307 Ga. 587 FINAL COPY
S19A1582. GEBHARDT v. THE STATE.
MELTON, Chief Justice.
Following a June 18 to 26, 2018 jury trial, Franklin George
Gebhardt was found guilty of malice murder and various other
offenses in connection with the torture and stabbing death of Tim
Coggins in October 1983.1 On appeal, Gebhardt contends that the
1 On March 19, 2018, Gebhardt was jointly indicted with William Franklin Moore for malice murder, felony murder predicated on aggravated assault, aggravated battery, aggravated assault, and concealing the death of another. Moore’s trial was severed from Gebhardt’s, and Moore entered a negotiated guilty plea. Following the June 18 to 26 jury trial, Gebhardt was found guilty on all counts. Gebhardt was sentenced to life for malice murder, 20 consecutive years for aggravated battery, and ten consecutive years for concealing the death of another. The trial court merged the aggravated assault count into the malice murder count for sentencing purposes and purported to merge the felony murder count into the malice murder count, but that count was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993). Gebhardt timely filed a motion for new trial on July 3, 2018, which he amended on December 21, 2018. Following a hearing, on May 15, 2019, the trial court granted the motion for new trial in part, finding that the aggravated assault, aggravated battery, and concealing the death of another counts had to be vacated on the basis that there was insufficient evidence to show that the statute of limitation was tolled with regard to those crimes after they had been committed in 1983. See OCGA § 17- 3-1 (c) (“Except as otherwise provided in Code Section 17-3-2.1[, which refers to felonies not at issue in this case,] prosecution for felonies other than [murder or other crimes punishable by death or life imprisonment] shall be commenced evidence presented at trial was insufficient to support his murder
conviction; that the trial court erred in denying Gebhardt’s pre-trial
plea in bar with respect to the charges of aggravated assault,
aggravated battery, and concealing the death of another; that the
trial court inappropriately commented on the evidence at trial; and
that the trial court committed several evidentiary errors. For the
reasons that follow, we affirm.
1. Viewed in the light most favorable to the jury’s verdict, the
evidence presented at trial reveals that, on the evening of October 7,
1983, Coggins, an African-American man, visited a club in Spalding
County with predominantly African-American clientele. On the way
to the club, Coggins told a friend who drove him to the club about a
within four years after the commission of the crime, provided that prosecution for felonies committed against victims who are at the time of the commission of the offense under the age of 18 years shall be commenced within seven years after the commission of the crime.”). See also OCGA § 17-3-2 (identifying circumstances for tolling the statute of limitation with respect to the time period within which a crime must be prosecuted). The trial court denied the motion for new trial with respect to the felony murder and malice murder counts, but also vacated the felony murder count. See Malcolm, supra, 263 Ga. at 371 (4). Gebhardt is now serving a life sentence for malice murder. Gebhardt filed a timely notice of appeal on May 24, 2019, and his appeal was docketed to the August 2019 term of this Court and submitted for a decision on the briefs.
2 Caucasian woman, Ruth Guy, whom Coggins was dating at the time.
When Coggins arrived at the club, three white males — Gebhardt,
Moore, and another man — were waiting outside. Guy was
Gebhardt’s ex-girlfriend, and Gebhardt did not approve of Coggins’s
interracial relationship with her. Coggins knew Gebhardt and
Moore, and he approached the men before entering the club, but no
confrontation occurred between Gebhardt and Coggins at that time.
After Coggins danced at the club for a while, Gebhardt came in
looking for Coggins, and, eventually, Coggins left the club with
Gebhardt and the other men with whom Gebhardt had been
standing outside. Coggins called his friend, Samuel Freeman, and
told Freeman that he was with “Frankie,” whom Freeman knew to
be Gebhardt. Coggins, Gebhardt, Moore, and the other man with
whom Gebhardt and Moore had been standing traveled to a nearby
party before heading to a mobile home park in Sunnyside, close to
where Gebhardt lived.
