Spence v. State, 40511

• Decision Date: 05 March 1984
• Docket Number: No. 40511,40511
• Citation: 313 S.E.2d 475,252 Ga. 338
• Parties: SPENCE v. The STATE.
• Court: Georgia Supreme Court

Page 475

313 S.E.2d 475

252 Ga. 338

SPENCE v. The STATE.

No. 40511.

Supreme Court of Georgia.

March 5, 1984.

Rehearing Denied March 28, 1984.

Richard L. Powell, Augusta, for Otis Franklin Spence, III.

Sam B. Sibley, Jr., Dist. Atty., Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Augusta, for the State.

SMITH, Justice.

Otis Franklin Spence, III was indicted for the shooting death of his mother, Sarah Jo Spence, and tried before a jury in Richmond County Superior Court. Appellant, who was 19 years old at the time of the offense, was convicted of murder and sentenced to life imprisonment. Appellant failed to pursue a direct appeal following his conviction in November 1982, but on September 9, 1983, he was granted leave to file an out of time appeal of his conviction to this court. In this appeal he raises five enumerations of error, chiefly attacking the trial judge's admission into evidence of a statement he made on January 5, 1982, in which he admitted shooting his mother. We find no error and affirm.

From the evidence introduced at trial, a jury was authorized to find that on October 30, 1981, the day of the shooting, appellant spent the afternoon with friends, arriving home at 2:30 p.m. His mother arrived home shortly thereafter. Following a brief conversation, appellant, who apparently was angered by his mother's refusal to let him use the family car to attend a local fair that evening, walked to his parents' bedroom, retrieved his father's .22 caliber revolver from a dresser drawer, returned to the living room, and shot his mother twice in the head at close range, killing her. Appellant then took her car keys and went for a drive, stopping to see friends and to visit a local shopping center. Shortly before 5:00 p.m., he returned home and alerted police that he had found his mother shot to death. Lieutenant Ronnie Strength of the Richmond County Sheriff's Department questioned appellant on the night of the shooting. He denied knowledge of the crime, claiming instead that he had gotten home from school at 2:30 that afternoon, spoken amicably with his mother, gone for a drive alone in the car, then had returned to find her body slumped in the living room chair. Through subsequent investigation Strength learned that appellant had not attended his high school that day as he had claimed. Investigators also determined that because there was no sign of forced entry at the scene the shooting was probably an "inside job." Lieutenant Strength interviewed appellant again on November 4, but no new information surfaced concerning the shooting.

Appellant and his father continued to live together in the family residence. In early December of 1981 appellant's father discovered that several household items, including an outboard motor, a television set, and his deceased wife's wedding rings, were missing. The thefts were reported to police and appellant was arrested and charged with three counts of theft by taking on December 11. While incarcerated on the theft charges, appellant was questioned regularly (at least six times, according to the record) concerning his mother's death. On December 21, he gave Lieutenant Strength a statement in which he asserted that, one week after the shooting, he had disposed of the murder weapon by throwing it into the Clark Hill reservoir. Appellant did not explicitly admit killing his mother on this date, but he promised Strength that he would give him more details of the shooting on January 2, his birthday. Police searched without success the area appellant had indicated as the resting place for the murder weapon. (The gun was never recovered.) Finally, on January 5, 1982, appellant gave Lieutenant Strength a detailed statement describing how he had shot his mother on the afternoon of October 30, 1981. He was then indicted for murder. The theft charges were eventually dropped.

1. Although not enumerated as error by appellant, we have examined the evidence presented at trial and conclude that it was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the murder of Sarah Jo Spence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Appellant's only challenge to the sufficiency of the evidence is contained in his fourth enumeration, in which he alleges that the trial court erroneously denied his motion for a directed verdict. This enumeration is without merit. The evidence did not demand a verdict of acquittal. See OCGA § 17-9-1 (Code Ann. § 27-1802); Graham v. State, 250 Ga. 473(1), 298 S.E.2d 499 (1983).

