Peek v. State

Decision Date06 September 1977
Docket NumberNo. 32150,32150
Citation238 S.E.2d 12,239 Ga. 422
PartiesDavid PEEK v. The STATE.
CourtGeorgia Supreme Court

W. Seaborn Ashley, Jr., Greensboro, for appellant.

Joseph H. Briley, Dist. Atty., Gray, Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Staff Asst. Atty. Gen., Atlanta, for appellee.

MARSHALL, Justice.

The appellant was convicted of two counts of murder and one count of kidnapping in the Superior Court of Greene County. He received a sentence of death on each count. His case is here on direct appeal and for mandatory review of the death sentences imposed.

I. SUMMARY OF THE EVIDENCE.

The state presented evidence at trial from which the jury was authorized to find the following:

On the night of June 5, 1976, Grady Peek, Jr. (murder victim), Pearlie Mae Lawrence (kidnapping victim), and appellant were at the White Plains Club in Siloam, Georgia. They returned from the club in Grady's car to the home of appellant's sister, Barbara Ann Peek. The appellant went into the house while Grady and Pearlie Mae remained in the car and "had sex." Afterward, Grady returned to the house leaving Pearlie Mae in the car. Appellant went back outside to the car and climbed into the back seat with Pearlie Mae. He told her that "it's my turn now" and then attempted to rape her. Grady came out of the house and told appellant to leave her alone. The appellant complied and returned to the house, where he stayed for about five minutes.

The appellant then came back outside and called for Grady. Grady went back behind the car toward the corner of the house. Pearlie Mae heard a loud sound, "(l)ike cutting wood with an axe." She got out of the car and went behind it where she found Grady lying on the ground. The appellant was standing over Grady poised to hit him again. However, when he saw Pearlie Mae, he threw down the instrument he had been using to beat Grady and chased Pearlie Mae and caught her. Appellant then dragged Grady's body to the car and put it in the back seat. He forced Pearlie Mae into the car with him and drove off. After driving a short distance, he drove the car into a ditch. He then raped Pearlie Mae.

After raping Pearlie Mae, appellant got out of the car and found James Jones behind the car on his knees. James Jones, who was staying at Barbara Peek's house, had been awakened by the sound of Pearlie Mae's hollering and had gone outside to investigate. When appellant found James kneeling next to the car, he reached inside the car and got the stick he had been beating Grady with and began to beat James. After James succumbed to the beating and fell to the ground, appellant hit Pearlie Mae on the head with the stick.

Appellant then went back to the Peek house, got the keys to James' car, and drove it back to Grady's car. He put James' body inside the car and Grady's body and Pearlie Mae in the trunk.

Appellant returned to the Peek residence and told Barbara that someone had "hurt" James. Appellant, Barbara Peek, and Paul Billy Ward, Jr., who was also staying at the Peek residence, went to the home of James Jones' parents. The police were then summoned.

Appellant, Barbara Peek, and James Jones' parents went to where appellant had parked Grady's car. Pearlie Mae was found inside the trunk. She was wearing only a blouse. James' body was found in the back seat of the car and Grady's body was found inside the trunk. The two of them were dead.

Pearlie Mae told the police that appellant had killed both Grady Peek and James Jones. After being advised of his rights, appellant gave a statement to the police in which he admitted beating Grady Peek and James Jones to death, but alleged that he was trying to defend himself.

Before trial appellant was sent to Central State Hospital to undergo a series of mental examinations. He escaped from the hospital but was later recaptured. After appellant was recaptured, at his own request he gave a second statement to the police denying any involvement in the murders. He stated that Paul Billy Ward had killed Grady by hitting him with a baseball bat and that James Jones had been killed by being beaten with a baseball bat by Paul Billy Ward and stabbed in the back by Barbara Peek. However, autopsies performed on both murder victims indicated that neither of them was killed by a baseball bat or a knife.

