386 S.E.2d 316 (Ga. 1989), 46719, Isaacs v. State

Docket Nº:46719.
Citation:386 S.E.2d 316, 259 Ga. 717
Opinion Judge:HUNT, Justice
Party Name:ISAACS v. The STATE.
Attorney:G. Terry Jackson, Michael G. Schiavone, Jackson & Schiavone, Savannah, for Carl J. Isaacs., Charles M. Ferguson, Dist. Atty., Cuthbert, Michael J. Bowers, Atty. Gen., William B. Hill, Jr., Asst. Atty. Gen., Paula K. Smith, Asst. Atty. Gen., for the State. Jackson & Schiavone, G. Terry Jackson, M...
Case Date:November 30, 1989
Court:Supreme Court of Georgia

Page 316

386 S.E.2d 316 (Ga. 1989)

259 Ga. 717




No. 46719.

Supreme Court of Georgia.

November 30, 1989

Reconsideration Denied Dec. 20, 1989.

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[259 Ga. 744] G. Terry Jackson, Michael G. Schiavone, Jackson & Schiavone, Savannah, for Carl J. Isaacs.

Charles M. Ferguson, Dist. Atty., Cuthbert, Michael J. Bowers, Atty. Gen., William B. Hill, Jr., Asst. [259 Ga. 745] Atty. Gen., Paula K. Smith, Asst. Atty. Gen., for the State.

HUNT, Justice.

This is a death penalty case. The defendant, Carl J. Isaacs, was originally convicted in Seminole County and sentenced to death in 1974. His conviction and sentence were affirmed on direct appeal to this court. Isaacs v. State, 237 Ga. 105, 226 S.E.2d 922 (1976). However, the Eleventh Circuit Court of Appeals granted habeas relief. Isaacs v. Kemp, 778 F.2d 1482 (11th Cir.1985). Isaacs was retried in Houston County Superior Court and again was convicted and sentenced to death. We affirm. 1

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[259 Ga. 718] 1. In May of 1973, Carl Isaacs escaped from a Maryland penal institution and, accompanied by his younger brother Billy Isaacs, his half-brother Wayne Coleman and a friend, George Dungee, drove to Florida. On the afternoon of May 14, 1973, they were in Seminole County, Georgia, and their car was almost out of gas. They thought they saw a gas pump behind the rural mobile home belonging to Jerry Alday and Mary Alday and stopped to investigate it. They discovered there was no pump; however, the trailer was empty, and they decided to burglarize it. Dungee remained in the car while the defendant and Wayne Coleman entered the trailer. While they were inside, Billy Isaacs warned them two men were approaching in a jeep.

Jerry Alday and his father Ned Alday pulled in behind the trailer, unaware that it was being burglarized. Carl Isaacs met them and ordered them inside at gunpoint. After their pockets were emptied, Jerry Alday was taken into the south bedroom of the trailer while Ned was taken to the north bedroom. Carl Isaacs shot and killed Jerry Alday, and then both he and Coleman shot and killed Ned Alday.

Soon afterward, Jimmy Alday (Jerry Alday's brother) drove up on a tractor, walked to the back door, and knocked on the door. Coleman answered the door, "stuck a pistol up in the guy's face," and ordered him inside. He was taken into the living room and forced to lie on the sofa. Carl Isaacs shot and killed him.

After Carl Isaacs went outside to move the tractor, which was parked in front of their car, Mary Alday (Jerry Alday's wife) drove up. Carl Isaacs entered the trailer behind her and accosted her. Meanwhile, Chester Alday (Jerry Alday's brother) and Aubrey Alday (Jerry Alday's uncle) drove up in a pickup truck. Leaving Coleman and Dungee to watch Mary Alday, Carl and Billy Isaacs went outside to confront the two men, and forced them at gunpoint into the trailer. Once inside, Aubrey was taken to the south bedroom where Carl Isaacs shot and killed him, while Chester Alday was taken to the north bedroom and killed by Coleman.

Coleman and Carl Isaacs raped Mary Alday on her kitchen table. Afterward, they drove to a heavily wooded area several miles away where Mary Alday was raped again. Dungee killed her. They abandoned[259 Ga. 719] their car in the woods and took Mary Alday's car, which they later abandoned in Alabama. They stole another car there, and were arrested a few days later in West Virginia, in possession of guns later identified as the murder weapons, and property belonging to the victims.

After his original trial, Carl Isaacs was interviewed by a film maker who was producing a documentary about the case. The defendant admitted shooting Jerry, Ned, Aubrey and Jimmy Alday, raping Mary Alday, and burglarizing the trailer. These admissions were introduced in evidence at the retrial.

