Park v. State, 24588
| Decision Date | 02 July 1968 |
| Docket Number | No. 24588,24588 |
| Citation | 224 Ga. 467,162 S.E.2d 359 |
| Parties | A. C. (Cliff) PARK v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The testimony of certain witnesses was not subject to the objections of hearsay and conclusion.
2.(a) A conspiracy involving the defendant in the murder was prima facie shown by evidence aliunde the declarations of a co-conspirator.
(b) Therefore, such declarations were admissible.
3. It was proper to overrule the motion for a directed verdict of not guilty based upon the grounds (a) that there was no evidence connecting the defendant with a conspiracy to murder the victim, and (b) that the testimony of an accomplice was not corroborated.
4. It was error to deny the defendant the opening and concluding argument to the jury, since he introduced no evidence.
Wesley R. Asinof, Atlanta, for appellant.
G. Wesley Channell, Sol. Gen., Winder, Luther Hames, Jr., Marietta, Arthur K Bolton, Atty. Gen., Marion O. Gordon, Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.
This appeal is from a verdict of guilty of muder without a recommendation of mercy and a sentence of death by electrocution. The appellant A. C. (Cliff) Park was indicted jointly with George Douglas Pinion, John Hyman Blackwell, Lloyd George Seay and George Iras Worley by the grand jury of Jackson County for the murder of Floyd G. Hoard by the use of dynamite and other explosive substances on August 7, 1967.
Between 7 and 7:30 a.m. on that date, Hoard, then the Solicitor General of the Piedmont Judicial Circuit which includes Jackson County, got into his automobile which was parked at his home, and when he attempted to start the ignition the car exploded as the result of dynamite that had been wired to the ignition system. His death was almost immediate.
Park entered a plea of not guilty and was tried separately. Objections to the admissibility of certain evidence and also motions to exclude specified admitted evidence were overruled. Because of the State's contention that he had introduced evidence, he was not permitted to make the opening and concluding argument to the jury. Upon the conclusion of the State's evidence and his unsworn statement denying any connection with the homicide, the defendant Park moved for a directed verdict of not guilty, which was overruled. The foregoing rulings are the subject matter of his enumerations of error.
From the 20 enumerations of error the following four broad issues emerge: (1) Were certain items of testimony admissible? (2) Was the evidence sufficient to submit to the jury the question of whether the defendant was a participant in a conspiracy to murder Hoard? (3) Did the evidence sufficiently corroborate the testimony of an accomplice to the murder? and (4) Was the defendant entitled to the opening and concluding argument to the jury?
The evidence as to events leading up to the homicide, insofar as essential here, is that which follows.
About the latter part of March, 1967, Solicitor General Hoard was concerned about the illegal sale of alcoholic beverages being made from a garage at the residence of the defendant Park and also from a building owned by him and known as 'the yellow house,' both located in Jackson County, where the sale of alcoholic beverages was not legal. There was evidence that since 1965 Park and the co-indictee Pinion had worked together in such sales. In late March Hoard began an investigation of these sales. This investigation was begun without telling local sheriff Perry, but later Hoard apparently informed him.
Hoard obtained the assistance of an agent of the Georgia Bureau of Investigation, and in turn other law enforcement personnel were brought in. Several of these men made purchases at the above named places in order to obtain evidence for a contemplated padlock proceeding. One testified that
A raid was scheduled for Saturday afternoon, May 6, 1967. However, on Friday evening it was discovered that Park was attempting to move large quantities of alcohol from these two places. Thereupon, the scheduled raid was immediately made and $21,700 of contraband, consisting of 31 cases of whiskey and 2,254 cases of beer, was taken. Park and Albert Funderburk, who had been employed at 'the yellow house' by Park for almost two years, were arrested. Criminal cases were made against the two men by Hoard.
On May 23, 1967, upon Hoard's petition, an order was issued directing that the two places be padlocked.
On July 11, 1967, Park, Funderburk and another employee of Park entered pleas of guilty for such illegal alcohol operations, and their fines, totaling $6,300, were paid by Park. Also, on this date, an appeal from the padlock order was dismissed. About this time Funderburk made plans to move back into the yellow house in August.
