Jarrell v. State
| Decision Date | 29 April 1975 |
| Docket Number | No. 29473,29473 |
| Parties | Dave JARRELL, a/k/a David Jarrell, a/k/a David Alfred Jarrell v. The STATE. |
| Court | Georgia Supreme Court |
Margaret Hopkins, James R. Venable, Decatur, for appellant.
Bryant Huff, Dist. Atty., Dawson, Jackson, Asst. Dist. Atty., Harrison & Garner, G. Hughel Harrison, Arthur K. Bolton, Atty. Gen., John B. Ballard, Jr., Asst. Atty. Gen., Lawrenceville, for appellee.
Syllabus Opinion by the Court
This case is before this court on appeal and for mandatory review of three death sentences. The defendant, David Alfred Jarrell, was charged with the kidnapping, armed robbery, aggravated assault and murder of Mala Still in Gwinnett County on December 24, 1973; he was indicted on these four counts on January 21, 1974; and, following a trial by jury during the week of March 4, 1974, death sentences were imposed for murder, kidnapping and armed robbery, and a 10 year sentence was imposed for aggravated assault.
Mrs. Mala Still was employed as a teller at a Lawrenceville bank. Because the bank was closing at 1:00 p.m. for Christmas Eve on December 24, 1973, she ate lunch at the bank.
Mrs. Still was last seen alive buying groceries in a shopping center in Lawrenceville after getting off from work at the bank at 1:15 p.m. A shopping list or menu in her handwriting on a bank form found later on Tribble Mill Road included deviled eggs.
On the day in question, Mrs. Still was driving a 1970 green Chevrolet automobile which contained three cloth calendars wrapped in paper sleeves, among other items. Before dark that day a passerby picked up two calendars wrapped in paper bags and six unbroken eggs on Tribble Mill Road. Mrs. Still's car was observed parked alongside Highway 20 at 8:00 p.m. that evening, but at that time the police had not been notified of her disappearance. The car was located and identified at about midnight. It had been emptied and wiped clean with a gritty cleanser.
Gray soil under the car led to a massive search in the southern part of Gwinnett County where, on the afternoon and evening of December 25, an egg carton and various articles of apparel and personal property belonging to the victim were found from time to time scattered and buried along Tribble Mill Road. Her dody, neatly dressed, was found shortly after noon on the 26th about 15 feet off Tribble Mill Road, shot with a .45 caliber pistol three times in the head and back.
At the autopsy when the victim's clothing was removed, leaves, pine straw and other vegetable matter were found between her clothing and her back. The autopsy showed that the gunshot wounds caused her death and that she had eaten 2 to 3 or more hours prior to death.
During the course of investigation approximately 350 people were interviewed, with some 150 to 200 statements being taken or reports being made.
On January 4, 1974, Mrs. Joan Pruitt received a threatening telephone call. She called the police and looked for her husband's .45 caliber pistol. It was missing. The last person Mrs. Pruitt saw with the pistol was David Jarrell, her neighbor. That had been on December 21.
David Jarrell was interviewed by police on January 5. He was advised of his rights and told that the police wanted to talk to him about the Mala Still case. After expressing concern that the victim's husband might seek revenge on the perpetrator, Jarrell made a confession in which he admitted stealing the Pruitt gun, kidnapping Mrs. Still in her car from the shopping center, forcing her to disrobe intending to rape her, causing her to redress, shooting her, throwing things from the car as he drove from the scene, cleaning the car with Ajax, and later selling the gun to Bobby Cannon. After confessing, the defendant reenacted the crimes and identified the place where the holster for the pistol would be found.
Ballistics tests showed that the .45 pistol Jarrell sold to Cannon was the weapon which fired the bullets removed from Mrs. Still's body. Jarrell's fingerprint and palmprint were identified on the paper sleeve of one of the calendars which had been picked up by a passerby and on the one found near the scene of the crime. The defendant had been seen walking the 1.1 miles from his residence toward the shopping center at noon on Christmas Eve. He had been seen in possession of the victim's automobile before 5:00 p.m. that same day. It had been left on highway 20 a distance of .4 miles from the defendant's home.
