CONKLIN v. THE STATE., 254 Ga. 558, 331 S.E.2.d 532 (1985)
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Judgment affirmed. All the Justices concur.
Summary
Judgment affirmed. All the Justices concur.
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Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Assistant District Attorney, Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Assistant Attorney General, for appellee.Kenneth D. Feldman, John Thomas Chason, for appellant.
This is a death penalty case. Appellant, Robert Dale Conklin, was convicted in Fulton County for the murder of George Crooks. The case is here for consideration of Conklin's direct appeal, for review of the case under the Unified Appeal Procedure (252 Ga. A-13 et seq.), and for the sentence review required by OCGA
The Evidence
Several of Conklin's enumerations of error question the sufficiency of the evidence supporting the conviction for malice murder and the death sentence imposed for that offense. These enumerations do not seriously question the sufficiency of the evidence to show that Conklin "caused the death of" George Crooks (OCGA
The contested issues here include provocation, justification and the jury's finding that the murder "was outrageously or wantonly vile, horrible, or inhumane, and that [it] involved depravity of mind by the perpetrator." See OCGA
cut him in half so I could get him out of there. After I had done that, he was still too big to move, too heavy, so I decided I had to cut him in smaller pieces. All of this I did in the bathtub. For most of the day I went ahead and worked on him. It was a big mess, I'm telling you. I decided there would be less of him to move if I could put some of him down the garbage disposal. Fortunately [sic], he would not fit, so I cut him up in even smaller pieces. These I was able to stuff into the garbage disposal, but it turned out that the garbage disposal would not accept him. So I pulled all that out, took it back upstairs to the bathroom and cleaned up the kitchen and everything the best I could. I then went ahead and cut the rest of him up in small enough pieces to put in the bags. Before I could get all of this done I got a call from a friend of mine who was in the neighborhood and he said he was going to stop over. Since normally I tell him to come over, I told him to come on over. It was D-- M-- and his wife. I cleaned up everything downstairs before he got there the best I could. Between 3:00 o'clock and 5:00 that evening, I had gone to a meeting for work. I was gone for a couple of hours. And D-- came over about 7:00 or 8:00 o'clock. Shortly after he was there, another friend showed up, S-- L--. And D-- and his wife left and S-- and I sat around and drank beers. After a while S-- left and I went back upstairs, finished putting him in the bags. I found that I couldn't even carry all the bags, so I went to K-Mart and bought a garbage can. I think it was also at Handy City I bought a push cart to put the can on so I could move the can. I went ahead and filled up the garbage can with these bags and they would not all fit, so I left some of the bags with George in them outside. Later on that night it started to rain, so I went ahead and took the trash can with the cart, took it to the dumpster, unloaded all the bags. Before I did this I cleaned up the bathroom. I also took the sheets, blankets and other stuff and put that in the trash can with him. I don't remember if it took two or three trips. I know it took at least two trips to get all that out there. I then went back and cleaned the apartment some more trying to get the blood and everything else up. Eventually I fell asleep on the couch and I woke up the next day. I had to be at work so I went ahead and took a shower, got ready for work and I was running late so I didn't finish cleaning up everything. I went out to my car, got into my car and drove around the building the way I usually go. But when I turned the corner, I noticed there was a tape across the road and people were digging stuff out of the dumpsters I didn't know if they would connect me with it or not but I decided it would be to my best interest not to be around. So instead of going to work, I went ahead and drove around to try to figure things out awhile. I decided that it wouldn't be a good idea to go back to the apartment unless I knew for sure that I wasn't a suspect. Then I decided that it would be best that I left altogether and assume that I was a suspect until I found out otherwise. I went ahead and got all my money from my bank account using my bank card. I then went downtown, parked my car at the Holiday Inn and wandered around town. I checked the bus station and eventually decided to buy a ticket for Miami. After I had been in Miami a couple, or was it two days, I decided it was not where I wanted to be so I hitchhiked back to Atlanta where I found out I was being sought. I had no place to go and I was broke and hungry. I went back to my apartment where I found the police had already been. I stayed there anyways because I didn't think anyone would be by until that Monday. It was last night, Saturday night, I was discovered and chased. I didn't get to take anything that I had planned on taking when I left, I just left as quickly as possible. So after hiding all night I went back to the apartment to get the stuff that I had left. It wasn't there so I went ahead and got what I could and decided to catch a bus downtown again. On the way to the bus stop I was caught and here I am."
