Roberts v. State

• Decision Date: 21 February 1984
• Docket Number: No. 40397,40397
• Citation: 314 S.E.2d 83,252 Ga. 227
• Parties: ROBERTS v. The STATE.
• Court: Georgia Supreme Court

Page 83

314 S.E.2d 83

252 Ga. 227

ROBERTS v. The STATE.

No. 40397.

Supreme Court of Georgia.

Feb. 21, 1984.

Rehearing Denied March 6, 1984.

[252 Ga. 242] Wayne B. Kendall, Kendall, Mangham & Kendall, Griffin, for Victor roberts.

Johnnie L. Caldwell, Dist. Atty., J. David Fowler, Asst. Dist. Atty., Thomaston, Michael J. Bowers, Atty. Gen., for the State.

MARSHALL, Presiding Justice.

Victor Roberts was indicted in Fayette County for the murder of Mary Jo Jenkins. His case was tried under the Unified Appeal Procedure. ¹ A jury found Roberts guilty of murder and sentenced him to death. We affirm.

1. Shortly after 11:00 a.m. on February 1, 1983, a school bus from kindergarten dropped the victim's son off at their home on Lee's Lake Road. A few minutes later, the boy walked the quarter of a mile to a neighbor's house to ask for help. He told the neighbor that his mother's nose was bleeding. The neighbor returned with the boy and discovered Mrs. Jenkins lying on a walkway behind her house. Mrs. Jenkins was dead, having been shot in the chest. The neighbor called the police.

Investigators arrived and searched the premises. They found a bullet hole in the screen of the back porch. Using a metal detector, they found a .38 caliber Winchester bullet at the edge of a fenced area of the backyard. Inside the house, next to the television, they found a blue attache case containing papers which led to the identification of its owner as Hapeville attorney Preston Holland.

GBI Agent Dan Greene contacted the Hapeville Police Department and learned that, on the preceding day, Holland had reported his 1969 Oldsmobile station wagon as being stolen. Upon contacting Holland, Greene learned that the blue case had been in the car at the time.

A lookout was placed on Mr. Holland's car. It was recovered in southwest Atlanta the next day. On the afternoon of February 2, after the car had been located, agent Greene talked to an informant who had been brought to GBI headquarters in Hapeville by Atlanta police officers. Greene was told that the informant was reliable, and that he had been responsible for more than one hundred arrests in a three-year period.

This informant told Greene that, on the evening of January 31, he had ridden with a friend named Vic, whose last name the informant did not know, in an Oldsmobile station wagon that Vic had stolen. The informant told agent Greene that he saw Vic again the next day. Vic had a .38 caliber pistol that the informant offered to buy. Vic refused to sell. He told the informant that the gun was "dirty," and that he had probably harmed a woman "down South."

Agent Greene asked the informant if he could get the pistol. The informant told Greene that Vic had sold it, but that he knew who had brought it. The pistol was soon recovered. A ballistics examination performed that evening identified the pistol as the murder weapon.

At approximately 8:00 p.m. on February 2, Fayette County sheriff's investigator Tommy Nations, who was with agent Greene in Hapeville, relayed the foregoing information along with a description of the suspect to investigator Whitlock in Fayette County and instructed him to obtain an arrest warrant. Whitlock told the issuing magistrate some, but not all, of the foregoing information, and an arrest warrant was issued for Vic LNU (last name unknown).

Agent Greene then contacted Bruce Pickett, a GBI Agent with the Metro Fugitive Squad, and asked him to locate "Vic." The In his tenth enumeration of error, the defendant contends that he was illegally arrested. The defendant contends that the issuing magistrate was given insufficient information to meaningfully determine probable cause and that the arrest warrant was therefore invalid. We disagree.

defendant was located, and arrested just after midnight on the morning of February 5 by Pickett, Whitlock, and two other officers, in the apartment of Priscilla Collier (with her prearranged assistance).

"Apparently [the defendant] is seeking to have the probable cause requirements of an affidavit on which a search warrant is issued [cit.], made applicable to arrest warrants. Georgia imposes no such requirements on its arrest warrants." Smith v. Stynchcombe, 234 Ga. 780, 781, 218 S.E.2d 63 (1975). See OCGA § 17-4-40 et seq. (Code Ann. § 27-102 et seq.).

