Tommy Lee Waldrip, 51, was
sentenced to death in October 1994 in Dawson County for killing an
eyewitness to a robbery that his son committed.
Keith Evans, 23, was
beaten and shot to death on April 13, 1991. Mr. Waldrip's son John Mark
Waldrip and friend Howard Kelly Livingston were both sentenced to life
In March the Georgia Supreme Court affirmed Mr. Waldrip's
conviction and sentence. In July 1997, the state Supreme Court overturned Mr.
(267 Ga. 739)
(482 SE2d 299)
Murder. Dawson Superior Court. Before Judge Girardeau.
Tommy Lee Waldrip was convicted of the malice
murder of Keith Lloyd Evans as well as two counts of felony murder,
kidnapping with bodily injury, aggravated battery, five counts of
aggravated assault, theft by taking a motor vehicle, arson in the
second degree, influencing a witness, concealing a death, possession
of a firearm by a convicted felon, and two counts of possession of a
firearm during commission of a felony. 1
The jury recommended the death penalty, finding
as aggravating circumstances that the murder was committed while the
defendant was engaged in the commission of kidnapping with bodily
injury or aggravated battery; and that the murder was outrageously
wanton, vile, horrible and inhuman in that it involved aggravated
battery to the victim. Waldrip appeals his convictions and death
sentence. We affirm.
The jury was authorized to find that appellant
murdered Keith Evans to prevent Evans from testifying against his
son, John Mark Waldrip, at his armed robbery retrial in Forsyth
County. Evans, who worked as a clerk in the store at the time of the
robbery, testified as the State's sole eyewitness at John Mark's
first trial in 1990. Although John Mark was convicted in the 1990
trial, the trial court granted his motion for new trial, and he was
released on bond pending the retrial. At the time of his death,
Evans was scheduled to testify at the retrial.
On Saturday afternoon, two days before the
retrial was scheduled to begin, the appellant and his co-indictees,
John Mark and appellant's brother-in-law, Howard Livingston,
2 drove to Cleveland, Georgia and
bought a used station wagon for $150, which they returned a half
hour later because it was overheating. That evening, John Mark
called Robert Garner, 3 who was
also scheduled to testify against him at the retrial, and threatened
to harm Garner if he testified.
At approximately 9:30 p.m. appellant and John
Mark left appellant's apartment in appellant's wife's Ford Tempo.
Sometime between 10:30 p.m. and midnight, the co-indictees met Evans
at a highway crossing in Dawson County. After running Evans' truck
off the road, they shot at him through the windshield. He was hit
with birdshot from a shotgun in the face and neck. Since Evans was
still alive, the co-indictees drove his truck, with Evans in the
passenger seat, to Hugh Stowers Road in Dawson County, where they
beat him to death
to count 12; count 14, concealing a death, to
twelve months to run concurrent with count 3; count 16, possession
of a firearm by a convicted felon, to five years to run concurrent
with count 3; count 19, possession of a firearm during commission of
a felony, to five years, to run consecutive to count 13; count 20,
possession of a firearm during commission of a felony, to five years
to run concurrent with count 19. The felony murder convictions stand
vacated by operation of law under OCGA 16-1-7.
Appellant filed a motion for new trial on November 16, 1994, and an
amended motion for new trial on September 1, 1995, which was denied
on November 28, 1995. Appellant filed a notice of appeal on December
4, 1995. The case was docketed in this Court on July 30, 1996 and
was orally argued on October 22, 1996.
with a blackjack. They buried Evans' body in a
shallow grave in Gilmer County and set his truck on fire.
The fire was reported at approximately 12:30 a.m.
Sunday morning. A current insurance card for the Ford Tempo,
belonging to appellant's wife, Linda Waldrip, was found near the
burned truck. Appellant was interviewed on Sunday afternoon and
denied any involvement in Evans' disappearance. During the interview,
Linda Waldrip was asked for her insurance card for the Ford Tempo,
and she produced an expired card.
John Mark's retrial for armed robbery did not
take place. On Monday morning, Keith Evans was missing and Garner
refused to testify against John Mark. Garner subsequently informed
the district attorney of the threats made against him, and John Mark
was arrested and charged with influencing a witness.
