Waldrip v. State

Decision Date10 March 1997
Docket NumberNo. S96P1753,S96P1753
Citation267 Ga. 739,482 S.E.2d 299
Parties, 97 FCDR 807 WALDRIP v. The STATE.
CourtGeorgia Supreme Court

J. Richardson Brannon, The Brannon Law Office, Gainesville, Charlotta Norby, Atlanta, for Tommy Waldrip.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, Michael J. Bowers, Attorney General, Wesley Scott Horney, Assistant Attorney General, Department of Law, for State.

HINES, Justice.

Tommy Lee Waldrip was convicted of the malice murder of Keith Lloyd Evans as well as two counts of felony murder, kidnapping with bodily injury, aggravated battery, five counts of aggravated assault, theft by taking a motor vehicle, arson in the second degree, influencing a witness, concealing a death, possession of a firearm by a convicted felon, and two counts of possession of a firearm during commission of a felony. 1 The jury recommended the death penalty, finding as aggravating circumstances that the murder The jury was authorized to find that appellant murdered Keith Evans to prevent Evans from testifying against his son, John Mark Waldrip, at his armed robbery retrial in Forsyth County. Evans, who worked as a clerk in the store at the time of the robbery, testified as the State's sole eyewitness at John Mark's first trial in 1990. Although John Mark was convicted in the 1990 trial, the trial court granted his motion for new trial, and he was released on bond pending the retrial. At the time of his death, Evans was scheduled to testify at the retrial.

was committed while the defendant was engaged in the commission of kidnapping with bodily injury or aggravated battery; and that the murder was outrageously wanton, vile, horrible and inhuman in that it involved aggravated battery to the victim. Waldrip appeals his convictions and death sentence. We affirm.

On Saturday afternoon, two days before the retrial was scheduled to begin, the appellant and his co-indictees, John Mark and appellant's brother-in-law, Howard Livingston, 2 drove to Cleveland, Georgia and bought a used station wagon for $150.00, which they returned a half hour later because it was overheating. That evening, John Mark called Robert Garner, 3 who was also scheduled to testify against him at the retrial, and threatened to harm Garner if he testified. At approximately 9:30 p.m. appellant and John Mark left appellant's apartment in appellant's wife's Ford Tempo. Sometime between 10:30 p.m. and midnight, the co-indictees met Evans at a highway crossing in Dawson County. After running Evans' truck off the road, they shot at him through the windshield. He was hit with bird shot from a shotgun in the face and neck. Since Evans was still alive, the co-indictees drove his truck, with Evans in the passenger seat, to Hugh Stowers Road in Dawson County, where they beat him to death with a blackjack. They buried Evans' body in a shallow grave in Gilmer County and set his truck on fire.

The fire was reported at approximately 12:30 a.m. Sunday morning. A current insurance card for the Ford Tempo, belonging to appellant's wife, Linda Waldrip, was found near the burned truck. Appellant was interviewed on Sunday afternoon and denied any involvement in Evans' disappearance. During the interview, Linda Waldrip was asked for her insurance card for the Ford Tempo, and she produced an expired card.

John Mark's retrial for armed robbery did not take place. On Monday morning, Keith Evans was missing and Garner refused to testify against John Mark. Garner subsequently informed the district attorney of the threats made against him, and John Mark was arrested and charged with influencing a witness.

Appellant was arrested on Tuesday, and on Thursday, confessed to shooting and beating the victim and burning his truck. He then led authorities to the victim's body, and later, to the shotgun used in the crimes. 4 The following day, appellant gave a conflicting statement, in which he contended that John Mark and Livingston murdered the victim and burned his truck, and that he was merely a bystander. Appellant gave a third statement in which he related that all three of the co-indictees participated in the crimes.

The evidence was sufficient to enable a rational trier of fact to find appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

COMPETENCY TRIAL

Appellant raises seven claims of error relating to his competency trial.

