Brooks v. State

Citation261 S.E.2d 379,244 Ga. 574
Decision Date30 October 1979
Docket NumberNo. 34813,34813
PartiesBROOKS v. The STATE.
CourtSupreme Court of Georgia

William J. Smith, Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Asst. Atty. Gen., for appellee.

JORDAN, Justice.

Appellant-defendant, William Anthony Brooks, was indicted on August 16, 1977, by the Muscogee County grand jury for the crimes of murder, kidnapping, rape, and armed robbery. On Nov. 18, 1977, the jury found appellant guilty on all four counts, and after specifically finding the existence of statutory aggravating circumstances, recommended the death penalty for the I. The Evidence.

crime of murder. Accordingly, the trial court, on Nov. 18, 1977, sentenced the appellant to death for the crime of murder, to life for kidnapping and rape, and to twenty years for armed robbery. The case is here on appeal and mandatory review of the death penalty.

A summary of the evidence is as follows: On the morning of July 15, 1977, the appellant, while walking along Saint Mary's Road in Muscogee County, Georgia, noticed Carol Jeannine Galloway, age 23, in the frontyard of her parents' residence. The appellant accosted Miss Galloway at gunpoint with instructions that she get into her car, valued at $3,500, and drive the two of them to the Dawson Elementary School, one mile from the Galloway home. Upon arriving at the school, the appellant ordered Miss Galloway to park the car and walk into the nearby woods where he first robbed Miss Galloway of at least $20 and then raped her. Following appellant's completion of the sex act, Miss Galloway reiterated her continuing plea that appellant permit her to leave. Appellant's sole response was to ask Miss Galloway if she had ever experienced sex before, and when told by Miss Galloway that she had not, to taunt her with his disbelief. At this point, Miss Galloway began to scream. When she did not heed his warning to stop, the appellant, to impress upon Miss Galloway the seriousness of his warning, aimed his gun at her face and pulled the hammer back into a cocked position. When Miss Galloway continued to scream, the appellant fired one shot, his bullet piercing Miss Galloway's lower neck and causing a slow but steady loss of blood which resulted (but only after the passage of a full two hours) in her death. Immediately after firing the shot, the appellant returned to Miss Galloway's car. As he was driving out of the school yard he encountered Bobby Murray, Miss Galloway's boyfriend, driving in search of Miss Galloway. In his successful effort to elude Mr. Murray the appellant abandoned his victim's car and caught a ride to the East Wynnton section of Columbus where he spent the night with friends. On July 21, 1977, having spent the interim at his father's home in Columbus, the defendant fled to Atlanta, Georgia, there to be arrested on August 11, 1977. He made confessions to the crimes which were introduced into evidence.

This court holds the evidence in support of the verdicts legally sufficient since under such evidence any rational trier of fact could have found that the appellant was guilty beyond a reasonable doubt of each and every crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

II. Enumerations of Error.

On appeal, appellant enumerates five errors: his motion for change of venue was overruled, his right to an impartial jury was denied, his two confessions and state's Exhibit # 17 (a photograph of teethmarks on the victim's left breast) were erroneously admitted into evidence, and the award of the death penalty was motivated by prejudice and passion.

1. For purpose of argument, appellant combines enumerations of error one and two into a single contention: the trial court erred in overruling his motion for change of venue based upon prejudicial pretrial publicity since the consequence of such denial was to deprive appellant of his right to trial by an impartial jury. Appellant's motion was supported by the introduction into evidence of 26 articles published by Columbus' two local newspapers between July 15, 1977, the date of commission of the crime, and August 23, 1977, twelve days after appellant had been arrested. The record contains no article published during the two and two-thirds months immediately preceding appellant's trial on Nov. 15, 1977; however, the transcript reflects that one article was published on Nov. 14, 1977, the very eve of the trial, wherein it was restated that appellant had confessed to the indicted crimes (the original statement, published August 14, 1977, also quoted from the text of the confession). Additional facts will be noted as necessary to the discussion.