Appellant was arrested on Tuesday, and on
Thursday, confessed to shooting and beating the victim and burning
his truck. He then led authorities to the victim's body, and later,
to the shotgun used in the crimes. 4
The following day, appellant gave a conflicting
statement, in which he contended that John Mark and Livingston
murdered the victim and burned his truck, and that he was merely a
bystander. Appellant gave a third statement in which he related that
all three of the co-indictees participated in the crimes.
The evidence was sufficient to enable a rational
trier of fact to find appellant guilty of the crimes charged beyond
a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781,
61 LE2d 560) (1979).
Appellant raises seven claims of error relating
to his competency trial.
1. The trial court did not abuse its discretion
in denying appellant's second motion for change of venue in the
competency trial, based on appellant's contention that the change of
venue from Dawson County to Hall County was insufficient to avoid
excessive pretrial publicity. Appellant has not attempted to show
there is a substantial likelihood the competency trial was rendered
unfair due to pretrial publicity, nor has he established prejudice
by individual jurors. Jones v. State, 261 Ga.
665 (409 SE2d 642) (1991). As support for this ground,
appellant states only that two jurors on the trial jury had read
newspaper articles about the trial, and cites to five on the jury
panel who were familiar with the case without any further
explanation. Our review of the record reveals that neither of the
jurors on the trial jury had any clear recollection of what they had
read, and both jurors stated they did not have any fixed opinion
regarding appellant's competency, and appellant has failed to show a
high excusal rate in general as a result of publicity. See, e.g.,
Chancey v. State, 256 Ga. 415, 429 (349
SE2d 717) (1986). The fact that the parties originally
stipulated to venue in a county other than Hall
5does not relieve appellant from
showing he was prejudiced by the trial court's denial of his motion.
This claim is without merit.
2. The trial Court did not abuse its broad
discretion in limiting the scope of the voir dire at the competency
trial by prohibiting questions of a technical or legal nature, or
questions which required the jurors to prejudge the case. McGinnis
v. State, 258 Ga. 673, 674-675 (3) (372
SE2d 804) (1988).
3. Appellant's contention that the State
improperly placed his character in issue during the competency trial
by referring to his prior criminal history is without merit. "[T]he
issue at a competency trial is whether the defendant at the time of
the trial is capable of understanding the nature and object of the
proceedings against him and his own condition in reference to such
proceedings, and is capable of rendering assistance to his attorney
in the defense of his case." Black v. State,
261 Ga. 791, 794 (2) (410 SE2d 740)
(1991). Since a competency trial isin the nature of a civil
proceeding, evidence that may place appellant's character in issue
is admissible, if it is relevant to the issues to be decided. Id.
The evidence of prior crimes committed by
appellant was offered to counter expert testimony that appellant
harbored the delusional belief he was being monitored by law
enforcement officers, and also to show appellant's familiarity with
the criminal justice system. There was no reference to the facts of
these prior offenses, and no testimony by the victims or witnesses
of these crimes. We have found such evidence to be admissible to
show whether a defendant understood the charges against him. Brown
v. State, 256 Ga. 387, 389 (349
SE2d 452) (1986). 6Compare
Crawford v. State, 240 Ga. 321, 326
(2) (240 SE2d 824) (1977). Given
the limitations imposed by the trial court and the purpose for which
the convictions were offered, we find no error.
4. Appellant's contention that the prosecutor
misled the jury at the competency trial by asking appellant's former
attorney why she delayed notifying the trial court that appellant
required psychiatric treatment has not been preserved for appellate
review because appellant failed to renew his motion for mistrial
after the trial court issued a curative instruction. Woodham v.
State, 263 Ga. 580 (1) (b), (3) (439
SE2d 471) (1993).
5. Appellant's contention that the trial court
should have sua sponte rebuked the prosecutor and issued a curative
instruction under OCGA 17-8-75, when
the psychologist who conducted the court-ordered examination
referred to himself as the "judge's witness" during the competency
trial, is without merit. Even assuming appellant's failure to object
did not constitute waiver of this issue, the witness explained that
under this Court's opinion in Tolbert v. State,
260 Ga. 527, 528 (1) (b) (397
SE2d 439)(1990), he was required to be independent and
6. Appellant contends that the trial court erred
by repeatedly allowing the State to refer to the pending charges
against him at the competency trial. See Division 3, supra. Whether
appellant understood the nature and gravity of the charges against
him was highly relevant to the competency proceeding. Black v. State,
261 Ga. at 794. The prosecutor's questions were focused on
appellant's understanding of the charges, not his guilt or innocence,
or the facts of these or any prior crimes, and the jury was properly
charged on its duty on the special plea of incompetency. See Brown
v. State, 256 Ga. at 388-389; Chambers v. State,
250 Ga. 856, 858-859 (1) (302
SE2d 86) (1983). We find no error.
