The Indictments

by William Eleazer

  Moose raised his eyes as if looking at the ceiling and began: “If you find and believe beyond a reasonable doubt that the defendant committed the homicide at the time he was engaged in the commission of a felony, to wit, possession of a firearm by a convicted felon, you would be authorized to find him guilty of murder.” Then he turned and looked directly at Scott. “That’s how the judge instructed, and the Georgia Supreme Court found no error in it. Just substitute the crime, ‘possession of a silencer,’ for the crime, ‘possession of a firearm by a felon,’ and you have Donaway cold.”

  Scott was not surprised that Moose could quote the exact words from the statute and from the court decision. And, damn it, even the case citation. That was Moose being Moose, and it irritated him greatly. It was an advantage Moose had in any discussion of the law even when he was wrong.

  “Moose, I’m not prepared to argue that right now. I’m sure there are other cases on this, and I’ll research them. But let me get one thing straight: this is my case now, right?”

  “Right.”

  “Then I’ll find the answers. And I’ll take it to trial if it’s a valid charge. And if it’s not, I’ll see that it’s dismissed. Now, that is my intention, and those are my conditions. Do you still want me to have it?”

  “Yes, it’s yours, Scott. Just don’t screw it up.”

  CHAPTER TWENTY-SEVEN

  On Saturday, The South Georgia Times had a short article on the bottom of its front page:

  Popular Radio Talk Show Host Indicted for Murder

  Troy Donaway, talk show host of station WSAN’s popular afternoon call-in show, Right Turn, was indicted on felony murder charges by a Chatham County grand jury on Thursday. The charge resulted from action by Donaway during a robbery at Toussaint’s restaurant on September 29, 2007. Donaway, who had just finished dining in the restaurant at the time, was also indicted on another felony charge, possession of a silencer. The investigative report has not been released to the public, but sources close to the case said that action taken by Donaway during the robbery resulted in the robber panicking and firing his pistol erratically, killing a young woman. The robber has not been apprehended or identified. Metro Police report the investigation is continuing.

  News of Donaway’s indictment and arrest remained in the headlines of local TV, radio, and papers for several days. The South Georgia Times ran a two-page spread with photos in its Sunday edition, written by Bill Baldwin. Baldwin reviewed the events at Toussaint’s and as much of the investigation’s progress that he was aware of, which seemed to be very little. There were still no suspects, and new tips were coming in only sporadically. He wrote about Angela Voss being at Toussaint’s to celebrate with her family the news of her scholarship to Emory and that her funeral was attended by hundreds of mourners. He also reported that Mildred Thompson had been released from the hospital and was undergoing physical therapy. According to his sources, her motor skills were improving daily, but the article confirmed that she was blinded by the shot to her head.

  The focus of the article, however, remained on Troy Donaway—his background and his talk show—and his action at the restaurant. Baldwin seemed to affirm that, in reaching for his gun while lying on the floor, Donaway set off a chain of events that led to the death of Angela Voss and serious injury to Thompson. He had interviewed Donaway, and Donaway had expressed his sorrow at the death and injury, but he would not discuss the incident. He did make it clear that he intended to continue to host his afternoon talk show. In fact, Donaway was only absent from the show for a single day, Thursday, the day of his arrest after the grand jury indictment. By Friday afternoon, he was out on bail, sitting before his microphone, encouraged by a supportive call-in audience.

  Monday morning Scott received a phone call from Charles Samarkos.

  “Moose Mosley told me you would be handling the Donaway case,” Samarkos said.

  “Yes, that’s right.”

  “I guess you know I’m representing Donaway.”

  “Yes, Moose told me.”

  “I’ll be filing a demurrer to the felony murder trial, or in the alternative, a motion to dismiss, and I’d like to have it heard before Thursday’s arraignment. If you agree, I’ll try to set it up to accommodate your schedule. And I’ll have a copy of the motion sent over to your office this afternoon.”

  “I have a full court schedule tomorrow, but I could make time on Wednesday. Do you plan on calling witnesses?”

