Rose v. State
| Decision Date | 22 June 1982 |
| Docket Number | No. 38161,38161 |
| Parties | ROSE v. STATE. |
| Court | Georgia Supreme Court |
Edwin S. Kemp, Jr., Jonesboro, Virgil C. Spence, Marietta, for Gloria Jo Spicer Rose.
Robert E. Keller, Dist. Atty., Jonesboro, Michael J. Bowers, Atty. Gen., for the State.
Larry Boyd Rose was shot and killed by use of his own handgun. Gloria Joe Spicer Rose, the victim's common-law wife, subsequently was convicted of murder and sentenced to life imprisonment. Her motion for a new trial was denied, and she appeals.
The victim and Ms. Rose lived together in a house in Riverdale, Georgia, along with Justine Spicer, a daughter of Ms. Rose, and two grandchildren by another daughter of Ms. Rose. At the time of the killing Justine was nine months pregnant.
From the evidence adduced at trial the jury was entitled to find the following: when Ms. Rose awoke on the morning of January 14, 1981, Justine was experiencing labor pains. Ms. Rose decided that, rather than go to work, she, Justine and the grandchildren would drive to the residence of her son, David Spicer, a few miles away, so that David could keep the children while she and Justine went to the hospital. At about 8:45 A.M. the foursome exited the house and began to get into the car. Ms. Rose announced that she was going back inside for a sweater. She re-entered the house, took the victim's handgun from a hutch in the kitchen, proceeded to her bedroom, and shot the victim once in the back of the head as he was sleeping. She then wiped the pistol with a towel, threw the pistol into the back yard, and returned to the car, leaving doors open in an apparent attempt to cover up the murder. The group then left in the car, picked up David Spicer and returned to the house in Riverdale, stopping along the way to purchase some items for breakfast. Upon returning to the house Ms. Rose "discovered" the body. One of the group called the Clayton County Police, who arrived at the scene shortly after 9:30 A.M.
The State was allowed to place into evidence three incriminating statements given by Ms. Rose, one written and two tape-recorded. In the first two statements Ms. Rose admitted the killing but gave few details surrounding the incident. In the third, Ms. Rose admitted the details of the killing above related. She also stated that she had wiped the gun with a towel, which she left in the house on the washer or dryer. The State was permitted to place into evidence a consent-to-search form executed by Ms. Rose, and a brown towel found in the search. Laboratory analysis of the towel revealed traces of lead residue, consistent with its having been used to wipe a recently-fired gun.
1. On February 4, 1982 we remanded this case to the trial court with instruction that an in camera inspection of the State's file be conducted, as requested by appellant prior to trial, and in accordance with our holding in Tribble v. State, 248 Ga. 274, 280 S.E.2d 352 (1981). In his report subsequently filed with this court, the trial judge concluded that a taped interview of Justine by police officers could be considered exculpatory, as "[t]he witness being interviewed was (according to her taped statement) in the immediate presence of the accused during the period of time in which the death occurred yet she relates nothing consistent with guilt."
Justine Spicer testified for the defense at a Jackson-Denno hearing and at trial. Her trial testimony paralleled the taped interview, except that in the interview she did not mention the incident wherein appellant returned briefly to the house for a sweater while Justine and the children remained in the car. However, defense counsel was aware of this discrepancy and questioned her about it at trial.
In addition, a police officer testified at trial that apparent inconsistencies in the times related by Justine Spicer in the taped interview led police to focus on appellant as a suspect for the first time. While Justine's statement conceivably might have been helpful to the defense in questioning the police witness with respect to the preliminary stages of the investigation, nevertheless appellant has failed to meet her burden of showing that she was denied beneficial evidence which was so important that its absence prevented her receiving a fair trial, and materially prejudiced her case. Taylor v. State, 243 Ga. 222(1), 253 S.E.2d 191 (1979); Wisdom v. State, 234 Ga. 650, 652, 217 S.E.2d 244 (1975).
2. Ms. Rose complains of the admission into evidence of the three incriminating statements given to police by her, as well as a written consent-to-search form executed by her and a brown towel found pursuant to that consent. There was some evidence that police officers told Ms. Rose that her children or grandchildren might become involved in some way if she did not "... tell [police] the whole story." The trial court held a lengthy Jackson-Denno hearing, after which he concluded that the statements were voluntary and should be submitted to the jury. A similar hearing was held with respect to the consent-to-search, on a motion to suppress the brown towel. We find no clear error in the trial court's findings as to factual determinations and credibility relating to the admissibility of the incriminating statements and the towel. Crawford v. State, 245 Ga. 89(2), 263 S.E.2d 131 (1980). The jury was instructed thoroughly as to their consideration of the statements, including the standards to be applied in determining voluntariness.
3. Ms. Rose contends that the trial court erred in failing to charge, as requested, that "[a] confession alone, uncorroborated by any other evidence, shall not justify a...
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