226 S.E.2d 911 (Ga. 1976), 30548, Coleman v. State

Docket Nº:30548.
Citation:226 S.E.2d 911, 237 Ga. 84
Opinion Judge:JORDAN, Justice.
Party Name:Wayne Carl COLEMAN v. The STATE.
Attorney:Tracy Moulton, Jr., Blackely, Harold Lambert, Bainbridge, for appellant., J. Frank Myers, Dist. Atty. pro tem., Americus, Peter Zack Geer, Jr., Sp. Prosecutor, Albany, Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Staff Asst. Atty. Gen., Atlanta, for appellee.
Judge Panel:HILL, Justice (dissenting).
Case Date:June 22, 1976
Court:Supreme Court of Georgia
 
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Page 911

226 S.E.2d 911 (Ga. 1976)

237 Ga. 84

Wayne Carl COLEMAN

v.

The STATE.

No. 30548.

Supreme Court of Georgia.

June 22, 1976

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[Copyrighted Material Omitted]

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[237 Ga. 95] Tracy Moulton, Jr., Blackely, Harold Lambert, Bainbridge, for appellant.

J. Frank Myers, Dist. Atty. pro tem., Americus, Peter Zack Geer, Jr., Sp. Prosecutor, Albany, Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Staff Asst. Atty. Gen., Atlanta, for appellee.

JORDAN, Justice.

Defendant Wayne Carl Coleman was indicted on September 4, 1973, by the grand jury of Seminole County and charged with six counts of murder occurring on May 14, 1973, as follows: (1) Ned Alday, (2) Jerry Nelson Alday, (3) Jimmy Cecil Alday, (4) Mary Campbell Alday, (5) Aubrey Alday, and (6) Chester Addis Alday. On January 18, 1974, after finding the defendant guilty on all six counts of murder and after finding statutory aggravating circumstances as to each, the jury fixed the punishment at death by electrocution on each count. The case is here on appeal and for mandatory review of the death sentences. The record was filed in this court on October 15, 1975. After extensions of time granted to the defendant and the State for filing briefs, the case was argued in January, 1976.

The State presented evidence from which the jury was authorized to find the following facts: On the afternoon of May 14, 1973, defendant and three others, Billy Isaacs, Carl Isaacs, and George Dungee, drove to the residence of Jerry Alday located in Seminole County near the City of Donalsonville. The residence, a mobile home, was unoccupied at that moment. The defendant and one of his companions entered the mobile home for the purpose of burglary. Shortly thereafter two members of the Alday family, Jerry and his father, Ned Alday, arrived in a jeep, were escorted at gunpoint into the trailer, and were shot to death at close range with handguns. Ned Alday was shot seven times in the head by the defendant. Jerry Alday was shot four times in the head.

Shortly thereafter a tractor driven by Jerry's brother, Jimmy Alday, arrived at the trailer. After being forced to empty his pockets, he was placed on the living [237 Ga. 85] room sofa and killed with a handgun fired at close range.

While one of the four was moving the tractor out of the driveway, Jerry's wife, Mary, arrived at her home by car. She was forced into the kitchen, where her purse was emptied. It contained her car keys and a dollar bill. Two other members of the Alday family Aubrey and Chester, Jerry's uncle and brother, arrived in a pickup truck. Mary was forced into the bathroom while Aubrey and Chester were taken at gunpoint into the bedrooms and shot in a manner similar to the first two victims. The defendant killed Chester Alday with a single shot in the head.

Mary Alday was then raped by two or more of the men, including defendant Coleman. She was then taken, bound and blindfolded, in her car about six miles to a wooded area where she was raped by two of the men, was beaten when she refused to commit oral sodomy, and her breasts mutilated. She was then killed with two shots. Her watch was then removed from her nude body.

The defendant and his companions left the car they had arrived in, and fled in the Alday car, taking with them weapons and money found in the trailer and money found on the victims. The defendant and his companions abandoned the Alday car in Alabama, took possession of another auto, and continued their flight to West Virginia

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where they were arrested a few days after May 14th.