7. Appellant's contention that the prosecutor
improperly commented on his exercise of his Fifth and Sixth
Amendment rights during the competency trial is procedurally
defaulted, based on his failure to object to these comments. Earnest
v. State, 262 Ga. 494 (422 SE2d 188) (1992).
8. Appellant contends that the trial court
committed reversible error in failing to excuse prospective jurors
Larue Davis, Perry Gant, and Margaret Lynch because of bias.
(a) Appellant argues that Davis should have been
excused under Wainwright v. Witt, 469 U. S. 412, 424-426 (105 SC
844, 83 LE2d 841) (1985), because she stated repeatedly that she
considered the death penalty to be appropriate punishment for a
defendant convicted of murder and could not think of any mitigating
circumstances which would change her mind. In fact, the prosecutor
objected to appellant's question asking Davis whether she could
think of mitigating circumstances, and the objection, which was
valid, was sustained by the trial court. A prospective juror's
inability to recite circumstances which might lead her to vote for a
life sentence is not dispositive of her qualifications to serve as a
juror. See Crowe v. State, 265 Ga. 582,
588 (9) (a) (458 SE2d 799) (1995).
Although Davis initially stated that she would vote for death under
certain circumstances, she stated that she would put her own
feelings aside and follow the court's instructions. Davis stated
that she felt "confident" she would not arbitrarily vote to impose
the death penalty and would consider the evidence presented in
accordance with the trial court's instructions. She consistently
responded that she would weigh evidence in mitigation and consider
seriously the option of a life sentence. See Hittson v. State,
264 Ga. 682, 687-688 (6) (h) (449
SE2d 586) (1994).
It is the "final distillation" of the prospective
juror's thoughts, and not isolated responses, which determine
whether the juror meets the Witt standard. Taylor v. State,
261 Ga. 287, 291-292 (5) (404
SE2d 255) (1991); Spivey v. State, 253
Ga. 187, 197, n. 3 (319 SE2d 420)
(1984). Davis' voir dire responses, reviewed in their entirety,
support the trial court's finding that Davis was qualified to serve
as a juror and failure to excuse her was not an abuse of discretion.
Ledford v. State, 264 Ga. 60, 64 (6)
(b) (439 SE2d 917) (1994).
(b) Appellant contends that Davis'
misunderstanding of his parole eligibility
7 impaired her ability to serve as a juror, thus mandating
her disqualification. See, e.g., Burgess v. State,
264 Ga. 777, 780 (3) (450
SE2d 680) (1994). Davis' responses to repeated questioning on
this issue by both the trial court and appellant, indicated that the
possibility of parole was not an overriding concern which would lead
her to automatically vote for death upon conviction. In fact, Davis
acknowledged that a defendant might be rehabilitated, and she
consistently stated that she could set aside her views and follow
the trial court's instructions. Ledford, supra.
State, 257 Ga. 243,
250 (8) (357 SE2d 48) (1987). The
trial court's finding that Gant was qualified is consistent with the
general rule that a juror who merely leans one way or another,
before hearing any evidence, is not subject to disqualification.
Jarrell v. State, 261 Ga. 880, 881-882
(1) (413 SE2d 710) (1992). Although
Gant initially stated that he would not makea very good juror, a
juror's doubt as to his own impartiality does not demand as a matter
of law that he be excused for cause. Greenway v. State,
207 Ga. App. 511, 513 (3) (428
SE2d 415) (1993). In finding Gant qualified to serve, the
trial court relied in large part on Gant's demeanor, noting that
Gant's assurances of his ability to follow the court's instructions
and decide the case solely on the evidence were immediate and
unequivocal. The trial court's finding in this regard should be
accorded deference by this Court, and, after reviewing his voir dire
as a whole, we find no abuse of discretion in qualifying Gant.
Ledford v. State, 264 Ga. at 65.
