Jordan v. State
| Citation | 247 Ga. 328,276 S.E.2d 224 |
| Decision Date | 12 March 1981 |
| Docket Number | No. 36851,36851 |
| Parties | JORDAN v. STATE. |
| Court | Supreme Court of Georgia |
Forrest Andrew Jordan, pro se.
Dupont K. Cheney, Dist. Atty., Hinesville, Arthur K. Bolton, Atty. Gen., for the State.
This murder/mutiny case involves the 1978 riot and attempted prison break at Georgia State Prison in Reidsville, Tattnall County, Georgia, which left two inmates and a guard dead and another guard seriously injured. See Whitaker v. State, 246 Ga. 163, 269 S.E.2d 436 (1980), involving the same occurrence.
The disturbance, an eruption of racial tensions, commenced shortly after 4:00 p. m. Sunday, July 23, 1978. At that time, the two buildings involved, buildings A and B, each contained four dormitories (1 and 2 at ground level and 3 and 4 on the second floor). Pursuant to court order, Dorms A-1 and B-3 housed white inmates and Dorms A-2, A-3, A-4, B-1, B-2 and B-4 housed black inmates. Each dorm housed about 60 inmates.
Guard Preston Foskey, who was in charge of B-1 and B-2 dormitories, released four or five orderlies for an early evening meal from B-1. As he was doing so, he was grabbed from behind and dragged inside the dorm by one or more inmates. He was pulled into the bathroom and stabbed by inmates using homemade weapons. He ran from the bathroom area, into the hall where inmates stabbed him again and again. He was knocked to the floor. When he regained consciousness, the inmates had gone and he ran to safety.
Hearing a disturbance and seeing inmates from B-1 and B-2 in the hall, a guard at A building, Dan Harrison, came to investigate. He was stabbed repeatedly, kicked, beaten and physically abused after he had fallen to the floor from the repeated stabbings.
Inmates, now in possession of both Harrison's and Foskey's keys, released approximately 240 inmates. The inmates took mattresses off beds and set them on fire, killed two inmates, and tried to persuade other inmates to release a guard these inmates had given asylum in A-3 dormitory. Homemade weapons were abundant.
After smoke had obscured much of the prison and it had become obvious that riot guards would soon be coming to settle the disturbance with tear gas, inmates congregated at A-2 dormitory where they barricaded themselves in.
The defendant and another inmate, Jessie Whitaker, negotiated a settlement on behalf of the inmates. Prison officials directed the inmates to strip and their clothing was searched for weapons before the inmates returned to their assigned dorms. The riot had lasted over 2 hours.
After the riot had ended, prison authorities collected the clothing and more than 40 homemade weapons. Foskey was immediately rushed to a hospital where he spent twelve days recuperating from over 30 stab wounds and collapsed and punctured lungs. Harrison and the two inmates killed during the riot were dead by the time the riot was quelled. Autopsy indicated that Harrison had received more than 50 wounds over his body from different instruments and had ultimately bled to death from seven stab wounds which had penetrated his chest, lungs and liver.
Prison officials and investigators from the Georgia Bureau of Investigation interviewed inmates in an attempt to determine which inmates were responsible for the riot and the murders. After about 2 or 3 weeks of investigation, officials compiled a list of 29 suspects and ultimately charged 6 inmates with criminal activity.
The defendant was one of these 6 inmates. He apparently was moved from Georgia State Prison on or about July 28, 1978, and was subsequently charged with the murder of guard Dan Harrison, the aggravated assault of surviving guard Preston Foskey, and mutiny in a penal institution. He was indicted on April 5, 1979, after previous indictments were quashed for illegal jury composition, and pleaded not guilty at arraignment in Tattnall County Superior Court on April 17, 1979. Co-participant Jessie Whitaker was the first inmate to be tried. He was convicted of three counts of murder, and one count each of simple battery and simple assault. 1
After consideration of numerous pretrial motions throughout the summer and two and one-half days of jury selection, defendant's trial commenced on August 13, 1979, in Tattnall County.
At trial, the prosecution presented 11 witnesses, including the Administrative Assistant to the Warden at the time, surviving guard Foskey, the Director of the State Crime Laboratory, who had performed an autopsy on the murdered guard, and 8 inmate witnesses.
The Warden's Administrative Assistant gave a general description of the prison layout and the conditions he saw when he came to the prison shortly before the riot ended. Foskey related the events that led up to his being stabbed but he could not identify who had stabbed him.
