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Clements v. State

Supreme Court of Georgia

May 30, 2017

CLEMENTS
v.
THE STATE.

          MELTON, Presiding Justice.

         Following a jury trial, Edward Clements, Jr., was found guilty of malice murder, felony murder, conspiracy to commit murder, and various other offenses in connection with a murder-for-hire plot that culminated in the shooting death of his wife, Joni.[1] On appeal, Clements contends, among other things, that the evidence presented at trial was insufficient to support the verdict and that his trial counsel was ineffective. We affirm.

         1. Viewed in the light most favorable to the jury's verdict, the record shows that, in October 2010, Clements told his good friend, Robert Sybert, that he would pay Sybert between $5, 000 and $10, 000 to kill Clements' wife, Joni. Prior to this conversation with Sybert, Clements had expressed to his co-workers at Robins Air Force Base that he was "tired" of his wife and looking for someone to "take care of her, " and he had even asked a co-worker if he knew anyone who would kill for money. After the October 2010 conversation with Sybert, Sybert got his son, Richard, involved in the emerging plan to kill Joni, and Clements offered to pay Richard $1, 000, give him a car, and set up a date for him with a stripper if Richard would shoot and kill Joni. The three men came up with a plan in which Richard would enter Clements' house at a time when Joni was home alone and shoot her with a sawed-off .22 caliber rifle provided by Sybert. Clements gave Richard a key to his house so that he could get inside to shoot Joni when the time came to execute the plan.

         About a week before the murder, Richard went to Clements' house with the intention of killing Joni and unlocked the front door of the house using the key that Clements had given to him. However, Joni was not present at the house at that time. Instead, Clements' daughter was there, so Richard quickly ran from the home. Clements' daughter notified the police about a man in a hoodie who had tried to open the door of the home and then ran away.

         On February 8, 2011, Clements called Richard and told him that his wife would be at home alone. Sybert took Richard to Clements' house, and Richard again used the key given to him by Clements to unlock the front door. Richard was armed with his father's .22 caliber rifle. Richard had placed a homemade silencer on the weapon that he made with PVC pipe, black foam, and electrical tape. Richard called to Joni, who was upstairs at the time, and told her that Clements had sent him to the house to give her an extra key that Clements had made for her. When Joni came downstairs to retrieve the key, Richard used the rifle to force Joni to go upstairs again. While Joni pled for her life, Richard forced her into a bedroom, where he shot her five times, killing her.

         Richard was seen running from the house and across the street where his father, Sybert, picked him up in his car. The two men buried the murder weapon in an area behind their home, where it was later recovered by police.

         Clements arrived at his home with his daughter shortly after police arrived in response to a 911 call about the murder. When police informed him that something terrible had happened to his wife, Clements calmly responded, "I've been at work[.] I have to clock in[.] I have to clock out, and I've got co-workers to say I was there." In the days following the murder, Sybert's nephew began to suspect that Richard might have had something to do with Joni's death, and, when he called Clements to tell him this, Clements dismissed this possibility. Clements then told Sybert's nephew not to tell the police. In addition to Sybert's nephew, Sybert's other son, Jonathan, also began to suspect that Richard was involved in Joni's murder. When Jonathan called Clements to inform him of his suspicions, Clements also told Jonathan not to tell anyone. However, Jonathan went to the police.

         Police questioned Richard and Sybert. During this questioning, Sybert admitted that Clements had approached him about killing Joni, and that his son had jumped at the opportunity because Clements was offering to give him some money, a car, and a "piece of ass." Then, on February 17, 2011, the police obtained a warrant to wiretap Clements' and Sybert's phones. The wiretapped calls involved several communications between Clements and the Syberts. The police also obtained telephone records that revealed several calls between Clements, Sybert, and Richard immediately before and after both the shooting of Joni and the incident at Clements' house a week prior where Richard had unlocked the front door to the home and then immediately ran away. There was also a March 4, 2011 wiretapped call in which the lead detective in the case, Detective Wright, spoke with Clements and asked him about the murder.

         About a week after the murder, Richard left Georgia and went to Florida, where he was arrested on an unrelated felony. While being interviewed by Florida police, Richard confessed to murdering Joni and revealed Clements' and Sybert's involvement with it. Thereafter, Clements, Richard, and Sybert were charged with Joni's murder.

         The evidence was sufficient to enable a rational trier of fact to find Clements guilty of all the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See also OCGA § 16-2-21 (parties to a crime).

         2. Clements claims that the trial court erred in denying his motion to suppress evidence of the March 4, 2011, wiretapped phone conversation between Clements and Detective Wright wherein the detective asked Clements about Joni's murder. Clements contends that, because he had already invoked his Sixth Amendment right to counsel by hiring an attorney before the call took place, the police were not allowed to speak with him without his counsel being present. See Moran v. Burbine, 475 U.S. 412, 428 (III) (106 S.Ct. 1135, 89 L.Ed.2d 410) (1986) ("[O]nce the [defendant's Sixth Amendment] right [to counsel] has attached, it follows that the police may not interfere with the efforts of a defendant's attorney to act as a 'medium' between the suspect and the State during the interrogation") (citation, punctuation, and emphasis omitted).

         Clements' argument is without merit, as the record reveals that his Sixth Amendment right to counsel had not yet attached at the time that his conversation with Detective Wright took place. Indeed,

[t]he Sixth Amendment . . . addresses an accused's right in all criminal prosecutions to have the assistance of counsel for his defense and "attaches only at the initiation of adversary criminal proceedings. . . . [B]efore [judicial] proceedings are initiated a suspect in a criminal investigation has no constitutional right to the assistance of counsel." Davis v. United States, 512 U.S. 452 (114 S.Ct. 2350, 129 L.Ed.2d 362, 369-370) (1994). See also Moran, [supra].

State v. Hatcher, 264 Ga. 556, 558 (448 S.E.2d 698) (1994). In this regard, the United States Supreme Court has emphasized that it would "make[] little sense to say that the Sixth Amendment right to counsel attaches at different times depending on the fortuity of whether the suspect or his family happens to have retained counsel ...


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