Horton v. State

• Decision Date: 08 September 1982
• Docket Number: No. 38570,38570
• Citation: 295 S.E.2d 281,249 Ga. 871
• Parties: HORTON v. The STATE.
• Court: Georgia Supreme Court

Page 281

295 S.E.2d 281

249 Ga. 871

HORTON v. The STATE.

No. 38570.

Supreme Court of Georgia.

Sept. 8, 1982.

Rehearing Denied Sept. 28, 1982.

[249 Ga. 881] Hugh Q. Wallace, John E. Simmons, Macon, for Jimmy Lee horton.

Joseph H. Briley, Dist. Atty., Gray, Tom Matthews, Asst. Dist. Atty., Macon, Michael J. Bowers, Atty. Gen., George M. Weaver, Staff Asst. Atty. Gen., for the State.

JORDAN, Chief Justice.

Appellant, Jimmy Lee Horton, was convicted of murder and two counts of burglary. He was sentenced to death for the murder and to twenty years for each of the burglaries. He now appeals, raising 16 enumerations of error. We affirm.

The facts can be summarized as follows: Around 6:00 p. m. of the evening of November 28, 1980, appellant borrowed a pickup truck from a friend on the pretext of needing to move furniture. Later that evening, appellant and Pless "Chug" Brown burglarized the home of Willie James Griffin. The two took a dark-colored H & R .22 caliber pistol, some bullets, a television and a wedding band. Next, appellant and Brown forced their way into the apartment of Sherrell Grant.

Shortly after 11:00 p. m., Sherrell Grant and Don Thompson returned to her apartment. The front door was not fully closed. Ms. Grant pushed the door open and saw that several items of her furniture were missing. They listened and, hearing no noise, decided the burglars had left. As a precaution, however, they went to the apartment next door to borrow a gun, and then, while Ms. Grant waited outside, Thompson entered her apartment.

Ms. Grant noticed that a pickup was backed into a parking place at the end of the parking lot. A black male came around the corner of the apartments and went to the pickup. He was soon followed by a taller black male who, in Ms. Grant's words, "... hesitated, like he might have--was going to go back around, but he went on like he was going to walk to the truck. I told him to stop and not to go anywhere. And when I did that, he started shooting at me." Her neighbor pulled Ms. Grant into his apartment and locked the door. They heard a second volley of shots. The neighbor called the police and Ms. Grant exited the apartment to look for Thompson. The pickup was gone. Thompson was found slumped over behind the apartment building. The gun he had borrowed had not been fired; the safety was on.

Appellant, who was taller than Brown, returned the pickup to its owner to whom he admitted that he had shot a man. The pistol stolen in the first burglary was recovered from appellant's residence. This was later identified as the murder weapon. The screwdriver used to force open the door to Ms. Grant's apartment was found in appellant's car.

The evidence, viewed in a light most favorable to the prosecution, was clearly sufficient to support the jury's finding of guilt as to the murder and the two burglaries. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

GUILT-INNOCENCE PHASE

1. In his eighth enumeration of error, appellant contends the court erred in failing to charge voluntary manslaughter upon timely request.

A written request to charge voluntary manslaughter must be given if there is slight evidence to support it. State v. Clay In this case, we are unable to find even slight evidence that appellant acted "as the result of a sudden, violent and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person ..." Code Ann. § 26-1102. Compare, Krier v. State, 249 Ga. 80, 94, 287 S.E.2d 531 (1982). Being discovered during the commission of a burglary is not as a matter of law such provocation as would require a charge on voluntary manslaughter.

249 Ga. 250(1), 290 S.E.2d 84 (1982). See also, Washington v. State, 249 Ga. 728, 292 S.E.2d 836 (1982), and Johnson v. State, 249 Ga. 621, 292 S.E.2d 696 (1982).

2. In his ninth enumeration of error, appellant complains of the following charge: "... [I]f a person of sound mind and discretion intentionally and without justification uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily used and thereby causes the death of a human being, you may infer the intent to kill."

