Borden v. State

277 S.E.2d 9, 247 Ga. 477, 1981 Ga. LEXIS 748
CourtSupreme Court of Georgia
DecidedApril 15, 1981
Docket37253, 37254
StatusPublished
Cited by16 cases

This text of 277 S.E.2d 9 (Borden v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borden v. State, 277 S.E.2d 9, 247 Ga. 477, 1981 Ga. LEXIS 748 (Ga. 1981).

Opinion

Undercofler, Justice.

Marvin Dwayne Borden and Ellis Ray Cole, Jr., were convicted for the robbery and murder of Devero Payne. Sentences of twenty years for the robbery and life imprisonment for the murder were imposed on each. They appeal. We affirm.

1. Borden and Cole, together with Curtis Claxton and Ervin Feredore “Bucky” Morgan, Jr., drove to the B & D Grocery Store, in rural Troup County, for the purpose of robbing the manager, Devero Payne. They waited in Claxton’s automobile, drinking beer, until the store closed at about midnight. Borden, Cole and Morgan gained entrance to the store upon the pretext of needing to use the telephone. Morgan went to the telephone while Borden approached the manager, Payne, who had laid his pistol down to light a cigarette. Borden struck Payne with his fist, knocking him to the floor, then kicked him in the face about five times. He held Payne’s pistol on Payne while Cole sought, found and took the store’s money, a little more than one hundred dollars.

Borden and Cole decided to kill Payne so he could not identify them. Borden stabbed Payne three to six times in the back, and Cole slashed Payne’s throat. Borden and Cole took the money and two cases of beer. Morgan took a carton of cigarettes. Borden also took Payne’s pistol. Borden and Cole gave Claxton twenty dollars as his share of the loot. Borden kept the pistol, and the beer and the remainder of the money was divided between Borden and Cole.

Medical testimony established that Payne died of extensive bleeding caused by knife wounds to the back and neck. He also suffered from bruises to his face, consistent with his having been kicked in the face by Borden. Either the back or the neck wound was severe enough to have caused death.

Tape-recorded statements by Borden and Cole were admitted following requisite findings after a Jackson-Denno hearing. In his taped statement, Borden admitted he had been drinking, but not heavily, and that he was not drunk or high on dope. In response to the question of whether or not he knew what he was saying, Borden said during his statement, “I know exactly what I’m saying.” Cole admitted during his taped statement that he was not drunk or doped up; that he had consumed two or three beers but had not taken any pills before entering the store. Cole also admitted during his statement that he knew what he was saying in making his statement. Both admitted during their statements that they had not been threatened or promised anything in return for their statements.

*478 The foregoing evidence is sufficient to sustain the jury’s verdict under the current legal standard. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Denial of his motion to suppress is Cole’s first, and Borden’s only, enumeration of error. Both were arrested without a warrant. Each contends that his arrest was illegal because it was without probable cause; hence, that his statement and the physical evidence obtained from him at the time of his arrest should have been excluded on motion to suppress. Brown v. Illinois, 442 U. S. 590 (95 SC 2254, 45 LE2d 416) (1975).

Probable cause existed if at the time of the arrest the officers had knowledge and reasonably trustworthy information about facts and circumstances sufficient to warrant a prudent man in believing that Borden and Cole had committed an offense. Beck v. Ohio, 379 U. S. 89 (85 SC 223, 13 LE2d 142) (1964); Vaughn v. State, 247 Ga. 136 (274 SE2d 479) (1981); Morgan v. State, 241 Ga. 485, 486 (1) (246 SE2d 198) (1978); Sanders v. State, 235 Ga. 425, 430 (219 SE2d 768) (1975); State v. Perry, 234 Ga. 842 (218 SE2d 559) (1975). Since hearsay information from an informer was relied on, the reasons to support the conclusion that the informer was reliable must be furnished, and it either must be revealed how the informer obtained the information or the informer must describe the criminal activity in such detail that it may be known that the information is more than a casual rumor circulating in the underworld or an accusation based merely on the individual’s general reputation. Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637) (1969); State v. Perry, supra.

Testimony presented during the hearing on the motion to suppress indicated that during the early morning hours immediately following the robbery-murder, Mr. H. J. Thomas, an attorney, consulted with Curtis Claxton in his law offices in LaGrange. He and Claxton then walked over to the Troup County Sheriff’s office so Claxton could turn himself in. The duty officer was Deputy Sheriff Alfred Talley. Mr. Thomas informed Deputy Talley that he might need to go and investigate “an occurrence” at a grocery store out on Roanoke Road. He gave Deputy Talley the names of Cole and Borden. At that time, during the pre-daylight hours of the morning, there was no magistrate on duty. Only Deputy Taíley and a jailer were present.

Pursuant to the information received from Mr. Thomas, Deputy Talley dispatched Deputy Jerry Bryan to the grocery store. Upon arrival, Deputy Bryan found Payne lying dead on the floor. Multiple stab or cut wounds were visible on Payne’s body. While Deputy Bryan still was at the scene, he received a telephone call from Mr. Thomas at the jail, who advised him, according to Deputy Bryan, to *479 go to a certain house on New Franklin Road to pick up Borden and Cole “right then” or “that night.” Deputy Bryan had known Mr. Thomas for over ten years, and knew him to be a truthful person. He testified that he did not wait to get an arrest warrant because of what Mr. Thomas had said. Bryan found Borden and Cole, fully dressed including their shoes, in a bedroom in an automobile parts shed located behind the house where Mr. Thomas had indicated to Deputy Bryan they would be found. Daylight still had not arrived.

Borden and Cole emphasize in their briefs that Mr. Thomas did not specify during his testimony what the officers would find at the grocery store, and did not expressly state that Borden and Cole were fleeing. However, at the time of the arrests the tip received from Mr. Thomas had materialized through on-site investigation into the fact of a dead, human body lying on the floor of the B & D Grocery Store. The known truthfulness and reliability of Mr. Thomas had been reconfirmed by the fact of the homicide. The officers reasonably could not have expected from Mr. Thomas a full disclosure of his conversations with Curtis Claxton because of the attorney-client privilege. The information Mr. Thomas furnished to the officers together with the fact of the homicide were sufficient to give them probable cause to arrest Borden and Cole without a warrant. Vaughn v. State, supra; Morgan v. State, supra; Sanders v. State, supra; State v. Perry, supra.

In Morgan v. State, supra, information concerning Morgan’s involvement in a murder became known to the arresting officers through the confession of Jose High during the early morning hours when a magistrate was not available.

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Bluebook (online)
277 S.E.2d 9, 247 Ga. 477, 1981 Ga. LEXIS 748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borden-v-state-ga-1981.