Neither this padlock order nor the confiscation order on the alcohol seized was carried out until after the death of Hoard. There is no evidence as to why these orders were not executed.
An Atlanta police officer testified that on the morning of August 7, 1967, he was en route to the courthouse of Jackson County to go before the grand jury with reference to auto larceny there.
Next, we recite the salient testimony of events immediately surrounding the murder.
This testimony was given by the co-indictee Blackwell, to whom the State had offered to recommend a life sentence provided he would testify fully, fairly and completely, and also by the co-indictee Seay. No mention of any such offer to Seay appears.
Blackwell's testimony, insofar as material on these issues, was that which follows.
Prior to Solicitor General Hoard's death Seay asked Blackwell if he had the nerve to kill anybody and two weeks later inquired of him if he would 'blow that man up,' without identifying anyone. No affirmative answer appears to have been given.
On Thursday before Hoard's death on Monday, August 7, 1967, Seay, Blackwell, and another co-indictee, Worley, met by pre-arrangement at a named highway restaurant in another county and drove to Anderson, South Carolina, where Blackwell, with money provided by the others of that group, purchased sticks of dynamite and caps. On Saturday Seay showed Blackwell how to connect these to the coil of an automobile.
On Sunday evening Blackwell, Seay and Worley met. Seay offered Blackwell $1,500 if he would go with them and watch while Seay or Worley put the dynamite on the car. One of them, Seay he thought, told Blackwell 'the man wanted it done that night before he went to court on Monday.' Worley pointed out Hoard's house, and Seay made a short trip to verify it and the car parked there as Hoard's. During this time Blackwell and Worley went to a nearby place, wired several sticks of dynamite together, and returned to a point near Hoard's residence.
Then Blackwell went to Hoard's yard where his car was parked, placed the dynamite and one cap to the coil of the car, and rejoined Seay and Worley. The three drove away, and at a bridge the shoes and gloves Blackwell had worn were thrown out.
Later on the same night Blackwell went to Wrightsville, Georgia, and during the morning heard of Hoard's death over the radio.
On the following Wednesday, Seay gave Blackwell $700 in cash and an automobile valued at $800.
Blackwell identified certain photographs, including places and objects associated with the murder.
The testimony of the co-indictee Seay, insofar as material here, was that which follows.
He had known Blackwell about eight months, Worley four or five years, and Pinion some six to eight years. He was 23 years of age and had known Park since childhood.
He had not had any direct dealings with Park.
In June, about two months before Hoard's death, Pinion asked Seay if he wanted to make some 'easy money,' and later told him that 'he wanted a man done away with,' saying it was Hoard. He did not say who wanted it done, but mentioned to him 'the old man' several times.
Pinion had told Seay on a number of occasions that he was working with Park, and Seay once talked with both of them about their buying liquor from him. They talked about payment and arrangements in connection with this, and one of them told him that whenever he needed money he could come to Park's place and pick it up, but Seay did not recall ever doing so.
This dealing with Park and Pinion began three or four years previously and continued until Hoard was killed. Pinion was the only person he dealt with on behalf of Park. When he had the conversation with Pinion about doing away with Hoard, he knew that Pinion was acting on behalf of Park, and in their conversations Pinion and he always referred to Park as 'the old man.'
Pinion did not tell Seay that 'the old man' wanted Hoard done away with, but that 'a man wanted somebody done away with.' Also, he did not say why he wanted Hoard killed. He mentioned to Seay the liquor raid made by Hoard, but Seay did not recall whether this was at the same time he discussed killing Hoard.
Pinion first offered Seay $5,000, and said it would be best to kill Hoard on the road with a shotgun as he was returning home.
Seay told Pinion that he was not interested but would try to find someone. Seay mentioned it to Worley, who wanted $7,500. Worley did not know whom Seay had in mind to be killed. Pinion said that Hoard had to be killed before he went to court that Monday morning, and Seay so told Worley. Seay then reported to Pinion that he had someone to do it if he would pay more money. Pinion replied 'Well, that is all the man will pay,' and Pinion left and in about 45 minutes he returned and told Seay, ...
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