Spencer v. State

• Decision Date: 21 November 1990
• Docket Number: No. S90P0921,S90P0921
• Citation: 260 Ga. 640,398 S.E.2d 179
• Parties: SPENCER v. The STATE.
• Court: Georgia Supreme Court

Page 179

398 S.E.2d 179

260 Ga. 640

SPENCER v. The STATE.

No. S90P0921.

Supreme Court of Georgia.

Nov. 21, 1990.

Reconsideration Denied Dec. 19, 1990.

John P. Batson, Augusta, Charles L. Kerr and Ann M. Parrent, Morrison & Foerster, New York City, for Spencer.

Michael C. Eubanks, Dist. Atty., and Charles R. Sheppard, Asst. Dist. Atty., Augusta, for State.

Michael J. Bowers, Atty. Gen., Paula K. Smith, Asst. Atty. Gen., State Law Dept., Atlanta.

Patsy Morris, Atlanta, Joseph L. Chambers, Pros. Attys.' Council, Smyrna, for other interested parties.

BENHAM, Justice.

This is a case in which a death sentence has been imposed. The defendant, James Lee Spencer, originally was convicted and sentenced to death in 1975. The judgment was affirmed. Spencer v. State, 236 Ga. 697, 224 S.E.2d 910 (1976). However, Spencer obtained federal habeas corpus relief in connection with his challenges to the composition of his grand and traverse juries. See Spencer v. Kemp, 781 F.2d 1458 (11th Cir.1986). He has now been retried, convicted of malice murder, aggravated assault and escape, and sentenced to death. ¹

The crimes occurred on October 31, 1974, while Spencer was being transported in a police-type automobile from Richmond County to the Georgia state prison in Reidsville. The transporting officer's father-in-law rode with them. As they neared Millen, Georgia, a message came over the police radio that Spencer might be armed. He was. He also had a key to his handcuffs. Spencer, who was in the back-seat area of the car, shot the driver five times before he could stop the car, and he and his father-in-law got out. The driver, seriously wounded, lay on the ground outside the car. Spencer tried to kick his way out of the car. (The inside handles had been removed from the rear-seat area of the car.) When the father-in-law reached into the front-seat area of the car, Spencer shot him in the head, killing him instantly. Finally, Spencer managed to kick out one of the back windows, and exited the car. A state patrolman arrived and apprehended Spencer almost immediately.

Spencer testified at the guilt phase of the retrial. He admitted shooting the transporting officer and the father-in-law. He claimed he did so because he was frightened by the radio message and shot in panic.

The evidence supports the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

1. (a) In his sixth enumeration of error, the defendant complains of the court's refusal to excuse nine jurors allegedly biased against the defendant.

Four of these nine prospective jurors were not challenged for cause by the defense (Josey, Allen, Broxton and Mulling). The trial court did not err by failing to excuse sua sponte these unchallenged jurors. Childs v. State, 257 Ga. 243, 249(7), 357 S.E.2d 48 (1987). We do not find erroneous the trial court's finding that the remaining five were qualified to serve as jurors. Isaacs v. State, 259 Ga. 717, 730(21), 386 S.E.2d 316 (1989).

(b) In his seventh enumeration of error, the defendant contends a prospective juror should have been excused for cause for her attitude about the death penalty. However she was not challenged at trial and, as above, the trial court did not err by not excusing the juror sua sponte. Childs v. State, supra.

(c) In his eighth and eleventh enumerations, Spencer contends the court erred by excluding for cause five prospective jurors who were conscientiously opposed to the death penalty. We need not consider the court's excusals of two of these prospective jurors (Williams and Lynch), as Spencer did not object at trial to these excusals. See Blankenship v. State, 258 Ga. 43(2), 365 S.E.2d 265 (1988). The court's excusals of the other three were within the deference due the trial court's determination under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Jefferson v. State, 256 Ga. 821(2), 353 S.E.2d 468 (1987). See also Isaacs v. State, supra (23).

(d) The "scope of the voir dire examination must, of necessity, be left to the sound discretion of the trial judge." Curry v. State, 255 Ga. 215, 218(2b), 336 S.E.2d 762 (1985). We do not find an abuse of discretion in this case, and find no merit to Spencer's claim that the voir dire examination was too restricted (enumeration 12) or that the trial court applied a "double standard" to challenges for cause (enumeration 8).

