253 S.E.2d 729 (Ga. 1979), 33879, Collins v. State

Docket Nº:33879.
Citation:253 S.E.2d 729, 243 Ga. 291
Opinion Judge:NICHOLS, Chief Justice.
Party Name:COLLINS v. The STATE.
Attorney:Aultman, Moore & Daly, James J. Daly, Jr., Warner Robins, for appellant., Stephen Pace, Jr., Dist. Atty., Miriam D. Wansley, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Asst. Atty. Gen., for appellee. [243 Ga. 300] Aultman, Moore & Daly, James J. Daly, Jr., Warner Robins,...
Case Date:March 06, 1979
Court:Supreme Court of Georgia

Page 729

253 S.E.2d 729 (Ga. 1979)

243 Ga. 291




No. 33879.

Supreme Court of Georgia.

March 6, 1979

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 446 U.S. 420

Page 730

Argued Sept. 12, 1978.

Rehearing Denied March 27, 1979.

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[243 Ga. 300] Aultman, Moore & Daly, James J. Daly, Jr., Warner Robins, for appellant.

Stephen Pace, Jr., Dist. Atty., Miriam D. Wansley, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Asst. Atty. Gen., for appellee.

NICHOLS, Chief Justice.

Roger Collins was tried by a jury in Houston County for the rape and murder of Deloris Luster. He was convicted of both offenses and was sentenced to death for [243 Ga. 292] the murder and fifteen years imprisonment for the rape. He is before this court on direct appeal and for mandatory review of the death sentence imposed upon him.

There was evidence admitted that would authorize the jury to find the following:

During the night of August 6, 1977, Roger Collins, William Durham and Johnny Styles were drinking and carousing. While the three companions were sitting around drinking and talking, Durham jumped up and said three times that he loved to kill.

Later the same night, they saw Deloris Luster getting out of an automobile. Collins called her over to the car in which they were riding and asked her to engage in sexual intercourse. She declined but accepted an invitation to drive her home. Instead of taking her home, Durham drove them around for a while, engaging in various acts of reckless driving which finally resulted in the automobile's muffler being knocked off.

Durham stopped the automobile to check the damage, and he and Collins conversed for a few moments out of Styles' hearing. Upon their return, Styles asked Durham what he and Collins had been taking about. Durham replied that they were going to have sexual relations with Deloris Luster.

After they got back in the car with Durham driving, they drove to a pecan orchard and stopped at the gate. Deloris Luster asked why they had stopped, but they did not answer. Durham opened the gate, drove in, and closed the gate. She told Durham that she was two months pregnant and had a venereal disease. Collins told her that if he caught the disease, he was going to do something to her. After Durham turned the car around, he got out and grabbed her, snatching her out of the car. Durham started to remove her clothes, but she proceeded to remove them while Collins removed the back seats from the car. While Durham, who was brandishing a knife, and Styles waited nearby, Collins had sexual intercourse with her. She was screaming and saying, "Why me!"

When Collins finished with her, Durham ordered Styles to have intercourse with her. Styles pretended intercourse for about two minutes. Durham told her that if she didn't stop screaming, he was going to use the knife [243 Ga. 293] to "rip her damn heart out." Durham stuck the knife beside her head, slapped her in the face and proceeded to have intercourse with her. Durham then forced Styles to have intercourse with her again. Styles heard Durham ask Collins, "Is there anything else that you want to do to her because won't nobody else, won't nobody else see her no more, won't nobody else get no more of this . . . ."

Durham took her hand and led her up the dirt road into the pecan orchard with Collins following. She said, 'Y'all going to kill me, ain't you? " Collins stopped, went back to the car, opened the trunk and removed the jack. Armed with the jack, Collins followed Durham and Deloris Luster. Moments later, Styles heard "about three licks. " Collins returned to the car, followed by Durham, "joking each other. " Durham was carrying the jack which was bloody all over. Collins had blood on his feet and instructed the others that if anyone asked how the blood got on them, they should say that he had cut his feet earlier that day.

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Styles gathered Deloris Luster's clothes and the three left. Styles heard Collins say to Durham, "Hey, man, you didn't think I was going to hit her up 'side the head too. " As they were leaving, Collins told Styles that he had killed so many people he could not remember how many.

