James Allyson Lee, 22, was
sentenced to death in June by a Charlton County Superior Court jury. On
Nov. 17, 1996, he shot his 43-year-old stepmother, Sharon Varnadore
Chancey, to death.
Although Mr. Lee pleaded with the jury to spare him
because he wasn't the same man who committed murder, when first
questioned by police, Mr. Lee said killing was so easy it would be easy
to do again.
(270 Ga. 798)
(514 SE2d 1)
Murder. Charlton Superior Court. Before Judge Jackson.
A jury found James Allyson Lee guilty of malice murder, felony
murder, armed robbery, and possession of a firearm during the
commission of a crime. For the murder, the jury recommended a death
sentence, finding the following aggravating circumstances: that Lee
had committed the murder while engaged in the commission of armed
robbery and kidnapping with bodily injury; that Lee had committed
the murder for himself or another for the purpose of receiving money
or any other thing of monetary value; and that the offense of murder
was outrageously or wantonly vile, horrible or inhuman, in that it
involved an aggravated battery to the victim before death. OCGA
17-10-30 (b) (2), (4), (7). Lee's
motion for new trial was denied and he appeals.
The Guilt-Innocence Phase of Trial
1. The evidence presented at trial authorized
the jury to find the following: Lee and an accomplice broke into
a gun store on May 25, 1994, and stole several guns, including a
ten millimeter Glock pistol. Afterwards, Lee and his girl friend
decided to drive to Pierce County to kill Lee's father and steal
his father's Chevrolet Silverado pickup truck. When Lee learned
that his father was not home, he decided to kill his father's
live-in girl friend, Sharon Chancey.
In the early morning hours of May 26, 1994,
Lee's girl friend lured the victim from the house by claiming
that her Toyota had broken down nearby. When Ms. Chancey pulled
up to the Toyota in the Silverado and got out, Lee shot her in
the face and threw her in the back of the pickup. Lee then drove
the truck to a secluded area in Charlton County. After dragging
Ms. Chancey into the woods, Lee reached down to strip two rings
from her. She was still alive, and grabbed his arm. Lee
responded by shooting her two more times and killing her.
After swapping the Silverado and Toyota
license plates, Lee and his girl friend drove to Florida in the
pickup truck. While in Florida, Lee made several incriminating
remarks to friends and his girl friend's sister. At about 11:30
p.m. on May 26, 1994, Lee was stopped for a broken taillight and,
after a check revealed that the Silverado was stolen, he was
The ten millimeter Glock pistol was recovered from the
Silverado, and this gun was determined by a firearms expert to
be the murder weapon. The police also found Ms. Chancey's purse
and identification in the Silverado. Lee gave several
incriminating statements to various law enforcement officials in
Florida and Georgia, including a videotaped confession at the
crime scenes in Charlton and Pierce counties.
The evidence was sufficient to enable a rational
trier of fact to find proof of Lee's guilt of malice murder, felony
murder, armed robbery, and possession of a firearm during the
commission of a felony beyond a reasonable doubt. Jackson v.
Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The
evidence was also sufficient to authorize the jury to find beyond a
reasonable doubt the four statutory aggravating circumstances which
supported his death sentence for the murder. Jackson v. Virginia,
supra; OCGA 17-10-35 (c) (2).
2. Lee complains that the incriminating
statements he made to the police on May 26-27, 1994, were not
voluntary. OCGA 24-3-50.
" 'The standard for determining the admissibility of confessions is
the preponderance of evidence. To determine whether the state has
proven that a confession was made voluntarily, the trial court must
consider the totality of the circumstances. Unless clearly erroneous,
a trial court's findings as to factual determinations and
credibility relating to the admissibility of a confession will be
upheld on appeal.' " [Cit.] Gober v. State,
264 Ga. 226, 228 (2) (b) (443 SE2d 616)
Lee was 19 years old, in police custody only a short time, not under
the influence of drugs or alcohol, not subjected to any physical or
psychological coercion, and he was informed of and waived his Miranda
rights on several occasions. After Lee admitted to killing his father's
girl friend and stealing the truck, a police officer asked him if he
would make another statement on audiotape. Lee agreed, but when the
recording began Lee asked the officer, "What should I do? Should I talk?"