  “Not if we can agree to the facts. We could prepare a ‘Stipulation of Facts’ for the judge. Seems to me they are fairly simple: Donaway attempted to draw his pistol on the robber, and the robber started firing randomly, striking and killing the girl.”

  “Yes, that, and the fact that all the while he was in possession of an unregistered silencer—a felony under Georgia law.”

  Samarkos paused. “Let me think about that, Scott. It would be a complete admission of guilt to the other charge, wouldn’t it? Not sure we want to do that right now. How about we include that the stipulation is only for the purpose of deciding the issues presented by the motion to dismiss. Would you agree to that?”

  “Probably. You compose it—and send it over this afternoon with your motion.”

  “Will do. Give me a call after you’ve had a chance to take a look. By then I should know if we can get a hearing on Wednesday.”

  Moments after he’d finished his call with Samarkos, Scott’s phone rang again.

  “Bill Baldwin here. How’s it going, Scott?”

  “Well, I’m trying to get some work done, but I keep being interrupted by nosey newspaper reporters.”

  “Now Scott, you know you’re always happy to hear from me. Admit it.”

  “OK, I admit it. Can I go now? Or are you fishing for a comment on that article you wrote Sunday.”

  “Sort of. Thought you might be a bit miffed that I didn’t mention you in it.”

  “Actually, Bill, I’m really crushed. Now can I go?”

  “Moose told me he gave the case to you because you were the duty DA that night. He also said you weren’t happy with the charges—or how they made their way to the grand jury. So, I thought I would keep you out of the story.”

  “Good decision. Thanks.”

  “But tell me: just what is the disagreement with Moose on these charges?”

  “Now that would make a good story for tomorrow’s paper, wouldn’t it?”

  “Off the record, Scott. That’s a promise.”

  “Bill, you’ve been on this case since it happened, so you know that Donaway was a customer who was just unlucky enough to be in the wrong place at the wrong time. He’s prostrate on the floor, his unloaded pistol inches away, watching a robber about to run off with a bag of money that wasn’t even his. He’s probably scared as hell, but he would rather be remembered as a macho man whose bravery stopped a robbery. That’s the persona he tries to project on his show. I have no idea what was going through his head. Point a pistol at a robber and he would just drop the bag and run? The fact is, I doubt if Donaway gave it a thought at all. Just reacted, and you have a bad situation made worse. Really stupid. But felony murder? Just because at the time he was in possession of a silencer? Felony murder, Bill?”

  “Moose read me the statute. Says it fits, and it’s not for him to question legislative wisdom. If the law says it’s a crime, it’s a crime. That simple, according to Moose.”

  “He didn’t read you that statute, Bill, he quoted it from memory. Damn amazing, and I’m envious as hell. You should write a story on that. But you mentioned ‘legislative wisdom.’ How about a little prosecutorial wisdom? Quoting legislation and understanding law are not the same. No way in hell is this case ever going to trial as a felony murder case. Possession of a silencer—yeah, we may go to trial on that, but there won’t be a felony murder case under these facts.”

  “So you are taking it up with the DA—going over Moose’s head?”

  “I would if the DA was in town, but he’s in Jackson Hole, W
yoming, at a National DA’s Conference plus a short family vacation. He’ll be gone all week. I don’t have his phone number. Moose does, I’m sure, but I’m not asking him for it. And I’m not waiting for the DA to return to get this corrected.”

  “Then how, Scott?”

  “Just trust me. He’ll be arraigned Thursday. Check with me then.”

  “I’ll do better than that—I’ll be there. But I wish you wouldn’t keep all your secrets to yourself. Have you ever found a reason not to trust me? I could keep you up to date on things you may be interested in.”

  “Like what?”

  “Like where Harrison has been since the trial.”

  “Harrison the former senator or Harrison the son?”

  “The son.”

  “Why would I be interested in that sorry creep? Now, if you have a tip that Patel just bought his wife a Ferrari, or Josh Johnson has moved to Bimini, I’m interested.”