1. The trial court did not abuse its discretion in denying appellant's second motion for change of venue in the competency trial, based on appellant's contention that the change of venue from Dawson County to Hall County was insufficient to avoid excessive pretrial publicity. Appellant has not attempted to show there is a substantial likelihood the competency trial was rendered unfair due to pretrial publicity, nor has he established prejudice by individual jurors. Jones v. State, 261 Ga. 665, 409 S.E.2d 642 (1991). As support for this ground, appellant states only that two jurors on the trial jury had read newspaper articles about the trial, and cites to five on the jury panel who were familiar with the case without any further explanation. Our review of the record reveals that neither of the jurors on the trial jury had any clear recollection of what they had read, and both jurors stated they did not have any fixed opinion regarding appellant's competency, and appellant has failed to show a high excusal rate in general as a result of publicity. See e.g. Chancey v. State, 256 Ga. 415, 429, 349 S.E.2d 717 (1986). The fact that the parties originally stipulated to venue in a county other than Hall 5 does not relieve appellant from showing he was prejudiced by the trial court's denial of his motion. This claim is without merit.

2. The trial court did not abuse its broad discretion in limiting the scope of the voir dire at the competency trial by prohibiting questions of a technical or legal nature, or questions which required the jurors to prejudge the case. McGinnis v. State, 258 Ga. 673, 674-675(3), 372 S.E.2d 804 (1988).

3. Appellant's contention that the State improperly placed his character in issue during the competency trial by referring to his prior criminal history is without merit. "[T]he issue at a competency trial is whether the defendant at the time of the trial is capable of understanding the nature and object of the proceedings against him and his own condition in reference to such proceedings, and is capable of rendering assistance to his attorney in the defense of his case." Black v. State, 261 Ga. 791, 794(2), 410 S.E.2d 740 (1991). Since a competency trial is in the nature of a civil proceeding, evidence that may place appellant's character in issue is admissible, if it is relevant to the issues to be decided. Id.

The evidence of prior crimes committed by appellant was offered to counter expert testimony that appellant harbored the delusional belief he was being monitored by law enforcement officers, and also to show appellant's familiarity with the criminal justice system. There was no reference to the facts of these prior offenses, and no testimony by the victims or witnesses of these crimes. We have found such evidence to be admissible to show whether a defendant understood the charges against him. Brown v. State, 256 Ga. 387, 389, 349 S.E.2d 452 (1986). 6 Compare Crawford v. State, 240 Ga. 321, 326(2), 240 S.E.2d 824 (1977). Given the limitations imposed by the trial court and the purpose for which the convictions were offered, we find no error.

4. Appellant's contention that the prosecutor misled the jury at the competency trial by asking appellant's former attorney why she delayed notifying the trial court that appellant required psychiatric treatment has not been preserved for appellate review because appellant failed to renew his motion for mistrial after the trial court issued a curative instruction. Woodham v. State, 263 Ga. 580(1)(b), (3), 439 S.E.2d 471 (1993).

5. Appellant's contention that the trial court should have sua sponte rebuked the prosecutor and issued a curative instruction under OCGA § 17-8-75, when the psychologist who conducted the court-ordered examination referred to himself as the "judge's witness" during the competency trial, is without merit. Even assuming appellant's failure to object did not constitute waiver of this issue, the witness explained that under this Court's opinion in Tolbert v. State, 260 Ga. 527, 528(1)(b), 397 S.E.2d 439 (1990), he was required to be independent and impartial.

6. Appellant contends that the trial court erred by repeatedly allowing the State to refer to the pending charges against him at the competency trial. See Division 3, supra. Whether appellant understood the nature and gravity of the charges against him was highly relevant to the competency proceeding. Black v. State, 261 Ga. at 794, 410 S.E.2d 740. The prosecutor's questions were focused on appellant's understanding of the charges, not his guilt or innocence, or the facts of these or any prior crimes, and the jury was properly charged on its duty on the special plea of incompetency. See Brown v. State, 256 Ga. at 388-389, 349 S.E.2d 452; Chambers v. State, 250 Ga. 856, 858-59(1), 302 S.E.2d 86 (1983). We find no error.

7. Appellant's contention that the prosecutor improperly commented on his exercise of his Fifth and Sixth Amendment rights during the competency trial is procedurally defaulted, based on his failure to object to these comments. Earnest v. State, 262 Ga. 494, 422 S.E.2d 188 (1992).

VOIR DIRE

8. Appellant contends that the trial court committed reversible error in failing to excuse prospective jurors Larue Davis, Perry Gant, and Margaret Lynch because of bias.

(a) Appellant argues that Davis should have been excused under Wainwright v. Witt, 469 U.S. 412, 424-426, 105 S.Ct. 844, 852-854, 83 L.Ed.2d 841 (1985),...

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