In the early morning hours of October 8, Gebhardt began
arguing with Coggins in the mobile home park, with Moore and Guy
3 present as well. Moore and Guy then got into the front of a car, and
Gebhardt and Coggins got into the back seat, and the group started
driving in the direction of Minter Road. When Gebhardt and Moore
arrived in an area near Minter Road with Coggins, but apparently
no longer with Guy, Gebhardt and Moore stabbed Coggins multiple
times in the back, torso, wrist, and neck; chained Coggins to the back
of their truck and dragged him behind it; and then stabbed Coggins
some more. Coggins died from his stab wounds, and Moore and
Gebhardt left Coggins’s body in a field in a rural area that was
intersected by a power line and that was about a mile away from the
mobile home park.
Coggins’s body was found the next day by Christopher Vaughn,
who was out hunting squirrels with his father at the time. Coggins
was still wearing his underwear and jeans, but he was without his
shirt, socks, and shoes. Police were called to the scene, and they
found Coggins’s blood-stained beige sweater there. Drag marks
around a dirt trail in a pattern that ended at Coggins’s body were
consistent with a person having been dragged behind a truck, and
4 abrasions on Coggins’s body indicated that he had been dragged.
However, police did not find any item that could have been used to
drag Coggins behind a truck at that time.
Despite the preliminary investigation by police into the
murder, the case went cold after about four or five months.2 Over
the subsequent years, Gebhardt bragged about having murdered
Coggins for being involved with Guy, and he provided details about
the murder that had not been made known to the public. Two weeks
after the murder, Gebhardt admitted to a friend named Willard
Sanders that Gebhardt and Moore had killed Coggins and dragged
him along the power line after tying a logging chain around
Coggins’s feet. And, a few months after the murder, Gebhardt
admitted to Vaughn at a party that he and Moore had killed the man
that Vaughn had found “over there on the power line.” Gebhardt also
2 Clint Phillips, the lead investigator with the Spalding County Sheriff’s
Office on Coggins’s murder case in 1983, later testified at Gebhardt’s trial that Coggins’s case was not always a top priority at the Sheriff’s Office, and that Phillips was often pulled off the case to work on less serious crimes in other areas of the county.
5 told Vaughn on at least three or four other occasions that he and
Moore had stabbed “the ni**er,” referring to Coggins, 18 to 30 times,
dragged him down the power lines, and then stabbed him again
because Coggins was romantically involved with Guy. In addition,
Gebhardt told Vaughn that he had thrown the murder weapon and
Coggins’s clothes into a well. Vaughn also overheard Gebhardt
threaten a handyman on a different occasion, by saying “I’ll kill you
like I did that ni**er.”3 In 1985, Gebhardt threatened a man named
Charlie Sturgill by saying, “the same thing that happened to that
ni**er is going to happen to you and your momma,” and stated to
Sturgill on another occasion that Gebhardt had “stabbed that ni**er
25 times and cut him open.” Gebhardt also said to an acquaintance
named Jonathan Bennett that Gebhardt and Moore had stabbed
Coggins 38 times and dragged him down the road after Gebhardt
tied Coggins to the back of a truck. In 2016, Gebhardt reminisced
3 Vaughn testified at trial that he spoke with an investigator at the Sheriff’s Office about the murder in 2004 or 2005, and that he also sent a letter to the GBI about the murder in 2006 or 2007. Despite his efforts, however, the case was not reopened until 2016. 6 with Robert Smith about the times “back in the days” when a black
man “never live[d] to tell about [a] white girl he was with,” and, on
another occasion, admitted to Smith that he had dragged and
“gutted” Coggins “for messing with a white girl.”
