Reaves v. State

• Decision Date: 21 November 1978
• Docket Number: No. 33727,33727
• Citation: 250 S.E.2d 376,242 Ga. 542
• Parties: REAVES et al. v. The STATE.
• Court: Georgia Supreme Court

Page 376

250 S.E.2d 376

242 Ga. 542

REAVES et al. v. The STATE.

No. 33727.

Supreme Court of Georgia.

Argued June 20, 1978.

Decided Sept. 27, 1978.

Rehearings Denied Nov. 1 and Nov. 21, 1978.

Duross Fitzpatrick, Cochran, Smith & Harrington, Will Ed Smith, Eastman, for appellants.

Phillip R. West, Dist. Atty., Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., for appellee.

MARSHALL, Justice.

The appellants, Reaves and Clements, were convicted in the Dodge Superior Court of the murders of Dalt and Georgia Kate Burnam and sentenced to life imprisonment. Dalt Burnam was a deputy sheriff of Dodge County. His diligent law enforcement activities posed a severe threat to those in the county engaged in the illegal drug and liquor businesses. Appellant Clements owned a drug store in Rhine, which is in Dodge County. He made illegal drug sales to Luther Hulett, who distributed the drugs in Dodge County and elsewhere. John Henry McDuffie was involved in the illegal liquor business in Dodge County. Clements, Hulett, and McDuffie paid appellant Reaves $3,500 to kill Dalt Burnam and his wife, Georgia Kate Burnam. (It became necessary to kill Dalt Burnam's wife, since there was no opportunity to kill him during off-duty hours without her being present.) The Burnams were slain in their home with a shotgun on October 6, 1973.

McDuffie was tried and convicted of both murders. Hulett pleaded guilty, and he testified for the state at the joint trial of Clements and Reaves. The evidence introduced at their trial will be reviewed as is necessary for a consideration of the enumerations of error raised.

1. In the first two enumerations of error, both Reaves and Clements argue that as to their respective involvements in the crimes there was insufficient corroboration of the testimony of the accomplice Hulett, so as to require the granting of their motions for directed verdict, judgment n. o. v., or new trial.

The rule is well settled in this state that to sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crimes or lead to the inference that he is guilty, and which are more than sufficient to merely cast on the defendant a grave suspicion of guilt. Code § 38-121; Carter v. State, 237 Ga. 617, 229 S.E.2d 411 (1976); Smith v. State, 236 Ga. 12, 15-16, 222 S.E.2d 308 (1976); West v. State, 232 Ga. 861, 864, 209 S.E.2d 195 (1974); Allen v. State, 215 Ga. 455, 457, 111 S.E.2d 70 (1959); Price v. State, 208 Ga. 695, 69 S.E.2d 253 (1952). However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Smith v. State, 238 Ga. 640, 235 S.E.2d 17 (1977). Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. Birt v. State, 236 Ga. 815, 826, 225 S.E.2d 248 (1976).

In the present case, the trial court found independent corroborating evidence as to Reaves' involvement in the Burnam murders in his admission to the witness Glenn Blakely that he, Reaves, had committed the murders. The trial court also found corroboration as to Reaves in the testimony of other witnesses that he had attempted to enlist them to aid him in committing a murder during the same time period and for the approximate amount of money he received for committing the Burnam murders. There was clearly sufficient corroboration as to Reaves.

As to Clements' involvement in the murders, the trial court found sufficient corroborating evidence in testimony that he and Hulett were engaged in widespread illegal drug trafficking in the area, and in the testimony of Donna Dix that she had overheard Clements and Hulett discussing "something about three thousand dollars for the killings."

Clements correctly argues that evidence of his illegal drug activities would not alone be sufficient corroboration of Hulett's testimony to convict Clements of the crimes. This evidence would show only that Clements had a motive for killing Dalt Burnam. Evidence of motive is not, in itself, sufficient corroboration of the testimony of an accomplice. Price v. State, 208 Ga. 695, 69 S.E.2d 253, supra; Williams v. State, 152 Ga. 498, 110 S.E. 286 (1921); Nix v. State, 133 Ga.App. 417, 211 S.E.2d 26 (1974).