2. In his first enumeration of error, appellant alleges that his January 5 statement to police in which he admitted shooting his mother was improperly admitted because the statement was (a) the result of an illegal arrest, (b) made while appellant was held under an excessive bond, (c) not free and voluntary, and (d) made without the benefit of counsel. We will address the grounds for suppression of the statement in the order enumerated by appellant.

(a) Following the discovery by appellant's father that his former wife's wedding rings, an outboard motor, and a television set were missing from the family residence, the police were notified of the thefts and appellant was arrested on December 11, 1981. He was charged with three separate counts of theft by taking. At the pretrial hearing on appellant's motion to suppress his statement, Lieutenant Strength of the Richmond County Sheriff's Department testified that the decision to arrest appellant was based on information from appellant's father to the effect that appellant had previously stolen his mother's high school class ring and had pawned it (this theft was not reported to police), as well as an independent investigation by Strength which revealed that appellant had approached several acquaintances about selling the stolen items, and had actually sold the television for $50 and the boat motor for $65.

Appellant contends that his arrest was illegal because it was not based on probable cause, and that his inculpatory statement, which was obtained while he was in custody for the thefts, must be suppressed as a fruit of the illegal arrest. We do not agree. Based on the objective facts and circumstances known to investigators on December 11, a man of reasonable caution could have believed that the crime of theft had been committed by appellant. See Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed.2d 1879 (1949); Durden v. State, 250 Ga. 325(10), 297 S.E.2d 237 (1982). Appellant's contentions on this point are without merit.

(b) Next appellant contends that his statement should have been suppressed because it was made while he was held in police custody under an excessive bond for the theft charges. Following his arrest, appellant was incarcerated in the Richmond County jail and bond was set at $90,000 ($30,000 for each theft offense). Lieutenant Strength testified that a relatively high bond was thought to be necessary for the following reasons: appellant's incarceration would facilitate the ongoing investigation into the death of his mother, for which appellant was the prime suspect; police were concerned for the safety of appellant's father if appellant were allowed to return home; and there was a chance that appellant might attempt to leave town to escape punishment for the thefts.

The amount of bail to be assessed in each criminal case is generally within the sound discretion of the trial judge, whose decision will not be reversed on appeal absent a clear abuse of that discretion. OCGA § 17-6-1 (Code Ann. § 27-901); Jones v. Grimes, 219 Ga. 585, 134 S.E.2d 790 (1964). When fixing the amount of bail, the judge is to consider chiefly the probability that the accused, if freed, will appear at trial; other factors to be considered include the accused's ability to pay, the seriousness of the offense, and the accused's character and reputation. Id. at 587, 134 S.E.2d 790. We cannot say that under the particular facts of this case, including appellant's past misdeeds and his father's justified fear for his safety, appellant's bail was so excessive as to constitute an abuse of the judge's discretion. This enumeration is without merit.

(c) Appellant contends that his January 5 statement was not freely and voluntarily made, but was the product of subtle coercion and duress occasioned by his four week confinement on the theft charges, during which time, he alleges, he was subjected to continuous and persistent questioning by police officers, particularly Lieutenant Strength.

Prior to trial, and again at the beginning of the trial, a Jackson-Denno hearing was held to determine whether appellant's statement was freely and voluntarily made. On each occasion the judge determined that the statement was voluntary. Unless clearly erroneous, the trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. Strickland v. State, 250 Ga. 624(2), 300 S.E.2d 156 (1983). We find ample evidence to support the trial court's finding on this issue. Prior to giving the statements which were later used against him at trial, appellant was fully advised of his constitutional rights under the Miranda decision. Each time he executed a written waiver of those rights, then spoke with police. Appellant's allegations of coercion and threats by police are supported only by his trial testimony. His version of events was contradicted by every other witness who testified concerning the statements. In light of the totality of the circumstances surrounding appellant's statement, we find no error.

(d) The final reason advanced by appellant for suppression of his statement is that it was made without benefit of the presence of counsel. Following appellant's arrest on theft charges, attorney Jim Thomas was appointed to represent him. Thomas appeared on appellant's behalf at a ...