Alderman v. State

Citation246 S.E.2d 642,241 Ga. 496
Decision Date06 July 1978
Docket NumberNo. 33361,33361
PartiesALDERMAN v. The STATE.
CourtSupreme Court of Georgia

John Wright Jones, Savannah, for appellant.

Andrew J. Ryan, III, Dist. Atty., Robert M. Hitch, III, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., for appellee.

BOWLES, Justice.

The appellant, Jack Alderman, was indicted by a Chatham County Grand Jury for the offense of murder. He was tried by a jury and found guilty of the offense. The jury found as statutory aggravating circumstances that the murder was "committed . . . for the purpose of receiving money or any other thing of monetary value" (Code Ann. § 27-2534.1(b)(4)) and, that 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." Code Ann. § 27-2534.1(b)(7). The appellant was sentenced to death by electrocution. Appellant's amended motion for new trial was overruled, and his case is now before this court on appeal and for our mandatory review of the death sentence imposed.

I. Summary of the Evidence

The state presented evidence from which the jury was authorized to find the following:

On the afternoon of September 19, 1974, the appellant approached John A. Brown, a close friend, and asked for his assistance in the killing of appellant's wife, Barbara J. Alderman. The appellant told Brown that if he helped he would split one-half the proceeds of his wife's life insurance policy with him. At first Brown thought Alderman was only "kidding," but Alderman's persistence convinced Brown that he was serious.

Two days later the appellant called Brown and asked him to come over to his apartment in Chatham County. When Brown arrived the appellant handed him a 12-inch crescent wrench and told him, "it had to be done . . . all you have to do is hit her with the wrench." Brown hesitated, but after the appellant threatened him with a gun, Brown proceeded into the dining room where he struck Mrs. Alderman in the back of the head with the wrench. Mrs. Alderman screamed and ran into the living room where she was tackled by her husband. He held her down, and with Brown's assistance, attempted to strangle her. After she passed out, the appellant asked Brown if he thought she was dead. When Brown said "yes" the appellant said "well, stay here with her while I go open the bathroom door." Brown asked what for and the appellant replied "I'm going to drag her in there and drown her . . . I want to make sure that she doesn't do anything. Mrs. Alderman's body was then dragged into the bathroom and placed in the bathtub.

The appellant started running water in the tub while Brown attempted to clean bloodstains from the carpet where Mrs. Alderman's body had fallen. Brown then went back into the bathroom and saw Mrs. Alderman in the bathtub with water just over her face.

Brown and the appellant changed clothes and left the apartment. They stopped at a Piggly-Wiggly store where Alderman got $100 which he gave Brown for his help. From there they went to a bar and started drinking. At around 10 p.m. Brown and the appellant returned to the apartment. Mrs. Alderman's body was still in the bathtub, but only a small amount of water remained in the bottom of the tub. They picked her up out of the tub, put her body on a quilt and rolled her up in it. Her body was then placed in the trunk of her car. Brown drove the car while Alderman followed behind on a motorcycle. They drove to Rincan, Georgia, in Effingham County. When they arrived at Dasher Creek, Mrs. Alderman's body was taken out of the trunk and put in the driver's seat of her automobile. Brown put the vehicle in drive and released the emergency brake. The car rolled into the creek. Before leaving, Brown opened the door to permit the body to fall out. The two then departed on the motorcycle.