At the trial the defendant denied any knowledge of the crime and called alibi witnesses to substantiate his claim that he was at home at the time of the victim's death. While not denying his confession and reenactment, he stated he 'didn't remember anything' after being taken to the police station. The defendant testified he left home about 3:30 p.m. on the date of the victim's death, found the victim's car with the door half open and with the keys in it, drove it around for an hour or so and parked it back along highway 20 at or near the place where he found it. He explained his possession of the gun by saying he had taken it from the Pruitts on Christmas Day, after the victim's death.
Defendant has filed twenty-seven enumerations of error, several of which will be combined for consideration where appropriate.
1. Defendant complains of the alleged misjoinder of the four counts of the indictment and denial of his motions to be tried separately on each count, or alternatively to be tried on the capital felonies without joinder of the noncapital felony (aggravated assault).
To avoid multiplicity of prosecutions, a prosecutor is required by law to prosecute in a single prosecution all known crimes arising from the same conduct within the jurisdiction of a single court, subject to the right to severance by the court in the interest of justice.
Code Ann. § 26-506 provides that:
'(b) If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c).
'(c) When two or more crimes are charged as required by subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately.'
In this case the same conduct of the accused established the commission of more than one crime (kidnapping, armed robbery, aggravated assault and murder). Thus the accused may be prosecuted for each such crime.
None of these four crimes is a lesser offense included in any of the others, nor different only by definition that one is described generally and the others specifically. Thus the accused may be convicted for each such crime.
Because the several crimes arising from the same conduct were known to the prosecuting officer at the time of commencing the prosecution and were within the jurisdiction of Gwinnett Superior Court, they were required to be prosecuted in a single prosecution, unless the court in the interest of justice ordered one or more of them to be tried separately.
Henderson v. State, 227 Ga. 68, 179 S.E.2d 76, was the first case before this court involving Code Ann. § 26-506 after its revision in 1968 (Ga.L.1968, pp. 1249, 1267). That case involved kidnapping, rape and murder arising from the same conduct. This court held there that the 'interest of justice' criterion was discretionary with the trial judge and that his discretion had not been abused in that case. See also Pass v. State, 227 Ga. 730(3), 182 S.E.2d 799; Slocum v. State, 230 Ga. 762, 199 S.E.2d 202, and Mathis v. State, 231 Ga. 401, 402, 202 S.E.2d 73.
It is noted that the General Assembly used the words 'interests of justice' rather than the phrase 'if the defendant 'would be prejudiced" as is used in some jurisdictions. See ABA Standards Relating to the Administration of Criminal Justice, pp. 285, 286 (1974). Code Ann. § 26-506, as well as the ABA criminal justice standards, shows that on the question of severance the trial court should have discretion and that the interests of the accused are to be balanced with the interests of the state. ABA Standards, supra, pp. 285-286. See also Dingler v. State, 233 Ga. 462, 211 S.E.2d 752.
In the case before us, the testimony regarding the victim's automobile and the fingerprint identification of the defendant would necessarily have been used in all four trials if each count of the indictment had been tried separately. The testimony regarding the taking and recovery of the pistol would necessarily have been used in connection with the armed robbery, aggravated assault and murder, as well as possibly the kidnapping. The autopsy finding of leaves and pine straw beneath the victim's clothes related to the aggravated assault. Other testimony regarding the autopsy related to the murder. The defendant's written confession referred to all four crimes. If defendant's motion for separate trials had been granted, evidence of other crimes undoubtedly would have come out in each separate trial. The trial court did not abuse its discretion provided by Code Ann. § 26-506(c) in denying defendant's motion for separate trials.
The defendant here seeks to overcome the cited Code section by contending that At the outset it should be noted that these provisions deal with appellate jurisdiction. The jurisdictional provision of our Constitution applicable to superior courts, Code Ann. § 2-3901, Const. art. VI, § IV, par. 1, would not preclude the...
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