In April 2017, Gebhardt was incarcerated on unrelated
charges, and Vaughn, who was also incarcerated at that time, went
into Gebhardt’s cell while wearing a recording device provided by
police. Gebhardt had not yet been indicted or arrested for Coggins’s
murder. When Vaughn asked Gebhardt about Coggins’s murder,
Gebhardt initially denied knowing anything about it, but then he
admitted that he did not know what he might have said about the
murder while he was drunk at a party hosted by Willard Sanders
(another man to whom Gebhardt had earlier admitted that he and
Moore had committed the murder). Gebhardt was arrested for
Coggins’s murder in October 2017, and, while he was incarcerated
with Patrick Douglas, Gebhardt told Douglas that he was a member
of the Ku Klux Klan; that it was unfair that the sheriff could “get
away with killing a ni**er,” but he could not; and that he “didn’t
7 need no help killing that ni**er,” as he was the one who “slammed
him down and stabbed him in the back.” Also, while incarcerated
with Terry Reed, Gebhardt learned that police had seized over 50
knives from Gebhardt’s home, and Gebhardt told Reed that law
enforcement would not find DNA evidence on those knives because
he threw the knife used in Coggins’s murder into a well under a shed
at his house.
GBI Special Agent Jared Coleman took over the cold case in
June 2016. After reviewing the case file and realizing that several
items pertinent to the crime were never recovered during the initial
investigation — including Coggins’s footwear and t-shirt from the
night of the murder, the item used to drag Coggins, and the murder
weapon — Agent Coleman obtained two search warrants for
Gebhardt’s residence and property. The first warrant was for
Gebhardt’s home,4 and police recovered 63 knives in connection with
that search. The second search warrant was also for Gebhardt’s
home, but specified that, in addition to the home, the search was
4 Gebhardt does not challenge the validity of this search warrant.
8 “[t]o include [its] curtilage, all vehicles, and all persons currently
contained on said property.” During the second search, police used
hydrovac technology5 to excavate a sealed well on Gebhardt’s
property, and from the well they recovered a white shoe that was
the correct size for Coggins’s foot, two socks, a logging chain, a white
t-shirt, broken pieces of a knife, and a knife handle.
Gebhardt challenges the sufficiency of the evidence to support
his conviction for malice murder, but the evidence presented at trial
was sufficient to enable a rational trier of fact to find Gebhardt
guilty of that crime beyond a reasonable doubt. Jackson v. Virginia,
443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Gebhardt contends that the trial court erred in denying his
pre-trial plea in bar to prevent his prosecution for aggravated
assault, aggravated battery, and concealing the death of another. He
claims that, because Coggins’s murder took place 34 years before
5 Greg Duvin, the general manager of Atlanta Hydrovac, testified that
hydrovac technology involves the use of highly pressurized water to dig through and loosen soil, and then using a vacuum system to remove the slurry as one continues to dig deeper. 9 Gebhardt was indicted, and because the four-year statute of
limitation with respect to these particular offenses had already
expired, Gebhardt could not be tried for those offenses. See OCGA
§§ 17-3-1 (c) and 17-3-2. However, Gebhardt cannot show harm from
the fact that he was tried for these offenses, as he does not currently
stand convicted of any of them. See Hendricks v. State, 283 Ga. 470,
473 (3) (660 SE2d 365) (2008) (an appellant “must show harm, as
well as error, to demonstrate his entitlement to a new trial”).
Gebhardt’s only remaining conviction is for malice murder, because
the trial court granted his motion for new trial on the aggravated
assault, aggravated battery, and concealing the death of another
counts, finding that those counts had to be vacated because the
statute of limitation was not tolled with regard to those crimes. See
Anderson v. State, 299 Ga. 193, 196 (1) n.4 (787 SE2d 202) (2016) (a
defendant is not “convicted” on counts that are vacated or that
merge with other offenses for sentencing purposes, and challenges
to the sufficiency of evidence to support those non-existent
convictions are moot). See also OCGA § 16-1-3 (4) (“‘Conviction’
10 includes a final judgment of conviction entered upon a verdict or
finding of guilty of a crime upon a plea of guilty.”). Because Gebhardt
was not convicted of the offenses that he now wishes to challenge,
his challenges to those charges are moot. See Anderson, supra, 299
Ga. at 196 (1) n.4. To the extent that Gebhardt is attempting to
argue that the jury was prejudiced in favor of finding him guilty of
murder due to the existence of these other charges at his trial, we
also find no merit to this argument, as the very same evidence that
supported these charges (i.e., the stabbing and dragging of Coggins
and leaving his body in a field) would have been relevant and
admissible to give context to the murder for the jury even if these
other charges had not been a part of his trial.
