368 S.E.2d 742 (Ga. 1988), 45389, Williams v. State

Docket Nº:45389.
Citation:368 S.E.2d 742, 258 Ga. 281
Opinion Judge:WELTNER, Justice
Party Name:WILLIAMS v. The STATE.
Attorney:Richard E. Allen, Augusta, for Alexander Edmund Williams, IV., Sam B. Sibley, Jr., Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., Leonora Grant, for the State. Richard E. Allen, for appellant. Sam B. Sibley, Jr., District Attorney, Michael J. Bowers, Attorney General, Leonora Grant, for ap...
Case Date:June 09, 1988
Court:Supreme Court of Georgia
 
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Page 742

368 S.E.2d 742 (Ga. 1988)

258 Ga. 281

WILLIAMS

v.

The STATE.

No. 45389.

Supreme Court of Georgia.

June 9, 1988

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[Copyrighted Material Omitted]

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[258 Ga. 291] Richard E. Allen, Augusta, for Alexander Edmund Williams, IV.

Sam B. Sibley, Jr., Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., Leonora Grant, for the State.

WELTNER, Justice.

Alexander Edmund Williams IV was convicted by a Richmond County jury of murder, rape, armed robbery, kidnapping with bodily injury, motor vehicle theft and financial transaction card fraud. He was sentenced to death for the murder. The case is here on appeal, for review under the Georgia Unified Appeal Procedure and for

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review of the death sentence under OCGA § 17-10-35. 1

[258 Ga. 282] 1. The victim, 16-year-old Aleta Carol Bunch, left school at noon on March 4, 1986, and drove her blue 1984 Mustang automobile to the Regency Mall in Augusta. She prepared for a modeling assignment, shopped at several stores in the mall, and left at 3:30 p.m. Her body was found in a remote, wooded area 11 days later.

On the evening of March 4, Alexander Williams drove a blue Mustang to a game room on Windsor Springs Road. He told his friends that it belonged to "a girl." With their assistance, he disposed of the car by abandoning it on a dirt road. He retrieved from the car a .22 caliber pistol, a pocket book, and a shopping bag. He took the credit cards out of the purse, and threw the purse and its remaining contents into a dumpster. The next day, he treated his friends to a shopping spree at the mall, using the victim's credit cards. He also distributed items of jewelry the victim had been wearing when last seen alive, as well as items she had purchased the day of her death.

Williams told his friend John Jones that "she would never tell" and that he "didn't feel a thing about that night [and] what he had done to the girl." He told Leon Bacon that he had met the girl at the mall and followed her outside to her car. He told her to get in the car and he drove. Then "he had sex with her ... [and] ... she was moaning ... so to keep her quiet he shot her." He first told Harold Lester that he had merely found the credit cards. The next day, however, he admitted to Lester that "he had killed this girl." He asked Jerry Smith if he had ever shot anyone before. When Smith answered yes, Williams asked him what he had done with the body. Then he admitted to Smith that he had killed a girl he had met at the mall.

He also admitted to Margaret Jeffords that he had killed the girl. When Jeffords threatened to report him, Williams replied, "Well have you ever heard of kill and kill again? ... I did it once and you damn well better believe I'll do it again."

The victim was shot five times--once in the chest, and four times in the head. Her body was nude below the waist, and the crime scene showed signs of a struggle. The murder weapon was not recovered. However, one of Williams' friends took investigators to an area where Williams had shot his gun and they recovered some empty cartridge cases that were consistent with having been fired from the same gun--an RG .22 caliber revolver--as the bullets recovered from the body of the victim.

The autopsist testified that the victim had engaged in sexual intercourse at some indeterminable time in the past. He further stated, however, that there was a "small contusion or bruise on the back of the vaginal wall," suggesting that sexual intercourse "occurred immediately surrounding the time of death."

The defendant contends the evidence is insufficient. We disagree. The jury was authorized to conclude from the evidence that Williams [258 Ga. 283] accosted the victim in the mall parking lot, forced her to accompany him to a secluded area where he raped and murdered her, then took her jewelry, her pocket book and her automobile, and used her credit cards the next day. The evidence supports his conviction on all counts. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Compare Lipham v. State, 257 Ga. 808(1), 364 S.E.2d 840 (1988).

