Thomas v. State
| Decision Date | 28 November 1977 |
| Docket Number | No. 32259,32259 |
| Parties | Joseph THOMAS v. The STATE. |
| Court | Georgia Supreme Court |
Mary M. Young, Albany, Millard C. Farmer, Jr., Atlanta, for appellant.
A. Wallace Cato, Dist. Atty., Bainbridge, Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Staff Asst. Atty. Gen., Atlanta, for appellee.
Joseph Thomas, appellant here, and one Ivon Stanley murdered Clifford Floyd on April 12, 1976, by shooting and beating him savagely and burying him alive. Thomas was tried separately and was convicted of murder, armed robbery and kidnapping with bodily injury, receiving three death sentences. This is his appeal and mandatory review of the death penalty. We have affirmed Stanley's conviction and two death sentences in Stanley v. State, 240 Ga. 341, 241 S.E.2d 173 (1977).
On April 12, 1976, Clifford Floyd, the victim, was making his regular Monday afternoon rounds through the Fowlstown area of Bainbridge, Georgia, collecting weekly insurance premiums. Five weeks earlier Thomas and Stanley had been overheard talking about robbing the insurance man because they needed some money. About one month prior to the murder they were again overheard by a different person discussing the planned robbery. The two agreed that after the robbery they would "have to get rid of him because he will tell who we are." Subsequent events are described from Thomas' statements.
On April 12 Floyd came by Thomas' house to collect a premium. When he left, Thomas sent a friend over to Stanley's house "to tell Ivon to come over to my house." Stanley Stanley ran from Thomas' house and caught up with Floyd. On a pretext he persuaded Floyd to return to the Thomas residence. Stanley was armed with a .22 caliber pistol which Thomas had just given him. When Thomas came out of the house Stanley had already pulled the gun on Floyd, emptied his pockets and told him not to move and not to say anything. Stanley, armed with the pistol, and Thomas, carrying a hammer, forced Floyd to go with them to the woods near the Thomas house. As they were walking, Floyd and Thomas exchanged some words. Angered, Thomas struck Floyd on the forehead with the hammer. Thomas walked back up to the hog pens near his house, got a length of rope, and returned to the woods where the other two were. Again leaving Stanley and Floyd alone, Thomas went back to where Floyd had parked his car and drove it away in search of a hiding place. He rifled the car, broke into the glove compartment and removed a .22 caliber pistol. Leaving the car he walked back to where he had left the other two men.
When Thomas returned, he found Floyd tied to a tree. Stanley said, "You know, you know, we gonna have to, you know he knows." Thomas responded, "Yeah." "You know, we are gonna have to get rid of him," said Stanley. Thomas said nothing, then went back to his house, got his mother's shovel and returned.
With the shovel, Thomas began digging a shallow grave perhaps 11 inches in depth. Tiring, he gave the shovel to Stanley who finished "digging that insurance man's grave."
When they had completed the grave, Stanley went over and untied Floyd from the tree but left his hands bound. Considerable blood was flowing from Floyd's forehead. Thomas ripped part of the shirt from the man's back and stuffed it into his mouth to silence him. As they approached the grave, Stanley handed the gun to Thomas and told him, "You gonna do the rest. . . ."
Taking the gun, Thomas turned his head away and fired five times at Floyd's head. Stanley then took the shovel that had been used to dig the grave and hit Floyd with it twice. He handed the shovel to Thomas who beat the man with the shovel. He hit him once in the stomach, twice in the head and one time in the chest. Floyd was still alive. Stanley then began to shovel dirt over the lower part of Floyd's body. When he had partially buried the man, he handed the shovel to Thomas who then began to shovel dirt over Floyd's head. Through all of this, Floyd was not only struggling for breath but, as the dirt began to cover his head, he attempted to say something. Twice, according to Thomas, the insurance man had pleaded for his life.
When Floyd, still breathing, was completely covered in his shallow grave, the two men left, Thomas returning to his home. At around 6:00 P.M., as Thomas was finishing supper, Stanley came over to his house and said that they had "(b) etter go move that car." They drove the car down an old logging road where they eventually bogged down. The car was ultimately discovered by law enforcement officials.
