THE BUNGLED PROSECUTION OF DONNIE SPILLERS

There are thousands of police-civilian encounters each day which end without violence

There is no doubt that had Lee County Deputy Sheriff Donnie Spillers not been wearing a badge the night of February 14, 2005, at this moment he would be in jail beginning a life sentence for felony murder, along with a 20 year sentence for aggravated assault and another five years for possession of a firearm during commission of the crimes. Instead, Spillers was convicted last week by a Lee County jury of two relatively minor felonies: violation of his oath of office and false statements. He walked out of the courtroom sentenced to five years concurrent probation on each count. He will also be required to undergo mental health counseling and perform community service. If Spillers successfully completes his probation, the conviction will be erased from his record under Georgia’s first offender statute.

In spite of recent Herald Squawkbox criticisms of the Spillers’ jury (typical comments: “Each of you jurors should be ashamed of yourselves,” “The criminal justice system has reached an all-time low,” and “I always heard if you knew the right people in Lee County you could get away with anything”), reasonable jurors would most likely have rejected any defense to the fatal shooting in the head of unarmed 17 year old Rodger Wesley Beaver if the accused had been a private citizen.

But the problems with this prosecution began at the outset when the case was presented to the grand jury. Had the Southwestern Judicial Circuit District Attorney disqualified herself, there is no doubt that a special prosecutor would have asked for and received a felony murder indictment from a grand jury. Although it may seem strange to a lay person, that charge would have been much harder for Spillers to defend than the involuntary manslaughter charge the District Attorney sought and received. Spillers’ very able legal counsel, Albany’s Pete Donaldson and Leesburg’s Patrick Eidson, must have thanked their good fortune that the prosecution was so incompetent. That fact became evident when The Albany Herald reported on May 20th that an unidentified juror blamed the not guilty verdict on “the way the law was written.”

Involuntary Manslaughter was the wrong charge

Speaking as a defense lawyer who has defended murder cases and other violent crimes, the fault lay not with the written law but with the District Attorney who drafted the indictment and presented the case to the grand jury. The misdemeanor version of involuntary manslaughter which was charged in this case is defined in the Official Code of Georgia Annotated (OCGA) § 16-5-3:

“(b) A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm. A person who commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner, upon conviction thereof, shall be punished as for a misdemeanor.”

I’ve practiced law for thirty years and I still find that language confusing, especially as it was used in the Spillers’ prosecution. The question that first came to my mind was: what “lawful act” could Spillers possibly have been engaged in when he shot the young man in the head? The second question was: what was the “unlawful manner” in this case? So I sympathize with the 12 trial jurors who had to wrestle with it. (For those who are interested, the felony version of involuntary manslaughter is equally confusing: “when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.”)

Simply put, involuntary manslaughter was the wrong crime to charge in this prosecution. When a person shoots and kills an unarmed person who has not committed a violent act, is not threatening to commit a violent act, and who poses no danger to the shooter or a third party, the correct charges would have been aggravated assault and felony murder. The pertinent paragraph of the aggravated assault statute, OCGA § 16-5-21. states:

“(a) A person commits the offense of aggravated assault when he or she assaults:

(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury;”

Section 16-5-20 of the Code defines an “assault” as occurring when:

“ A person ...

(1) Attempts to commit a violent injury to the person of another; or

(2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”

Spillers could have been convicted of felony murder

The facts in this case unquestionably lead to the conclusion that Spillers committed an aggravated assault on Beaver when he discharged his gun in Beaver’s direction. Because Beaver died during the commission of this felony, the law makes it felony murder, which is defined as follows:

“16-5-1. Murder; felony murder.

(c) 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.

(d) A person convicted of the offense of murder shall be punished by death or by imprisonment for life.”

A quick search of my case law data base reveals that there have been over 280 cases decided by the Georgia Supreme Court involving felony murder with aggravated assault as an underlying felony. Here’s a sample quote from a recent decision: Smith v. State, S05A1873 (Ga. 2006):

“The jury found Smith guilty of felony murder with aggravated assault as the underlying felony, and one count of possession of a firearm during the commission of a felony.”

That decision also makes it clear that Spillers could also have been charged with possession of a firearm during commission of the aggravated assault, a felony with a separate 5 year prison sentence:

“16-11-106. Possession of firearm or knife during commission of or attempt

(b) Any person who shall have on or within arm's reach of his or her person a firearm... during the commission of, or the attempt to commit:

(1) Any crime against or involving the person of another;”

Spillers knew his only hope was self defense when he planted the knife

What makes the argument that the District Attorney bungled the prosecution particularly compelling is the undisputed evidence that Spillers went to the trunk of his car and retrieved a knife, which he then planted in Beaver’s vehicle. Ironically enough, Spillers knew the law better than the District Attorney, because he immediately realized that his only possible defense for shooting an unarmed boy who was not threatening violence was to put a deadly weapon within reach of the victim. Testimony at trial established that Spillers planted the knife after he asked his partner, Deputy Sandra Pressley Fordham for a “throw down gun” to put near Spillers. When she refused, he used the knife.

The only possible reason for Spillers to need a gun or knife to put within reach of Beaver was to create a defense of justification- that Spillers was acting in self defense when he committed the homicide. The law on self defense, OCGA § 16-3-21, allows a person to use “deadly force” only when “... he ... reasonably believe[d] that such force [was] necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.”

Rumors have swirled that Beaver was no stranger to Spillers- that a “love triangle” was somehow involved and that there was bad blood between Spillers and Beaver. If that is true, then the District Attorney dropped the ball by not presenting evidence of motive. If such evidence existed, that would have supported an indictment for both felony murder and malice murder- a killing where the accused intended the death of the victim. If the civil suit by Beaver’s estate goes to trial, we may learn whether or not the rumors are fact or fiction. But even without evidence of motive, the circumstantial evidence- the fact that Beaver was unarmed, was not threatening Spillers, and that Spillers planted the knife- was overwhelming that Spillers committed an aggravated assault without justification, which should have led to a conviction for felony murder.