In his confession, the defendant admitted killing all six of the victims himself but according to the testimony of sixteen-year-old Billy Isaacs who testified for the State, defendant Coleman shot the two victims specified above. The evidence is uncontradicted, however, that each of the six victims was killed by a member of the group.

Defendant Coleman's fingerprints were identified as being on a beer can found in the kitchen of the Alday trailer, and on the car found in the vicinity of Mary Alday's body. Billy Isaacs' fingerprints were found on that same auto as well as on a camera in the Alday home and on the Alday auto found in Alabama. Fingerprints of Carl Isaacs and George Dungee were also found.

At the time of the arrests in West Virginia three handguns were found. Ballistics tests showed that these three weapons caused the deaths of the victims. One of the persons arrested had in his possession a watch identified [237 Ga. 86] as belonging to Mary Alday. The defendant rested without presenting any evidence.

The jury found the defendant guilty of six counts of murder and imposed the death sentence as to each of them. On appeal, defendant enumerates two errors, the overruling of his motion for change of venue and the upholding by the trial court of the constitutionality of the death penalty. In addition, we are required by law to make an independent review of the death sentences. Ga.Code § 27-2537(c).

The crimes described were committed on May 14, 1973. Defendant was arrested on May 18, was indicted on September 4, and his four day trial commenced on January 14, 1974. Motion for change of venue based upon prejudicial pretrial publicity and juror partiality was filed on September 20, 1973, was heard on September 27 and was thereafter overruled on October 9. The motion was renewed and amended immediately prior to trial. The amendment added as grounds for change of venue that two other defendants had been convicted and sentenced to death for these same crimes, and that these convictions and sentences were widely publicized and well known in the community and would cause defendant's jury to render guilty verdicts and death sentences. After voir dire and jury selection, the court overruled the motion as amended.

1. The threshold question in this appeal is whether the trial court erred in overruling the defendant's motion for change of venue based upon prejudicial pretrial publicity affecting the partiality of the jurors.

The motion was supported by the introduction into evidence of 14 issues of the local newspaper, 38 clippings from the Albany Herald, 24 issues of the Dothan Eagle, and 3 magazine articles. These items cover news stories during the period from discovery of the crimes on May 15, 1973, through the pretrial hearing on the motion for change of venue. The record contains no news clippings during the three and one-half months immediately preceding the appellant's trial.

Georgia Code Ann. § 27-1201 provides for a change of venue in any criminal case where (1) an impartial jury cannot be obtained or (2) if there is a probability or danger of [237 Ga. 87] violence. We are concerned in this appeal with only the question of whether an impartial jury was selected because the record demands a finding that there was no indication of mob violence in Seminole County; that there had been no outbursts or disorder during the preliminary stages of the proceeding or at the actual trial, and absolutely no evidence that the appellant's safety had been threatened in any manner. As is our duty we must then look to the voir dire record of examination of prospective jurors in an effort to determine whether or not an impartial jury could have been and was obtained for the trial of this appellant in Seminole County.

In considering this question this court fully recognizes the well established principle that a trial before a fair and impartial jury is a basic requirement of due process. We also recognize the right of the news media to report the factual happenings

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surrounding a crime and to report accurately a trial based thereon. To restrict the right of the press in this regard would be inconsistent with the First Amendment and with the right of the public to a free flow of information. This right of the media, however, must not be allowed to interfere with the judicial calm which must surround a trial free from emotionalism and sensationalism. The courts have attempted to balance these equities. It was stated in U.S. v. McNally, 485 F.2d 398, 403 (Eighth Circuit) (1973), 'Just because, however, there hs been widespread or even adverse publicity is not in itself grounds to grant a change of venue. As stated in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961), an important case draws public attention through 'swift, widespread and diverse methods of communication' and hardly any prospective juror 'will not have formed some impression or opinion as to the merits of the case.' The proper test is whether the prospective juror 'can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' Irvin v. Dowd, supra at 723, 81 S.Ct. at 1643.'

With these principles in mind let us now turn to an examination of the voir dire record in this case.

The record before us shows the very extensive (490 typewritten pages) voir dire questioning of the prospective and selected jurors...

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