3. Gebhardt argues that the trial court plainly erred by
improperly commenting on the evidence presented at trial. See
OCGA § 17-8-57 (a) (1) (“It is error for any judge, during any phase
of any criminal case, to express or intimate to the jury the judge’s
opinion as to whether a fact at issue has or has not been proved or
as to the guilt of the accused”) and (b) (Except with regard to
11 opinions about guilt, the “failure to make a timely objection to an
alleged violation of paragraph (1) of subsection (a) of this Code
section shall preclude appellate review, unless such violation
constitutes plain error which affects substantive rights of the
parties. Plain error may be considered on appeal even when a timely
objection informing the court of the specific objection was not made,
so long as such error affects substantive rights of the parties.”).6
Specifically, Gebhardt asserts that the trial judge commented on the
evidence by stating (a) “asked and answered” on two occasions
during defense counsel’s cross-examination of two witnesses, and (b)
“yes, there has,” in response to an objection by defense counsel in
which counsel claimed that no evidence had been presented during
the testimony of Douglas that Gebhardt was a member of the Aryan
Brotherhood. We identify no plain error.
In order to satisfy the test for plain error,
[f]irst, there must be an error or defect — some sort of deviation from a legal rule — that has not been
6 Because the record reveals that Gebhardt did not object to the comments that he now wishes to challenge on appeal, our review is limited to a review for plain error. 12 intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
(Citation, punctuation and emphasis omitted.) State v. Kelly, 290
Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).
(a) The record reveals that, on the two occasions that the trial
judge stated “asked and answered,” the judge was specifically trying
to get defense counsel to move on from repetitive lines of
questioning, not that the judge was in any way commenting on what
had or had not been proven in the case. The trial judge even told
defense counsel to “move on” before stating “asked and answered” in
connection with counsel’s repetitive questioning of the first witness.
When counsel engaged in another round of repetitive questioning
three witnesses later, the trial judge once again stated “asked and
13 answered” in an effort to get defense counsel to move on from
repeatedly asking variations of the same question that the witness
had already answered. We see no error, let alone any clear or obvious
one, in the trial court exercising its authority to keep the case
moving along in the face of repetitive questions by defense counsel.
See OCGA § 24-6-611 (a) (2) (“The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to . . . [a]void needless consumption of
time[.]”). See also Rickman v. State, 304 Ga. 61, 64 (2) (816 SE2d 4)
(2018).
(b) The record shows that Douglas, a member of the Aryan
Brotherhood, testified that Gebhardt told him that Gebhardt was a
member of the Ku Klux Klan. Douglas then testified that the Ku
Klux Klan was part of the Aryan Brotherhood. When the State then
posed a follow-up question to determine if it was difficult for Douglas
to be “testifying against someone [who] is in the Aryan
Brotherhood,” defense counsel objected, stating that “[t]here ha[d]
been no testimony whatsoever that Mr. Gebhardt is in the Aryan
14 Brotherhood.” In overruling the objection, the trial judge stated,
“yes, there has.” Viewed in its proper context, this was not a
comment on the evidence. The judge merely corrected defense
counsel’s erroneous assertion. See, e.g., Smith v. State, 317 Ga. App.
801, 805 (2) (732 SE2d 840) (2012) (“[A] trial judge may state his
recollection as to some portion of the testimony without [violating
OCGA § 17-8-57].”) (citation and punctuation omitted). We see no
plain error in the trial court’s response to defense counsel’s
objection.