(d) Prospective juror Lynch initially stated that
the death penalty was appropriate for murder committed with anger,
hatred, or premeditation; however, Lynch later stated, in response
to specific questions, that even when these factors were present,
she would consider evidence in mitigation and the option of a life
sentence. Foster v. State, 258 Ga. at 737. Lynch's responses, viewed
in their entirety, support the trial court's conclusion that she was
qualified to serve as a juror. Ledford v. State, 264 Ga. at 64.
9. Appellant contends that the trial court
improperly restricted voir dire because he was not permitted to ask
prospective jurors about their understanding of the meaning of a
life sentence. Voir dire on this issue is generally not permitted,
since a prospective juror's views on this subject are extraneous to
the ability to serve. Burgess v. State, 264 Ga. at 780. Even if
appellant had been permitted to identify jurors like Davis, who were
concerned about the possibility of parole, disqualification would
not be automatic, since it would still have to be shown that the
jurors' views would not permit them to consider evidence in
mitigation or the option of a life sentence. Wainwright v. Witt,
469U. S. at 424-426.
10. Appellant argues that the trial court erred
in admitting hearsay testimony by Robert Garner and Thomas Hitchcock
under the exception to the hearsay rule for the statements of a co-conspirator.
See OCGA 24-3-5; Denison v. State,
258 Ga. 690, 691 (1) (373
SE2d 503) (1988).
The State presented evidence at trial that on
Saturday evening before the victim's murder, John Mark called Robert
Garner at the Forsyth County jail 8
and threatened him with harm if he testified at John Mark's armed
robbery retrial. At the time of the call, John Mark was at
appellant's apartment. Garner testified that John Mark interrupted
the conversation because appellant was talking to him, indicating
that appellant was present when the threats were made.
Hitchcock testified that a week before John
Mark's retrial was scheduled to begin, John Mark telephoned him at
the Forsyth County jail and asked Hitchcock to notify him when
Garner arrived at the jail. Hitchcock stated that he called John
Mark several times that week at appellant's residence.
(a) Appellant contends that the State failed to
make a prima facie case that a conspiracy existed to kill Evans.
Under OCGA 24-3-5,
9 the State must make a prima facie
showing of the existence of the conspiracy, without regard to the
declarations of the co-conspirator, in order to admit his out-of-court
declarations. Copeland v. State, 266 Ga. 664,
665 (2) (a) (469 SE2d 672) (1996). The
trial judge may admit testimony by co-conspirators before the
conspiracy has been proved, provided its existence is ultimately
shown at trial. Waldrip v. State, 266 Ga. 874,
880 (3) (471 SE2d 857) (1996).
The trial court admitted the hearsay testimony by
Hitchcock and Garner based on the prosecutor's representation that
the State would be introducing appellant's statement, which had
already been ruled admissible, at a later point in the trial. The
statement, which revealed that the co-indictees were together prior
to the murder and participated in the murder, satisfied the
requirement of a prima facie case without regard to the hearsay
testimony itself. See, e.g., Jones v. State,
265 Ga. 84, 85 (2) (453 SE2d 716)
(1995); Duffy v. State, 262 Ga. 249,
250 (1) (416 SE2d 734) (1992).
(b) Appellant argues that even if he conspired to
kill Evans, there was no evidence that he was involved in any
conspiracy against (c) Appellant contends that admission of John
Mark's out-of-court statements violated his Sixth Amendment right to
confrontation, citing Dutton v. Evans, 400 U. S. 74, 88-89 (91 SC
210, 27 LE2d 213) (1970) (plurality opinion). Georgia law allows for
the admission of declarations by a co-conspirator against the other
co-conspirators during the pendency and the concealment phases of
criminal activity. 10 Because the
common-law rule does not extend to statements made during the
concealment phase, the United States Supreme Court has required that
certain indicia of reliability be present in each case where such
statements are admitted. Id. However, John Mark's statements were
made during the pendency of the conspiracy, not during the
concealment phase. Compare Copeland v. State, 266 Ga. at 665.
Therefore, his statements are admissible both under Georgia law and
under the common-law rule, and the statements are presumed to be
sufficiently reliable to satisfy the Confrontation Clause's
requirement of trustworthiness. Bourjaily v. United States, 483 U.
S. 171, 183 (107 SC 2775, 97 LE2d 144) (1987). There is no need to
make an independent inquiry into the reliability of a statement "when
the evidence 'falls within a firmly rooted hearsay exception.' " Id.,
quoting Ohio v. Roberts, 448 U. S. 56 (100 SC 2531, 65 LE2d 597)
(1980). Under the circumstances of this case, the hearsay at issue
did not violate the Confrontation Clause.
