Stanley v. State

• Citation: 240 Ga. 341,241 S.E.2d 173
• Decision Date: 28 November 1977
• Docket Number: No. 32260,32260
• Parties: Ivon Ray STANLEY v. The STATE.
• Court: Georgia Supreme Court

Page 173

241 S.E.2d 173

240 Ga. 341

Ivon Ray STANLEY v. The STATE.

No. 32260.

Supreme Court of Georgia.

Nov. 28, 1977.

Rehearing Denied Dec. 15, 1977.

George W. Stacy, Gwendolyn Adams, Bainbridge, for appellant.

A. Wallace Cato, Dist. Atty., Bainbridge, Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Staff Asst. Atty. Gen., Atlanta, for appellee.

HILL, Justice.

This is a death case. The defendant was convicted by a jury of felony murder (during commission of an armed robbery), armed robbery, and kidnapping with bodily injury. The jury found that each of these crimes was committed while the defendant was engaged in the commission of the other capital offenses, and that each was outrageously and wantonly vile, horrible and inhuman in that the offense involved depravity of mind of the defendant and torture to the victim. The jury also found that the murder was committed by the defendant for himself for the purpose of receiving money and other things of value. For each of the three convictions the jury fixed punishment at death by electrocution.

Several weeks before the crime, two witnesses on separate occasions had heard discussions between the defendant and Joseph Thomas, who was indicted with the defendant. The two were discussing "hitting" an insurance agent who routinely followed a collection route through the small community in which the defendant lived. One of the witnesses overheard the defendant remark that after the robbery they would have to "get rid of him."

In a taped statement played to the jury the defendant said that on the day of the crimes he agreed with Thomas to "get" the insurance man for his money. The defendant stated that later that day, after the victim had made some collections in the area, and as the victim went behind a trailer, he (the defendant) pointed a gun at the victim. A witness saw the defendant pointing at the victim. The victim was forced to turn over his money, which the collection records indicated to be about $220. The defendant testified at trial that the three then went into some nearby woods and that on the way Thomas struck the victim on the arm with a hammer. After pleading for his life, the victim was hit on the head with the hammer and fell to the ground. The victim was then tied to a tree, and Thomas left the woods to move the victim's car. A witness testified to seeing Thomas drive away in the car and return on foot. Two witnesses saw him reenter the woods with a shovel. A witness saw the three move further into the woods and disappear from view. The defendant said in his taped statement that a shallow grave was dug and that he had the gun in his back pocket. The victim, still bound, was made to lie down in the grave.

The victim was pleading for his life when he was beaten and jabbed with a shovel in the head, throat and chest. The defendant said in his taped statement that Thomas then took the gun from the defendant and fired at the victim's head. Witnesses heard three shots. The defendant said that the victim was again beaten and jabbed with the shovel. In his taped statement the defendant said that the victim knew what was happening as he lay in his grave and that he was pleading with them to stop. The victim was then buried alive. The distance from the trailer where the robbery took place to the grave was over 150 yards.

It appears from the evidence of the forensic autopsy that one bullet struck the victim, entered his upper right jaw through the lip directly below the right nostril and dislodged two teeth. The autopsy revealed severe bruises, scrapes and curved lacerations on the victim's head, face and neck. The breastbone was broken in two with associated internal hemorrhaging. There had been internal hemorrhaging about the lower right ribcage and the right collarbone. The autopsy evidence indicated that two lacerations of the head went to the skull bone which was fractured in these areas. The crushed bone had damaged the brain and caused internal hemorrhaging over the brain. The autopsy revealed that an event similar to a blow to the head with a hammer had crushed the skull in the temporal region above the left ear. The victim's windpipes and throat contained large amounts of dirt and blood so that smaller areas of both lungs were completely closed. A moderate amount of dirt and blood was found in the upper end of the stomach. The cause of death was found to be suffocation.

