Stovall v. State

• Decision Date: 28 April 1976
• Docket Number: No. 30924,30924
• Citation: 236 Ga. 840,225 S.E.2d 292
• Parties: David W. STOVALL v. The STATE.
• Court: Georgia Supreme Court

Page 292

225 S.E.2d 292

236 Ga. 840

David W. STOVALL v. The STATE.

No. 30924.

Supreme Court of Georgia.

April 28, 1976.

Rehearing Denied May 17, 1976.

Windham & Chamberlain, James D. Windham, Jonesboro, for appellant.

William H. Ison, Dist. Atty., Clarence L. Leathers, Jr., Asst. Dist. Atty., Jonesboro, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Staff Asst. Atty. Gen., Atlanta, for appellee.

HALL, Justice.

Appellant, David Stovall, is one of the three co-defendants convicted of the gangland-type slaying of Tony Doster on July 4, 1975. The facts as contended by the defendants are more fully set out in the appeal of co-defendant, David Gillespie in Gillespie v. State, 236 Ga. 845, 225 S.E.2d 296 (1976). The evidence showed, however, that these three rising high school seniors arranged to have a girlfriend set up a meeting with their intended victim at the high school tennis courts. Instead they arrived at the scene in Stovall's station wagon, in which Gillespie and Sanchez were hiding behind the front seat. Stovall backed into the victim's car to stop it, then Gillespie and Sanchez rose up from their hiding place and emptied their respective pistol and rifle into the car, killing Doster. They were not arrested until August 30 as a result of anonymous telephone tips to the police, but were thereafter tried and convicted of murder, and have filed separate appeals. We here consider the appeal of defendant Stovall, and affirm his conviction.

1. In his first enumeration of error, the defendant claims the trial court erred in admitting into evidence his incriminating statements made to the police. However, it is clear from the record of the Jackson-Denno type hearing that the statements were voluntarily made. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1963); House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974).

During the Jackson v. Denno hearing, the Miranda rights given to the defendant were repeated three times; only once did the detective fail to state that the defendant was informed of his right to appointed counsel if he could not afford to retain his own. In addition, the two arresting officers repeated the full warnings during the case in chief at least four more times. Stapleton v. State, 235 Ga. 513, 220 S.E.2d 269 (1975).

The absence of a written waiver form is not conclusive of defendant's contention that he was not informed of his rights. There is no requirement that a constitutional waiver be in writing. The trial court, in considering all the evidence, was not clearly erroneous in finding that Miranda warnings were properly administered. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); High v. State, 233 Ga. 153, 210 S.E.2d 673 (1974).

2. Stovall also urges that the trial court erred in refusing to grant his motion for the severance of his trial from that of his co-defendants, Gillespie and Sanchez. In Cain v. State, 235 Ga. 128, 129, 218 S.E.2d 856, 857 (1975), this court set out the standards to be considered on a motion to sever: 'But the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal, Tillman v. United States (406 F.2d 930 (5th Cir. 1969)). He must make a clear showing of prejudice and a consequent denial of due process.'

The defendant claims that he was prejudiced by the court's failure to sever his trail because the statements of his co-defendants, which were made out of his presence, were inadmissible against him, though they were admissible against them. Therefore, there was a danger that that evidence would also be considered against him. Cain v. State, supra. However the co-defendants had repeated their statement to the police in the defendant's presence. He not only had failed to object to or correct their version of the facts, but had also added more information including a diagram of his route to the murder scene. In doing so, he adopted their statements as his own, and consequently the statements were also admissible against him. Crawford v. State, 236 Ga. 491, 224 S.E.2d 365 (1976); Hill v. State, 232 Ga. 800, 209 S.E.2d 153 (1974).

Furthermore, to his benefit the statements of these co-defendants corroborated Stovall's story that he had no knowledge that the other two had guns and intended to shoot Doster. Since Stovall showed no prejudice in being tried jointly, the trial court did not err in failing to grant his motion to sever.

3. Appellant's third, fourth, fifth and sixth enumerations of error relate to the charges given by the trial court. The third enumeration of error regarding the trial court's refusal to give a requested charge on voluntary manslaughter was decided adversely to defendant's position in co-defendant David Gillespie's appeal. Gillespie v. State, supra.

In his fourth enumeration Stovall claims the charge on conspiracy was harmful to him because there was insufficient evidence to support a conspiracy which included this defendant. There was, however, evidence that Stovall's girlfriend had bought .22 ammunition and that it had later been given or sold to Gillespie, that Stovall knew of and was part of the plan to find Doster and beat him up, and that Stovall had deliberately backed his car into Doster's to prevent him from driving away. A cellmate testified that Stovall told him in jail about a week after their arrest that the three defendants had planned to meet Doster, that both Sanchez and Gillespie had hidden behind the seat, then had risen up and shot him, and that his 'chick' had done away with the weapons. We consider this evidence more than sufficient to authorize a charge on conspiracy as to defendant David Stovall.

In addition, the court charged that, 'if you find there was no conspiracy or that the defendants or either of them was not a party to that conspiracy, then as to him or them you would disregard this charge on conspiracy that the court is about to give you.' Enumeration 4 thus has no merit. Similarly we find no merit to Enumeration 5 where the defendant complains in essence that the charge on conspiracy was incomplete because the words 'to commit a forceable felony' did not follow the word 'conspiracy' every single time it was used. The charge, viewed as a whole, was clear and complete. See ...