4. Gebhardt asserts that the trial court erred by allowing
Samuel Freeman to testify, over defense counsel’s hearsay objection,
about a phone call in which Coggins allegedly told him that Coggins
was with “Frankie” on the night of the murder.7 However, even if the
trial court abused its discretion in admitting this testimony, the
admission of the evidence was harmless, as it was largely
7 Gebhardt also complains that the statement by this witness had not
been provided to defense counsel prior to trial, but he does not develop in his brief any argument relating to how this failure to provide the statement prior to trial prejudiced him. He instead focuses in his brief on the argument that the statement constituted inadmissible hearsay. See Supreme Court Rule 22. 15 cumulative of the testimony of eyewitnesses who placed Gebhardt
with Coggins on the night of the murder. See Rutledge v. State, 298
Ga. 37, 40 (2) (779 SE2d 275) (2015) (no harm from admission of
hearsay that was “largely cumulative” of other properly admitted
testimony).
5. In two enumerations, Gebhardt argues that the trial court
erred by admitting into evidence the statements that he made to
Vaughn and Douglas while he was incarcerated with them, because
the statements were obtained in violation of Gebhardt’s right to
counsel. He contends that, because Vaughn and Douglas were acting
as government agents at the time that Gebhardt spoke to them, the
trial court should have granted his motion to suppress (a) the
recording that Vaughn made of his conversation with Gebhardt
while Vaughn was wearing a recording device, and (b) the
statements that Gebhardt made to Douglas while Gebhardt was
incarcerated with him. See Massiah v. United States, 377 U. S. 201
(84 SCt 1199, 12 LE2d 246) (1964). We disagree.
Under Massiah, the Sixth Amendment right to counsel is
16 violated by the admission of incriminating statements that a government agent deliberately elicits in the absence of counsel after judicial proceedings have been initiated against the defendant. Higuera-Hernandez v. State, 289 Ga. 553, 554 (2) (714 SE2d 236) (2011); O’Kelley v. State, 278 Ga. 564, 565-567 (2) (604 SE2d 509) (2004), disapproved on other grounds by Stinski v. State, 286 Ga. 839, 856 (61) n. 5 (691 SE2d 854) (2010).
(Emphasis supplied.) Kemp v. State, 303 Ga. 385, 390-391 (2) (a)
(810 SE2d 515) (2018). Furthermore, in order to be considered to be
a government agent, the informant must (1) “have some sort of
agreement with, or act under instructions from, a government
official,” and (2) take action to “deliberately elicit[ ]” incriminating
information. (Citation and punctuation omitted.) Higuera-
Hernandez, supra, 289 Ga. at 555-556 (2).