  “You’ll be the first to know. In the meantime, if you’re walking down Tybee Beach and run into John Harrison, be sure to give him a warm greeting for me. He gave me a lot of copy. Talk to you later.”

  After he hung up, Scott began to wonder about Bill’s revelation that John Harrison had apparently settled in at Tybee Island. He recalled that Harrison was living at Panama City Beach when he was committing his robberies. Apparently he’s a real beach bum. Scott wondered if he and his dad were still estranged. Then he erased all thoughts of the Harrison family from his mind and began some serious and long overdue legal research.

  ****

  Copies of Samarkos’s motion, along with his proposed stipulation of facts, were delivered in the early afternoon. There were no surprises. The motion cited cases Scott was familiar with, and the argument was basically one he would make if he were on the other side—only much more polished, Scott had to admit. He telephoned Samarkos.

  “I’ve read your motion and the stipulation. I have no problem with the stipulation.”

  “Good. But I couldn’t get the hearing set before Thursday. Judge Vesely says she’ll hear it then.”

  “Fine with me. I’ll see you Thursday.”

  CHAPTER TWENTY-EIGHT

  October 25, 2007

  Donaway’s arraignment was scheduled midway on Judge Vesely’s Thursday docket. Scott knew that she wasted no time, so he was in court well in advance of the clerk’s call of the case. He took a seat midrow of the gallery. The Donaway case would be the only case for Scott. Bill Anderson would handle arraignments in all the other cases. Some defense attorneys were sitting in the gallery with their clients, and others were just waiting for their clients to be brought in from the jail. The front of the courtroom was a flurry of activity, typical of a busy docket call.

  Samarkos walked in shortly, accompanied by Donaway, and they took a seat a few rows behind Scott. As they took their seats, Scott turned and saw a familiar face: Bill Baldwin. Then he noticed another face that he thought he had seen before. It came to him slowly—Daniel Voss. Scott had seen him only once—the night of the shooting in the back of a police vehicle, overwrought with grief over the death of his daughter.

  When the clerk finally called the Donaway case for arraignment, Judge Vesely spoke. “The defendant has filed a motion to dismiss the second charge in the indictment—the felony murder charge. Are counsel for the state and defense prepared to proceed?”

  By this time, both Scott and Samarkos, along with Donaway, had moved to the front of the courtroom. Scott was the first to speak.

  “Your Honor, I believe if you will allow me to go first, we can dispose of this motion quickly.”

  “Quickly, Mr. Marino? That word always gets my attention. What do you have in mind?”

  “Your Honor, do you have a copy of the document signed by both myself and Mr. Samarkos that stipulates to facts that led to this charge?”

  “Yes, Mr. Marino. It was attached to the motion to dismiss. I have read both the motion and the stipulation.”

  “Your Honor, the state does not contest the motion to dismiss. We have researched the law, and we concede that the facts of this case cannot support the charge of felony murder. From a reading of the statute alone, without considering the court decisions that have analyzed it, it’s easy to see how the grand jury could mistakenly find a true bill to this charge. I want to make it clear: I’m not here to criticize our grand jury.

  “The statute reads that ‘A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.’ That statute derived from common law and has been on the books for ages. The Georgia Supreme Court has had many opportunities to interpret it, and it hasn’t been easy. One leading case is Scott v. State, a 1982 case. And in the interest of quickly disposing of the motion as promised, may I skip the citations, Your Honor? They are all noted in Mr. Samarkos’s brief.”

  “You may, Mr. Marino.”

  “In the Scott case, the charge was felony murder, and the felony in issue was possession of a firearm by a convicted felon. The court affirmed the conviction. But that case should not now be read to support a charge such as this. Not only because the circumstances were quite different, but because of a case decided some ten years later, Ford v. State, also by the Georgia Supreme Court. In Ford, the court noted that the only rational function of the felony murder rule is that it acts as a deterrent to the commissions of felonies, which by their nature or by circumstances create a risk of death. It would not be rational, the court wrote, to extend the rule to felonies that are not dangerous to human life. Ford limited the application of the felony murder rule to felonies that are either dangerous per se or under the circumstances, create a foreseeable risk of death. The court also noted that there must be a sufficient connection between the felony and the homicide to trigger the rule.