However, Donna Dix gave testimony from which the jury was authorized to find that she had overheard Clements discussing the $3,000 pay-offs for the killings with Hulett, a confessed participant in the crimes. Only the planners of the murders would have knowledge of the amount of the money paid the killer. There was sufficient, albeit slight, corroboration of Clements' involvement in the murders. The first two enumerations of error are without merit.

2. In the third enumeration of error, both appellants argue that the trial court erred in overruling their motions to quash the indictments against them. These motions were asserted on the ground that the only evidence before the grand jury linking the appellants to the murders was testimony given by an FBI agent concerning statements made by Hulett and McDuffie. It is argued that the FBI agent's grand jury testimony as to McDuffie's statements does not constitute legal evidence, because McDuffie's statements were later suppressed by the trial court. It is also argued that the F.B.I agent's testimony as to McDuffie's statements, as well as his testimony as to Hulett's statements, is inadmissible as hearsay.

In Buchanan v. State, 215 Ga. 791(2), 113 S.E.2d 609 (1960), the question of whether the evidence before the grand jury can ever be inquired into was left undecided. However, it was decided in that case that the sufficiency of the legal evidence before a grand jury is not subject to inquiry. Accord, Williams v. State, 222 Ga. 208, 212, 149 S.E.2d 449 (1966). However, it was held in Meriwether v. State, 63 Ga.App. 667, 11 S.E.2d 816 (1940) that an indictment will be quashed where it is returned wholly on illegal evidence, i. e., evidence obtained through an illegal search and seizure. It was also decided in Meriwether v. State that the burden is on the defendant seeking to quash the indictment to overcome the presumption that it was returned on legal evidence by showing that there was no other competent evidence upon which it lawfully could have been returned.

The question presented for decision is whether an indictment may be returned wholly upon hearsay testimony. The appellants point out that under Georgia law witnesses testifying before a grand jury must be administered an oath, Code §§ 59-210, 59-211, and that the grand jury cannot return a true bill except upon the testimony of a witness to whom the statutory oath has been administered. Lennard v. State, 104 Ga. 546, 30 S.E. 780 (1898); In re Lester, 77 Ga. 143 (1886); Switzer v. State, 7 Ga.App. 7, 65 S.E. 1079 (1909).

In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed.2d 397 (1956), the Supreme Court of the United States, in the exercise of its power to supervise the administration of justice in the federal courts, refused to establish a rule permitting defendants in criminal cases to challenge indictments on the ground that they were based solely on hearsay evidence. The Supreme Court of the United States, in the exercise of its supervisory jurisdiction over the federal courts, has also held that the exclusionary rule of the Fourth Amendment would not be applied in federal grand jury proceedings. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

Without establishing a general rule in Georgia that indictments can be returned wholly upon hearsay evidence, we hold that the testimony of a law enforcement official as to statements made given to law enforcement officials by criminal suspects, although it is hearsay, is sufficiently reliable to form the basis for the return of an indictment. (We do note that the GBI agent in this case was administered the statutory oath.) It was the hearsay testimony of government tax agents on which the indictment in Costello v. United States, supra, was based.

In addition, hearsay evidence is not illegal evidence, and under Buchanan v. State, supra, the sufficiency of the legal evidence is not subject to inquiry. The appellants have not shown that the indictments were returned upon wholly illegal evidence. The reason for suppression of McDuffie's statements as to Reaves' and Clements' involvements in the crimes does not appear from the record. Even if McDuffie's statements were suppressed for reasons that would render their use in court "illegal," the grand jury still had Hulett's statements before it as an alternative basis for returning the indictment against the appellants. The third enumeration of error is without merit.

3. In the fourth enumeration of error, both Reaves and Clements contend that the trial court erred in overruling their respective motions for severance.

Under Code Ann. § 27-2101 (Ga.L.1971, pp. 891, 892), in a capital felony case in which the state has waived the death penalty, the question of whether to try two or more coindictees together or separately lies within the discretion of the trial court. If the state is seeking the death penalty, Code Ann. § 27-2101 gives any defendant so electing the absolute right to be tried separately.

The appellants make two arguments. First, they argue that the distinction which Code Ann. § 27-2101 draws between capital cases in which the state is seeking the death penalty and other capital cases has no rational basis and, therefore, constitutes a violation of equal protection and due process.

We disagree. It is too late in the history of capital punishment to argue that trials in which the death penalty is being sought are not different from other trials. The General...