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Final Copy 286 Ga. 821

S09A2068. OWENS v. THE STATE. Hunstein, Chief Justice. Appellant Charles Edward Owens appeals his conviction of malice murder in connection with the 1981 shooting death of Rebecca Heath.1 Finding no
Appellant, along with the victim's husband, Larry Heath, and other co-indictees Jerry Heath, Denise Lambert, Gregory Lumpkin, and Sammy Williams, was indicted by a Troup County grand jury on November 3, 1981 for malice murder. In 1982, appellant and co-defendant Lumpkin were tried jointly, convicted, and sentenced to life imprisonment; on appeal, their convictions were reversed. Owens v. State, 251 Ga. 313 (1), (9) (305 SE2d 102) (1983) (reversing convictions based on trial court's limiting cross-examination of State's witnesses regarding pending criminal charges against them and improper jury communication). The two were jointly retried in April 1984; both were again found guilty of malice murder, and appellant was sentenced to life imprisonment. Through trial counsel, appellant filed a timely motion for new trial, which, for reasons unclear from the record, was never ruled on. Shortly after his conviction in Troup County, appellant was removed to Alabama for prosecution in connection with the Heath murder; in April 1985, he was convicted and sentenced to death, but that conviction was subsequently reversed. Owens v. State, 531 S2d 22 (Ala. Crim. App. 1988). Appellant ultimately pled guilty to various charges in Alabama and received a life sentence consecutive to his Georgia sentence. In June 2004, appellant filed a pro se motion for out-of-time appeal and a request for an evidentiary hearing on claims for ineffective assistance of trial counsel. The trial court denied the request for an evidentiary hearing but apparently never ruled on the motion for out-of-time appeal. In February 2009, through new counsel, appellant filed an amended motion for new trial. Following a hearing on May 22, 2009, the motion was denied on June 26, 2009. Appellant filed his notice of appeal on July 15, 2009. The appeal was docketed in this Court on August 26, 2009 and orally argued on November 9, 2009.
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error, we affirm. 1. Viewed in the light most favorable to the verdict, the evidence established as follows. The victim was discovered in the Heaths' car on Smokey Road in Troup County, Georgia at approximately 11:00 a.m. on August 31, 1981 by an employee of the Troup County Electric Membership Corporation, who noticed a green Oldsmobile on the side of the road with its front fender against a tree, approached the car to help, observed the victim, who was not moving, and called the Sheriff's Department. In addition to the Oldsmobile's tire tracks, the witness also observed another set of tire tracks in close proximity, as if the second car had been parked in front of the Oldsmobile. The responding police officer determined that the victim was dead and had been so for no more than two to three hours. A bullet, later determined to be from a .32 caliber gun, had shattered her eyeball and lodged in her brain. At the time of her death, the victim was pregnant with a nearly full term healthy baby boy. At the time of the crime, the victim and husband Larry Heath were living on a dead-end street in Phenix City, Alabama. A neighbor of the Heaths testified that at approximately 7:15 a.m. on August 31, he noticed a van and the Heaths' green Oldsmobile pulling onto their street from an adjacent state road.
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A witness who lived on Smokey Road, where the victim's body was discovered, testified that, at approximately 9:00 a.m. on August 31, as he was driving down Smokey Road, he observed a whitish-blue Mustang pull out of a pulpwood road, which he deemed unusual; as soon as the driver saw the witness, the car sped away. The witness then passed a green car about 35 feet from the side of the road with its headlights on and engine idling. Another witness testified that, on August 24, 1981, he observed Larry Heath transact unknown business with three men who arrived at Heath's workplace in a white Mustang. The witness later identified two of the men as appellant and Lumpkin. During the transaction, the witness observed Heath retrieve a revolver, load it, and return it to a desk drawer. Jerry Heath, Larry Heath's brother, testified as part of a plea deal with authorities in Alabama.2 He testified that, around the beginning of August 1981, his brother asked him whether he knew of anyone who would agree to kill someone for him. Jerry suggested contacting appellant, also known as "Slim,"
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Jerry Heath was tried separately in connection with Rebecca Heath's murder in Troup County and was acquitted. Also indicted in Alabama, he pled guilty to conspiracy in exchange for his testimony in other pending proceedings involving Rebecca Heath's murder.
