Ward v. State, S92P0087
| Citation | 262 Ga. 293,417 S.E.2d 130 |
| Decision Date | 11 June 1992 |
| Docket Number | No. S92P0087,S92P0087 |
| Parties | WARD v. The STATE. |
| Court | Supreme Court of Georgia |
Christopher A. Townley, David J. Dunn, Jr., Gleason, Davis & Dunn, Rossville, for Ward.
Ralph Van Pelt, Jr., Dist. Atty., LaFayette, Michael J. Bowers, Atty. Gen., Atlanta, Mary Jane R. Palumbo, Asst. Dist. Atty., LaFayette,
Peggy R. Katz, Staff Atty., Atlanta, for the State.
Michael Moeller, Asst. Dist. Atty., LaFayette.
Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta.
Joseph L. Chambers, Sr., Pros. Attys.' Council, Smyrna.
Patsy Morris, Atlanta.
The defendant, James Ray Ward, was convicted of murder, kidnapping with bodily injury, and feticide. He has been sentenced to death for the murder conviction by a jury in Walker County. He appeals his convictions and death sentence. For reasons that follow, we affirm. 1
1. The victim's husband left for work at 6:00 a.m. on August 17, 1989. When he returned from work that evening, the 23-year-old victim, who was five months pregnant, was missing, along with her car. Their 22-month-old daughter was at home by herself.
When the police arrived later that evening, many friends and relatives were present. At first, nothing appeared to be missing except for the victim and her car, but eventually it was learned that a telephone cord had been forcibly removed from the wall jack (leaving the plug), that most of the victim's underwear had been removed from her dresser drawer, and that a quilt and a baby blanket had been taken.
The victim's car was discovered the next day on an unpaved logging road. Her body was discovered the day after that in a trash dump several miles away. Ligature marks around her wrists and ankles indicated she had been bound. Three of her ribs were broken and there were various bruises about her body. Her fetus was in a partially delivered condition. The mother died of asphyxiation resulting from her pharynx being stuffed with wadded-up paper towels. The death of the mother resulted in the destruction of the fetus.
No clear suspects were developed for several months. Then, early in the morning of December 18, 1989, the defendant, wearing gloves and a stocking mask, broke into a Gordon County home and kidnapped a woman from her bed as she lay sleeping with her nine-year-old daughter. He drove the woman to an abandoned farmhouse, forced her to model negligees he had brought with him, and raped her. Then he took her to another abandoned house and raped her again. He told her that he had killed two people and pointed out a "good place" to "dump bodies" if she ever wanted to. He also told her he had been watching her and told her some things about her personal situation that a stranger should not have known. He returned her to her home. Later, she discovered that some of her underwear was missing.
The Gordon County police arrested the defendant at his residence. The defendant's home was unfinished inside. Most of the walls were not sheetrocked and there was no running water and, except for the bedroom, no electricity. The unfinished rooms were full of boxes containing several thousands of dollars worth of lingerie and adult magazines. The defendant maintained notebooks carefully labelling and indexing magazines and lingerie catalogs (including descriptions and numerical ratings of women in the magazines). The officers found scraps of paper with physical descriptions of and tag numbers for women; dates, times and locations of observations; directions to their homes; newspaper clippings about rapes, murders and missing women; newspaper photographs of women; and driver's licenses and insurance cards belonging to various women.
In addition, officers found handwritten directions to the home of the victim in this case, her swimming suit bottom, her quilt and baby blanket, and--hidden under a pile of wood--six newspaper articles about her disappearance.
On January 18, 1990, the defendant admitted to police that he had visited the victim's home to check on a well he had helped drill earlier and had spoken to her. He said:
I don't know if I done anything to the girl or not. I could have done it....
I been a liar all my life. I need some help. If I done it, I didn't mean for it to happen and I am sorry.
2. Ward complains of the state's use of extrinsic transactions to establish motive and identity, and contends they were not sufficiently similar to the crime on trial.
