Holsey v. State, S99P1112.

• Citation: 524 S.E.2d 473,271 Ga. 856
• Decision Date: 02 December 1999
• Docket Number: No. S99P1112.,S99P1112.
• Parties: HOLSEY v. The STATE.
• Court: Supreme Court of Georgia

524 S.E.2d 473

271 Ga. 856

HOLSEY v. The STATE.

No. S99P1112.

Supreme Court of Georgia.

December 2, 1999.

Reconsideration Denied December 20, 1999.

Stephen N. Hollomon, Warner Robins, Charlotta Norby, Atlanta, Brenda H. Trammell, Madison, for appellant.

Fredric D. Bright, District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Allison B. Goldberg, Assistant Attorney General, for appellee. FLETCHER, Presiding Justice.

A jury convicted Robert Wayne Holsey of murder in the shooting death of Deputy Sheriff Will Robinson.¹ The jury fixed the sentence for the murder at death. Holsey appeals, contending that he was absent from a jury view at which the trial court and an unsworn store clerk answered questions from jurors. Because Holsey later acquiesced in the improprieties occurring during the jury view, we affirm. The evidence at trial showed that shortly before 1:30 a.m. on December 17, 1995, Holsey entered the Jet Food Store in Milledgeville with a gun and demanded money. After receiving money from the store's cash register, Holsey directed the store clerk to open the store's lottery machine. Although Holsey ordered the clerk into a back room, the clerk was able to observe Holsey leave in a small red automobile. The clerk immediately called the police and provided a description of Holsey and his car.

Less than four minutes after Holsey left the food store, Deputy Sheriff Will Robinson stopped a red Ford Probe at a nearby motel. He relayed the vehicle's license plate number by radio and approached the vehicle; Holsey then fired. Forensic evidence showed that the deputy suffered a fatal head wound.

Several guests at the motel observed a person matching Holsey's description returning to the red Ford Probe and speeding away. The police soon discovered the vehicle and gave chase, but Holsey was able to avoid apprehension. One witness testified that she observed the red Ford Probe and recognized Holsey, with whom she was personally acquainted.

Holsey's girlfriend testified that shortly after the shooting Holsey called and asked her to meet him at his sister's house. He told her to drive her blue Jeep Cherokee rather than her red automobile because the police were searching for a red Ford Probe. When she arrived at the house, Holsey was hiding behind a fence. Holsey had his girlfriend drive him past the murder scene. When she refused his request to be driven to his mother's house where he could monitor a police scanner, Holsey had her drive him through back roads to his sister's house where she had picked him up. Holsey instructed her to park directly behind the red Ford Probe in order to conceal its license plate.

While Holsey and his girlfriend were still in the Jeep, a law enforcement officer drove up to the red Ford Probe. The officer checked the Probe's license plate number, which matched the number transmitted by the victim. The officer then illuminated the Cherokee and the Probe with his headlights and transmitted a request for additional support. When Holsey exited the Cherokee "very quickly," the officer turned on his blue police lights, exited his own vehicle, drew his service weapon, and twice commanded Holsey to raise his hands. Holsey failed to comply, began looking around as though searching for an escape route, and, after the officer threatened to shoot, Holsey finally raised his hands. The officer then commanded Holsey to lie prone on the ground. When the chief deputy sheriff arrived less than two minutes later, he confirmed that the Probe's license plate number matched the number from the victim's radio call and discovered a fresh bullet hole in the back of the Probe. He then awakened and interviewed the occupants of the residence. The occupants, Holsey's sister and another woman who was the owner of the Probe, both stated that Holsey had borrowed the vehicle that night. The chief deputy then, less than fifteen minutes after Holsey was initially detained, asked Holsey his name and placed him under arrest.

Clothes matching the description of those worn by the armed robbery perpetrator were discovered nearby. Shoes removed from Holsey after his arrest matched the description given by witnesses to both the armed robbery and the murder. A sample of blood taken from one of the shoes proved through DNA analysis to be consistent with the blood of the victim.

