House v. State

• Decision Date: 04 April 1974
• Docket Number: No. 28678,28678
• Citation: 205 S.E.2d 217,232 Ga. 140
• Parties: Jack Carlton HOUSE v. The STATE.
• Court: Georgia Supreme Court

Page 217

205 S.E.2d 217

232 Ga. 140

Jack Carlton HOUSE v. The STATE.

No. 28678.

Supreme Court of Georgia.

April 4, 1974.

Rehearing Denied April 23, 1974.

[232 Ga. 148] Ben S. Atkins, Michael R. Schumacher, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Morris H. Rosenberg, Thomas W. Hayes, James H. Mobley, Jr., Arthur K. Bolton, Atty. Gen., Thomas P. Burke, Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

[232 Ga. 140] UNDERCOFLER, Justice.

This case is before this court on appeal and mandatory review of the death sentences imposed. The appellant was charged with two counts of murder occurring on April 14, 1973; indictments were returned against him on April 27, 1973; his trial began on July 9, 1973; and sentences were imposed on July 12, 1973.

The State presented evidence to establish the following: In the early afternoon of Saturday, April 14, 1973, a man wearing a dark hat was observed sitting on a log in the upper parking lot of the Mi Casa Apartments which are located in the area of DeFoor Avenue and Collier Road in Northwest Atlanta, Georgia. A few minutes later the man stood up, appeared to be staggering, and leaned agaisnt a wall surrounding a large tree in the parking lot. Thereafter the man walked out of the parking lot towards DeFoor Avenue about 2:15 to 2:30 p.m. About 2:30 a man identified as Jack Carlton House, the appellant, staggered down Clairmont Street in front of the home of Robert Eugene Dunn, one of the victims. Robert and a friend, Johnny Ray Smith (each aged seven) ran out as if to play with the appellant and Robert's father made them come back. Appellant went on down the street and about five minutes later the two boys got on their bicycles and went down the street and out of sight in the same direction as appellant had gone. About 3:00 p.m. a man wearing a dark hat, resembling appellant's hat, was seen at the corner of Mantissa Avenue and DeFoor Avenue going into the woods. The Dunn boy and another boy who were pushing their bikes across the street laid their bikes down and went in the same direction the man was seen to go. All three disappeared into the woods.

In a pre-trial statement, the appellant related the boys followed him in the woods. '. . . I had with me a coke [232 Ga. 141] bottle which I had poured what was left from the half-pint that I had bought. I then sat down and finished what I had in the coke bottle. At this time the boys had followed me down into the woods and they were still picking at me. I told them to go on and leave me alone but they wouldn't. So I reached up and grabbed one of them by the neck and got up and grabbed the other (I'm not sure how I grabbed him). They were hollering and screaming. I told them to quit hollering and made them take their clothes off.' After relating that he committed anal sodomy on both of the boys the appellant continued, 'and they kept hollering. Then I choked them to death. Then I took the bodies up to the railroad tracks by carrying one on each shoulder like a sack of flour. After getting up close to the railroad tracks I threw the bodies down, and I ran out of the woods by the dump and out Davis Circle . . . I was wearing green pants and a blue shirt with white stripes and a black felt hat with a gold band around it.'

Between 3:40 p.m. and 4:00 p.m. that day a man wearing a black hat resembling appellant's was observed walking in an unsteady manner up Davis Place.

The nude bodies of Robert Eugene Dunn and Johnny Ray Smith were found in the early morning hours of Sunday, April 15, 1973, in the woods they were seen to enter the previous day. Their clothing was found some four hundred feet from the bodies.

The following day the appellant showed police officers where he did the act, where he put the clothes and where he dumped the bodies.

A bloodstain on appellant's trousers was International Group A-M-N, Blood Group M. Appellant's blood was group N and Robert Dunn's blood group was M.

Examination of the bodies of the two boys indicated they died of strangulation. Further physical findings corroborated appellant's pre-trial statement.

The appellant presented evidence to establish the following: In the woods where the bodies were found drunks hang out especially on week-ends. Appellant drinks a lot. He talks a lot when drunk but otherwise he is no different when drunk. On the morning of Saturday, April 14, 1973, appellant had intercourse with his wife [232 Ga. 142] who was bleeding from her menstrual period. Appellant kept his pants on during intercourse. He is not sexually abnormal and when he gets drunk he comes in and goes to sleep. He was at home when his wife left to go shopping at 1:30 p.m. and when she came back at 4:00 p.m. he was in bed asleep.

