Alderman v. State

• Citation: 254 Ga. 206,327 S.E.2d 168
• Decision Date: 28 February 1985
• Docket Number: No. 41588,41588
• Parties: ALDERMAN v. The STATE.
• Court: Supreme Court of Georgia

Page 168

327 S.E.2d 168

254 Ga. 206

ALDERMAN v. The STATE.

No. 41588.

Supreme Court of Georgia.

Feb. 28, 1985.

Rehearing Denied March 28, 1985.

G. Terry Jackson, Michael G. Schiavone, G. Terry Jackson & Assoc., Savannah, for Jack Alderman.

Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., Savannah, Michael J. Bowers, Atty. Gen., Dennis R. Dunn, for the State.

WELTNER, Justice.

This is a death penalty case. In 1975, the appellant, Jack Alderman, was convicted in Chatham County for the murder of his wife and sentenced to death. On direct appeal, this court affirmed. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978). Alderman subsequently obtained federal habeas relief as to sentence on the ground that three prospective jurors had been excused erroneously under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Alderman v. Austin, 695 F.2d 124 (5th Cir., Unit B, 1983) (en banc). Thereafter, another sentencing trial was conducted by Chatham County, and Alderman again was sentenced to death. He now appeals. ¹

1. In his 6th enumeration of error, Alderman complains of the trial court's denial of his challenge to the array of the grand jury which returned the indictment in this case back in 1975.

We find no merit to this enumeration. The year 1984 is too late to raise 2. The practice of death-qualification of jurors is not unconstitutional for any reason urged. Mincey v. State, 251 Ga. 255(2), 304 S.E.2d 882 (1983); Thomas v. State, 245 Ga. 688, 266 S.E.2d 499 (1980). Nor do we find any merit to Alderman's contentions that the manner in which the death penalty is imposed in Georgia is unconstitutional. His 8th and 9th enumerations are meritless.

                for the first time, a challenge to a 1975 grand jury array.   Walraven v. State, 250 Ga. 401, 297 S.E.2d 278 (1982);  Young v. State, 232 Ga. 285, 206 S.E.2d 439 (1974)
                

3. In his 7th enumeration, Alderman complains of the limitations placed by the trial court upon the defense voir dire. We find from our examination of the transcript that both parties were given "an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination." Waters v. State, 248 Ga. 355, 363(3), 283 S.E.2d 238 (1981).

The trial court did not err by refusing to allow Alderman to ask veniremen what kinds of books and magazines they read; whether they were members of any political organization; what kinds of bumper stickers they had on their automobiles; whether they had read anything about the reliability of hypnosis; whether they had ever expressed an opinion about other criminal cases; whether, if Adolph Hitler was on trial for killing 6,000,000 Jews, they could give him the death penalty; whether a juror who had previously served in a criminal case had been the foreman; and whether any juror had ever been the foreperson of a grand jury. Henderson v. State, 251 Ga. 398(1), 306 S.E.2d 645 (1983).

4. In his 13th enumeration, Alderman contends that jurors were erroneously excused for opposition to the death penalty, contrary to the standards of Witherspoon v. Illinois, supra.

Alderman argues that the proper test for the excusal of jurors opposed to the death penalty is contained in footnote 21 of the Witherspoon opinion in which the court stated: "[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." 391 U.S. at 522-23, 88 S.Ct. at 1777.

We have formerly recognized this as the standard for excusing a prospective juror for opposition to capital punishment. It is now clear, however, that the oft-cited footnote no longer holds. The standard for disqualification now is "whether the juror's views [on capital punishment] would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

This standard is not transgressed if the juror merely expresses "qualms" about capital punishment (Witherspoon, supra, 391 U.S. at 513, 88 S.Ct. at 1772) or acknowledges that the possible imposition of the death penalty might affect his deliberations in the sense that he would take his duties more seriously than otherwise he might. Adams v. Texas, supra. However, "the requirement that a juror may be excluded only if he would never vote for the death penalty is now missing; ... whether or not a venireman might vote for death under certain personal standards, the state still may properly challenge that venireman if he refuses to follow the statutory scheme and truthfully answer the questions put by the trial judge." Wainwright v. Witt, supra 469 U.S. at ----, 105 S.Ct. at 851.

