Lolley v. State, S89A0061

• Citation: 385 S.E.2d 285,259 Ga. 605
• Decision Date: 09 November 1989
• Docket Number: No. S89A0061,S89A0061
• Parties: LOLLEY v. The STATE.
• Court: Supreme Court of Georgia

Page 285

385 S.E.2d 285

259 Ga. 605

LOLLEY v. The STATE.

No. S89A0061.

Supreme Court of Georgia.

Nov. 9, 1989.

Reconsideration Denied Nov. 30, 1989.

Gary C. McCorvey, N. Glenn Perry, Cordele, for Lolley.

David E. Perry, Dist. Atty., Ronald M. Adams, Asst. Dist. Atty., Tifton, Michael J. Bowers, Atty. Gen., C.A. Benjamin Woolf, Atlanta, for State.

PER CURIAM.

Alexander Lolley killed Randy Taylor with a knife. He was convicted of malice murder and sentenced to imprisonment for life. ¹ The evidence indicated that Lolley came home and found his wife in the company of another man. The man departed, and Lolley and his wife quarreled. Lolley struck his wife several times, and she fled. Lolley's sister was present and took Lolley's children to her home. Later that evening Lolley went to see Taylor, whom he suspected of an involvement with his wife during the previous year. According to a statement that he gave to law enforcement officers, Lolley had planned to divorce his wife, and hoped that he could persuade Taylor to testify as to his wife's misconduct, which he thought would help him to obtain custody of his children. Taylor refused to discuss the matter. A fight ensued, and Taylor was killed. The weapon was a knife some thirty inches long, commonly called a machete.

In the early morning hours of August 1, 1987, Lolley surrendered himself to the Turner County sheriff's office, stating that he had killed someone. He brought with him a knife that was covered with blood and hair, and asked the jailer to call the sheriff. When he arrived, Lolley told the sheriff that he had killed Taylor, and added that if Taylor was not dead, he would go back and "finish the job."

A medical examiner testified that Taylor bled to death from multiple knife wounds. The evidence indicated that the hair and blood found on the cane knife were consistent with that of Taylor.

1. Lolley contends that the trial court erred in refusing to allow him to offer evidence that Taylor and Taylor's brother earlier had fought over a woman with whom they both were involved. Our cases have held that a victim's acts of violence to persons other than the defendant are inadmissible to prove the character of the victim for violence. Bennett v. State, 254 Ga. 162, 164, 326 S.E.2d 438 (1985). Accord, Harrison v. State, 251 Ga. 837, 838-839, 310 S.E.2d 506 (1984); Golden v. State, 250 Ga. 428, 297 S.E.2d 479 (1982); Music v. State, 244 Ga. 832, 262 S.E.2d 128 (1979).

2. When Lolley surrendered himself, he volunteered to the jailer, with no prompting, that he had killed someone. Then he tossed a knife onto a desk. The jailer drew his weapon, and by telephone asked that the sheriff come to the jail immediately, with no further explanation. When the sheriff arrived, he observed that Lolley, who wore no shirt, had cuts over the upper portion of his body. A bloody knife was on a desk in front of the jailer. The sheriff asked of Lolley: "What have you got yourself into now, Alex?" Lolley responded that he had killed Taylor.

Lolley now insists that the trial court should have excluded these statements because he had not been advised of his right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

(a) Assuming that Lolley was in custody when he made both statements, they are not subject to exclusion under Miranda. The initial statement to the jailer was spontaneous on Lolley's part, and clearly was not in response to any questioning of any kind. Aldridge v. State, 247 Ga. 142, 274 S.E.2d 525 (1981).

(b) As to the sheriff's inquiry, see State v. Overby, 249 Ga. 341(1), 290 S.E.2d 464 (1982), for the rule that threshold, on-the-scene questioning is permissible though the "scene" is a custodial institution. ²

So long as the interrogation is not aimed at obtaining information to establish a suspect's guilt but is instead aimed at determining the nature of the situation upon the arrival of the policeman on the scene, some initial inquiry may, under the circumstances, be permissible before Miranda warnings are given. [Aldridge, supra, 247 Ga. at pp. 144-145, 274 S.E.2d 525.]

In our view, the sheriff's question falls within this category, and was not asked for the purpose of extracting incriminating information. There was no error.

3. Lolley insists that certain statements made by him after he was warned of his rights under Miranda should have been excluded because they were the result of the sheriff's coercive behavior. The trial court found otherwise. That finding is not clearly erroneous, and will not be disturbed on appeal. Brown v. State, 256 Ga. 439, 349 S.E.2d 738 (1986).