(a) Vaughn Recording. It is undisputed that, at the time that
Gebhardt made his statements to Vaughn, Gebhardt had not yet
been indicted for Coggins’s murder. At that time, Gebhardt was in
jail for an entirely unrelated offense. Accordingly, evidence supports
the conclusion that there could not have been a violation of
Gebhardt’s right to counsel when he began speaking with Vaughn
17 about Coggins’s murder, since “[u]nder [Massiah], the right to
counsel is violated by the admission of incriminating statements
which a government agent deliberately elicits after indictment and
in the absence of counsel.” (Emphasis supplied.) Higuera-
Hernandez, supra, 289 Ga. at 554 (2).8
(b) Statements Made to Douglas. With respect to Douglas,
evidence supports the conclusion that Douglas does not satisfy
either prong of the test to determine whether he was an agent of the
government for purposes of his jailhouse conversation with
Gebhardt. Specifically, Douglas did not act under instructions from
the police at the time that he spoke with Gebhardt. See Higuera-
Hernandez, supra, 289 Ga. at 555-556 (2). Nor did he have any
8 To the extent that Gebhardt argues that his recorded statement should
have been excluded because he spoke to Vaughn without first being read his Miranda rights, such argument is without merit, as a conversation between inmates does not implicate the Fifth Amendment concerns underlying Miranda. Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). See Illinois v. Perkins, 496 U. S. 292, 296 (II) (110 SCt 2394, 110 LE2d 243) (1990) (even where an inmate speaks to an undercover officer while in jail, “[c]onversations between suspects and undercover agents do not implicate the concerns underlying Miranda[, because] . . . [t]he essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate”). 18 agreement with police to exchange any incriminating information
that he received from Gebhardt “for payment, lenient treatment, or
some other benefit.” Rai v. State, 297 Ga. 472, 478-479 (3) (775 SE2d
129) (2015). Douglas verified as much during his trial testimony. In
addition, the record reveals that Douglas did not take any action
“designed deliberately to elicit incriminating information” from
Gebhardt. Id. at 479 (3). To the contrary, Gebhardt opened up to,
and spoke with, Douglas before Douglas had any conversation with
the police about Gebhardt’s jailhouse admissions. Douglas went to
police only after Gebhardt told him about Coggins’s murder, and he
had never been recruited by police in any way to attempt to elicit
incriminating statements from Gebhardt. Because evidence
supports the conclusion that Douglas does not meet either prong of
the test to show that he was acting as a government agent at the
time that Gebhardt spoke with him, we identify no abuse of
discretion in the trial court’s decision to allow Douglas to testify
regarding Gebhardt’s statements to him.9
9 Gebhardt’s argument that his statements to Douglas should have been
19 6. Gebhardt argues that the trial court erred in denying his
motion to suppress evidence of the items recovered from the sealed
well on his property pursuant to the second search warrant obtained
by police. He asserts that (a) the search of the well was not supported
by probable cause, and (b) the warrant issued to authorize the
search was not specific enough to be valid.
“[T]he Fourth Amendment provides that ‘no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons
or things to be seized.’” (Emphasis omitted.) United States v.
Travers, 233 F3d 1327, 1329 (II) (11th Cir. 2000). When a magistrate
makes a determination as to whether probable cause sufficient to
issue a search warrant exists, the magistrate simply makes
a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
excluded because he had not been given Miranda warnings is without merit. See Perkins, supra, 496 U. S. at 296 (II). 20 (Citation and punctuation omitted.) DeYoung v. State, 268 Ga. 780,
787 (7) (493 SE2d 157) (1997). “(A) search conducted pursuant to a
search warrant, regular and proper on its face, is presumed to be
valid and the burden is on the person who moves to suppress the
items found to show that the search warrant was invalid.” (Citation
and punctuation omitted.) Hourin v. State, 301 Ga. 835, 844 (3) (b)
(804 SE2d 388) (2017). When reviewing a search warrant, our duty
on appeal
“is to determine, based on the totality of the circumstances, whether the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant.” Glenn v. State, 302 Ga. 276, 281 (III) (806 SE2d 564) (2017). “A magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court,” DeYoung, 268 Ga. at 787, and “[e]ven doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.” Sullivan v. State, 284 Ga. 358, 361 (2) (667 SE2d 32) (2008).
Leili v. State, 307 Ga. 339, 342 (2) (834 SE2d 847) (2019). With these
principles in mind, we address each of Gebhardt’s contentions in
turn.
(a) Probable Cause. The record reveals that police sought the
21 second search warrant in connection with the crimes of malice
murder, felony murder, aggravated assault, aggravated battery, and
concealing the death of another based on information presented in
an affidavit from Agent Coleman.
On October 9, 1983, the GBI was called in to assist the
Spalding County Sheriff’s Office in the investigation of the death of
Coggins. Coggins had died from multiple stab wounds, and other
wounds on Coggins’s body and drag marks at the crime scene led
investigators to conclude that Coggins had been dragged as well.
