FUGITT v. THE STATE
No. 39816
Supreme Court of Georgia
September 13, 1983
251 Ga. 451
I concur in the judgment and write only to point out that I would not base Division One of the majority opinion on a determination that the statement in question constitutes a confession. Rather, I believe the second basis upon which the majority rests its opinion is the proper basis. The mere incidental use of the word “confession,” where the charge as a whole clearly considers the defendant‘s words to have been an admission or an incriminating statement, did not contribute to the verdict in this case. I join Justice Weltner in urging trial judges to eliminate the word “confession” from this particular charge since it adds nothing of help to the jury, and invariably raises the issue we face here.
39816. FUGITT v. THE STATE.
WELTNER, Justice.
Fugitt - known throughout this trial as Wallace - was indicted for the murder of John Evans. The jury returned a verdict of guilty and thereafter found two aggravating circumstances: that the murder was committed for the purpose of receiving money (the proceeds of a life insurance policy on the victim), and during the commission of another capital felony, to wit, kidnapping with bodily harm. Wallace was sentenced to death.
Evans and Wallace were close friends, and had lived together for about two years. Evans had taken out a life insurance policy for $15,000, naming Wallace as beneficiary. About two weeks prior to his death, the mobile home where Evans and Wallace lived burned to the ground. The two moved into a motel and on Sunday, prior to his death on Friday, Evans moved in with his brother Richard. On the day of his death Evans left work about 11:00 a.m. and began drinking. Wallace, after looking several places, found Evans at his brother‘s apartment at about 7:00 p.m. The two had planned to attend the races on Friday night and asked Evans’ brother to go with them. He accepted, but first went to their mother‘s house to obtain their clean clothes. When he returned both Evans and Wallace had left the apartment. Evans’ body was found just off the edge of a road in Clayton County a little after midnight, dressed in the same manner as last seen by his brother.
At Wallace‘s trial, the state called Kenneth Frady as a witness in rebuttal to Wallace‘s testimony. The state gave as a reason for not calling him earlier that his statement had just been corroborated.
Following Frady‘s testimony, the state called Charles Harris, who testified that, while incarcerated with Wallace, he overheard Wallace and Denney discussing how they had killed Evans.
It was later discovered that Frady was incarcerated in Cobb County at the time of the killing. Denney produced work records showing that he was employed in New Mexico at the time of the killing. Wallace filed an extraordinary motion for new trial on this factual base.
After hearing, the trial court overruled the motion, holding: “I find that the testimony of Mr. Frady is merely impeaching as a witness that was produced at trial. That removing his testimony from the trial would not be so material that it would рrobably produce a different verdict.”
1. One of the two aggravating circumstances found by the jury was kidnapping with bodily harm. Frady‘s testimony was the only evidence of kidnapping.
The materiality of the рerjured testimony to Wallace‘s conviction cannot be questioned. Nor does Frady‘s testimony fall within that group of cases where a witness recants his testimony, after trial and conviction. See Drake v. State, 248 Ga. 891 (287 SE2d 180) (1982). Nor is Frady‘s testimony such as that contemplated by
It will be understood that a line exists between cases of impeachment (which can be any diminution of the credibility of a witness) and cases of knowing аnd wilful false swearing (which, when material, is perjury). The statute, accordingly, directs itself in its two parts to this division, and as to
Here, there can be no doubt of any kind that Frady‘s testimony in every material part is purest fabrication. It cannot be said, therefore, that the new evidence establishing his perjury is “merely impеaching.” To the contrary, it goes to the heart of our system of criminal justice, and we find that a new trial must be ordered. “We do so because we cannot and will not approve corruption of the truth-seeking function of the trial process.” Williams v. State, 250 Ga. 463, 466 (298 SE2d 492) (1983).
2. As this case is reversed for the above-stated reasons, it is not necessary to address the remaining enumerations of error, except for one. In this fifth enumeration, Wallace contends that he was denied a fair trial because of prosecutorial misconduct, in four particulars:
(a) After being informed by an inmate that Wallace had solicited him to kill a key witness for the state, the district attorney‘s staff instructed the witness to make a false report to local police that an attempt had been made upon his life, and then referred to this false report in resisting before the court a defense motion.
(b) Wallace complains that the district attorney‘s staff intervened in an investigation of an escape attempt at the jail where Wallace was held, which Wallace learned of and reported to the chief jailer. The district attorney‘s staff went to the jail and advised the inmаtes that Wallace had informed on them. Thereafter, two prisoners agreed to testify for the state that they had overheard Wallace admit to murder. One of the prisoners, Harris, testified that he overheard Wallace and Michael Denney (who was in New Mexico at the time of the killing) discussing how the two of them had killed Evans.
(c) Another complaint involves the monitoring of a convеrsation between Wallace‘s counsel and an inmate at the jail. The district attorney‘s staff had the inmate send for counsel, purportedly to discuss representing him. The consultation between attorney and prospective client was recorded, surreptitiously, by means of a device known as a “body bug.”
(d) On another occasion, when an investigator for Wallace‘s counsel visited Wallace in jail, she was detained, and her briefcase which contained defense counsel‘s file on Wallace‘s case, was seized and removed from her sight for about 45 minutes.
Because the conviction must be reversed for perjury and a new trial ordered, we need not decide whether these events constitute prosecutorial misconduct. See Williams v. State, supra. There can be
3. Excluding the Frady testimony, and considering the testimony of the witness Don Ralph, the evidence was nonetheless sufficient to authorize a rational trier of fact to find Wallace guilty of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 S. Ct. 2781, 61 L. Ed. 2d 560) (1979).
Judgment reversed. All the Justices concur, except Gregory, J., who concurs specially.
DECIDED SEPTEMBER 13, 1983.
Philip L. Ruppert, Terry L. Shaw, for appellant.
Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, Michael J. Bowers, Attorney General, Nicholas G. Dumich, Assistant Attorney General, for appellee.
GREGORY, Justice, concurring specially.
I concur in the judgment. However, I believe the issue in Division 1 requires consideration of a different statute than that used in the majority opinion.
In order to set aside a judgment for perjury, the statute requires (1) that thе witness be convicted of perjury and (2) that the judgment could not have been obtained without the perjured testimony. In a case