The officer replied, "That's up to you, man. All you're going to do is
help yourself out." Contrary to Lee's assertion, the officer's comment
was not a "hope of benefit" that would render Lee's statement
involuntary under OCGA 24-3-50. See
Gilliam v. State, 268 Ga. 690, 692 (3) (492
SE2d 185) (1997) (encouraging a suspect to tell the truth is not
a "hope of benefit" under OCGA 24-3-50);
Gober, supra at 228 (2) (b); Caffo v. State, 247
Ga. 751, 756-757 (3) (279 SE2d 678)
(1981) (telling a suspect he would "feel better" if he confessed is not
a hope of benefit" under OCGA 24-3-50).
Considering the totality of the circumstances, we conclude that the
trial court correctly found that Lee's incriminating statements on May
26-27, 1994, were voluntary and admissible. Gilliam, supra at 692-693
(3); Gober, supra.
3. Lee's contentions that the State failed to prove the identity of
the victim or that Charlton County was the proper venue for the murder
conviction are without merit. Viewed in the light most favorable to the
prosecution, the evidence was clearly sufficient to support a jury
finding beyond a reasonable doubt that Sharon Chancey was the murder
victim, and that Ms. Chancey was still alive in Charlton County when she
was fatally shot two more times. Jackson v. Virginia, supra.
4. After the State rested its case in the guilt-innocence phase, the
trial court directed a verdict of acquittal on the charge of kidnapping
with bodily injury because the evidence showed that the inception of the
kidnapping was in Pierce County. Potts v. State,
261 Ga. 716, 720 (2) (410 SE2d 89)
(1991) (venue for kidnapping with bodily injury lies within the county
where the victim is seized); Krist v. State, 227
Ga. 85, 91 (4) (179 SE2d 56)
(1970). The trial court, however, refused to direct a verdict of
acquittal on the charge of felony murder even though the felony murder
indictment specifies that kidnapping with bodily injury is the
underlying felony. Lee asserts that this denial was error.
A person commits the offense of felony murder "when, in the
commission of a felony, he causes the death of another human being
irrespective of malice." OCGA 16-5-1 (c).
"A murder may be committed in the commission of a felony, 'although it
does not take place until after the felony itself has been technically
completed, if the homicide is committed within the res gestae of the
felony.' " Diamond v. State, 267 Ga. 249,
250 (2) (477 SE2d 562) (1996). We conclude
that Lee's murder of Ms. Chancey was within the res gestae of the
kidnapping with bodily injury, since Ms. Chancey was under the
continuous control of the defendant until she was killed. To hold
otherwise would lead to the absurdity that a defendant who commits
kidnapping with bodily injury in one county, and abducts the victim to a
second county where he kills her without malice aforethought, could not
be charged with felony murder in either county. See OCGA
17-2-2 (c) (venue for homicide lies in
county where cause of death is inflicted); Potts, supra. The trial court
did not err in denying Lee's motion for a directed verdict of acquittal
of felony murder. In addition, Lee can show no harm resulting from the
denial of this motion. "[S]ince the jury returned a verdict specifying
that it found the defendant guilty of 'malice murder,' any issue of
felony murder is moot." Holiday v. State, 258 Ga.
393, 398 (12) (369 SE2d 241)
5. The evidence was sufficient to support Lee's conviction for armed
robbery, despite Lee's contention that he did not take the victim's
rings until after she was dead. Jackson v. Virginia, supra. It is well-settled
that a defendant commits a robbery if he kills the victim first and then
takes the victim's property. Francis v. State,
266 Ga. 69, 70-71 (1) (463 SE2d 859)
(1995); Crowe v. State, 265 Ga. 582, 594
(21) (458 SE2d 799) (1995); Prince v.