Appellant testified that on the Saturday morning he went shopping with his wife and bought a hat. They returned home and later his wife left. Appellant related buying and drinking two half-pints of vodka and his wandering about the neighborhood. He wandered by two kids who asked if he was drunk and he responded 'Yep.' He wandered on and later saw two little boys on bicycles down the hill. He wandered down the path into the woods, rolled into some leaves, heard somebody talking but paid no attention, and 'passed out.' He testified that he had no knowledge of what happened to anyone in the woods. When he came out of the woods he saw the two bicycles. He went home. He identified the hat and pants that were in court as the ones he was wearing that day.

The appellant's brother, Brintley House, testified that about 2:30 p.m. that Saturday, appellant had tried to sell him a tape recorder, that the appellant was drunk, and that the appellant was not a homosexual.

Testimony concerning the voluntariness of the pre-trial statement of appellant will be discussed below.

Following his conviction and sentences to death on each of the charges of murder, House appeals to this court alleging in addition to the general grounds that the trial court erred as follows: (a) The waiver of counsel signed by appellant prior to his interrogation by the Atlanta Police Department was illegal and void and it was error to put it into evidence or to allow the jury to consider it. (b) The confession taken by the Atlanta Police Department from the defendant was procured illegally and should not have been admitted into evidence. (c) The statute under which the death penalty was imposed upon the defendant was and is unconstitutional under the United States and Georgia Constitutions. Held:

1. The waiver of counsel signed by appellant prior to this interrogation by the Atlanta Police Department was not illegal and void and it was not error to put it into [232 Ga. 143] evidence or to allow the jury to consider it.

Appellant contends that the waiver of rights which he signed prior to the instigation of interrogation by the Atlanta Police Department on April 15, 1973, was not intelligently and knowingly made and that the burden of showing the voluntariness of

the waiver rests upon the state and that a necessary ingredient of that voluntariness is knowledge of the nature of the offense about which appellant was being questioned

Detective Charles Smegal of the Atlanta Police Department testified on cross examination that he told appellant 'that he was suspected of the offense of murder' prior to his signing the waiver but that he did not tell him he could go to the electric chair for it.

Appellant testified: 'Sergeant Fitzgerald stood up. So, he said, 'Well, I will tell you what happened down there, there was two little boys killed and raped in those woods' . . . Sergeant Fitzgerald was standing up and he set me in a chair. Well, Sergeant Fitzgerald got to talking to me and it was 12:10 whenever I signed that first paper, . . .'

Other evidence clearly indicates that the statement of rights in appellant's waiver was read to him and read by him and that he voluntarily signed the waiver after indicating he understood those rights without threats, offer or hope of reward or offer of physical violence.

Both the state's witness and the appellant confirmed that appellant was informed of the nature of the offenses of which he was suspected and to be interrogated. We conclude that appellant was fully advised of the nature of the offense about which he was to be questioned and intelligently and knowingly waived his right to the benefit of counsel prior to being interrogated, Pitts v. State, 226 Ga. 878, 178 S.E.2d 177; Johnson v. Caldwell, 228 Ga. 776, 778, 187 S.E.2d 844.

2. The confession taken by the Atlanta Police Department from the defendant was procured legally and was properly admitted into evidence.

At a hearing without the jury held in accord with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and subsequently before the jury, the following evidence was presented concerning the [232 Ga. 144] voluntariness of appellant's confession. For the state there was testimony that on April 15, 1973, prior to any interrogation the appellant was advised in accord with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602; 16 L.Ed.2d 694, 10 A.L.R.3d 974, that he was suspected of murder, that he had a right to remain silent, that anything he said could be used against him in court, that he had a right to talk to a lawyer for advice before questioning and to have a lawyer with him during questioning, that if he could not afford a lawyer one would be appointed for him before any questioning and if he decided to answer questions without a lawyer he would still have the right to stop answering at any time until he talked to a lawyer. There was also testimony that appellant was not subjected to any threats, force, coercion or promise of reward and that he made the statement freely and voluntarily. For the defense appellant testified that he was slapped and hit by the police officers, 'kicked in the straddle' 13 or 14 times, threatened, and...