Tamplin v. State, 29954
| Decision Date | 11 September 1975 |
| Docket Number | No. 29954,29954 |
| Citation | 218 S.E.2d 779,235 Ga. 20 |
| Parties | Roland TAMPLIN v. The STATE. |
| Court | Georgia Supreme Court |
This is a death case. The jury found Roland Tamplin guilty, on a three count indictment, of murder with malice aforethought, felony murder and armed robbery. After the court instructed the jury that it could not impose sentences on both murder convictions, the jury imposed the death sentence for murder with malice aforethought, finding as aggravating circumstances that it was committed during commission of a capital felony, and imposed a life sentence on the armed robbery.
Defendant's motion for new trial was overruled and he appeals upon six enumerations of error: (1) that the verdict was contrary to the law and evidence; (2) that a key witness for the State gave incorrect testimony which was not corrected by the prosecutor; (3) that the trial court erred in not charging the jury, without request, that the testimony of accomplices should be viewed with caution; (4) that the trial court should have granted a mistrial on its own motion when, during sentencing argument, the prosecutor alluded to, and defense counsel thereafter commented upon, the possibility of parole in violation of Code Ann. § 27-2206; (5) that appointed trial counsel rendered ineffective assistance; and (6) that the death penalty is unconstitutional.
1. The verdict was not contrary to the law or the evidence, which was as follows: The defendant and Willie Raines were living in an apartment shared with Paula Carter and others. Defendant, Raines and Richard Daniel planned to rob the convenience food store where Paula Carter worked. She did not participate in the original plan. At the time of the robbery, Daniel was in the car and Raines was outside. Inside were the defendant, Paula Carter and the victim.
Paula Carter testified that the defendant hit the victim on the back of the head with the handle of a pistol, knocking him down, and that the defendant then shot the victim in the temple. Willie Raines testified that upon hearing the shot he entered the store and saw the defendant with the gun in his hand. The defendant and Raines took the money and met Daniel. Paula Carter stayed at the store and at first gave a false report to police.
Upon returning to the apartment, the defendant told another occupant that he had killed a man. When Paula Carter returned to the apartment, she asked the defendant why he killed the man and he answered but did not claim that the gun went off accidentally. The defendant later admitted the killing to another occupant of the apartment, stating that he did not mean to do it.
In his subsequent confession to police, the defendant stated that the gun discharged when he hit the victim with it.
The medical examiner testified that the victim died as a result of a gunshot entering the head at the right eyebrow and that he had bruises at the back of the head. Other witnesses testified that the bullet removed from the victim was fired from a gun traced to the defendant. The defendant did not testify.
The evidence supports the verdicts.
2. Defendant contends that the key witness for the State gave false testimony which was not corrected by the prosecutor. On cross examination, Paula Carter was questioned as to a meeting with her attorney and an assistant district attorney regarding the charges against her and her testifying in this case, as follows:
At the hearing on the motion for new trial, Paula Carter's attorney testified that the assistant district attorney had offered a recommendation of three years to serve if she testified for the State, that the matter had been presented to one judge of DeKalb Superior Court by counsel in the presence of the assistant district attorney, that the judge had declined to be committed to the recommendation but had stated that he would be inclined to follow recommendations of the district attorney, and that Paula Carter had been informed of these matters, both outside and in the presence of the assistant district attorney, along with the advice that counsel felt certain the recommendation would be followed.
Defendant's counsel on appeal urges that under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217, and Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706, it was the obligation of the assistant district attorney who tried this case to correct 'Paula Carter's incorrect testimony.
We disagree, for two reasons. First, the testimony was not false because, at the time of testifying, Paula Carter had not been promised she would get a three-year sentence. She had been informed that she would get a recommendation of a three-year sentence. No judge had sentenced her at that time or agreed that he would later sentence her to three years. Paula Carter admitted that the recommendation would be less than a life sentence. The fact that the recommendation would be three years did not come out during the trial.
Secondly, Giglio, Napue and Moore, supra, require that where a witness for the state testifies falsely, and that testimony is known to be false to the district attorney's office, and that testimony is not corrected, a new trial must be granted. In Giglio, the Court said: 'We do not, however, automatically require a new trial whenever 'a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict . . ." 405 U.S. at 154, 92 S.Ct. at 766.
Here the uncontradicted evidence is overwhelming that the defendant robbed and shot the deceased. At a minimum the defendant is guilty of felony murder, to which he confessed and as the jury found. The only variance between Paula Carter's testimony and the defendant's confession is whether the shooting was deliberate (malice murder) or occurred in the commission of a felony (felony murder). Under these circumstances the fact that the recommendation would be a sentence of three years would not likely have changed the verdict.
The trial court did not err in overruling the defendant's motion for new trial based upon newly discovered evidence as to Paula Carter.
3. The defendant contends that the trial court erred in failing to charge the jury, without request, that the testimony of accomplices should be viewed with caution.
Acknowledging that the rule in this State is contrary to his position, the defendant urges us to adopt Tillery v. United States, 411 F.2d 644 (5th Cir.). In Tillery the court held that when the testimony of an accomplice comprises the total evidence against the accused and such evidence is shown to be unreliable if not incredible, it is 'plain error' under Rule 52(b), F.R.Crim.P., for the District Court to fail to charge that the testimony of an accomplice should be received with caution and viewed with skepticism.
In the case before us there was testimony from two accomplices, three confessions by the defendant to police and others, and ballistics evidence. The testimony of the accomplices was not the total evidence against the defendant.
Moreover, federal courts allow a conviction on the uncorroborated testimony of an accomplice, if not incredible or unsubstantial on its face. Tillery, supra, 411 F.2d at 648. The rule in Georgia is that in felony cases the testimony of an accomplice must be corroborated. West v. State, 232 Ga. 861(2), 209 S.E.2d 195; Code § 38-121.
Because of Georgia's requirement of corroboration, we decline to add to this requirement that where there is testimony from two accomplices, three separate confessions, and other evidence of guilt, the court must charge, without request, that the testimony of an accomplice should be received with caution and viewed with skepticism. See Spear v. State, 230 Ga. 74(1), 195 S.E.2d 397; Thomas v. State, 234 Ga. 615, 216 S.E.2d 859.
We find this enumeration of error to be without merit.
4. Defendant contends that a mistrial should have been granted by the trial court on its own motion because of arguments made in the sentencing phase of the trial by the prosecutor and defense counsel.
After the jury found the defendant guilty, argument of counsel was presented to the jury as to the sentences. The prosecutor asked for the death penalty, contending that this was not a murder committed in passion but was the shooting of a witness to the armed robbery. He argued that if such murders were not punished by death, robbers would kill the witnesses. Then he said: Later he argued that defense counsel would say that taking the defendant's life will not restore life to the victim, and said:
Defendant...
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