1. The defendant contends that the verdicts are contrary to the evidence and without evidence to support them, are decidedly and strongly against the weight of the evidence, and are contrary to law and the principles of justice and equity. In accord with Ridley v. State, 236 Ga. 147(1), 223 S.E.2d 131 (1976), Ingram v. State, 204 Ga. 164, 184, 48 S.E.2d 891 (1948), we find that the evidence was sufficient to authorize the jury to return the verdicts of guilty of felony murder and kidnapping with bodily injury. However, the conviction for armed robbery must be set aside as being contrary to law in that a person cannot legally be convicted and sentenced for both a felony murder and the lesser included felony on which that felony murder conviction is based, the armed robbery in this case. Atkins v. Hopper, 234 Ga. 330(3), 216 S.E.2d 89 (1975); see also Burke v. State, 234 Ga. 512, 514-515, 518, 216 S.E.2d 812 (1975).

2. The defendant contends that the trial court erred in overruling his motion to suppress evidence of a statement he made on the third day after his arrest because it was made in a custodial interrogation without the benefit of counsel. A tape recording of the statement was allowed to be played to the jury and a transcript of the tape recording was allowed in evidence.

The beginning of the statement complained of contains a waiver of Fifth and Sixth Amendment rights. In this portion of the statement the sheriff read the Miranda rights to the defendant one at a time from a waiver form the defendant had previously signed and, after each right, the defendant answered that he understood that right. The sheriff then read affirmations from the form that his statement was voluntary, that it was not being induced by another, that it was made without his being promised the slightest hope of benefit, and that it was not induced by the remotest fear of injury. The defendant responded affirmatively to the sheriff. The sheriff read to the defendant from the form that the defendant had freely and voluntarily waived his right to counsel and that no threats or promises had induced the waiver. The defendant was asked if he had signed that statement form, and he replied, yes. He was then asked, "Are you willing to talk with us?" He responded, "Yes, sir."

Although the interrogation was custodial, it was not conducted in isolation. The evidence indicates the defendant's taped statement was made in the sheriff's office during the day. The tape contains noises from the police radio and from the telephone in the sheriff's office. There is evidence of short interruptions while other business was attended. The taped statement does not indicate that the defendant was compelled in any manner to be a witness against himself.

The defendant argues that Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), require that the statement should have been suppressed. In those cases, the defendant had been denied the benefit of previously obtained counsel. In the case at bar, the defendant had not obtained counsel nor had there been any promise by authorities not to interrogate the defendant without the presence of his counsel. The defendant also urges that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that the statement be suppressed even though no counsel had been obtained. We have carefully scrutinized the efforts of the state to comply with the procedural safeguards required by Miranda and find no failure to meet the constitutional standards for the protection of the privilege against self-incrimination.

The defendant has attempted to show mental and literary weakness which would prevent an intelligent and knowing waiver of counsel. He introduced evidence that he had an IQ of 62, had a second grade reading ability, had experienced reading problems in the eighth grade and had difficulty writing coherently. The evidence also shows that the defendant was 20 years old, that he had completed the eleventh grade, that he wrote many letters from prison, and that he was able to communicate normally and respond intelligently to other persons. The trial court did not err in finding that the accused was offered counsel but intelligently and understandingly rejected the offer. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Hurt v. State, 239 Ga. 665, 238 S.E.2d 542 (decided September 8, 1977); Miller v. State, 240 Ga. 110, 239 S.E.2d 524 (1977). The cases of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Marshall v. Riley, 7 Ga. 367 (1849); and Smith v. State, 17 Ga.App. 693, 88 S.E. 42 (1915) are inapposite.

The trial court did not err in overruling a motion to suppress the statement made by the defendant during custodial interrogation.

3. The defendant contends that the trial court erred in overruling his motion to suppress the evidence of the taped statement on grounds that the prosecution did not establish the proper foundation for its admissibility, and because of errors in the tape.

The record contains ample evidence that the device used to make the tape was capable of recording an interrogation, the event which the evidence was tendered to portray. The persons operating the device were shown to be competent to do so. There was sufficient proof that the recording was preserved without alteration. After hearing the tape recording, the defendant testified that he made the statement that was recorded on the tape. A...