Alternatively, the defendant contends that if OCGA § 17-4-41 (Code Ann. § 27-103) does not require the showing of probable cause by affidavit prior to the issuance of an arrest warrant, it is unconstitutional. Pretermitting any deficiency in the manner in which the defendant has attempted to make a constitutional attack upon OCGA § 17-4-41 (Code Ann. § 27-103), we need not decide the issue, for the arrest was plainly supported by probable cause and thus, even if the arrest warrant was invalid, the arrest was nonetheless legal. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Mincey v. State, 251 Ga. 255(6), 304 S.E.2d 882 (1983).

2. After Ms. Collier admitted the arresting officers into her apartment and told them that the defendant was in the bedroom, the officers entered the bedroom with their guns drawn. The defendant threw up his hands and said, "[D]on't hurt me, I didn't mean to kill that woman." As he was being handcuffed, he claimed that the killing was an accident. As he was being taken to the police car, the defendant reiterated his earlier statements and then volunteered to take the officers to the person to whom the defendant had sold the gun.

Later that morning, the defendant was interrogated at the Fayette County sheriff's office. Agent Greene gave the defendant warnings derived from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Afterwards, the defendant signed a written waiver form, which recited that he understood his rights (which were enumerated on the form), that he freely and voluntarily waived his right to an attorney, and that he was willing to make a statement. He thereafter gave a lengthy statement, which was recorded and later transcribed.

In the statement, the defendant claimed that he was accompanied by another person named Green. Green, the defendant said, asked him if he wanted to "do something." The defendant answered in the affirmative. They rode down the highway to some "stray houses." They pulled into the driveway of one, got out, and knocked on the door. Green had the blue attache case under his arm. When a woman answered the door, Green started hitting her on the head with a pistol, which had been inside the case, and pushed her into the house. She asked what they wanted and Green said, "[W]e [are] robbing you so shut up and sit down." Then Green gave the pistol to the defendant, who covered the woman while Green went to the bedroom. The woman got up and ran out the back door. She started hollering for the neighbors. The defendant ran outside, followed by Green, who told the defendant to shoot. The gun was already cocked. Green reached over and grabbed it and it "went off." The defendant stated that Green kept the gun, but later told the defendant to sell it.

In his seventh enumeration of error, the defendant contends that his statements were involuntary and that the court erred by allowing their admission in evidence.

The trial court found that the statements volunteered by the defendant at the Regarding the transcribed statement, the trial court found that, after being advised of his rights under Miranda v. Arizona, supra, the defendant waived those rights, and that the statement was not the product of threats, force, or promises of leniency. The record supports these findings, and the trial court therefore did not err by ruling that this statement was admissible. Mincey v. State, supra (6 c).

scene of his arrest were not the product of custodial interrogation. The record supports this finding. Thus, the court did not err by ruling that these statements were admissible. Findley v. State, 251 Ga. 222(1), 304 S.E.2d 898 (1983).

3. The informant whose assistance led to the defendant's arrest also testified for the state at trial. This witness told the jury that the defendant had a pistol on January 31, the day before the killing, that he refused to sell because, the defendant said, he "was going to do something with it." The next day, the witness asked again about the pistol. The defendant said that he had already sold it, but that the witness didn't want it anyway. Later, the defendant told this witness that, posing as an insurance salesman, he broke into a house; that, when a woman answered the door, he rushed her with the pistol; that, when she tried to get away, he tried to tie her up; that he hit her "up side the head" with the pistol; that she got loose and ran out back, and he shot her as she was hiding behind a grill; and that he tried to pull her back in, but couldn't, so he left the blue case and ran.

Latent prints discovered on papers inside the blue case, and on other papers found inside Mr. Holland's stolen automobile were identified as being the defendant's. ²

In his fourteenth enumeration of error, the defendant contends that the evidence was insufficient to support the conviction. We disagree. The evidence was sufficient to convince a rational trier of fact that the defendant murdered Mary Jo Jenkins. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

4. On February 7, 1983, attorney H. Geoffry Slade was appointed to represent the defendant. On March 3, attorney James Hamilton was appointed to provide additional representation for the defendant. On March 16, the trial court awarded $500 to the defendant to pay for the services of an investigator. The investigator retained by the defendant made his final report to the defense attorneys on March 22. Attorney Slade testified at the hearing on the motion for new trial, and confirmed that the defense had ample time...