Lead Opinion
Tоny B. Amadeo appeals his conviction for the murder of James D. Turk, Sr., and the sentence of death imposed upon him for this offense. He also appeals his conviction for the offense of criminаl attempt to commit
This is a companion case to Conlogue v. State,
1. The admission in evidence of his statement is enumerated by Amadeo as error, based upon a contention that the statement was not made voluntarily in that it was induced by hope of bеnefit. Code Ann. § 38-411. This court must accept the factual and credibility determinations of the trial court made after the Jackson-Denno hearing unless those determinations are clearly erroneous. Johnson v. State,
During the Jаckson-Denno hearing, Amadeo testified that one or perhaps both of the GBI agents who questioned him told him if he would give a statement, he or she would talk with the district attorney and Amadeo probably would get a lighter sentence. Amadeo was not positive in his testimony as to whether it was the male agent, or the female agent, or perhaps both, who made this offer, but he believed it was the female agent. The female agent testified with some equivocation both that she did not make any such statement and that she could not recall having made any such statement; and that she thought she had not done so. Each of the аgents was out of the room during parts of the questioning. The issue made in this court by the parties relates alone to what the female agent either did or did not say. This court agrees with the trial court that these cirсumstances presented to the trial court a close question of whether or not Amadeo’s statement was induced by hope of benefit. However, after careful consideration of -the total сircumstances, including Amadeo’s own inconclusive testimony as to who made the alleged offer of benefit, this court concludes that the decision of the trial court to admit the statement was not cleаrly erroneous. The first enumeration of error is without merit.
2. Amadeo next complains of the admission of evidence of his participation with David L. Coulter and William S. Conlogue in a robbery-murder in Alabama. The three were absent without leave from the United States Marine Corps Base at Camp LeJeune, North
There was evidence from which the jury could hаve determined that the same three persons, using the same firearm and escaping in the same motor vehicle, had perpetrated the offenses in Alabama and in Georgia for the same reason — that is, to obtain money with which to continue their travels. The conditions of admissibility as set forth in French v. State,
3. Amаdeo next urges that it was error for the trial court to charge Code Ann. § 26-1902, pertaining to armed robbery, because the indictment only charged criminal attempt under Code Ann. § 26-1001. The charge taken as a wholе could not have harmed Amadeo. Hilton v. State,
4. Amadeo’s fourth enumeration of error relating to jury composition is without merit as his challenge comes too late. Goodwin v. Hopper,
5. Amadeo’s fifth enumeration of error contends that the trial court erred in overruling his motion for new trial for the reasons stated in his previous enumerations, of error. This enumeration of error is without merit for the reasons previously stated in this opinion.
Sentence Review
To authorize affirmance, the death sentence imposed in this case must conform to the standards set forth in Code Ann. § 27-2534.1. Those standards require this court to determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the evidence supports the jury’s findings of statutory aggravаting circumstances; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, as required by Code Ann. § 27-2537(c)(l-3).
We have reviewed the trial transcript and record and have made a comparison of the evidence and sentence in similar cases pursuant to the mandate of the statute.
We conclude that the sentence of death imposed in this case was not imposed under the influence of passion, prejudice or any other arbitrary factor.
In recommending the death penalty, the jury found the following statutory aggravating circumstance: "That the offense of murder was committed while the offender was engaged in the commission of another capital offense, to wit: Armed Robbery.” Code Ann. § 27-2534.1(b)(2).
The "while . . . engaged in the commission of’
The evidence supports the jury’s finding of a statutory aggravating circumstance, and the verdict is factually substantiated.
In reviewing the death penalty in this case, we have considered the cases appealed to this court since January 1,1970, in which death or life sentences were imposed. We find that the similаr cases listed in the Appendix support the affirmance of the death penalty in this case. Tony B. Amadeo’s sentence to death is not excessive nor disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
Judgment affirmed.
Appendix.
House v. State,
Rehearing
On Motion for Rehearing.
Amadeo has changed counsel since his briefs were submitted. His new counsel urges that the trial court’s charge during the sentencing phase of thе proceedings fails to comply with the standards enunciated in Fleming v. State,
Amadeo asserts, first, that the charge fails to make it clear to the jury that they could have recommended life imprisonment even though they might find bеyond a reasonable doubt the existence of one or more statutory aggravating circumstances. Second, he contends that the trial court erroneously commented to the jury that Amadeo put up no evidence in mitigation.
The first ground is lacking in merit. The trial court furnished the jury with, and explained the use of, various forms of verdict, including one the jury could have used to indicate that although they had found one or more aggrávating circumstances to have existed, they nonetheless recommended "mercy or that defendant’s punishment be life imprisonment.” Once again, the trial court charged the jury that "if you find an aggravating сircumstance or circumstances, indicate whether you
The second ground raised by Amadeo also is without merit. While paraphrasing the law pertaining to the presentence hearing, the trial court stated: ". . . the jury shall hear additional evidence and [sic] extenuation, mitigation and aggravation of the punishment, and you will recall that neither side did this. The state did not put up any aggravating circumstances or things to be considered; neither did thе defendant put up any mitigating circumstances . . .” (Emphasis supplied.) Facially, this might appear to be error on the part of the trial court. Elsewhere, the court charged on the two aggravating circumstаnces relied upon by the state and that the jury could dispense mercy although one or more of these aggravating circumstances might have been found by the jury to have existed. However, the following exchange between the court and counsel in the presence of the jury puts any facial appearance of error to rest: "The court: All right. Now gentlemen, as you know, this brings us to the punishment phase. Mr. Briley, does the State have any aggravating circumstances that you would like to — I mean any evidence of aggravation that you would like to submit? Mr. Briley: We rely upon the evidence already submitted to the jury, Your Hоnor. The Court: All right, any evidence of mitigation that the defense would like to put in? Mr. Prior: No, sir, Your Honor.”
The trial court did not charge that no evidence in aggravation or in mitigation was presented during the entire proceedings. Rather, in light of the transcript, the comment merely was made to remind the jury that no additional evidence was presented during the sentencing phase. The jury could not have been misled. The jury was authorized by the court’s charge to recommend a life sentence or to dispense mercy whether or not they found one or more aggravating circumstances. We find no error.
Motion for rehearing denied.