The jack was thrown alongside the road in two pieces. When recovered, it was covered with blood and hair. A latent fingerprint left on the jack was positively identified as the right thumbprint of Collins.

At daybreak, Styles reported these matters to the police. The body was located, and later in the day, Collins and Durham were arrested and given Miranda warnings.

That afternoon Collins again was advised of his rights but did not make a statement. Later that evening, after once more being advised of his rights, he made a statement in which he admitted that he had picked up the victim under the pretext of carrying her home, and that he had instead carried her to a pecan orchard, accompanied by Durham and Styles, where he and the others had raped her. He admitted also that afterward he hit her in the head with a jack and then gave the jack to Durham.

Death resulted from massive head injuries caused by multiple blows of great force. Sperm was found in the [243 Ga. 294] victim's vagina and rectum.

1. In his first enumeration of error, Collins contends that Code Ann. § 59-806 (4), allowing prospective jurors to be asked on voir dire whether they are conscientiously opposed to capital punishment, denies him an impartial jury in violation of the Sixth and Fourteenth Amendments.

This issue has been raised numerous times before this court, and in each instance this court has ruled that the asking of the question does not violate constitutional guarantees under the State and Federal Constitutions. Abrams v. State, 223 Ga. 216(13), 154 S.E.2d 443 (1967); Clarke v. Grimes, 223 Ga. 461(4), 156 S.E.2d 91 (1967); Jones v. State, 224 Ga. 283(2), 161 S.E.2d 302 (1968); Smith v. Hopper, 240 Ga. 93, 94, 239 S.E.2d 510 (1977).

The first enumeration of error is without merit.

2. In the second enumeration of error, Collins attacks the constitutionality of the death penalty act. Ga.L.1973, p. 159 (Code Ann. § 27-2534.1).

The constitutionality of the Georgia death penalty statute has been upheld by the Supreme Court of the United States and by this court each time it has been attacked on constitutional grounds. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974); House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974); Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12 (1974); Floyd v. State, 233 Ga. 280, 210 S.E.2d 810 (1974); McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974); Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365 (1975); Young v. State, 237 Ga. 852, 856, 230 S.E.2d 287 (1976).

This court has considered the contention that the aggravating circumstance set forth in Code Ann. § 27-2534.1 (b) (7) is unconstitutionally vague, and has found it to be without merit. Harris v. State, 237 Ga. 718, 732-34, 230 S.E.2d 1 (1976). See also Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (1977).

The second enumeration of error is without merit.

3. In the third enumeration of error, the appellant alleges that "The trial court erred in excusing for cause juror Jannette C. Gurr upon motion of the State."

In response to questioning during the voir dire [243 Ga. 295] examination, Mrs. Gurr made it unmistakably clear that she was unequivocally opposed to the imposition of the death penalty under any and all circumstances and that she would not vote to impose it regardless of the evidence and the charge of the court.

This complies with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); and Goodwin v. Hopper, Ga., 253 S.E.2d 156, Case No. 34234, decided February 6, 1979.

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The third enumeration of error is without merit.

4. In the fourth enumeration of error, Collins alleges that the trial court erred in overruling his motion for an order directing the district attorney and the State's witnesses to refrain from making any direct or indirect reference to other pending charges against him or other crimes unrelated to the charges in this case.

The testimony complained of is that of Johnny Styles who recounted comments the appellant had made to him the night of the rape and murder concerning the number of people Collins claimed to have killed and an assault that Collins claimed to have committed.

Code Ann. § 38-305 provides: "Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae."

The statements were made before the murder weapon or the victim's clothing had been discarded and while Collins was bragging about having participated in the killing of the victim. As such, they were clearly part of the res gestae and were admissible. Code Ann. § 38-305. Additionally, having made no objection at the time of the testimony, appellant cannot assert error for the first time in his appeal. White v. State, 231 Ga. 290, 201 S.E.2d 436 (1973). "A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later." Joyner v. State, 208 Ga. 435, 438, 67 S.E.2d 221, 222 (1951).

The fourth enumeration of error is without merit.

5. In the fifth...

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