4. Lolley maintains that the trial court erred in refusing his request to charge the provisions of OCGA § 16-5-3(a) ³ as a lesser included offense to murder. He insists that the jury could have found that he committed the unlawful act of reckless conduct, but did not intend to cause Taylor's death.

According to the evidence, Taylor suffered five knife wounds to the top and back of the head; five knife wounds to the arm and shoulder areas; at least two knife wounds to the legs; and fourteen knife wounds to the back.

The unlawful use of the knife, a deadly weapon, while repeatedly stabbing the victim constituted the felony of aggravated assault; thus a charge on involuntary manslaughter would have been improper. [Harris v. State, 257 Ga. 385, 386, 359 S.E.2d 675 (1987).]

5. Other alleged deficiencies at trial were corrected by the trial court and do not provide grounds for reversal.

6. A rational trier of fact could have found Lolley guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Judgment affirmed.

All the Justices concur, except CLARKE, P.J. and GREGORY, J., who dissent.

WELTNER, Justice, concurring.

1. The majority has set out accurately the present state of the law of Georgia relative to the admissibility of evidence of specific acts of violence towards others. Bennett v. State, 254 Ga. 162, 164, 326 S.E.2d 438 (1985) (such evidence is inadmissible to prove the character of the victim for violence). ¹

2. I concur specially inasmuch as I believe that this principle needs to be re-examined in the light of the relevance of such evidence. ² 3. (a) In Milton v. State, supra, note 1, 245 Ga. at 22, 262 S.E.2d 789, we stated:

The reputation or character for violence of a victim of homicide usually is irrelevant and inadmissible in a murder trial because it is just as unlawful to murder a violent person as it is to murder a nonviolent person.

That principle, in vacuo, is sound. There is, of course, no exception in the murder statute that would excuse the slaying of persons of bad character. As to relevance, the character of a victim who is robbed and killed by a total stranger has no possible bearing in a prosecution where the defense is alibi.

(b) In differing circumstances, however, evidence of the violent nature of a victim can be critically important to the discovery of truth. Consider these examples:

(i) The town ruffian, in a drunken and enraged state, advances upon a peaceable householder and threatens him with mayhem. The householder shoots him dead, even though no other weapon was in sight, and the erstwhile assailant was several yards distant from the householder. Where the defense is justification under OCGA § 16-3-21, what a defendant "reasonably believes" may be viewed by the factfinder in the light of what the defendant knew as to the decedent's character for violence. Logically, that knowledge is relevant, whether it was obtained by the defendant's painful personal experience at the hands of the decedent; by his observation of violent acts committed by the decedent upon another; by hearing of other specific acts of violence by decedent that were not committed in his presence; or by knowledge of the decedent's reputation for violence, unconnected to any specific act.

(ii) As a second example, the same ruffian approaches a stranger, and is killed by him. There are no eyewitnesses to the homicide. The defendant relates that the decedent advanced upon him in a drunken and enraged state, threatening him with mayhem. The decedent had no weapon. At trial, the defendant, who had no knowledge of the decedent before the killing, offers evidence of his violent nature, through specific acts of violence against third persons.

Here the principal question is the credibility of the defendant. Did it happen the way he related it? And why would the decedent make an unprovoked advance upon the defendant?

(c) In aid of this inquiry, evidence of the violent acts of the decedent would be of great relevance. That is no novel proposition, as in Milton, supra, we stated:

Since specific acts of defendants may be introduced against defendants, this court should anticipate that other defendants reasonably will insist that they be permitted to prove specific acts of the deceased toward them. [245 Ga. at p. 25, 262 S.E.2d 789. Emphasis in text.]

As noted, however, in the past we have restricted evidence of specific acts of violence to those committed by the victim against the defendant. Yet, logic dictates no such distinction. Rather, the chain of reason proceeds as follows:

A claims justification in that B committed acts of violence against A.

A proves that B has committed prior acts of violence.

B's prior violent acts are relevant to the question of whether A's account of violent acts by B against A is true.

It is the act of violence that is relevant, and not the identity of the victim. That relevance is found in this summary of human experience:

"It is more probable that a person will act in accordance with his character (disposition) than that he will act contrary to it." Green, Georgia Law of Evidence, § 65, p. 160. [Henderson v. State, supra, note 1, 234 Ga. at 830, 218 S.E.2d 612.]

Thus, a decedent's violent acts against a third party can be as relevant...