Tucker v. State

Decision Date23 January 1980
Docket NumberNo. 35524,35524
Citation245 Ga. 68,263 S.E.2d 109
PartiesTUCKER v. The STATE.
CourtGeorgia Supreme Court

J. Robert Sikes, Macon, for appellant.

W. Donald Thompson, Dist. Atty., Charles Weston, Willis B. Sparks, III, Asst. Dist. Attys., Michael R. Johnson, Staff Asst. Atty. Gen., for appellee.

NICHOLS, Chief Justice.

Richard Tucker, Jr., was indicted, tried and convicted for murder and kidnapping with bodily harm. He was sentenced to two death penalties. After his motion for new trial was overruled, this appeal followed.

The evidence revealed that the victim was kidnapped from a hospital parking area on a Friday evening and was forced to drive to a secluded area in the rear of an abandoned warehouse. The defendant robbed the victim, killed her by hitting her on the head with an iron pipe, and then stripped the body of all clothing, after burning the victim's clothing, the defendant left the scene in the victim's car. The body was not discovered until the following Tuesday afternoon.

1. The first and fourth enumerations of error complain of the overruling of defendant's motion in limine and the admission into evidence of four photographs of the nude and partially decomposed body of the victim. The defendant contends that the photographs could not prove identity, cause of death, or have any other probative value, and were introduced to inflame and prejudice the jury.

The photographs in question depict relevant and material facts as to the time of death, the location of the body, and the necessity for the introduction of circumstantial evidence to identify the deceased. See Stevens v. State, 242 Ga. 34(5), 247 S.E.2d 838 (1978) and cits. There is no merit in these enumerations of error.

2. The second and third enumerations of error contend that the trial court erred in admitting testimony of the examining doctor regarding a "medium brown caucasian pubic hair" found on an item of the defendant's clothing, and regarding the possibility of a sexual assault upon the victim by the defendant. The examining doctor testified that due to the body's decomposure, there was no way to tell if the victim had been sexually assaulted.

In his confession the defendant stated that after he killed the victim, he undressed her. The hair found on his clothing was introduced as evidence to connect the defendant with the victim, and not as evidence of a sexual assault. The testimony of the examining doctor effectively eliminated any issue of sexual assault, which was therefore favorable to the defendant. Additionally, there was no objection to this testimony. There is no merit in these enumerations of error.

3. In the fifth enumeration of error, the defendant contends that the trial court erred in overruling his motion to suppress and in admitting his confession.

Tucker gave two statements to the investigating officers, one on the day he was returned from Atlanta and one on the following day. Before each statement was given, the officers explained his rights, and he signed a written waiver. A full hearing was held on the defendant's motion to suppress during which the two officers who took his statements testified. The defendant offered no evidence in rebuttal.

Unless factual credibility findings of a trial court in determining the voluntariness of a defendant's statement or confession are shown to be clearly erroneous, those findings must be accepted by this court. Natson v. State, 242 Ga. 618, 250 S.E.2d 420 (1978); Hurt v. State, 239 Ga. 665(2), 238 S.E.2d 542 (1977); Johnson v. State, 233 Ga. 58, 209 S.E.2d 629 (1974). There is no merit in this enumeration of error.

4. The seventh enumeration of error contends that in violation of Code § 81-1104 the trial court expressed an opinion regarding the evidence. The alleged comment occurred when a witness referred to the victim by name at a time prior to establishing this fact. Defense counsel objected, and the trial court sustained the objection and instructed the prosecuting counsel to refer to the victim as "an unrecognizable body." The trial court thereafter gave detailed instructions to the jury to disregard the testimony of the witness regarding the body. Following these instructions, the court asked, "Is there anything else?" Defense counsel replied, "No, sir."

No error is shown by this enumeration of error. Wright v. State, 223 Ga. 849, 159 S.E.2d 76 (1968); Green v. State, 112 Ga.App. 329(1), 145 S.E.2d 80 (1965) and Bradley v. State, 137 Ga.App. 670(8), 224 S.E.2d 778 (1976).

5. The eighth enumeration of error contends that the trial court erred in charging: "Malice may be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned or malignant heart." The trial court actually charged the word "shall" instead of "may." The charge excepted to is not subject to the criticism that it relieved the state from proving an essential element of the crime. In order for malice to be implied, the state first must prove beyond a reasonable doubt that there was no considerable provocation for the killing, and secondly, that all the circumstances of the killing show an abandoned or malignant heart. The inference in the present case does not "undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt." Rather, it leaves the trier of fact "free to credit or reject the inference and does not shift the burden of proof." County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

The charge on implied malice was not subject to the criticism argued. Burney v. State, 244 Ga. 33, 39(6), 257 S.E.2d 543 (1979), cert. den., --- U.S. ----, 100 S.Ct. 463, 62 L.Ed.2d 385 (1979). There is no merit in this enumeration of error.

6. The ninth enumeration of error contends that the trial court erred in charging in the language of Code Ann. §§ 26-603 and 26-604, that: "The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted." The court further charged substantially in the language of Code Ann. § 26-605: "A person will not be presumed to act with criminal intention, but the trier of fact, that is you the jury, may find such intention upon consideration of the word, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted."

There was no issue made at the trial concerning the defendant's intent to commit the offense. In his confession the defendant stated: "I feel the need that I want to do something wrong to somebody I want to take something take some money or something. I don't know I can't explain it." There also was other direct evidence as to intent.

". . . (W)e find as a matter of law no error in the charge as a whole as given. This was not the kind of mandatory presumption presented in Sandstrom, which could have been interpreted by reasonable jurors as either conclusive or burden-shifting. As the court wrote, Sandstrom's jury 'were not told that the presumption could be rebutted . . .' " Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979). There is no merit in this enumeration of error.

Sentence Review

In our sentence review, we have considered the aggravating circumstances found by the jury and the evidence concerning the crime and the defendant. We have reviewed the sentence as required by Ga.L. 1973, p. 159 et seq. (Code Ann. § 27-2537(c)(1-3)), as we have in each case involving a death penalty under this statute. We find that the evidence factually substantiates the verdict and overwhelmingly supports a finding of guilt beyond a reasonable doubt by a rational trier of fact. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In the sixth enumeration of error, appellant argues that because the identity of the victim was proven by circumstantial evidence, the imposition of the death penalty as to him was disproportionate. The victim's body was unrecognizable due to deterioration. The victim's husband identified a wedding ring taken from the body as belonging to his wife. Likewise, a watch admittedly taken from the victim by the appellant was identified by the victim's husband as being the watch he had given her. The body further was identified through dental records. The state's evidence adequately established that the victim was Mrs. Edna Sandefur. See Stevens v. State, 242 Ga. 34, 247 S.E.2d 838 (1978). Therefore, the proof of the victim's identity by circumstantial evidence furnishes no ground to attack appellant's sentence as being disproportionate.

The appellant in this case had been convicted of a prior murder and had served 13 years of a life sentence. He was paroled six months prior to the commission of the crimes charged in the instant case. Defense counsel introduced evidence of the parole during the sentencing phase. Thereafter, the district attorney argued to the jury that if a life sentence was imposed, the Board of Pardons and Paroles again could allow parole. This argument was in direct violation of Code Ann. § 27-2206. 1 However, defense counsel made no objection as required by the statute nor did defense counsel move for a mistrial. Instead, he used to his advantage the fact of the prior parole by arguing to the jury...

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