At the time of Floyd's last known collection he would have collected approximately $234.00.
Beginning the next day, four anonymous telephone calls were made to police telling them where they could find the car and giving misleading information about the victim. Through a telephone tap, one of these calls was traced to Thomas' home. When police arrived, he was the only one at home. He subsequently admitted making the call.
An autopsy, performed by James Dawson, Assistant Director of the Georgia Crime Laboratory, disclosed a gunshot wound through the victim's upper lip; numerous lacerations to the scalp, head, and body, apparently inflicted by the leading edge of a shovel; a depressed skull fracture pushed into the brain consistent with a blow from a hammer; brain hemorrhage; a broken sternum; and "a rather striking accumulation of both blood and dirt which was found in the bronchi of both lungs, scattered up and down the trachea and in the larynx and also in the upper-most part of the stomach. . . ." Based upon the autopsy, death was caused by swallowing a mixture of blood and dirt, vomiting it up then inhaling the regurgitated mixture into the lungs. In sum, Clifford Floyd either strangled or suffocated on his own blood within about thirty minutes as he lay buried in the shallow grave.
Thomas was arrested two days after the murder and confessed in intricate detail to this crime. His confession was tape-recorded seven days after the murder and was introduced at the trial. He took the stand and testified that he had no memory of the incident after ingesting two pills given or sold to him by "some dude" in Macon. He also claimed no memory of the telephone calls or of the confession given seven days later.
1. In his first enumeration of error, Thomas alleges: "The trial court erred in denying the defendant funds with which to hire experts for use in his trial . . ." He contends that he requested (a) an electronics expert, (b) a forensic pathologist, (c) a drug analysis expert and (d) a psychiatrist.
Patterson v. State, 239 Ga. 409, 412, 238 S.E.2d 26 (1977). Accord, Welch v. State, 237 Ga. 665, 672, 229 S.E.2d 390 (1976); Holsey v. State, 235 Ga. 270(3), 219 S.E.2d 374 (1975).
( a). The record does not show that Thomas ever moved the trial court to appoint or pay for an electronics expert to examine his taped confession, though there was a brief discussion of a continuance for his counsel to seek to obtain such an expert. Accordingly, the enumeration of error on this point is groundless.
( b). Thomas' claim that he needed a forensic pathologist to assist him in understanding the autopsy report by Dr. Dawson, of the State Crime Laboratory, is hard for this court to comprehend. The defense does not deny that Floyd was brutally murdered, nor do they deny that Thomas murdered him: the sole defense is the two pills Thomas testified he swallowed before the killing. What was there to understand about this autopsy report on the victim? Mr. Farmer was asked this question on oral argument in this court, and gave no satisfactory answer.
There is no indication of any information possessed by the State Crime Laboratory that was not furnished to Thomas' counsel. As a matter of fact at his committal hearing his trial counsel stated that she knew "fully what the doctor has testified to (concerning the autopsy)."
Dr. Dawson was qualified as an expert at the trial; testified fully; and was cross examined by Thomas' counsel. No error on Dr. Dawson's part has been shown, and no need for appointment of a forensic pathologist for Thomas has been shown. The enumeration of error on this point is without merit.
( c). Thomas filed a pre-trial motion for a drug analyst. The stated basis for this request was for the expert to "examine drug samples belonging to the defendant." Thomas alleged that he obtained four pills of unknown chemical content and ingested two of these before the offense and hid the other two in his house. However, he was given every opportunity to produce these pills and he always came up empty-handed. His counsel made no effort to search for the two remaining pills until the trial was in progress. The court then ordered a search and when it was unsuccessful, ordered another. The second search of the house with Thomas present to assist failed to produce the pills. In short, there were simply no drugs for a drug analyst to analyze, and the enumeration on this point is without merit.
In any event, Dr. Bosch, the state's examining psychiatrist, testified that it was possible for a drug to "overmaster (a) person's will or impel him to commit a crime." This was about as favorable as any testimony Thomas could hope for from his own drug analyst. No error has been shown.
(d). Finally, Thomas made a pre-trial motion for a psychiatric examination. The trial court ordered that he be transferred to Central State Hospital for psychiatric observation and evaluation. Once there, he refused to discuss...
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