At trial the appellant testified in his own behalf. He denied having anything to do with the death of his wife. He testified that on the night in question he and his wife had engaged in a conversation concerning her inability to become pregnant. She had told him that because she was only half a woman she was going to leave him to allow someone else to better fill her position. She grabbed her pocketbook and went out the back door. Appellant testified that at approximately 7 p.m. he left the apartment and caught a bus to get a drink. He returned home at approximately 10 p.m. but his wife was not at home. He then decided to go to Rincan, where Mrs. Alderman's grandmother resided, in order to apologize to his wife. The appellant testified that when he crossed the bridge at Dasher Creek, he saw his wife's car in the creek. The door was open and his wife's body was lying under water. The appellant testified that she was dead. When he heard a car coming he got on his motorcycle and returned to a bar in Savannah. Appellant testified that he did not know why he had left his wife's body in the creek; that he recalled nothing of his trip back to Savannah; and, the fact that his wife was dead had completely left his mind. Appellant testified that he first realized the full facts surrounding his wife's death after being treated by a psychiatrist who was able to bring back his memory as to the events of that night. He stated that after being treated he realized that fear had caused him to leave his wife's body in the creek because he knew her family would blame him for her death.

The evidence will be examined in more detail as necessary in addressing appellant's enumerations of error.

II. Enumerations of Error
1. The appellant contends that the trial court improperly excused five prospective jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Prior to the individual voir dire, the court asked each panel of jurors, "Are you conscientiously opposed to capital punishment?" Two jurors responded affirmatively. The court then asked these two jurors, "Are your reservations against capital punishment such that you could never vote for capital punishment, regardless of what the facts show?" Again both responded affirmatively.

It is clear from their answers that these two jurors would have automatically voted against the imposition of capital punishment without regard to the evidence that might have been developed in the case. Under Witherspoon, supra, it was not error to dismiss these two jurors for cause.

The exclusion of three other jurors presents an issue yet to be decided either by this court or the Supreme Court of the United States. During the individual voir dire, three jurors reaffirmed that they were not conscientiously opposed to capital punishment. The state then asked each one whether, if elected to serve as foreman of the jury, following the court's instructions, they would be able to write out the death penalty on the indictment and sign their name to it as foreman. Each of these three prospective jurors responded that if elected foreman, They could not write out a death verdict. Over appellant's objection, the court excused these three jurors for cause.

Appellant contends that the exclusion of these three jurors for cause was in violation of Witherspoon, supra. Assuming, without deciding, that the exclusion for cause of these jurors was in violation of Witherspoon, supra, we find no error under the circumstances surrounding their exclusion.

Under Code Ann. § 59-805, a "person indicted for a crime or offense which may subject him to death or imprisonment in the penitentiary for not less than four years may peremptorily challenge 20 of the jurors impaneled to try him . . .; and the State shall be allowed one-half the number of peremptory challenges allowed to the prisoner." In the instant case when the twelfth juror was selected, the state had exercised only seven of its ten peremptory challenges. Thus, when the jury was impaneled, the state was left with three Unused peremptory challenges. 1

It is the state's contention that even if the trial court erred in excluding these three prospective jurors for cause, the appellant was not prejudiced by their exclusion since the number of jurors that arguably had been erroneously excluded for cause did not exceed the number of peremptory challenges which the state could have exercised had the trial court denied the state's motions to excuse these three jurors for cause. Stated more simply, we are presented with the narrow question of the impact on Witherspoon of unexercised peremptory strikes available to the state.

This same issue attracted the United States Supreme Court's attention in Moore v. Illinois, 403 U.S. 953, 91 S.Ct. 2280, 29 L.Ed.2d 864 (1971). In that case, the Supreme Court of the United States granted certiorari on the issue, inter alia, of whether a death sentence could be affirmed "on the ground that the prosecution had sufficient peremptory challenges to have eliminated those prospective jurors eligible to serve under Witherspoon?" 2 However, because of the intervening decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), 3 this issue was never decided by the court. Moore v. Illinois, 408 U.S. 786, 800, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).

The impact of unexercised peremptory challenges on a Witherspoon issue was not before the court in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) however the dissenting Justices in that case recognized that "Witherspoon does not decide whether the presence of unexercised peremptory challenges might render harmless the improper exclusion of a limited number of veniremen." The issue of unexercised peremptory strikes and its impact on Witherspoon is thus an open question.

In reaching a decision in this case, we are persuaded by the state's contention that it would be folly for an attorney to unsuccessfully...

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