm going to be with this other guy. And I told him we ran out of gas and he [is] going to be taking me to supposedly where my car is." Mask and the other man, who was Collins, then left in Collins' car, with Lobdell following in the pickup.

The two vehicles pulled off the freeway at an exit ramp. At the bottom of the ramp the appellant saw Collins and Mask fighting in the car, and then saw Mask raise a pistol to Collins' head and fire it. Collins, who had been driving the car, fell back, but then came back at Mask and resumed the fight. Mask again raised the pistol and shot Collins in the head. Collins fell back against the driver's door. At this point Lobdell got out of the pickup and walked to the car, where he tried but failed to open the driver's door from the outside. Mask pulled Collins to the passenger side by pulling on a blanket which was on the seat underneath Collins. Mask then got on the driver's side, and told Lobdell to follow him.

Mask and Lobdell drove down a road a distance, and then turned down a dirt road. They stopped on that road, pulled Collins out of the car with the blanket, and dragged him off the road. Mask asked Lobdell to search him. Lobdell refused, and Mask searched him and took his wallet. They then kicked leaves and dirt on the body, and drove the vehicles back to Mask's apartment in Atlanta. Mask kept money he found in the wallet, and gave the wallet to Lobdell. The appellant found about $600 in traveler's checks in a hidden compartment. The two men later cashed the checks. Lobdell cleaned the blood from Collins' car and removed all of Collins' property. Lobdell and Mask subsequently drove to Illinois, with Lobdell driving the pickup and Mask driving Collins' car.

Collins' body was discovered in Monroe County, about a mile from Interstate 475 and about three miles from the nearest rest area on that freeway. In April, 1985, Lobdell contacted police in Illinois and gave them two statements. Lobdell did not testify at his trial, and these statements were used as evidence.

1. The appellant contends that the trial court erred in denying his motion in limine to exclude evidence of independent crimes which occurred before Collins' murder, because there was no evidence that he perpetrated the extrinsic offenses. We find no error.

The Illinois police officer who took the appellant's statements, Ricky Holman, testified that Lobdell told him that shortly before leaving Atlanta Lobdell and Mask were involved with two other men in the armed robbery and murder of a man named Joe Dalton. ² Lobdell, Mask, another man named "Phil," and a fourth man, who was unidentified, met in Mask's apartment in Atlanta. ³ All of the men were short on money, and someone suggested that they "roll a queer." Mask, Phil, and Lobdell went to a park which was frequented by homosexuals, where Phil undertook to pick up one. He was at first unsuccessful. They were going to leave, but then Dalton drove up and made contact with Phil. Phil came over to the truck in which the others were sitting, and told them to follow him to Dalton's place. They all went to Dalton's apartment, and entered the bedroom. Dalton and Phil started taking off their clothes. At that point, Phil was in possession of a .38 caliber pistol, and Mask had a .25. Mask became nervous, and told Lobdell to get the .38 from Phil. Lobdell did so, and then pointed the gun at Dalton, telling him, "Now, take it easy." The men searched the apartment for money without success, but Phil found $20 outside in Dalton's vehicle. At that point, Mask, Lobdell, and Phil decided to leave. They left the bedroom and entered a hallway where Mask asked Lobdell and Phil, "What are we going to do about this situation?" Mask then asked Phil, "You have killed before. Do you want to kill him now?" Lobdell said, "I don't care what you people do. I'm leaving." The appellant and Phil left, and went to the pickup.

They drove the pickup to the front of the residence, and Mask came out and got into the pickup. He handed Lobdell the .25 caliber pistol, which had blood on it. Lobdell wiped it off with a paper towel, and they returned to Mask's apartment. On the way there, Mask told them what had happened. He had pointed the gun at Dalton, who was lying face down on the bed. Dalton asked him, "Are you going to kill me?" Mask replied, "No," and then pulled the trigger three times. The gun misfired the first two times, but on the third pull it discharged. In the pickup truck, Mask indicated that he was upset that the gun had misfired. After this incident, Mask and Lobdell used two credit cards which Mask had stolen from Dalton.