Although his statement mentioned only two wounds having been inflicted prior to death, Conklin admitted in his trial testimony that after Crooks had been stabbed once and rolled off the bed, and after Conklin, sitting on top of Crooks, had "stuck [the screwdriver] in his ear," he had stabbed Crooks a number of additional times while Crooks continued to struggle, saying "give me the screwdriver."
Crooks' body was found in parts in 9 garbage bags as follows:
a. Head with most of the neck, and both hands
b. Right upper torso, shoulder, and arm
c. Lower legs with feet attached
d. Buttocks and pelvic bones
e. Thigh muscle and skin
f. Left upper torso, shoulder and arm
g. Rib cage (with internal organs removed) and spine
h. Two thigh bones (from which the musculature had been removed and put in bag e, above) and the genitalia
i. Lungs, heart, and portions of the liver, kidney, spleen and intestines.
Blood-soaked bed-clothes were also found in the dumpster. The bed in Conklin's apartment had no bed-clothes on it and the mattress was blood-soaked. (The blood on the mattress and the bed-clothes was identified as the victim's.) Inside the garbage disposal were additional internal organ fragments.
Dr. Saleh Zaki conducted the autopsy. He testified that eight stab wounds on the right side of the victim's neck were in his opinion ante-mortem (inflicted prior to death). There was another stab wound in the left ear area which penetrated the upper part of the ear, cut through the ear canal, and extended into the left mastoid area. This wound also was ante-mortem. In addition, there were several areas of bruising about the head and neck that were consistent with blunt-force trauma, i.e., the head hit a blunt object or vice versa. In the lower right side of the neck were two additional ante-mortem stab wounds, one of which penetrated the left lung. In Dr. Zaki's opinion, death was caused by stab wounds to the chest and neck, with a contributing factor being blunt-force trauma to the head and neck.
Conklin admitted at trial that, at least initially, he did not think Crooks was trying to hurt him and that "if he would have hit me as hard as he could [when they were in bed and Crooks was on top], then he would have certainly knocked me out if not done more damage than that." Several witnesses testified that the day following Crooks' death, Conklin was not visibly bruised or otherwise injured, except for a cut on one of his fingers. Conklin testified that he cut his finger in the kitchen while trying to dispose of the various body parts.
Enumerations of Error
1. In his first two enumerations of error, Conklin contends the evidence is insufficient to support the conviction for malice murder, and he complains of the trial court's refusal to either direct a verdict of acquittal or, at least, to reduce the charge to voluntary manslaughter.
(a) The indictment alleges that Conklin "did unlawfully and with malice aforethought cause the death of George Grant Crooks, a human being, by striking and beating him with some object which to the Grand Jurors is unknown, and by stabbing him with a knife."
Conklin argues that since the indictment makes no mention of a screwdriver, the state impliedly concedes that the screwdriver wounds were justified. However, we cannot agree that anything in the indictment can be reasonably construed as an admission by the state that Conklin was justified in wounding Crooks with a screwdriver.
Next, he argues that the state failed to prove that knife wounds were the cause of death. We take this to be an allegation of fatal variance, i.e., the indictment alleges knife wounds when the proof shows screwdriver wounds as causing death.
(b) Conklin contends that since his own statement negates malice and establishes justification, and is consistent with the rest of the evidence, his conviction may not stand. See Harrell v. State,
We disagree.
First, Conklin's statements and testimony show: (1) Conklin became angry and stabbed Crooks at a time when Crooks was not trying to hurt him; (2) Conklin continued to stab Crooks after the latter was on the floor, injured, and Conklin was on top of him; and (3) Crooks was still bleeding (and by inference, still alive) when he was put in the bathtub and Conklin's only concern at that point was to cut the victim's throat so that he would bleed more and thus be lighter.
Second, the blood-soaked mattress and bed-clothes are inconsistent with Conklin's claim that all but the first stab wound were inflicted after Crooks was on the floor, and the fact that Conklin suffered no discernible injury, despite his claim that there was a "struggle," undermines his claim of justification.