2. Williams was arrested March 12. He was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) by investigator Ronnie Strength. Williams waived his rights orally and stated that he wanted to talk to Strength alone, in another room, because he did not like the one they were in. After relocating, Williams asked Strength "what kind of prison time" he would serve "if he talked ... about the

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missing girl." Strength advised him that he "wasn't in the deal-making business, and ... was not authorized to make any deals in this case." Then, Strength testified, "he told me that it wasn't a kidnapping, and, again, wanted me to write out some type of deal on paper if he talked to me about the girl; of course, again I refused. I further questioned him on the credit cards that were used at the mall. He told me that he was at the mall and saw a purse in a blue car; that the door was unlocked, and that he took the purse and the credit cards, and that he had gone to the mall and used them and bought him some tennis shoes, and that the tennis shoes were at his home under the bed. I asked him a little further about the car, and he told me that he had left the car in the parking lot ... of the mall.... He again, for the third time, asked me about making a deal if he would talk to me about the missing girl. Of course, for the third time I told him that I could not make a deal; that I was not authorized to make any deals. I asked him about his whereabouts on the date and time of the incident, and, of course, he said that he did not know. At that point he told me that he had better talk to a lawyer, and that after he talked to a lawyer that he would talk to me again about the missing girl. And, of course, at this time, once he requested a lawyer, I terminated the interview."

Williams contends that his refusal to sign a written waiver and his attempts to condition his discussion of the girl upon receiving a promise of leniency amounted at least to an equivocal assertion of his right to counsel and that the interview should not have taken place until the interrogator clarified this equivocal request. See Hall v. State, 255 Ga. 267, 336 S.E.2d 812 (1985).

[258 Ga. 284] Williams refused to sign a written waiver because he "didn't want to sign anything." His oral waiver was valid nonetheless, and neither his refusal to sign the waiver nor his attempt to make a "deal" with his interrogator was an invocation of his right to a lawyer. When the defendant did invoke that right, the interrogator terminated the interview. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Williams also argues that the officer's testimony concerning his invocation of his right to counsel should not have been presented to the jury as a comment on his exercise of his right to remain silent. See Hill v. State, 250 Ga. 277(4), 295 S.E.2d 518 (1982); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The defendant did not remain silent. He discussed the crime, and then he invoked his right to a lawyer. Doyle v. Ohio does not apply in this situation. Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 642, 88 L.Ed.2d 623 (1986) (Rehnquist, J., concurring).

3. The trial court did not err by allowing in evidence a photograph to show the condition of the victim's body.

4. There is no merit to the defendant's contention that the court's jury instructions included an expression of opinion in violation of OCGA § 17-8-57 as to what the evidence proved. The instructions on presumption of innocence were complete and correct, and it was not error to refuse to give the defendant's requested instruction on the same principle. Kelly v. State, 241 Ga. 190, 243 S.E.2d 857 (1978).

5. The court overruled Williams' objection to the following testimony:

Q. [by DA to investigator Strength]: Who directed you to that location [where the body was found] out on Story Mill Road?

A. Doug Flanagan.

Q. Mr. Flanagan ... is a lawyer?

A. Yes, sir.

Q. Who was Alex Williams' lawyer at that time?

A. Doug Flanagan.

This testimony, Williams argues, violated his attorney-client privilege, and the trial court erred by overruling his objection to it.

Our Code recognizes certain privileges, including the attorney-client privilege, and prohibits the evidentiary use of communications

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protected by the privilege. See OCGA §§ 24-9-21, 24-9-24 and 24-9-25.

The state argues that the privilege was not violated because (1) Flanagan himself did not testify, (2) Flanagan would have been guilty of a crime had he not revealed the location of the body, and (3) the defendant failed to show that Flanagan learned of the location of the [258 Ga. 285] body as a consequence of a privileged communication from Williams.

(a) While the state is likely correct that Flanagan had a positive obligation to reveal the location of the body to law enforcement officers. (see OCGA § 16-10-50; compare People v. Meredith, 29 Cal.3d 682, 175 Cal.Rptr. 612, 631 P.2d 46 (1981)), it does not follow of necessity that the state should disclose to the jury the source of the information that led to the discovery of the body. One state, at least, has held to the contrary:

We think the attorney-client privilege should and can be preserved even though the attorney surrenders the evidence he has in his possession. The prosecution, upon receipt of such evidence from an attorney ... should be well aware of the existence of the attorney-client privilege. Therefore, the state ... should take extreme precautions to make certain that the source of the evidence is not...

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