The Sixth Amendment to the U.S. Constitution U.S.Const. Amend. VI) combines with Code Ann. § 2-111 (Ga.Const. Art. I, Sec. I, Par. XI) to assure that every person charged with offending the laws of this state shall have a public and speedy trial by an Impartial jury.

Appellate courts must independently review the relevant trial court record in each case to insure compliance with these constitutional dictates. Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1965); United States v. McNally, 485 F.2d 398, 403 (8th Cir. 1973), cert. den., 415 U.S. 978, 94 S.Ct. 1566, 39 L.Ed.2d 874 (1974); United States v. Yeager, 472 F.2d 229, 239 (3rd Cir. 1973).

We note that, under the Sixth Amendment, in order for an appellant to establish the denial of his right to an impartial jury, he must show either (a) Actual juror partiality or (b) circumstances Inherently prejudicial to that right. Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1974); Street v. State, 237 Ga. 307, 311, 227 S.E.2d 750 (1976), vacated on other grounds, 429 U.S. 995, 97 S.Ct. 520, 50 L.Ed.2d 606 (1976).

(a) The United States Supreme Court has defined actual juror partiality as follows:

"It is not required, however, that jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread, and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that there mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642-1643, 6 L.Ed.2d 751 (1960). Accord, Coleman v. State, 237 Ga. 84, 87, 226 S.E.2d 911 (1976), cert. den., 431 U.S. 909, 97 S.Ct. 1707, 52 L.Ed.2d 394 (1977).

In this present case, all twelve selected jurors testified on voir dire that they were without a fixed opinion as to appellant's guilt or innocence. The appellant protests, however, that this formal declaration of impartiality was impeached, in the case of one juror, by her admission that she held an "undecided" opinion as to the appellant's guilt based upon newspaper accounts of the columbus police department's certainty that the appellant was Miss Galloway's assailant. This same juror, however, testified in explanation of the above that she understood the police made mistakes and that her "undecided" opinion would not preclude her from deciding appellant's guilt or innocence solely on the evidence presented at trial.

(b) Circumstances inherently prejudicial to the appellant's right to an impartial jury can impeach a juror's declaration of impartiality. As evidence of the presence of such circumstances in the present case, the appellant notes that 7 of the 12 selected jurors had knowledge of the crime, and that 5 of the 12 knew appellant had confessed (though only 1 of these 5 acknowledged even the possibility of recalling the details of the confession.) The appellant also notes that 2 of the twelve selected jurors were acquainted with the victim's family one by reputation, the other by a single introduction several years prior to trial.

We are aware that a juror's extrajudicial knowledge regarding an appellant's present crime represents a serious potential for prejudice to that appellant's right to an impartial jury. However, such potential can be discounted under the Sixth Amendment if review of the pretrial publicity and total voir dire fails to demonstrate that the "totality of the circumstances" were inherently prejudicial. Murphy v. Florida, supra.

We have held that a juror's extrajudicial knowledge of the victim, even when manifested by attendance at the victim's funeral In review of the pretrial publicity attending his case the appellant stresses, in addition to the sheer number of newspaper publications (26), the publication of parts of his confession, after the confession had been read into the public record at the appellant's preliminary hearing. The appellant further notes the emotionalism of the coverage, citing, in particular, one headline which read "Congregation Weeps For Its Slain Young Organist", one editorial which commented that the murder of Miss Galloway had struck an especially responsive cord in the community, and, one photograph of the appellant captioned by the statement of the District Attorney that he intended to seek the death penalty at trial.

did not impeach per se that juror's declaration of impartiality. Coleman v. State, supra. Accordingly, we hold that, while a juror's extrajudicial knowledge regarding an appellant's crime, confession, and victim does indeed represent a serious potential for prejudice to that appellant's right to an impartial jury, such potential can be discounted...

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