As we stated in Felker v. State, 252 Ga. 351, 359(1)(a), 314 S.E.2d 621 (1984):
Similarity between the charged crime and the extrinsic crime is an important factor pertinent to a determination of the admissibility of the extrinsic crime. However, it is not the only factor, nor is it necessarily the controlling factor. "The ultimate issue in determining the admissibility of evidence of other crimes is not mere similarity but relevance to the issues in the trial of the case." Williams v. State, supra, 251 Ga. at 784 . Depending upon the purpose for which the extrinsic offense is offered, Williams v. State, [251 Ga. 749, 811, 312 S.E.2d 40 (1983) ] (Smith, J., dissenting). [Footnote omitted.]
The extrinsic transactions in this case show that Ward is obsessed with having control and dominance over women and has engaged in a pattern of ritualistic "stalking" of and collecting "trophies" from women. The extrinsic transactions were relevant to explain the nature of the crime and to prove identity by establishing motive. There was no error in their admission in evidence.
3. An FBI agent who specializes in the study of sex crimes was qualified as an expert witness in the field of sexual deviation and the behavior of violent sexual offenders. He testified at the guilt phase of the trial, explaining sexual deviations and the significance of certain conduct in relation to these deviations. 2 In addition, he enumerated for the jury objective similarities between the crime on trial and the Gordon County rape. To this latter testimony, the defendant objects, contending that the presence or absence of similarities were matters which the jurors could determine for themselves. Citing Fordham v. State, 254 Ga. 59(4), 325 S.E.2d 755 (1985), he contends this testimony was impermissible opinion evidence. We do not agree. The agent's opinion was one of fact, and was not an inadmissible legal conclusion. The jury was not prevented from drawing its own conclusions from the facts testified to. See McCartney v. State, 262 Ga. 156, 159(1), 414 S.E.2d 227 (1992).
4. The evidence, although circumstantial, supports the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
5. There was no error in the exclusion of polygraph evidence from the guilt phase of the trial. Sustakovitch v. State, 249 Ga. 273, 275(2), 290 S.E.2d 77 (1982).
6. Ward raises several issues about the prosecution's guilt-phase closing argument 3:
(a) He contends the prosecutor's "make them explain" argument amounted to a comment upon the defendant's failure to testify and was an attempt to shift the burden of proof to the defendant.
The prosecutor told the jury that the defense was not obligated to offer any evidence and that the burden of proof was on the state. The prosecutor's exhortation to "make them explain" why the state's evidence did not amount to proof beyond a reasonable doubt was not an attempt impermissibly to shift the burden of proof to the defendant. 4 U.S. v. Norton, 867 F.2d 1354, 1364, fn. 10 (11th Cir.1989).
Nor do we view such argument as a manifest attempt to comment on the defendant's failure to testify, nor would the jury have "naturally and necessarily" taken it to be such a comment. Christenson v. State, 261 Ga. 80, 88(7)(a), 402 S.E.2d 41 (1991).
(b) Although the defendant was entitled to cross-examine the Gordon County victim about the issues of consent and force, the prosecutor likewise was entitled during his closing argument to comment on that cross-examination in light of the defendant's guilty plea to rape in Gordon County. The prosecutor did not improperly limit and belittle the defendant's right to confront witnesses against him, as the defendant contends.
(c) In response to defense arguments about the lack of mud inside the victim's car despite evidence that it had rained the morning she disappeared, the prosecutor wondered, rhetorically, why the defense was making an issue out of it, because the car obviously did not drive itself to the place where it was found. The prosecutor then commented that, unlike defense counsel, he (the prosecutor) had "grown up in these woods" and that some of the jurors probably had also. The defendant complains about this comment. While the prosecutor's reference to his own experience with "these woods" was doubtless objectionable, Conner v. State, 251 Ga. 113, 122-23(6), 303 S.E.2d 266 (1983), we do not find the comment sufficiently material or prejudicial to warrant reversing the defendant's conviction.
(d) The prosecutor argued:
Remember during the rape [in Gordon County], he would ask her are you having an orgasm, do you enjoy the sex with me. There are reasons we asked those questions, we can't discuss it in this part of the case, but there are significant reasons for asking those questions.
Although this argument warrants our disapproval, it is too ambiguous to warrant reversal 5. See Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974).
(e) Although statements of personal opinion generally are improper, we find no reversible error where the prosecutor said "I am telling you the truth" while admitting he did not know where the missing telephone...
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