Strong v. State

• Decision Date: 21 May 1974
• Docket Number: No. 28786,28786
• Citation: 206 S.E.2d 461,232 Ga. 294
• Parties: Jerry Wayne STRONG v. The STATE.
• Court: Georgia Supreme Court

Page 461

206 S.E.2d 461

232 Ga. 294

Jerry Wayne STRONG v. The STATE.

No. 28786.

Supreme Court of Georgia.

May 21, 1974.

Lipscomb & Manton, John P. Manton, Cumming, for appellant.

C. B. Holcomb, Dist. Atty., Canton, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

This appeal arises from the trial, conviction and sentencing of the appellant in the Superior Court of Forsyth County for the offenses of felony murder and armed robbery. Appellant received a sentence of life imprisonment for the offense of murder and five years imprisonment for armed robbery. The robbery and homicide involved in this case produced an earlier, separate trial and appeal in the case of Conroy v. State, 231 Ga. 472, 202 S.E.2d 398 (1973), in which this court reviewed and affirmed the conviction and life imprisonment sentence of Charles E. Conroy for murder in the commission of armed robbery.

A detailed statement of the facts relating to the felony (robbery) murder of Robert Glenn Cagle, Sr., on June 22, 1972, can be found in the case of Conroy v. State, supra, and the facts proven at that trial will not be repeated here. A statement of the evidence at this trial necessary for consideration of the alleged legal errors asserted in this appeal will be included in this opinion.

Appellant's brief does not dispute proof of the occurrence of the armed robbery and of Robert Glenn Cagle, Sr., but vigorously denies the complicity of appellant in these crimes. The argument is made that: 'The only witness that rendered any direct testimony that would tend to implicate the appellant was Kenneth Leroy Suttle who testified as to an alleged conspiracy between (Charles) Conroy and (appellant) Strong which included statements against the interests of the appellant, Strong. The defendant, Strong, in his unsworn statement to the court admitted knowing Suttle but denied any involvement in the indicted crimes.' Appellant insists that 'without the testimony of Suttle, there is absolutely and positively not one shred of incriminating testimony either directly or indirectly that would permit or authorize a conviction of the appellant.'

Several enumerations of error complain the evidence is insufficient to establish appellant's guilt. Consequently, the evidence relating thereto must be reviewed to consider these contentions. The State contended that a conspiracy existed between Charles E. Conroy and appellant Jerry W. Strong to commit the armed robbery charged against appellant and that the death of Robert Glenn Cagle, Sr., occurred during the commission of the robbery. Kenneth Leroy Suttle testified on behalf of the state that he occupied an apartment in the Atlanta area during June, 1972, with appellant and Charles E. Conroy, and that on the evening of June 21, 1972, at the apartment, the appellant told Suttle in a conversation with him that appellant and Conroy' were planning an armed robbery.' Suttle further testified that Conroy and appellant left the apartment in a 1968 or '69 Chevrolet convertible around 5:00 or 5:30 p.m. on June 22, 1972, and that he did not see appellant again until appellant returned to the apartment around 10:00 or 10:30 a.m. on June 23, 1972, looking soiled with tattered clothing. Suttle further related that upon appellant's return to the apartment, the appellant asked about Charles Conroy and stated that appellant thought Conroy, whom he called 'Fat Boy,' might be mad at him for running out on him; that when appellant saw 'that pair of feet sticking out and thought they were Mr. Conroy's he lit out on foot and went down through the woods across streams and . . . that he thought the dogs were so close he could almost feel their breath.' Suttle also testified that Conroy finally came back to the apartment later that same day (June 23rd) around 5:30, 6:00, p.m. and said 'we had to move.' Suttle testified that Conroy had in his possession a blue duffel bag which he carried with him when the three of them left the apartment and went to a motel in the Atlanta area before Conroy and Strong took Suttle out of the state. Suttle's testimony also discloses that he observed the contents of the duffel bag and it contained 'some currency in the form of several coins, some still in coin wrappers and there was bills, green currency along with it.' Suttle also testified that, in the presence of appellant, Conroy told Suttle that he had killed Mr. Cagle and appellant Strong then said that 'he wished he had been the one that had blown Cagle away.'

