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Kelly v. State

The defendant who participated in three unsuccessful attempts to kill the victim did not abandon his active participation in the murder plot before the murder was committed.

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A jury found Larry Wayne Kelly guilty of the malice murder of Kevin Spann and the possession of a firearm during the commission of that crime. The trial court entered judgments of conviction on the jury’s verdicts, and imposed sentences of life imprisonment on the murder charge and a consecutive five-year term for the firearm possession offense. Kelly appeals.1

Kelly contends only that the evidence was not sufficient to authorize a finding of his guilt of the crimes charged beyond a reasonable doubt. Construed most favorably for the State, the evidence shows that, after Kelly became romantically involved with co-indictee Gina Spann, they planned to kill her husband. Kelly not only participated in three unsuccessful attempts to carry out this plan, he also stole the weapon which was ultimately used to shoot the victim. Although Kelly asserts that he abandoned his active participation before the actual murder was committed, the evidence is not consistent with this claim, showing instead that he never renounced the criminal enterprise, but only postponed it. See OCGA § 16-4-5 b 1; Hyman v. State, 222 Ga. App. 419, 421 1 474 SE2d 243 1996. Although Ms. Spann hired co-indictees Christopher Bargeron, Gerald Horne, and Matthew Piazzi to kill Mr. Spann, Kelly gave the stolen gun to Bargeron, so that he could give it to Horne. Kelly discussed the plan with the co-indictees and accompanied Ms. Spann when she dropped off Horne and Piazzi near the victim’s home. After Piazzi shot the victim, Kelly and Ms. Spann met with Horne and Piazzi at a nearby convenience store.

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