(e) In his tenth enumeration, Spencer contends the state exercised its peremptory challenges in a racially discriminatory manner. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The state answers that Spencer has failed to preserve this issue for review on appeal. Spencer disagrees, claiming the trial court allowed him to reserve the issue.

Before the jury selection began, the trial court reminded the parties of the strictures of Batson, stating: "I hope that you all comply with that, and we won't have any problems with reference to that."

After the jury was selected, the court conferred briefly with the parties to see if there was "anything the court needs to take up prior to the trial...." Near the end of the conference, the prosecutor asked if "there's a Batson objection...." The court spoke to the defendant's attorney about Batson:

The Court: Of course, I advised counsel about that in the beginning, and I saw no evidence of that. If you want to make any record, I'll let you make it at this time.

Mr. Allen (for the defendant): Your Honor, I would like to just reserve that objection if I may. I really haven't had a chance to even consider it at this moment in time.

The Court: All right, there's no objection at this time. All right. Bring the jury back, please. Excuse me, did you want a break? Let's take a break for about five minutes.

No Batson issue was raised until after trial and after the defendant's trial attorneys had withdrawn and new attorneys entered the case on behalf of the defendant. The issue was raised for the first time in Spencer's fourth amended motion for new trial. Spencer contends this delay is not fatal to his claim because the trial court "permitted defense counsel to reserve his right to raise a Batson objection until sometime later in the proceedings." However, the trial court did not explicitly allow counsel to reserve his objection; the court only noted there was no objection "at this time." Even if the court's response were liberally construed to implicitly grant the defendant some additional time to "make [a] record," we do not think the court's response can be interpreted reasonably to allow the defendant to wait until his fourth amended motion for new trial to raise a Batson issue.

In Childs v. State, 257 Ga. 243, 257(21), 357 S.E.2d 48 (1987), we held: "A Batson issue must be raised in a timely manner, and after trial is too late." See also State v. Sparks, 257 Ga. 97, 355 S.E.2d 658 (1987). Because Spencer did not raise this issue in a timely manner, the trial court did not decide whether the defendant had made a prima facie case of discrimination and the trial court did not inquire about and the state did not explain its reasons for the exercise of its peremptory challenges. See Gamble v. State, 257 Ga. 325, 357 S.E.2d 792 (1987). We hold this claim is not preserved for review. ²

2. The trial court did not err, as Spencer contends in enumeration 13, by refusing to charge the jury on voluntary manslaughter. Horton v. State, 249 Ga. 871(1), 295 S.E.2d 281 (1982). Nothing in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), requires a trial court to instruct the jury on a lesser offense where the evidence fails to warrant such a charge. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

3. Enumeration 14 alleges Spencer's death sentence was the result of racial discrimination. See McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Spencer relies upon a post-trial affidavit from one of the jurors stating she overheard two white jurors making racially derogatory comments about the defendant during the jury's deliberations.

The general rule is that "affidavits of jurors may be taken to sustain but not to impeach their verdict." OCGA § 17-9-41. Exceptions are made to this rule in cases where extrajudicial and prejudicial information has been brought to the jury's attention improperly, or where non-jurors have interfered with the jury's deliberations. See, e.g., Hall v. State, 259 Ga. 412(3), 383 S.E.2d 128 (1989) and cases cited therein. Compare FRE 606(b). ³ The affidavit here does not fit within these exceptions to the rule. Compare Shillcutt v. Gagnon, 827 F.2d 1155 (II) (7th Cir.1987). See also Wright & Gold, Federal Practice and Procedure, ch. 7, § 6074, at pp. 431-32. ("Most authorities agree ... that the rule precludes a juror from testifying that issues in the case were prejudged, a juror was motivated by irrelevant or improper personal considerations, or racial or ethnic prejudice played a role in jury deliberations." (Footnotes omitted.))

The rule against allowing jurors to impeach their verdict serves important public interests. The rule discourages post-verdict harassment of jurors, enhances verdict finality and certainty, encourages free and open discussion among jurors during deliberations, and insulates jury value judgments from judicial review. However, these goals are not absolute, and it has been held that the rule of juror incompetency "cannot be applied in such an unfair manner as to deny due process." Shillcutt v. Gagnon, supra at 1159; Williams v. State, 252 Ga. 7(1), 310 S.E.2d 528 (1984); Dobbs v. Zant, 720 F.Supp. 1566(III) (N.D.Ga.1989). See also Wright & Gold, supra at 437, n. 104 ("It is safe to say that Rushen [v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) ] at least stands for the proposition assumed in Smith [v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ] that juror testimony as to the...