1. We find that the evidence introduced at trial, viewed in the light most favorable to the verdict, was sufficient to support the jury's finding beyond a reasonable doubt that Holsey was guilty of the crimes of which he was convicted and to support the jury's finding beyond a reasonable doubt the existence of the four statutory aggravating circumstances.²

2. Holsey argues that the trial court impermissibly excused nine prospective jurors who all were full-time college students attending colleges and universities outside of the county. The trial court examined each of the students individually in order to assess the degree to which they would be burdened by jury service in Holsey's one to two week trial. From our review of the record, we conclude that the trial court properly considered each student's individual circumstances in light of the trial's expected length and made a finding that each would suffer an extraordinary hardship if forced to serve. Such an individualized review, as opposed to a blanket, indiscriminate excusal of all college students without regard for the particular hardship each will bear, is consistent with this Court's interpretation of OCGA § 15-12-1.³

3. Holsey contends that the trial court erred by refusing to strike for cause Juror Knight on the basis that her brother-in-law and his girlfriend had been murdered in 1981. Although the juror described how the murders had caused her to view the death penalty with increased favor, she indicated that she would consider all sentencing options in light of the evidence. She also expressed some uncertainty as to whether she could actually vote as a juror to impose the death penalty.

Holsey also contends that, given the fact that he was charged with murdering a law enforcement officer, the trial court erred by refusing to strike Juror Knight for cause on the basis that she had family members who had worked in law enforcement. However, the juror plainly stated that her family members' former employment in law enforcement would not affect her deliberations in Holsey's case. Our review of the trial court's voir dire of the juror reveals adequate support for the trial court's finding that she was capable of serving as an impartial juror and of considering all the sentencing options available under Georgia law.⁴

4. Holsey contends that the state exercised its peremptory strikes in a race-conscious manner in violation of Batson v. Kentucky.⁵ The panel of forty-two qualified jurors was comprised of nine African-American persons (21%). The state used its ten peremptory strikes to remove two African-American persons (20%) and eight Caucasian persons (80%) from the panel, and the jury consisted of seven African-American persons (58%) and five Caucasian persons (42%). The trial court assumed that Holsey made a prima facie case of discriminatory intent and required the state to set forth a "race-neutral, case-related, clear and reasonably specific explanation for the exercise of the peremptory strike[s]."⁶

One of the two African-American jurors stricken by the state, Juror Atwater, responded to the trial court's initial voir dire questioning by stating that she was conscientiously opposed to the death penalty. The second African-American juror stricken by the state, Juror Clayton, stated that she had had three children die in three different and extremely tragic incidents. When asked whether her children's deaths would affect her as a jury member, Juror Clayton answered negatively but added, "I feel for everybody." The record suggests that Juror Clayton became emotional during the questioning about her children and about the death penalty.

Based on the explanations presented by the state and based upon our review of the record, we conclude that the trial court did not err in finding that Holsey has failed to carry his burden of persuasion as to his allegation of discriminatory intent.⁷

5. Holsey contends that his constitutional rights were violated when, outside of his presence, the jury went to the Jet Food Store where the robbery took place. Holsey concedes that his presence was not mandatory if the jury view was merely a scene view.⁸ However, the record demonstrates that the planned scene view was transformed into an evidentiary view⁹ when jurors asked questions about the location of video surveillance equipment and whether the lottery machine was in the same location as it was on the night of the crime. The clerk who was working in the store at the time answered the question about the camera. This clerk was unidentified on the record and was not sworn. The trial judge answered the question about the lottery machine's location, with the agreement of defense counsel, but without the knowledge or agreement of the defendant.

The Georgia courts have stringently enforced the right of a criminal defendant under the Georgia Constitution to be present at all aspects of the trial.¹⁰ This Court has consistently considered the defendant's absence from a critical part of the trial as a defect not subject to harmless error analysis.¹¹ We have no difficulty concluding that the taking of testimony is a critical part of the trial at which the defendant has the right to be present.¹² However, the Court has also stated that a defendant may later acquiesce in proceedings occurring in his absence.¹³

The record demonstrates that when the trial reconvened the Monday after the jury trip to the food store, the defendant began his case. After Holsey had called several witnesses and the jury had taken a break, the...