State, 257 Ga. 84, 85-86 (1) (355
SE2d 424) (1987). Moreover, as pointed out in Division 3, the
evidence was sufficient to authorize the jury to find that Ms. Chancey
was alive when the robbery took place.
6. Lee requested a charge in the guilt-innocence phase that a corpse
is not a person. See Lawson v. State, 68 Ga.
App. 830 (24 SE2d 326) (1943), overruled by McKee v. State,
73 Ga. App. 815 (38 SE2d 184) (1946).
Lee wanted this instruction in order to support his contention that, if
Ms. Chancey was dead when her rings were removed, there was no taking
from a person, and therefore no armed robbery. Since this charge is not
an accurate statement of the law, the trial court correctly declined to
give it. Francis, supra at 70-71 (1); Crowe, supra at 594 (21).
The Sentencing Phase of Trial
7. While awaiting trial, Lee escaped from jail on July 25, 1995. He
stole a Lincoln Town Car and drove to Florida, picking up a hitchhiker
on the way. At about 5:00 a.m. on July 26, Boynton Beach Police Officer
Jerry Rodriguez, a 17-year police veteran, was on routine patrol when he
observed the Lincoln exiting a gravel road that led to a marina and
business center. No businesses were open at that time of day in the area
from which Lee was emerging and there were no residences in the vicinity.
Because the vehicle was coming out of an area "where no one should be"
and because he believed there had been previous burglaries in the area,
Officer Rodriguez pulled behind Lee's vehicle and attempted to make an
investigatory stop. However, when Officer Rodriguez turned on his
emergency lights, the Lincoln "jumped and accelerated." After a pursuit
of about 800 yards, the Lincoln came to a stop and Lee and the
hitchhiker bailed out and fled on foot. Officer Rodriguez pursued Lee,
who eventually fell to the ground. The officer approached Lee and asked,
"Where is the other guy?" Lee responded, "I don't know who he is, but
I'll tell you who I am; I'm wanted for murder in Georgia, my name is
James Lee." Lee was arrested and subsequently gave a statement that was
used by the State as non-statutory aggravating evidence in the
sentencing phase. Lee asserts that the statement should have been
suppressed as the fruit of an illegal investigatory stop, because
Officer Rodriguez, based upon the totality of the circumstances, did not
have a particularized and objective basis for suspecting that Lee was
engaged in criminal activity. United States v. Cortez, 449 U. S. 411,
417-418 (II) (A) (101 SC 690, 66 LE2d 621) (1981); Terry v. Ohio, 392 U.
S. 1, 21 (III) (88 SC 1868, 20 LE2d 889) (1968); Vansant v. State,
264 Ga. 319, 320 (2) (443
SE2d 474) (1994).
The evidence regarding this incident is uncontroverted and there is
no question regarding the credibility of the witnesses. Therefore, "the
trial court's application of the law to undisputed facts is subject to
de novo appellate review." Vansant, supra at 320 (1). We conclude that
the trial court properly denied Lee's motion to suppress. Officer
Rodriguez is an experienced police officer. At 5:00 a.m., he observed a
vehicle exiting a business area where no residences were located, at a
time when no businesses were open and where he believed there had been
previous burglaries. In response to the officer's emergency lights, the
vehicle's occupants attempted to flee. "Flight in connection with other
circumstances may be sufficient probable cause to uphold a warrantless
arrest or search ([cit.]); certainly these circumstances gave rise to an
articulable suspicion that a criminal act may have been occurring so as
to authorize a brief investigatory stop." State v. Smalls,
203 Ga. App. 283, 286 (2) (416
SE2d 531) (1992). See also United States v. Briggman, 931 F2d
705, 708-709 (11th Cir. 1991) (investigatory stop proper when
experienced police officer observed suspect parked in a parking lot in a
high crime area at 4:00 a.m., when all the nearby commercial
establishments were closed, and the suspect drove away from the officer
in an evasive manner). Taken together, these facts are sufficient to
establish at least an articulable suspicion that Lee was engaged in
criminal behavior and that Officer Rodriguez was therefore justified in
conducting an investigatory stop. See Cortez, supra; Terry, supra;
Vansant, supra at 320 (2). The trial court did not err in allowing the
admission of Lee's subsequent statement.