"To render evidence of extrinsic offenses admissible ..., the state must show that the defendant was the perpetrator of the extrinsic offenses, and that there is a sufficient similarity or connection between the extrinsic offense and the offense charged, such that proof of the former tends to prove the latter." Williams v. State, 251 Ga. 749, 755(4), 312 S.E.2d 40 (1983). In the case at bar, the evidence was sufficient to show that the appellant was a participant in the armed robbery. As to the murder, he contends that he did not participate in it, but this contention is without merit. Under OCGA § 16-2-20, participants to a crime may be convicted of a crime even though they are not the actual perpetrator. "It matters not whether it was appellant or [his accomplice] who actually fired the gun during the robbery which resulted in [Dalton's] death. The act of one was the act of the other in the commission of the armed robbery and the ensuing death which resulted therefrom." Strong v. State, 232 Ga. 294, 298, 206 S.E.2d 461 (1974). Accord, Cargill v. State, 256 Ga. 252(1), 347 S.E.2d 559 (1986).

The appellant's statement to the others--"I don't care what you people do. I'm leaving."--does not, as appellant argues, require a finding that he abandoned the criminal enterprise before the murder occurred. Instead, it arguably indicates a mere disinterest in the subsequent proceedings inside the house which did not constitute a disavowal of the criminal enterprise, especially in light of the fact that the appellant withdrew only as far as the pickup truck, waited for Mask, drove away with him, continued to associate with him, helped to conceal the crime by wiping the blood from the pistol, and used the fruits of the crime, the credit cards.

2. Appellant also contends that the prior crimes should have been excluded because they were irrelevant. However, we find that the prior crimes were logically connected to the murder of Collins, in that they were part of a crime spree, showing a course of conduct which led to the crime for which the appellant was indicted and convicted. Rivers v. State, 250 Ga. 288(4), 298 S.E.2d 10 (1982); Blanks v. State, 254 Ga. 420(4), 330 S.E.2d 575 (1985).

3. Appellant further contends that the prior crimes should have been excluded because the prosecution did not serve notice as required by Uniform Superior Court Rule 31. However, our review shows that Rule 31 was not violated. Rule 31.1 requires the prosecution to notify the defense of its intention to present evidence of similar transactions or occurrences, by giving and filing the notice "at least ten days before trial unless the time is shortened or lengthened by the judge." ⁴ The record reveals that on October 28, 1985, the state filed a written notice of its intention to use the Atlanta incident, and certified that a copy of the motion was mailed on that date to the appellant's counsel.

4. Lobdell claims that Mask's statements connected with the two murders which were contained in Lobdell's statements to Illinois police were inadmissible hearsay, because Mask's statements were uttered after Lobdell had withdrawn from any conspiracy. However, there is no indication that the appellant raised this objection below, and it therefore is waived. Moreover, even assuming that the issue was preserved for review, we find no error, since, as we find in Division One, supra, and Division Seven, infra, there was evidence to support findings that the appellant was a party to both murders.

5. Appellant asserts that the state's failure to provide him with notes taken by the Illinois police when he gave his statements, and with a tape recording of those statements, constitutes a Brady violation. We disagree, since "a Brady motion does not reach the defendant's own statements made prior to trial, as they are known to the defense. Cunningham v. State, 248 Ga. 558(6), 284 S.E.2d 390 (1981)." McCarty v. State, 249 Ga. 618, 620, 292 S.E.2d 700 (1982). Accord, White v. State, 255 Ga. 210(4), 336 S.E.2d 777 (1985).

6. The court did not commit error by refusing to suppress the appellant's pretrial statements and the fruits of those statements. Appellant contends that he was already under "constructive arrest" during his interviews with the Illinois police, which took place on April 15 and 16, 1985, and that the police should have formally arrested him and should have read him his Miranda rights.

The court found after a Jackson-Denno hearing that the interviews were not custodial interrogations. "The standard on appeal is that the trial court's findings as to factual determinations and credibility...