Another witness for the State, Thomas E. Coleman, testified that he observed a blue and white Chevrolet convertible, bearing Mississippi license plate No. 25 C 71364 parked near his residence at an Atlanta area apartment house on June 21 and 22, 1972, and remembered seeing Charles Conroy and another man together, with Conroy driving the Chevrolet convertible. An agent of the Georgia DOI testified he removed a .38 caliber Colt revolver from underneath the driver's seat of a 1968 blue Chevrolet convertible with a white top which was found abandoned on the evening of June 22nd near the scene of the crimes and that the automobile bore Mississippi license plate No. 25 C 71364. Billy Sweatman, an employee of Robert Glenn Cagle's service station and auto parts store, testified that a blue 1968 or 1968 Chevrolet convertible containing two men arrived at the Cagle business around 7 p.m. on June 22nd and one of them was heavy set while the other was a slimmer man. Sweatman testified that he could identify Conroy as the heavier set man, but could not be sure that appellant was the slimmer man. He further related that, 'the slimmer guy pulled a gun . . . and told us it's a robbery . . . lie down on the floor,' and while he was on the floor, he saw the slimmer man fire his gun at Cagle. Sweatman also testified the two men took the cash box from Cagle and after the gun shots one of them ran out of the store leaving the other one inside the store. Sweatman stated that when the last man left he heard the tires squeal on the car outside and he then got up from the floor. Other witnesses for the state established Mr. Cagle's death as a result of the gun shot wounds he received during the robbery.

Another witness for the state, William R. Smith, said he was outside the store but nearby at the time and stated that he first saw a slim man with a gun in his hand running away from the Cagle business and the man 'got over the fence and started down through the woods or pasture . . .'; that the heavy set man subsequently came out of the Cagle store with a 'box and a gun in his hand.' Paul Hare, also testifying on behalf of the state, said he saw a man with what the witness thought was a pistol in the man's hand running away from the direction of Mr. Cagle's business and across the road, into the woods, after the witness heard gun shots or something sounding like firecrackers at the Cagle store. Mrs. Ann F. Cagle, wife of the deceased victim, identified the .38 caliber Colt revolver found by the DOI agent, in the abandoned Chevrolet convertible, as being the handgun of her husband. A Deputy Sheriff of Forsyth County, involved in the search for the slim man seen leaving on foot from the Cagle store, testified that bloodhounds were used in the search for the man.

The appellant, Jerry W. Strong, in an unsworn statement to the jury, admitted coming to the Atlanta area with Kenneth Suttle and told the jury that he met Charles Conroy through Suttle after arriving in the Atlanta area in early June, 1972, but denied ever talking to Conroy about 'robbing Mr. Cagle or anyone' and denied that he murdered Cagle or participated in the armed robbery. He also told the jury he had been in trouble before but had 'never been convicted of a murder case . . .'

The witness, Kenneth Suttle, whose testimony for the state connected appellant Strong with these crimes of armed robbery and murder, admitted on cross examination by appellant's counsel, without objection from the state, that he had a long history of arrest and criminal activity, including theft, forgery, bad checks, and an untried charge of possession of an illegal weapon.

The jury trying this case heard all of Suttle's testimony and must have considered his background in evaluating the credibility of the witness and his sworn account of the appellant's admitted participation in the armed robbery of the Cagle store which resulted in the death of Mr. Cagle. Appellant's counsel urges that this evidence is insufficient to convict the appellant. Admittedly, the evidence of appellant's guilt in this case is weaker than the evidence of Charles E. Conroy's guilt in that case. Nevertheless, we cannot hold it is insufficient as a matter of law. We are not authorized to substitute our opinion as to the weight of the evidence for the opinion of the trial jury and the judge presiding in the case. The jury, having heard and considered all of the evidence in the case, believed the state's witness, Kenneth Suttle, concerning appellant's complicity in the crimes charged against him. The trial judge had occasion not only to hear the witnesses and observe their demeanor during the trial but also reviewed the sufficiency of the evidence after the trial in connection with a motion for a new trial made by appellant. We find the evidence is legally sufficient and since the jury's verdict of guilty has the approval of the trial court, we shall not disturb it on appeal. Killen v. State, 50 Ga. 223 (1873); Brown v. State, 125 Ga.App. 300(4), 187 S.E.2d 301 (1972). It matters not whether it was appellant or Charles Conroy who actually fired the gun during the robbery which resulted in Cagle's death. The act of one was the act of the other in the commission of the armed robbery and the ensuing death which resulted therefrom. See Code Ann. §§ 26-801, 26-802. As stated, though the evidence here is not as substantial as in Charles Conroy's case, it did authorize the jury to conclude,...