8. Even though the trial court directed a
verdict of acquittal of kidnapping with bodily injury, the jury
was authorized to find the statutory aggravating circumstance
that the murder was committed while Lee was engaged in the
commission of kidnapping with bodily injury. OCGA
17-10-30 (b) (2). The offense of
kidnapping with bodily injury was sufficiently part of the same
criminal transaction to be considered as and found to be a (b)
(2) aggravating circumstance of the murder. See Potts, supra at
720 (3); Horton v. State, 249 Ga. 871,
878-879 (11) (295 SE2d 281)
9. The evidence was sufficient to support the
OCGA 17-10-30 (b) (7) aggravating
circumstance that the murder was outrageously or wantonly vile,
horrible or inhuman in that it involved an aggravated battery to
the victim. OCGA 17-10-35 (c) (2);
Jackson v. Virginia, supra. Insofar as aggravated battery under
the (b) (7) aggravating circumstance is concerned, only facts
showing that the aggravated battery occurred before death, and
was separate from the act causing instantaneous death, will
support a finding of aggravated battery. Davis v. State,
255 Ga. 588, 594 (3) (c) (340
SE2d 862) (1986); Hance v. State,
245 Ga. 856, 861-862 (3) (268 SE2d
339) (1980). Viewed in the light most favorable to the
prosecution, the evidence shows that Lee shot the victim in the
face and threw her in the back of the pickup truck, where she
lingered for about an hour until he killed her in Charlton
County. The jury was authorized to find the existence of the (b)
(7) aggravating circumstance.
10. The death sentence in this case was not
imposed under the influence of passion, prejudice, or any other
arbitrary factor. OCGA 17-10-35
(c) (1). Also, the death sentence is not excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crimes and the defendant. OCGA
17-10-35 (c) (3). The similar
cases listed in the Appendix support the imposition of the death
penalty in this case, as all involve an aggravated battery under
the (b) (7) aggravating circumstance, or a deliberate killing
during the commission of kidnapping with bodily injury or armed
Richard E. Currie, District Attorney, Thurbert E. Baker, Attorney
General, Susan V. Boleyn, Senior Assistant Attorney General,
Christopher L. Phillips, Assistant Attorney General, for appellee.
1 The crimes occurred on May 26,
1994, and the Charlton County grand jury indicted Lee on September 2,
1994, for malice murder, felony murder, kidnapping with bodily injury,
armed robbery, theft by taking, possession of a firearm during the
commission of a felony, and possession of a firearm by a convicted felon.
The State filed its notice of intent to seek the death penalty on
November 2, 1994.
The trial was held May 28-June 6, 1997. At trial, the trial court
directed verdicts of acquittal for kidnapping with bodily injury and
theft by taking, and the State nol prossed the charge of possession of a
firearm by a convicted felon. Lee was convicted of the remaining counts
and, in addition to the death sentence for malice murder, the trial
court imposed a life sentence for armed robbery and a consecutive five-year
sentence for possession of a firearm during the commission of a felony.
The felony murder conviction was vacated by operation of law, Malcolm v.
State, 263 Ga. 369 (4) (434 SE2d 479) (1993).
Lee filed a motion for new trial on July 3, 1997, amended on February
19, 1998, which was denied on April 15, 1998. Lee filed his notice of
appeal on May 14, 1998, and the case was orally argued on September 15,
Adams & Brooks, John B. Adams, James K. Brooks, for
DECIDED MARCH 1, 1999 -- RECONSIDERATION DENIED APRIL 2,
James Allyson Lee