Applying this test to the facts of this case, we conclude that the trial court did not err by excusing six jurors who were opposed to the death penalty. ²

5. In his 14th enumeration, Alderman contends that the trial court erred by refusing to grant defense challenges to two prospective jurors who, he contends, were biased in favor of the death penalty. We disagree. The answers of these two jurors failed to show that their views on capital punishment would prevent or substantially impair their ability to decide the question of sentence in accordance with the instructions of the court. Wainwright v. Witt, supra; Godfrey v. Francis, 251 Ga. 652(11), 308 S.E.2d 806 (1983).

6. The jury found one statutory aggravating circumstance: "The offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." See OCGA § 17-10-30(b)(7). In his first three enumerations of error, which are argued together, Alderman questions the evidence, the charge, and the verdict respecting this statutory aggravating circumstance.

(a) When we reviewed this case previously, we held that the evidence was sufficient to support the jury's finding of the § (b)(7) circumstance beyond a reasonable doubt. Essentially the same evidence in aggravation was presented to this jury. The facts, recounted in Alderman v. State, supra, 241 Ga. at 497-499, 246 S.E.2d 642, distinguish this case from cases in which a finding of the § (b)(7) circumstance would be inappropriate.

(b) The court did not err by charging the jury on all three sub-parts of the second component of § (b)(7) (torture, depravity of mind and aggravated battery), inasmuch as the state offered evidence to show that the murder involved all three. West v. State, 252 Ga. 156, 160, 313 S.E.2d 67 (1984).

(c) Alderman contends that the jury's verdict, given in the disjunctive by its finding of "torture, depravity of mind, or an aggravated battery" (emphasis supplied), is insufficiently definitive, and that it cannot be determined which of the elements of § (b)(7) the jury actually found.

We note that the trial court charged most of the suggested charge on § (b)(7) set forth in the appendix to West v. State, supra, except that the court omitted any reference to mutilation, serious disfigurement, or sexual abuse of a deceased victim as showing depravity of mind. Instead, the jury was instructed that in order to find depravity of mind, it had to find torture or an aggravated battery as those terms were defined in the charge. West, supra, at 161-162, 313 S.E.2d 67. In these circumstances, each of these three sub-parts of § (b)(7) describes essentially the same conduct. Blake v. State, 239 Ga. 292(5), 236 S.E.2d 637 (1977). Therefore, absent a timely objection to the form of the verdict, the verdict was appropriate. Romine v. State, 251 Ga. 208 (7), 305 S.E.2d 93 (1983).

7. In his next two enumerations of error, Alderman complains of the exclusion of evidence offered in mitigation.

In one instance, Alderman wished to show that shortly after the first trial, co-defendant The trial court refused to allow Alderman to testify to the jury that Sato said that Brown said that Alderman was innocent. This refusal, Alderman contends, was reversible error.

Brown told a fellow inmate, John Sato, that he (Brown) had killed Alderman's wife and that Alderman had not been a party to the murder. Sato related this to Alderman, and his attorneys recorded electronically Sato's account of the incident. The tape subsequently disappeared, as did Sato.

We note that Brown was a state's witness and that he testified that Alderman killed his wife with Brown's assistance. Therefore, his prior inconsistent statements, if any, would be admissible as substantive evidence over an objection that such out-of-court statements are hearsay, or impeaching only. Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982). However, such a statement must be proved by competent evidence--notably, by a witness who heard it made. See Castell v. State, 250 Ga. 776(1b), 301 S.E.2d 234 (1983). Sato would have been such a witness, but Alderman was not. His only knowledge of the fact to be proved--i.e., Brown's inconsistent statement--is what someone else told him. Alderman's testimony was excluded properly.

We find no merit to Alderman's contention that Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), compels the admission of such testimony at the sentencing phase of a death penalty trial.

In Green, the United States Supreme Court considered the exclusion of an admission by a co-defendant that he (and not Green) had been the actual...