Appellant contends this charge violates the rule that if the state's evidence shows mitigating circumstances, it is error to charge that malice is presumed from the use of a deadly weapon. See, e.g., Jordan v. State, 232 Ga. 749(5), 208 S.E.2d 840 (1974). We find no circumstances of alleviation or mitigation in the evidence presented by the state; moreover, it is clear that the trial court did not charge that malice may be presumed from the use of a deadly weapon. This enumeration of error is meritless.

3. The trial court did not err in overruling appellant's motion for change of venue. Only two jurors were excused because they had formed fixed opinions as to guilt or innocence from pre-trial publicity. Compare, Waters v. State, 248 Ga. 355(1), 283 S.E.2d 238 (1981).

SENTENCING PHASE

4. In his fourth enumeration of error, appellant contends the trial court erred in refusing to permit him to argue to the jury during the sentencing phase of his trial that since he was a habitual violator, he would have to serve 20 years without parole. See Code Ann. § 27-2511. Appellant argues that he was deprived of his right to present this mitigating circumstance to the jury.

The "Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1981) (footnotes omitted). However, nothing in Lockett v. Ohio "limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense." Ibid. fn. 12.

The policy of this state is not to allow argument or charge on matters concerning parole. McKuhen v. State, 216 Ga. 172(5), 115 S.E.2d 330 (1960); Code Ann. § 27-2206. This policy forbids comment with regard to a defendant's inability to make parole, as well as his ability to do so. Golden v. State, 213 Ga. 481(3), 99 S.E.2d 882 (1957).

The ability or inability to obtain early release does not relate to a defendant's character, his prior record, or the circumstances of his offense. Thus our state policy forbidding argument about such matters does not run afoul of either the Eighth or Fourteenth Amendments to the U. S. Constitution and the trial court did not err in refusing to allow the argument.

5. In his fifth enumeration of error, appellant contends the trial court erred in refusing to allow him to describe to the jury during his closing argument the mechanics of an electrocution.

In Franklin v. State, 245 Ga. 141(7), 263 S.E.2d 666 (1980) we held that testimony regarding descriptions of executions, offered during the sentencing phase of a trial, may be excluded as irrelevant upon objection 6. In his sixth enumeration of error, appellant contends the trial court erred in denying his written request to charge: "The fact that the victim was the District Attorney of this circuit is not to be considered by you as being in aggravation of punishment. This should play no part in your thought processes in determining the question of punishment." Appellant contends the charge was a correct statement of the law, was pertinent and material to the issues, and was not substantially covered in the charge given; therefore the failure to charge his written request was reversible error. See Roy v. Gallant-Belk Co., 147 Ga.App. 580(4), 249 S.E.2d 635 (1978). We disagree.

by the state. No such evidence was offered in this case and the trial court did not err in refusing to allow appellant to argue facts not in evidence. Code Ann. § 81-1009.

Under our capital punishment law, injuries may not recommend the death sentence unless they find the presence of at least one of the aggravating circumstances specifically enumerated in Code Ann. § 27-2534.1(B)(1-10). CODE ANN¹. § 27-2534.1(c). In deciding whether or not to recommend the death penalty, however, the jury may consider not only the "statutory aggravating circumstances" set forth in Code Ann. § 2534.1(b)(1-10) but also any "mitigating circumstances or aggravating circumstances authorized by law." Code Ann. § 27-2534.1(b). See also Lockett v. Ohio, supra.

Thus, capital punishment is possible only in a small number of explicitly defined subclasses of homicide cases; but as to such cases, the jury is allowed to give the case before it individualized consideration of the circumstances of the crime and of the defendant. ² Compare Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974, and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944.

There is no doubt that a jury's recommendation of the death penalty could not properly be based on constitutionally impermissible reasons, such as race or religious preference. However, whether or not the victim's status as the District Attorney properly could have been considered in aggravation, ³ it is clear that it was not.

The victim's occupation was made the subject of extensive voir dire by appellant who asked for and received assurances that the victim's job would not be considered as an aggravating circumstance. In his closing argument, appellant argued, "I go back to the fact that Don Thompson was the District Attorney. On my own, I asked everybody would that influence his verdict, and you told me no ... I know that's not going to enter into your verdict ..." The prosecutor also argued that the death penalty wasn't being sought because the victim was a District Attorney. Moreover, there is no indication from the evidence presented that appellant knew at the time of the murder that his...