(d) Appellant's contention that testimony by a
law enforcement officer, regarding a jailhouse conversation he
overheard between appellant and John Mark, was inadmissible as the
statement of a co-conspirator, because the conspiracy was terminated
after appellant led police to the victim's body, has not been
preserved for review. Appellant expressly waived objection to this
testimony at trial. See, e.g., Waldrip v. State, 266 Ga. at 879-880.
Moreover, a conspiracy does not necessarily end simply because one
of the conspirators has been arrested and confesses, if the
conspiracy to conceal the identity of one of the perpetrators is
ongoing. OCGA 24-3-5; Bundrage v.
State, 265 Ga. 813 (2) (462 SE2d 719) (1995).
The substance of the conversation between appellant and his son,
John Mark, indicates that they were still concealing the son's
involvement in the crimes.
11. Appellant argues that the State improperly
placed his character in issue by eliciting testimony from Officer
Steve Hawkes that appellant was arrested two days after the victim's
disappearance for violating his probation on a prior unrelated
offense. Evidence which incidentally puts character in issue may be
admitted if otherwise relevant. Hayes v. State,
265 Ga. 1, 3 (4) (453
SE2d 11) (1995). Hawkes' testimony was relevant for two
reasons: to show that appellant made an admission during the ride to
the jail, by asking Hawkes whether his arrest was related toJohn
Mark's arrest in Dawson County, and also, to explain the reason for
appellant's arrest, in as much as appellant was never released prior
to being charged with the crimes against the victim. Testimony
explaining the reason for appellant's arrest need not be excluded
simply because it incidentally shows the commission of another crime.
Id. The arresting officer did not mention the nature of the previous
offense, and even if he had, the jury was already aware of
appellant's prior burglary conviction, which served as the basis for
the charge of possession of a firearm by a convicted felon. Roberts
v. State, 212 Ga. App. 607, 608 (2) (443
SE2d 4) (1994).
13. Appellant contends that venue in Dawson
County was improper for the crime of concealing the death of another,
since the victim was buried in Gilmer County. According to
appellant's statement, the victim died in Dawson County as a result
of the beating inflicted by the co-indictees and was then
transported in his truck to Gilmer County for burial. The place of
burial is not dispositive of venue, since the crime of concealing
Evans' body could also have occurred in the vehicle traveling from
Dawson County to Gilmer County. See, e.g., Addison v. State,
265 Ga. 657 (461 SE2d 227)(1995).
Under OCGA 17-2-2 (e), venue for a
crime involving a vehicle may lie in any county through which the
vehicle traveled. In the absence of conflicting evidence,
appellant's statement was sufficient to establish venue in either
Dawson County or Gilmer County beyond a reasonable doubt. Minter v.
State, 258 Ga. 629, 630 (1) (373
SE2d 359) (1988).
14. As appellant concedes, the question of
whether the instruction on voluntary intoxication was burden-shifting
has been decided adversely to him. Bright v. State,
265 Ga. 265, 277-278 (3) (455
SE2d 37) (1995).
15. The trial court did not err in admitting
autopsy photographs of the victim's body, since the photographs
showed aggravated battery in conjunction with the aggravating
circumstances in OCGA 17-10-30 (b) (2)
& (7). The two autopsy photographs were cropped to show only those
injuries which did not become apparent until the autopsy. Carr v.
State, 265 Ga. 477 (1) (457 SE2d 559) (1995);
Thornton v. State, 264 Ga. at 571. The photographs were not
duplicative, and the medical examiner testified outside the presence
of the jury, identifying the photographs which would be helpful to
illustrate his testimony regarding the cause and manner of death. Id.
The photographs showing the victim's body at the crime scene were
also admissible. Battles v. State, 262 Ga.
415, 418 (7) (420 SE2d 303)
17. The State did not violate Brady v. Maryland
11 by failing to disclose GBI
reports containing statements by appellant's son, Paul Waldrip, and
the results of lie detector tests administered to Paul. Appellant
contends that the reports were material evidence, which could have
been used to impeach law enforcement officials by showing that Paul
Waldrip was once a suspect in the victim's murder, tending to prove
that Paul Waldrip was the third party at the crime scene rather than
For purposes of a Brady claim, " 'The evidence is
material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different.' " Rogers v. State,
257 Ga. 590, 592 (3) (361
SE2d 814) (1987). The polygraph results are inadmissible,
without stipulation by the parties, and we find no merit in
appellant's contention that the results of the examinations could
have potentially led to the discovery of exculpatory information. Id.