  “In this case, Your Honor, the felony—possession of a silencer—is neither dangerous nor did it create a foreseeable risk of death. Additionally, there is no connection between the possession of the silencer and the unfortunate death that occurred during the robbery.

  “Thus, Your Honor, the state does not oppose the motion to dismiss.”

  “Does the defense wish to respond, Mr. Samarkos?” Judge Vesely asked.

  “No, Your Honor, I think Mr. Marino has covered it all, and done so very well—and quickly, as he promised.”

  “Yes, I agree. The motion is granted. The charge of felony murder against the defendant is dismissed. Are you ready now to enter your plea to Charge 1, possession of a silencer?”

  “Yes, Your Honor. The defendant pleads not guilty.”

  ****

  As Scott walked toward the elevator, he heard footsteps close behind and someone call his name. He stopped and turned. It was Samarkos.

  “Thanks for taking care of that so quickly,” said Samarkos. “And perhaps we can take care of the remaining charge just as quickly.”

  “Quickly? As Judge Vesely says, ‘that word gets my attention.’” Scott set his briefcase on the floor.

  “Just wondering if you might have any offer for a plea now.”

  “Charles, I don’t even know if I have a job now. That charge was drafted and presented to the grand jury by my boss, Moose Mosley. I wasn’t even aware of it until last Friday, although some time ago Moose hinted he had it in mind. When I objected, he quoted the statute verbatim and asked what part of it didn’t I understand.”

  “Yes, Moose can do that. I’ve known him ever since he arrived in Savannah. Everything to Moose is either black or white, right or wrong, and always literal. Do you suppose he ran it by the DA?”

  “Are you kidding? Do you really think the DA would have approved that? He’s out West at a conference. This was Moose’s project, his alone.”

  “Well, back to my original question. What kind of offer can you make us? You do understand that the possession of the silencer was a simple oversight. Donaway had no idea he needed to register it. He would have done so in a heartbeat had he know
n. Do you think this really rates a felony conviction?”

  “The Georgia legislature apparently did—and still does. The statute is pretty clear, and I’m not aware of any cases that say ignorance of this statute is a defense. Are you?”

  “I haven’t checked. Spent all my time on the murder charge. How about getting back with me as soon as you can make an offer? We’ll consider anything other than a felony conviction.”

  “Drawing a line in the sand? That always energizes me. In the words of Moose, ‘just what part of this statute do you not understand, Charles’?”

  Samarkos smiled. “Guess we’ll just have to talk later. I told Donaway I’d meet him out front. Call me when you have something to offer.” Samarkos began to walk toward the elevators.

  Scott called after him, “If I have something to offer.”

  As Scott reached down to pick up his briefcase, he saw another man approaching—Bill Baldwin.

  “I was waiting for you to wrap up your conversation—I didn’t want to interrupt. Got a few minutes?”

  “No. But for you, Bill, I’ll find a few. Let’s take the elevator up to my office. I may have a pink slip waiting on my desk.”

  ****

  As soon as they were seated in Scott’s office, Scott began to playfully turn over all the papers on his desk top. “Well,” he said, “no pink slip. Word of the dismissed indictment must not have gotten back to Moose yet. Have a seat.”

  “You didn’t tell Moose you weren’t going to oppose that motion?”

  “Nope, at least not today. I was incredulous when he mentioned felony murder as a possible charge three weeks ago and told him so. I wasn’t involved at all in the grand jury proceedings and was surprised—more accurately, appalled—when he informed me the grand jury had indicted Donaway on that charge. So we agreed that, if after my research I found it to be a valid charge, I would take it to trial. And if not, I would see that it was dismissed. At least that’s how I recall it. No case in Georgia supports a reading of that statute to support that charge, so it was dismissed.”