Third, Conklin's act of butchery after the victim died is (contrary to his persistent contention throughout the trial) highly probative circumstantial evidence of his state of mind at the time of the killing. Indeed, a set of circumstances more compellingly demonstrating an "abandoned and malignant heart" would be hard to imagine. OCGA
The evidence is amply sufficient to support the conviction for malice murder. Pollard v. State,
2. The death penalty can be imposed only if the jury finds the existence of at least one of ten statutorily enumerated aggravating circumstances. See OCGA
Here, the trial court instructed the jury on this statutory aggravating circumstance following our suggested charge on this circumstance appended to West v. State,
(c) Conklin further argues that in order for a finding of this statutory aggravating circumstance to be upheld, torture or aggravated battery must be found in addition to depravity of mind. However, we specifically stated otherwise in Hance, and it is clear that a finding of the (b) (7) circumstance must include only one of the three sub-parts of the second component of that circumstance. Here, the court explained torture and depravity of mind and the jury, having benefit of this explanation, found depravity of mind and not torture. Clearly, the jury understood these terms, and applied them in a manner appropriate to the facts of this case. Compare Burger v. Zant, 718 F2d 979, 984-985 (11th Cir. 1984).
(d) The aggravating circumstance found in this case is supported by the evidence beyond a reasonable doubt. OCGA
3. Over objection, the death certificate prepared by Dr. Zaki was admitted in evidence (with certain portions deleted). It stated, in pertinent part, that the "immediate cause" of death was "stab wounds to neck and chest" with "other significant conditions" being "head and neck trauma."
(a) In his 3rd enumeration, Conklin contends the report should have been suppressed because it was a scientific report that the state did not furnish to the defense despite a timely written request. See OCGA
We do not agree.
A death certificate is not specifically listed in OCGA
(b) In his 4th enumeration Conklin contends that in any event the death certificate should not have gone to the jury room. See Royals v. State,
4. The trial court did not err by denying Conklin's non-specific requests for expert assistance in the absence of a proper showing of a need for such assistance. See Sabel v. State,
5. By timely written request, Conklin asked the court to charge: "A person in his own home has no duty to retreat." The request to charge was denied and no other charge was given outlining the principles of retreat. In his 6th and 7th enumerations, Conklin complains of these omissions.
(a) The request to charge was, by reason of incompleteness, an incorrect statement of the law. There is no duty to retreat "if the circumstances are sufficient to excite the fears of a reasonable man that a felonious assault is about to be made upon him, and the slayer, who is free from blame, acts under the influence of such fears . . . One who is himself to blame, however, has not the same right of standing his ground . . ." Glover v. State,
The question, then, is whether the court erred by failing to charge on retreat despite the lack of a proper request. We conclude that the answer is no.
We observed in Johnson that "the statutory charge on justification is sufficient in most cases." Id. at 38. Here, in contrast to Johnson, the state did not raise the issue of retreat, nor was self-defense the sole defense. (In addition, Conklin contended that the state had failed to prove absence of provocation.) Johnson is therefore inapplicable, and we find no error here.
6. The court charged: "The defendant enters upon the trial of this case with a presumption of innocence in his favor. That presumption remains with him throughout the trial of the case until and unless the state produces evidence in your presence and hearing sufficient to satisfy your minds beyond a reasonable doubt of the defendant's guilt of the offense charged."
In his 8th enumeration, Conklin contends the charge was defective because the court did not say that the presumption of innocence is "in the nature of evidence." We find no error. Ford v. State,
Nor can we agree with the further contention that the trial court committed reversible error by only telling the jury what a reasonable doubt is not, and not what it is. Compare Foster v. State,
7. The trial court did not err by instructing the jury in accordance with the "better practice" outlined in Alexander v. State,
8. In his 10th enumeration, Conklin complains of the exclusion of testimony by an attorney who had known the victim and had observed specific acts of violence and displays of temper by the victim.
We find no error. "Although a defendant may in certain circumstances introduce evidence of specific acts directed by the victim toward the defendant to show defendant's reasonable belief that he is being assailed by the victim so as to support a defense of self-defense, evidence of specific acts of violence toward others is not admissible to prove reputation for violence." Harrison v. State,
9. Dr. Zaki brought to the courtroom a number of slide photographs taken during the autopsy. Out of the presence of the jury, the issue of their admissibility was addressed. All but one were excluded as irrelevant to the limited purpose for which they were offer;ed (to show the cause of death), or were otherwise inadmissible for reasons stated in Brown v. State,
Conklin's attorneys moved for a mistrial. The court denied the motion, finding as a fact that the display was accidental, and expressing doubt that any of the jurors knew what the photograph portrayed, absent any testimony to explain it. Defense counsel asked the court to forego curative instructions, and none were given.
In his 11th enumeration, Conklin contends the court erred by denying the motion for mistrial.
