Prevatte v. State

Decision Date25 February 1975
Docket Number29420,Nos. 29419,s. 29419
Citation214 S.E.2d 365,233 Ga. 929
PartiesTed Anthony PREVATTE v. The STATE. William Bill JORDAN v. The STATE.
CourtGeorgia Supreme Court

Bishop & Sexton, Fred A. Bishop, Jr., Lawrenceville, E. L. Owens, Norcross, for appellants.

Bryant Huff, Dist. Atty., Dawson Jackson, Asst. Dist. Atty., Lawrenceville, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Atlanta, for appellee.

Syllabus Opinion by the Court

HALL, Justice.

Appellants were charged in two counts with the March 6, 1974, armed robbery and murder of James Addison Rouse, Jr. At separate trials, both were convicted and sentenced to death on each count.

The victim, Rouse, was an assistant principal of East Atlanta High School. On the day of the murder, Wednesday, March 6, he drove to work in his 1973 blue Toyota station wagon, wearing a wristwatch and carrying a grey briefcase. Though he telephoned his wife at about 8:00 p.m. that evening, he was last seen alive at about 7:30 p.m. at the Holiday Inn Motel located at the Suwanee exit from interstate highway I-85. He was identified by the bar manager of the Inn, who testified that Rouse left the bar near the time appellants entered. Appellants were also identified by the bar manager, who recognized Jordan by his 'teased hair' and Prevatte by the mole on his face.

Appellants were arrested together on Thursday afternoon, March 7, by sheriff's deputies in Anson County, North Carolina, after a high speed chase during which appellants fired upon the deputies and threw a sawed-off shotgun from their vehicle. They were driving Rouse's blue Toyota and in the car was Rouse's briefcase, a polaroid camera, two polaroid pictures (one of each appellant holding the sawed-off shotgun and a pistol in front of Rouse's automobile), two black bags and other shotgun shells. Jordan was wearing Rouse's watch. Appellants explained the photographs as 'just clowning around' and as a 'souvenir.'

Rouse's body was discovered on the following Saturday afternoon, March 9, 1974, at a lake in Gwinnett County, Georgia, about one and one-half miles from the Holiday Inn. An autopsy revealed 'a close range shotgun wound to the back of the head which completely disintegrated the head,' causing his death at a time approximately between 9:00 and 10:00 p.m., March 6th. A shotgun shell, found 14 feet from the body, was identified as having been fired from the sawed-off shotgun earlier found in the possession of Prevatte and Jordan.

Each testified for the other at his trial, both testifying that they knew nothing of the killing and had merely found Rouse's automobile abandoned in Atlanta, stolen it, and driven to North Carolina where they were apprehended.

Following their convictions and sentences to death, appellants bring this consolidated appeal.

1. Appellants' enumeration of error on the general grounds is without merit considering the evidence recited above, which we hold adequate to convict them of murder and armed robbery.'

2. It was not error to admit in evidence photographs of the victim showing wounds inflicted upon him and his condition at the scene where his body was found. Lingerfelt v. State, 231 Ga. 354, 201 S.E.2d 445; Henderson v. State, 227 Ga. 68, 79, 179 S.E.2d 76. Also there was no error in allowing this evidence to be taken into the jury room and to remain with the jury during its deliberation. Walker v. State, 216 Ga. 15, 114 S.E.2d 431.

3. The trial court did not abuse its discretion in Jordan's case by allowing a state's witness (Detective Bishop) to remain in the courtroom following the sequestration of all other witnesses. McNeal v. State, 228 Ga. 633, 187 S.E.2d 271.

4. The attack upon the constitutionality of the 1973 death penalty procedure (Ga.L.1973, p. 159) is without merit. McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577; Floyd v. State, 233 Ga. 280, 210 S.E.2d 810; Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12; House v. State, 232 Ga. 140, 205 S.E.2d 217; Coley v. State, 231 Ga. 829, 204 S.E.2d 612.

5. Prevatte contends that the testimony of Blankenship was improperly admitted by the trial court during the pre-sentence phase of his trial under Code Ann. § 27-2534 in that inadequate notice of this testimony was given by the state. We disagree. There was no error in allowing it as rebuttal evidence. See Eberheart, 232 Ga. 253, supra, 206 S.E.2d 12.

6. At both Prevatte's and Jordan's presentence hearings, the district attorney, addressing the trial court in the presence of the jury, made the following statement: 'Your Honor please, the other, the fifth thing is that the trial court, yourself, your Honor, you have the right even if the jury should recommend death of your own accord to reduce it to a life sentence if you saw fit. Sixth, there is now an automatic appeal which provides that the case go to the Supreme Court of Georgia, where they consider not only the evidence of guilt, but whether or not the evidence in that case warrants the death sentence, they, of their own accord, from reading the record have the right and they have already done so in one particular case, to set aside the death sentence and set a life sentence for the offense of murder.' No objection to this statement was made in the trial court. Appellants assert that the above statement was prejudicial in that it would tend to influence the jury to act without exercising reasonable caution and deliberation, and to shift the responsibility for an erroneous sentence, and for the correction thereof, to other tribunals. We will rule upon this contention even though there was no objection in the trial court, because under the mandate of the death penalty procedure (Code Ann. § 27-2537(c)(1)) this court must determine 'whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.'

Generally speaking, though it is the function of the prosecutor to prosecute and to perform his role as advocate, '(t)he prosecutor should refrain from argument which would divert the jury from its duty to decide ...

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57 cases
  • Prevatte v. French
    • United States
    • U.S. District Court — Northern District of Georgia
    • November 27, 2006
    ...Rouse's automobile abandoned in Atlanta, stolen it, and driven to North Carolina where they were apprehended. Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365, 365-66 (1975). The Georgia Supreme Court affirmed Petitioner's convictions for murder and armed robbery, but reversed his death sente......
  • Fleming v. Kemp
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 29, 1984
    ...jurors to take their sentencing responsibility lightly. Corn v. Zant, 708 F.2d 549, 557 (11th Cir.1983); but cf. Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365, 367 (1975) (the "inevitable effect" of the prosecutor's emphasis on the defendant's right to an automatic appeal was "to encourage......
  • Ingram v. State
    • United States
    • Georgia Supreme Court
    • November 27, 1984
    ...suggesting that the jury's evidentiary findings could be set aside by a higher court if unwarranted. Compare Prevatte v. State, 233 Ga. 929(6), 214 S.E.2d 365 (1975). Review Under The Unified Appeal 18. Under the Georgia Unified Appeal Procedure, this court reviews the entire record of the ......
  • Godfrey v. Georgia
    • United States
    • U.S. Supreme Court
    • May 19, 1980
    ...death penalty- where the prosecutor made an improper comment during his argument to the jury in the sentencing phase, Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365 (1975); Jordan v. State, 233 Ga. 929, 214 S.E.2d 365 (1975); it has reversed a trial court's decision limiting the type of mit......
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