Walker v. State, 264 Ga. 79, 80 (2) (440
SE2d 637) (1994). See also Wood v. Bartholomew, 516 U. S.
---- (116 SC 7, 133 LE2d 1) (1995).
The reports containing Paul's statements do not
show that Paul Waldrip had the motive, or opportunity, or was
implicated in the crimes by evidence gathered during the police
investigation. If appellant believed otherwise, he could have
subpoenaed Paul to testify as a witness. Considering the polygraph
results and Paul's statements in the context of the entire record,
we conclude there is no reasonable probability that the result of
the proceeding would have been different had the evidence been
disclosed to the defense prior to trial. Kyles v. Whitley, 514 U. S.
---- (115 SC 1555, 131 LE2d 490) (1995); see Wood v. Bartholomew,
116 SC at 7.
18. The trial court did not err in admitting into
evidence an expired automobile insurance card belonging to
appellant's wife, Linda, under the "independent source" exception to
the exclusionary rule. See Nix v. Williams, 467 U. S. 431 (104 SC
2501, 81 LE2d 377) (1984); Barnett v. State,
204 Ga. App. 491, 494 (1) (420 SE2d 43)
(1992). Linda Waldrip's current insurance card for her Ford Tempo
was found at one of the crime scenes, leading the GBI to interview
Linda and the appellant. During the interview, the agent asked
Lindafor her insurance card for the Tempo, and she produced an
expired card. This expired card was subsequently seized in an
illegal search of the vehicle.
The admissibility of the card under the "independent
source" exception depends on whether authorities established
probable cause to seize the card, either before or after the illegal
search, independent of any facts revealed by the unlawful search.
Murray v. United States, 487 U. S. 533 (108 SC 2529, 101 LE2d 472)
(1988); Johnson v. State, 221 Ga. App. 266,
267 (471 SE2d 58) (1996). Since
authorities had knowledge of the expired card's existence prior to
the illegal search and probable cause to seize it, the card was
properly admitted by the trial court. The fact that the agent chose
not to seize the card during the first interview does not affect its
19. The trial court did not err in denying
appellant's request for additional funds to pay the defense
psychologist in the absence of any contention that appellant was
denied adequate assistance by this expert. See Jarrells v. State,
258 Ga. 833, 838 (15) (375
SE2d 842) (1989).
20. There is no merit to appellant's assertion
that the trial court's ruling on an objection made by the prosecutor
constituted an improper comment on appellant's failure to testify.
The rule prohibiting expressions of opinion by the trial court as to
what has or has not been proved does not extend to colloquies
between judge and counsel regarding the admission of evidence. OCGA
17-8-57; Adams v. State,
264 Ga. 71, 76 (7) (440
SE2d 639) (1994). Moreover, appellant's failure to object to
this remark or move for a mistrial constitutes waiver of this issue
under OCGA 17-8-57. Crowe v. State,
265 Ga. at 594.
21. Appellant's contention that the trial court
erred in admitting copies of his prior guilty pleas in aggravation
during the sentencing phase of the trial is without merit for the
(a) Appellant received sufficient notice of the
State's intention to introduce his prior convictions. OCGA
17-10-2 (a); Ross v. State,
254 Ga. 22 (5) (a) (326
SE2d 194) (1985).
(b) Copies of the documents relating to these
guilty pleas contained sufficient indicia of voluntariness on their
face to justify their admission. Hammond v. State,
260 Ga. 591, 598 (7) (398
SE2d 168) (1990); Pope v. State, 256
Ga. 195, 209 (17) (345 SE2d 831)
(c) Any erroneous statement by the prosecutor
regarding the burden of proof required for introduction of the
guilty pleas was cured by the trial court's instruction that the
burden of showing that the pleas were knowing and voluntary rests
with the State. Pope v. State at 209 (17).
Alexander v. State, 263 Ga.
474 (435 SE2d 187) (1993).