The prosecution evidence directly connecting the defendant with the stabbing of the two guards came from 8 inmates. Inmate Tommy Stroud testified that he had seen the defendant grab and stab both Foskey and Harrison. Inmate Frank Smith saw the defendant stab the deceased Harrison. Inmates Charles World and James Dickey testified that they had seen the defendant grabbing or fighting both guards but had not seen him stab them. Inmates Stroud, World and Dickey testified that the defendant was the first inmate to grab Foskey. Inmates Joseph Boyd and R. V. Gerdine testified that they had seen the defendant washing off a bloody weapon and Boyd testified that he was wearing blood-soaked clothing. Inmate Gerdine also testified that defendant had told his dormitory that he'd just taken care of two "pigs" and they'd better arm themselves. Defendant also told inmate Herbert Willingham's dorm to arm themselves. Inmate Henry Campbell testified that defendant had directed the inmates in dormitory A-3 to kill Frankie Wells, the guard they were protecting.
Defense cross examination was directed primarily at impeaching the inmates' testimony on several grounds, including: (1) the inmates had gained a highly prized transfer from Georgia State Prison, allegedly in return for their fabricated testimony; (2) their present testimony was impeached by prior inconsistent statements; and (3) inferences that the prosecution's inmate witnesses were parties to planning and executing the riot and were testifying to divert the investigators' attention from their own guilt.
The defense presented testimony from about 26 witnesses, including 22 inmates. These witnesses were primarily used to support the defendant's contention that he was being singled out in retaliation for acting as a spokesman for the inmate population, and to attack the credibility of the prosecution's inmate witnesses. Sixteen of the defense inmates testified as to the lack of credibility of one or more of the state's witnesses. 2 Five inmates testified that they saw defendant without blood on his clothes and without a weapon, 3 three testified that defendant acted throughout the riot to calm the inmates, 4 one said defendant had not been involved in the stabbings, 5 and one said defendant did not tell the inmates to get out of their dorms. 6 Prison correctional officer Jay Kries did not see blood on defendant while he was acting as spokesman for the inmates and guard George Smith did not see defendant mistreat Foskey or Harrison.
The jury found the defendant guilty of murder (Code Ann. § 26-1101), not guilty of aggravated assault, and guilty of mutiny in a penal institution (Code Ann. § 26-2507) on August 16, 1980. They refused the state's request for the death penalty although they found four aggravating circumstances. Code Ann. § 27-2534.1(b)(7), (8), (9), (10). Defendant was sentenced to life imprisonment for murder and five years imprisonment for mutiny in a penal institution to be served consecutively to each other and any former sentences. A motion for new trial was denied and defendant appeals.
1. Defendant contends the trial court erred in refusing to conduct a full evidentiary hearing on his pretrial motion to dismiss for governmental misconduct.
On April 17, 1979, the six indicted inmates filed a motion to dismiss the criminal charges for governmental misconduct. They contended the state had engaged in the following alleged acts: physically abused the defendants and prospective witnesses; at all times manipulated the news media to the detriment of the defendants and the black inmate population; operated Georgia State Prison in such a manner as to exacerbate racial tension (such as by discriminatory hiring practices, including employing racially prejudiced white guards who supplied white inmates with weapons); deprived inmates of meaningful programs; allowed easy availability of alcohol and other drugs; and refused to take necessary steps to avoid the riot in this case. Defendants contended that the indictments against them should be dismissed for violation of their rights to due process and equal protection and against cruel and unusual punishment. The trial court denied the pretrial motion without allowing defendant to present evidence concerning conditions at the prison at the time of the riot, although some such testimony was given at trial and at the hearing on defendant's motion for new trial.
The Civil Practice Act is applicable to civil cases. Code Ann. § 81A-101 et seq. Even with notice pleading, civil cases are subject to disposition by judgment on the pleadings. Code Ann. § 81A-112(c). Pleadings in criminal cases are not subject to the Civil Practice Act; they are subject to our code on criminal procedure, Code Title 27, esp. Chs. 15 and 16, and the decisions relating thereto. Demurrers, pleas and motions attacking indictments must set forth the defect in the indictment or the ground of the motion to dismiss with particularity. See 7 EGL Criminal Procedure, §§ 40-42. We therefore treat defendant's motion to dismiss the indictment for alleged governmental misconduct as being complete on its face. When so considered, it...
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