Coggins had last been seen alive on October 8, 1983, in a mobile
home park, where he got into a car with Gebhardt, Moore, and Guy,
before heading off in the direction where his body was later found by
Vaughn and others the next day.
In a May 26, 1991 interview with GBI agents, a man named
Charles Carey, Jr., informed the agents that he had witnessed
Gebhardt bragging about Coggins’s murder, and that Gebhardt
admitted that he had participated in dragging Coggins’s body
through the woods by tying a logging chain to his pants.
22 Investigators later conducted an interview with Vaughn, who had
known Gebhardt and Moore since Vaughn was a child, and Vaughn
informed authorities that Gebhardt had spoken freely with him
about stabbing Coggins multiple times and dragging him with a
logging chain behind a truck. Vaughn also noted that Gebhardt
admitted that he had thrown the murder weapon into a well on his
property at 1704 Patterson Road in Griffin, Georgia. Agent Coleman
believed that the information provided by Vaughn was reliable, as it
was consistent with evidence collected from the crime scene.
Investigators interviewed an ex-girlfriend of Gebhardt who
had rekindled her relationship with Gebhardt in the early 2000s,
and she indicated that, when Gebhardt was angry with her, he
would warn her that she would end up “like that ni**er in the ditch,”
and that he would “drag [her] down the road that [he and someone
else had] dragged that ni**er.” The only homicide of which the
girlfriend was aware involving an African-American being dragged
down the road was the murder of Coggins.
Back in 1983, Gebhardt and Guy provided to investigators an
23 alibi for Gebhardt for the night of the murder, stating that Gebhardt
had stayed with Guy all night on the night of the murder. In a May
2017 interview between Agent Coleman and Gebhardt, however,
Gebhardt denied knowing Guy and further denied knowing Coggins,
despite other witnesses attesting to the fact that Gebhardt had been
seen associating with Coggins.
Pursuant to the first search warrant for Gebhardt’s home
issued on May 9, 2017, police located a sealed well on Gebhardt’s
property, as had been previously identified by Vaughn. At that time,
the police could not excavate the well in a safe manner that would
have preserved the structural integrity of the well, but other items
of evidence were seized from Gebhardt’s residence.
After Gebhardt and Moore were charged for murder in October
2017, the District Attorney’s office conducted its own investigation,
and interviewed Amy Smallwood, who informed authorities that the
knife used to kill Coggins, and Coggins’s clothing, had been disposed
of in a well on Gebhardt’s property.
Agent Coleman consulted with the GBI and private entities in
24 an effort to find a safe way to excavate the earth within the well area
on Gebhardt’s property to find possible evidence connected to
Coggins’s murder. Through this investigation, Agent Coleman
discovered the digging process involving hydrovac technology.
Based on these facts, Agent Coleman then requested
[t]he court[’]s authorization to obtain [a search warrant to] search for the evidence which may be contained within the well[, because] . . . the alleged evidence contained within the well ha[d] been encased and entombed within the site for approximately 34 ½ years[,] . . . [and] [n]o prior known effort to excavate the site [had been done]. As such, it [ ] was reasonable to conclude that the evidence remain[ed] encased or enclosed within the area in which it was allegedly buried . . . particularly items of clothing of the victim . . . and the knife used to murder him.
We conclude that, under the totality of the circumstances, the
issuing judge had a substantial basis for determining that probable
cause existed for an additional search of Gebhardt’s property
pursuant to a second search warrant, as there was a “fair
probability” of evidence relating to Coggins’s murder being found in
the well on the property. See, e.g., Leili, supra, 307 Ga. at __ (2).
(b) Scope of the Warrant. As to the scope of the warrant itself,
25 we conclude that the warrant was sufficiently particular to be valid.
Indeed,
[a] warrant which authorizes the search of a particular dwelling extends by implication to areas within the curtilage of the dwelling. “Curtilage” has been defined as “the yards and grounds of a particular address, its gardens, barns, [and] buildings.”