23. The aggravating circumstances found in OCGA
17-10-30 (b) (2) & (7) may both be
found by a jury within the same case involving the same victim and
facts. Drane v. State, 265 Ga. at 259; Lonchar v. State,
258 Ga. 447, 453 (6) (369
SE2d 749) (1988). Aggravating circumstances are not invalid
simply because they may overlap to some extent. Crowe v. State, 265
Ga. at 582-583.
24. The evidence supports the jury's finding that
the murder was committed while the appellant was engaged in the
commission of kidnapping with bodily injury or aggravated battery,
OCGA 17-10-30 (b) (2); and that the
murder was outrageously wanton, vile, horrible, and inhuman in that
it involved aggravated battery to the victim, OCGA
17-10-30 (b) (7). OCGA
17-10-35 (c) (2).
25. Appellant argues that his death sentence is
disproportionate to the life sentences received by his two co-indictees
12 because there is no supportable
version of the facts under which he is the most culpable, and
because of his age, history of non-violent behavior, and severe
mental illness. OCGA 17-10-35 (c) (3).
Appellant's contention that he was merely an
abettor is not supported by the evidence, which shows he actively
conspired to plan, execute, and conceal an exceptionally brutal
crime. Although we have held that the death sentence is
disproportionate when a defendant is clearly not the "prime mover"
in the crime, in this case there is no certainty on that issue,
since appellant gave conflicting versions of the crime to
authorities. Compare Hall v. State, 241 Ga.
252, 258-259 (8) (244 SE2d 833)
(1978). The jury was authorized to decide whether to believe
appellant's first statement in which he claimed responsibility for
all of the crimes against the victim, or his second statement that
John Mark and Livingston committed the crimes against the victim and
he was merely present at the scene, or any combination thereof. See,
e.g., Walker v. State, 264 Ga. 676,
677 (1) (449 SE2d 845) (1994). The
fact that there were conflicts in appellant's first statement does
not, as appellant contends, prove the truth of his second and
exculpatory statement. The only evidence in the record showing John
Mark to be more directly involved than appellant is appellant's own
statement to law enforcement agencies, and his statements alone do
not persuasively establish that a single individual committed the
murder. See Lee v. State, 258 Ga. 82,
86-87 (10) (365 SE2d 99) (1988).
Appellant contends that under the State's theory
of the case, John Mark Waldrip had the motive and incentive to kill
Evans, and therefore appellant and Livingston at most aided and
abetted. The State's theory, which is consistent with evidence
presented by appellant that he would go to any length to protect
John Mark, including confessing to a murder he did not commit, was
that appellant was capable of participating in the murder of the
victim to save John Mark from going to prison.
Finally, this is not a case in which the aider
and abettor received a death sentence, and the principal was
acquitted, or even allowed to plead guilty to a lesser offense. See,
e.g., White v. State, 257 Ga. 236 (356 SE2d
875) (1987). Compare Harrison v. State,
257 Ga. 528, 531 (3) (361
SE2d 149) (1987). The State also sought the death penalty
against John Mark, butthe jury recommended life imprisonment. That
different juries hearing different evidence might arrive at
different punishment does not establish a claim of
disproportionality. Crowe v. State, 265 Ga. at 595. We do not find
that appellant's sentence was disproportionate to his co-indictees'
sentences, nor is appellant's death sentence disproportionate to the
sentence imposed in comparable cases, considering both the crime and
the defendant. OCGA 17-10-35 (c) (3).
See Division 27, infra, and the Appendix to this opinion.
26. The death sentence was not imposed as a
consequence of passion, prejudice, or other arbitrary factor. OCGA
17-10-35 (c) (1).
27. The similar cases listed in the Appendix
support the imposition of a death sentence in this case. OCGA
17-10-35 (c) (3).
crimes occurred on April 13, 1991. Appellant was indicted during
the February 1991 term of the Dawson County grand jury. The
State gave its notice of intent to seek the death penalty on May
20, 1991. This Court granted interim review in this case, and
rendered a decision on June 27, 1994. Livingston v. State,
264 Ga. 402, 407 (444
SE2d 748) (1994). Appellant filed a special plea of
incompetency, and a jury trial was held in September 1994 in
Hall County, pursuant to a change of venue. The jury found
appellant competent to stand trial on September 16, 1994. In
accordance with his unopposed motion for change of venue,
appellant was tried before a jury in Gwinnett County, and
sentenced to death for malice murder on October 26, 1994. The
trial court also sentenced appellant on count 3, kidnapping with
bodily injury, to life imprisonment; count 5, aggravated assault,
to twenty years to run concurrent with count 3; count 10, theft
by taking a motor vehicle, to twenty years to run concurrent
with count 3; count 12, arson in the second degree, to ten years
to run consecutive to count 3; count 13, influencing a witness,
to five years to run consecutive
appellant's convictions, John Mark and Livingston were convicted in
separate trials. John Mark's conviction and life sentence were
affirmed on direct appeal. See Waldrip v. State,
266 Ga. 874, 880 (3) (471
SE2d 857) (1996). Livingston also received a life sentence.