Appellant took the witness stand at trial and testified in his own behalf. He again denied any involvement in the murders, but he did testify that he had helped move the body of James Jones after Jones had been killed.

II. ENUMERATIONS OF ERROR.

(1) Enumeration of error 1 contends that the trial court erred in admitting into evidence the pre-trial statements of appellant given to the law enforcement officials investigating the case. Appellant argues that these statements were given involuntarily and without an understanding of the Miranda warnings and were induced by fear of injury as well as hope of benefit.

The law enforcement officials to whom the statements were made testified that appellant was informed of his constitutional rights before making each statement and that he indicated that he understood them. Appellant testified that on certain occasions he was given his Miranda warnings but he testified that on other occasions either the warnings were not given to him or they were read too fast or he did not understand his rights, specifically his right to have an attorney present.

Appellant testified that before giving one of the statements to the sheriff, the sheriff had shown the appellant his pistol and intimated that he did not want any trouble from appellant. Appellant also testified that the sheriff told him that if he, the appellant, would tell the truth he would only get seven years in prison. The sheriff denied these charges by appellant, however.

The trial judge held a Jackson v. Denno hearing out of the presence of the jury and determined that the statements were made by appellant freely and voluntarily after he had been apprised of his constitutional rights. Accordingly, the trial judge ruled that the pre-trial statements made by appellant were admissible in evidence.

In Johnson v. State, 233 Ga. 58, 209 S.E.2d 629 (1974), this court stated that, "(f)actual and credibility determinations of this sort made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous. See Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), and United States v. Watson, 469 F.2d 362 (5th Cir. 1972)."

Although Miranda establishes that the accused has a constitutional right to the presence of an attorney during an in-custody interrogation, that right has been found to have been waived where the accused is informed of his rights, understands them, and then proceeds voluntarily to answer questions in the absence of counsel. See, e. g., Blackmon v. Blackledge, 541 F.2d 1070 (1976 4th Cir.); United States v. James, 528 F.2d 999, 1019 (1976 5th Cir.); United States v. Marchildon, 519 F.2d 337 (1975 8th Cir.); United States v. Boston, 508 F.2d 1171 (1974 2d Cir.). We do not construe the decision of the United States Supreme Court in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) as overruling the previously cited federal appellate court decisions. The record in the case sub judice shows that each of the pre-trial statements appellant gave police was made after appellant had been advised of his right to have an attorney present and that he had knowingly and voluntarily relinquished that right.

Upon a review of the record we hold that the determination of the trial judge in favor of admissibility was not clearly erroneous under the facts of this case.

(2) Enumeration of error 2 contends that the trial court erred in admitting into evidence various items, e. g., wood scrapings, metal dishpan, tank top shirt, trousers, and quilt (all of which were bloodstained), found in the home of appellant's sister, Barbara Peek. Appellant argues that these evidentiary items were obtained by an illegal search and seizure without a warrant and without appellant's consent.

The trial judge admitted the complained-of items into evidence after finding that Barbara Peek had consented to the search.

At the pre-trial suppression hearing, as well as the trial itself, it was established that appellant lived with his sister in one bedroom of a house which she rented from another person. The police officer conducting the search testified that before searching the house he had obtained permission from appellant's sister, who stated to him that it was her house.

The only item seized from appellant's bedroom which was admitted into evidence was the quilt lying on the bed in that room. Testimony at trial indicated that it was necessary to go through this room to gain entrance to other areas of the house.

"(W)hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 249-250 (1974).

Certainly appellant's sister, as the lessee of the house in which he resided, possessed sufficient authority over the common areas of that house to consent to a search thereof. The question of her authority to consent to a search of appellant's bedroom is closer, but under the facts of this case the court need not embroil itself in the difficult task of attempting to determine what areas of the bedroom could be searched through the consent of appellant's sister and what areas could not. As we have stated, it was necessary to pass through the bedroom to gain entrance to other areas of the house, and the quilt which was seized from the bedroom was...

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