It is well settled that the decision whether to grant a mistrial is one committed to the sound discretion of the trial court. See, e.g., Sabel v. State,
Instead of immediately arguing to the Jury, the prosecutor began the ancient ritual of "reading law" to the court. See McMath v. State,
"The practice complained of here is condemned. In all civil cases the jury shall receive the law exclusively from the trial judge and any departure from this rule will constitute reversible error." 129 Ga. App., supra at 814-815. (Emphasis in original.)
This rule has not heretofore been applied in criminal cases. See Griffin v. State,
11. Enumerations 13 and 14 raise two additional complaints about the state's closing argument.
(a) At the guilt-innocence phase of the trial, the state argued: "And as the evidence pointed out, I think he's a male prostitute on top of it." Conklin moved for a mistrial, which implicitly was denied. No curative instructions were sought or given. Conklin argues here that the state improperly expressed a personal opinion not supported by the evidence.
Despite the phraseology ("I think"), this portion of the state's argument can most reasonably be interpreted as an attempt to draw an inference from the evidence and not to state an opinion based on personal knowledge of matters not in evidence. Although no direct evidence established that Conklin had committed acts of male prostitution, the evidence did show that he had participated in homosexual activity while in prison, had met the victim at an interstate highway rest area, and had engaged in non-reciprocal homosexual acts with the victim. (These facts were, of course, admitted by Conklin in order to explain his conduct, as an intrinsic part of his theory of justification or, at least, serious provocation.) Although the inference drawn by the state from these facts is rather tenuous, nonetheless, it does not so add to the nature of the evidence that was presented regarding Conklin s sexual activities as to require a mistrial, and we find no abuse of discretion in the denial thereof. Felker v. State,
(b) The state's closing argument at the sentencing phase of the trial proceeded, in its entirety, as follows:
"Ladies and gentlemen, as you are aware, this is the sentencing phase of the trial. The state is proceeding on the statutory aggravated circumstance that the offense of murder was outrageously or wantonly vile, horrible or inhuman; that it involved torture to the victim or depravity of mind by the perpetrator. I think in order to get the full flavor of this case, all you have to do is look at the pictures. Each photo, and you will have these pictures out with you, clearly demonstrate beyond a reasonable doubt that this offense was vile, wantonly vile, horrible and inhuman. The evidence clearly shows that there was torture to the victim in this case because as Mr. Conklin's testimony itself shows the victim was still alive when he inflicted most of those wounds which were approximately twenty. If you look at these exhibits again and look at the various body parts, this shows the organs that he ruthlessly and unmercifully tore out of the man's body.
"This particular photo, which is state's exhibit 64, shows how he filleted the thigh bones and cut the meat off. State's exhibit 71 shows the buttocks that were cut away from the body. And state's exhibit 70 shows another piece.
"State's exhibit 72 is a certified, exemplified copy of the previous conviction of the defendant for the offense of burglary.
"Now, ladies and gentlemen, it's never a pleasant thing when you have to deal with an issue of this sort, but we're dealing with one of the most vile and brutal crimes to come about in this county in recent memory.
"MR. CHASON: May it please the court, this argument is improper. You have already admonished the prosecutor not to make these kinds of comments. It's not based on the evidence, it's irrelevant, and it's improper. I think -- I'm going to ask for a mistrial on this phase of the case at this time.
"THE COURT: I overrule the motion for mistrial.
"You are confined to the evidence, now, Mr. Turner, whatever your argument is.
"MR. TURNER: Yes, sir.
"The evidence in this case shows one thing very clearly. That is, the defendant had not one ounce, not one shred of human compassion for his victim. The evidence in this case shows total depravity of mind and of heart. That's the only way you can do something of this nature. The evidence shows, and I remind you that in his own words after the victim fell off the bed, he went after him, as he says, with the screwdriver in his hand. And as you know, after he inflicted the wounds, he went about to torture and cut up the body.
"I expect the court is going to charge you that depravity of mind can be shown through mutilation of a body after death. We expect that the evidence has shown you two things. One, that there was brutal and horrible torture involved in this particular case; and two, that after the victim was killed, he was brutally and ruthlessly cut into many small pieces. The pictures show that. I think the evidence is clear that the death penalty is an appropriate punishment, here.
"I ask you to listen to the court's charge, and I ask you, based on the evidence in this case, to do your duty as citizens of Fulton County."