Carl Isaacs was convicted of six counts of murder. The evidence supports the verdict. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In his first six enumerations of error, Isaacs complains of the grand jury deliberations. Specifically, he contends that he was entitled to a grand jury free from exposure to pre-trial publicity and that the trial court erred in refusing to voir dire the grand jurors extensively or to give

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them special instructions about their deliberations. He contends, in addition, that he should have been provided a transcript of the grand jury proceedings, that the indictment may have been based upon hearsay testimony and that the evidence was insufficient to support a true bill.

(a) We note:

Generally, in the absence of a controlling statutory provision, a person is not disqualified or incompetent to serve as a grand juror by reason of bias or prejudice on his part, by the fact that he has heard or read about the case under investigation or has even formed or expressed an opinion as to the guilt of the accused, or by his interest in a prosecution other than a direct pecuniary interest. [Footnotes omitted.]

38 Am.Jur.2d 951, Grand Jury § 7. Our Code provides for a change of venue in a grand jury criminal investigation "when it appears that a qualified grand jury cannot be had. ..." OCCA § 15-12-82(a). However, bias, prejudice, and exposure to pre-trial publicity are not mentioned in the Code as possible grounds for disqualification of grand jurors. 2 Moreover, the grand jury generally is entitled to act upon its own information, however acquired. See Groves v. State, 73 Ga. 205 (1884).

But assuming, without deciding, that remedial action may be [259 Ga. 720] necessary in some cases of alleged grand jury bias, we hold that the trial court's response in this case was sufficient. First, the court quashed the Seminole County indictment after granting a change of venue, and Isaacs was indicted in Houston County. Second, before any evidence was presented to the Houston County grand jury, the court conducted a limited voir dire of the grand jury concerning possible bias and excused one grand juror who had signed a petition in connection with the case. There was no error.

(b) Relying upon U.S. v. Estepa, 471 F.2d 1132 (2nd Cir.1972), Isaacs contends it is improper to base an indictment on hearsay evidence. In Estepa, the defendant's conviction was reversed and the indictment dismissed where the government introduced hearsay evidence in a manner that misled the grand jury into believing that it was first-hand evidence instead of hearsay. The reversal was not a consequence of the mere use of hearsay, but the misleading use of hearsay. Estepa, of course, is not binding authority in this state. See Conner v. State, 251 Ga. 113(5), 303 S.E.2d 266 (1983). Moreover, "Estepa has not been met with great enthusiasm by the other courts of appeal." Moore's Federal Practice (2nd Ed.), Vol. 8 at 6-104. The rule in this state is:

[W]here ... it appears that a competent witness or witnesses were sworn and examined before the grand jury by whom the indictment was preferred, a plea in abatement on the ground that it was found on insufficient evidence, or illegal evidence, or no evidence will not be sustained, because it comes under the rule that no inquiry into the sufficiency or legality of the evidence is indulged.

Felker v. State, 252 Ga. 351, 366(2a), 314 S.E.2d 621 (1984) (quoting Summers v. State, 63 Ga.App. 445(3), 11 S.E.2d 409 (1940)). Accord, Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (holding that a contrary rule "would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by the technical rules." Id., 350 U.S. at 364, 76 S.Ct. at 409).

A trial jury has found Carl Isaacs guilty beyond a reasonable doubt. Even if there was some error in the grand jury proceedings, the "verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendant[ ] with the offenses for which [he was] convicted." United States v. Mechanik, 475 U.S. 66, 67, 106 S.Ct. 938, 940, 89 L.Ed.2d 50 (1986). Hence, any possible

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error has been rendered harmless. 3

[259 Ga. 721] (c) A defendant is not entitled to a transcript of the grand jury proceedings. Frazier v. State, 257 Ga. 690(6), 362 S.E.2d 351 (1987).

3. In enumerations of error 7 through 13, Isaacs raises issues concerning the grand and traverse jury arrays.

On November 2, 1987, the trial court heard evidence on the defendant's challenges to the jury arrays. The defendant contended, inter alia, that active-duty military personnel and their dependents are underrepresented on the grand and traverse jury lists in Houston County. At the conclusion of the hearing, the defendant asked that the evidence be held open so he could supplement his presentation. The court agreed to do so, ultimately setting December 28, 1987, as the deadline for supplementing the evidence on this issue.

At the December 28 hearing, the defendant asked for more time to "take the rough figures that we have been able to gather [as to the underrepresentation of military personnel] to get a qualified expert to put them in a statistical form that would be acceptable to the court and subject to cross-examination." The defendant conceded that he planned to present no evidence that military personnel are a cognizable group, and the court refused to grant a further continuance on this issue.

(a) Citing Guest v. State, 186 Ga.App. 318(1), 367 S.E.2d 105 (1988), Isaacs contends the court erred by setting a deadline for disposing of his jury challenges because (he says) a jury challenge is timely filed any time prior to voir dire.

We agree that in the absence of a timely trial...

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