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whom Jerry had known for approximately ten years. Jerry also testified that on various occasions he had been to appellant's apartment, where he had seen Lumpkin, who drove a white Mustang and owned a .32 caliber revolver. Approximately two weeks after giving Larry appellant's name, Jerry saw Larry and Lumpkin at appellant's apartment. Larry stated during the visit that if he could not find someone to help him, he was going to "kill her himself." Williams also testified for the State as part of a deal with Alabama authorities.3 He testified that, in August 1981, he met at appellant's apartment with appellant and Lumpkin about killing Larry's girlfriend. Appellant gave Williams a gun, which Williams identified at trial, and Williams told appellant he would think about it. Williams, Lumpkin, and appellant subsequently drove in a white Mustang belonging to Lumpkin to meet with Larry at his workplace, where Larry reiterated his request for help in killing his girlfriend, gave Williams $100, and gave appellant a gun. Williams further testified that appellant, Lumpkin, and Larry had instructed him to kill the occupant of a certain green car in the parking lot of a LaGrange shopping mall and make it
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Williams pled guilty in Troup County of conspiracy to commit murder and was sentenced to ten years in prison. In exchange for his testimony in connection with other prosecutions involving the Heath murder, he was not prosecuted in Alabama.
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appear to have been a robbery. However, Williams testified, he did not want to commit the murder, had been interested only in the money and the gun, did not carry out the plan, and sold the gun at a grocery store with someone named Shorty. At some later time, appellant and Lumpkin told him in regard to the murder that it was "too late." A grocery store owner doing business in Phenix City testified that, in August 1981, he purchased a .357 Magnum from a black man named Shorty, who purported to be selling it for his companion, whom the witness later identified as Williams. Upon questioning by investigators after his arrest, appellant, who went by the nickname "Slim," admitted that he had taken money from Larry Heath but claimed the money was intended for someone else whom he would not identify. Appellant also admitted giving Williams a gun at his apartment approximately two weeks before the murder and corroborated various details regarding the meeting at Larry's workplace, including the exchange of money between Larry and Williams. Appellant also claimed that on the morning of the murder, he, driving the white Mustang, and another black male, driving the Heaths' car, followed Larry, who was driving a truck, to Phenix City, but that he had never
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gone to the Heath house and instead waited nearby until he saw the Heath car pull out onto the highway, which he followed until losing it in traffic. He further claimed he had no knowledge of what happened at the Heath home that morning or that the purpose of the excursion was to murder Rebecca Heath. Lumpkin also gave a series of statements after his arrest, in which he admitted that he, Williams, and another black male had gone to see a man named Larry at his workplace and that the other black male had informed him that Larry wanted his wife killed. Lumpkin also stated that the other black male had asked him to find someone to do the job, and that Lumpkin had asked Williams. Lumpkin further stated that the job was to be done for $3,000. Denise Lambert, who pled guilty to conspiracy to commit murder in both Georgia and Alabama and agreed to cooperate with authorities, testified that she had been dating Larry Heath for some time prior to the murder. She testified that Larry had told her he was unhappy in his marriage and planned to seek a divorce. A few days prior to the murder, Larry told Lambert he was upset because his wife had withdrawn a large sum of money from their bank account and that he planned to have her killed. On the eve of the murder, Larry brought his and the victim's two-year-old son to Lambert and asked that she watch him
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for the night. At 6:00 a.m. the next morning, he stopped by her home briefly, left, and then summoned her to meet him at a service station, where Larry got into her truck and began driving to the Heaths' home, followed by the Heaths' car and a white Mustang occupied by a black man, identified by Lambert as appellant. The Mustang and the Heath car remained at the Heath home; Larry, Lambert, and the child returned to the service station in the truck, and Lambert dropped Larry off at work. Later that day, a man identifying himself as "Slim" called Lambert demanding payment from her or Larry now that Larry had "gotten his wish"; Lambert told Larry, who instructed Lambert to pay Slim with money Larry had given her. Lambert subsequently met with appellant and gave him the money. "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA

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