A prosecutor ought not make comparisons in his closing argument between the case at hand and other cases with which he is personally familiar, nor imply that he has "canvassed all murder cases and selected this one as particularly deserving of the death penalty, thus infringing upon the jury's decision-making discretion and improperly invoking the prosecutorial mantle of authority." Brooks v. Kemp, 762 F2d 1383, 1413 (11th Cir. 1985). Accord Conner v. State,
Here, the prosecutor argued that this case was "one of the most vile and brutal crimes to come about in this county in recent memory. Despite this implicit reference to other cases, from the context of the statement it can be seen that it was not so much an invocation of prosecutorial expertise as it was an apology for having to bring gruesome items of evidence to the jury's attention, and an explanation of the state's reason for doing so -- i.e., the evidence was gruesome because the crime was "vile and brutal." Moreover, in view of the evidence presented to this jury, it is unlikely that prosecutorial experience or expertise played a discernible role in the jury's evaluation of the vileness and brutality of Conklin's crime.
For these reasons, we find no abuse of discretion in the court's denial of the motion for mistrial. Nor do we find any error in the court's failure to give additional curative instructions absent any request therefor.
12. Photographs of the victim's dismembered body were properly admitted at the sentencing phase of the trial. Conklin cannot now be heard to complain that the crime he committed was too horrible for the jury to observe in deciding whether or not to impose the death penalty. Enumeration 17 is without merit.
13. Absent a showing that any cognizable group was significantly underrepresented on the Fulton County jury lists, the fact that the voter list is the sole source of jurors in Fulton County provides no basis for reversal of the conviction. Ingram v. State,
14. During jury deliberations, the court received a note from a juror asking about certain evidence. The trial court conferred with the attorneys and stated its intention to make no response to the note. Attorneys for both sides agreed with this course of action and no response was made.
In his 18th enumeration, Conklin contends that he personally was not present during this conference and that he was therefore denied his right to be present at all stages of his trial. For reasons discussed in Finney v. Zant, 709 F2d 643, 646 (11th Cir. 1983), we find that even if Conklin was absent while the note was being discussed (which is not at all clear from the record) any possible error is harmless beyond a reasonable doubt.
16. In his 20th enumeration, Conklin urges to set aside his death sentence on the ground that it is disproportionate to penalties imposed in other cases tried in Fulton County.
The state responds that it would strain reason to find that "a homosexual relationship leading to a brutal beating, followed by cutting the throat of the living victim and hanging the body upside down while the blood was drained into the bathtub, followed by a complete dismemberment of the body and disposal in a dumpster, is just a 'plain vanilla' killing in Fulton County."
We agree, and find that Conklin's death sentence is neither excessive nor disproportionate to penalties imposed in similar cases in Fulton County or in this state generally, considering both the crime and defendant. OCGA
17. The death penalty was not here imposed under the impermissible influence of passion, prejudice, or other arbitrary factor. OCGA
APPENDIX.
Blanks v. State,
1985
Notes:
1. The jury returned its sentencing verdict June 16, 1984. Conklin filed a motion for new trial on July 2, 1984, which was amended August 29, 1984, heard on August 30, 1984, and denied the same day. The case was docketed in this court on October 29, 1984, and orally argued January 14, 1985.
2. The jury's verdict used the word "inhumane" rather than "inhuman." However, these two words mean essentially the same thing. Webster's New World Dictionary of the American Language (World Publishing Co. 1970).
3. Despite the state's contention that the admission of the death certificate was somehow required by the best evidence rule, in fact, both the fact of death and the cause of death may be and usually are established by oral testimony. See Merrill Lynch v. Zimmerman,
4. We note that the case cited as authority for the requested charge also states: "A man who is himself the aggressor, or who needlessly resumes the fight, gains no immunity because he kills in his own dwelling." People v. Tomlins, 107 NE 496, 498 (N.Y. 1914).
5. See Drake v. Kemp, 762 F2d 1449 (11th Cir. 1985) (holding that reading language from Eberhart v. State,
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This document cites
- U.S. Supreme Court - Jackson v. Virginia, 443 U.S. 307 (1979)
- Supreme Court of Georgia - ROSS v. THE STATE., 254 Ga. 22, 326 S.E.2.d 194
- Supreme Court of Georgia - BLANKS v. THE STATE., 254 Ga. 420, 330 S.E.2.d 575 (1985)
- Supreme Court of Georgia - JOHNSON v. THE STATE., 253 Ga. 37, 315 S.E.2.d 871 (1984)
- Supreme Court of Georgia - INGRAM v. THE STATE., 253 Ga. 622, 323 S.E.2.d 801 (1984)
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