His appeal is pending in this Court.
3 Garner, who
drove the car during the armed robbery, did not testify at John
Mark's 1990 armed robbery trial. Shortly before the retrial was
scheduled to begin, Garner gave a statement to police implicating
himself and John Mark in the armed robbery and agreed to testify
against John Mark.
4 According to
this statement, appellant was responsible for all of the crimes
against the victim, John Mark was let out of the car and left prior
to the shooting, and Livingston, although present, was merely a
5 The original
motion was made in 1991. Appellant's competency trial was held in
relies on Brown v. State for his contention that evidence of prior
crimes committed by the defendant is per se inadmissible during a
competency trial. In Brown, the trial court permitted the victims of
prior crimes to testify in order to show that the defendant
understood the charges against him. 256 Ga. at 388-389. In affirming
the trial court's ruling, we distinguished the case from Crawford v.
State, 240 Ga. 321 (240 SE2d 824) (1977),
noting that in Brown, evidence of the prior crimes was relevant to
the issues at the competency trial, and there was no evidence
presented regarding the crimes for which the defendant was presently
7 In response
to the trial court's question asking whether she could impose the
death penalty, Davis stated that if a defendant was "guilty without
a shadow of a doubt" and bad no remorse, she could vote for death,
because she did not think that the victim's family should have to
worry about him being released on parole after serving part of his
8 Garner, who
was incarcerated elsewhere, had been brought to the Forsyth County
jail to await testifying at John Mark's retrial.
24-3-5 provides: "After the fact of
conspiracy is proved, the declarations by one of the conspirators
during the pendency of the criminal project shall be admissible
against all."Ga. 739) JANUARY TERM, 1997. 747Garner, since it was
John Mark who was charged with the crime of attempting to influence
Garner. It is unnecessary to prove an express agreement between the
parties in order to find the existence of a conspiracy. Duffy v.
State, 262 Ga. at 250; Drane v. State, 265 Ga.
255, 257-258 (4) (455 SE2d 27)
(1995). The essence of conspiracy is a common design, and conduct
which discloses a common design may give rise to an inference of
conspiracy. Drane at 257-258. Evidence of a violation of a different
statute does not create separate conspiracies, since the character
and effect of a conspiracy are not to be judged by dismembering it
and viewing separate parts but by looking at it as a whole. Thus,
even if one conspirator acts separately from the others to achieve a
common goal, his acts will be imputed to the others, without a new
agreement directed to that particular act. See, e.g., Bruce v. State,
263 Ga. 273, 274-275 (5) (430
SE2d 745) (1993).The jury could have inferred, from the
evidence adduced at trial, that the common design of the co-indictees
was to prevent John Mark from being convicted for armed robbery by
eliminating material witnesses who would testify against him. Since
this would not be accomplished by eliminating only Evans, the
conspiracy encompassed John Mark's threats against Garner.
24-3-5; see also Chatterton v. State,
221 Ga. 424 (144 SE2d 726) (1965).
11 373 U. S. 83
(83 SC 1194, 10 LE2d 215) (1963).
12 The State
initially sought the death penalty against both John Mark Waldrip
and Howard Livingston. The jury recommended sentencing John Mark to
life imprisonment, and the State subsequently withdrew its request
for the death penalty against Livingston, who also received a
sentence of life imprisonment.
Lydia J. Sartain, District Attorney, Lee
Darragh, Assistant District Attorney, Michael J. Bowers,
Attorney General, Wesley S. Horney, Assistant Attorney General,
J. Richardson Brannon, Charlotta Norby, for
DECIDED MARCH 10, 1997 -- RECONSIDERATION DENIED
APRIL 3, 1997.
Tommy Lee Waldrip