(Citation and punctuation omitted.) Landers v. State, 250 Ga. 808,
809 (301 SE2d 633) (1983).
To begin with, the warrant authorized the police to search for
the following items: “[b]iological evidence including but not limited
to: DNA such as blood, hair, and fibers . . . [k]nives . . . [c]hains
which may have been used to drag a body . . . [p]hotographs/video,
any other means to document the crime scene . . . [a]nd any other
items of evidentiary value.” Gebhardt does not challenge the search
warrant with respect to the scope of the items that were authorized
to be seized pursuant to the warrant. He attempts to challenge the
warrant only with respect to the description of the place that was
authorized to be searched pursuant to the warrant.
In this regard, the warrant here specifically refers to the place
26 to be searched as “1704 Patterson Road[,] Griffin, Spalding County,
Georgia 30224,” and states that the search was “[t]o include [its]
curtilage.” The well was contained on the land at the specified
address, as the police had discovered the well there during their first
search of Gebhardt’s property — a search which Gebhardt does not
challenge. And, as contemplated in the warrant, searching the well
required a process of sifting through the ground on the property
because the well itself had been sealed by concrete. Contrary to
Gebhardt’s contention, it was not necessary for the warrant to state
the word “well” to further specify the place on the grounds of the
residence that the police were authorized to search. See Landers,
supra. The location of the search was already identified in a more
than sufficient manner in the warrant.
7. In two enumerations of error, Gebhardt claims that the trial
court erred in allowing two witnesses to testify, over defense
counsel’s objection, about the racial climate that existed in Griffin
around the time of the murder. Specifically, he contends that Jesse
Gates, a former employee of the Spalding County Sheriff’s Office,
27 should not have been allowed to testify that he was aware of racial
tensions in the community and Ku Klux Klan rallies taking place
around the time of the murder; and that another employee of the
Sheriff’s Office, Oscar Jordan, should not have been allowed to
testify that he knew about a cross-burning incident that took place
around the time of the murder. Gebhardt asserts that this testimony
was irrelevant, while the State contends that it was relevant to show
Gebhardt’s motive for killing Coggins.
However, even if the statements from the two witnesses were
irrelevant and inadmissible, they constitute only two pages of a
seven-volume trial transcript, and they are far overshadowed by the
overwhelming evidence connecting Gebhardt to Coggins’s murder
and his personal reasons for committing it. In this regard, the
evidence showed that (1) Gebhardt was the last person seen arguing
with Coggins on the night of his murder before driving off with him
toward the area where Coggins’s body was later found; (2) Gebhardt
repeatedly confessed to multiple witnesses over the 34 years
following the murder that he had killed Coggins and that he did it
28 by stabbing and dragging him; (3) Gebhardt knew details about the
stabbing and dragging death of Coggins that had not been
discovered by police during their initial investigation, including the
location of the murder weapon, logging chain, and clothes that had
been discarded in a sealed well on Gebhardt’s property; and (4)
Gebhardt indicated to others on multiple occasions that his motive
for killing Coggins was based on his hatred of African-Americans
and Coggins’s involvement in an interracial relationship with
Gebhardt’s ex-girlfriend. This evidence rendered harmless any error
in the admission of the isolated statements from the two witnesses
about Klan activities and the racial climate in Griffin in 1983. See,
e.g., Smith v. State, 299 Ga. 424, 432 (2) (d) (788 SE2d 433) (2016).
Judgment affirmed. All the Justices concur.
DECIDED DECEMBER 23, 2019 --- RECONSIDERATION DENIED JANUARY 13, 2020. Murder. Spalding Superior Court. Before Judge Sams.
29 Virgil L. Brown & Associates, Jason S. Johnston, for appellant. Benjamin D. Coker, District Attorney, Marc A. Mallon, B. Ashton Fallin, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Katherine D. Emerson, Assistant Attorney General, for appellee.