Allen v. State

• Decision Date: 05 January 1982
• Docket Number: No. 37948,37948
• Citation: 286 S.E.2d 3,248 Ga. 676
• Parties: Stanley Edward ALLEN v. STATE.
• Court: Georgia Supreme Court

Page 3

286 S.E.2d 3

248 Ga. 676

Stanley Edward ALLEN v. STATE.

No. 37948.

Supreme Court of Georgia.

Jan. 5, 1982.

Thomas M. Strickland, Athens, for Stanley Edward Allen.

J. Cleve Miller, Dist. Atty., Lindsay A. Tise, Jr., Asst. Dist. Atty., Hartwell, Michael J. Bowers, Atty. Gen., for the State.

HILL, Presiding Justice.

Stanley Edward Allen was tried by a jury and convicted of the murder, robbery and rape of Susie C. Rucker. He was sentenced to death for the murder, ¹ life imprisonment for the rape, and 20 years imprisonment for the robbery.

The defendant made a statement to the police which was entered into evidence. ² He also testified at trial and his testimony was essentially the same as his statement to police. According to the defendant, on Monday, January 5, 1981, he was with 18 year old Woodrow Davis at his (the defendant's) cousin's place when Davis borrowed his car at about 10 p. m. Davis returned with the car at about 10:30 p. m. and said "Stanley, come on and go with me, we got something to do." As they drove, Davis told him he knew an old lady who had plenty of money and he was going to get some of it. They went to the victim's home, where Davis knocked on the door and said that he was Elijah Hunter (Elijah Hunter was a neighbor of the victim's) and was out of gas. She responded that he wasn't Elijah Hunter. After she went into the bedroom and came out with a gun (either a rifle or a shotgun), Davis and the defendant ran back to the car and left. The defendant returned to his cousin's, arriving about 11 p. m., and Davis left in his car. Davis returned about 11:15, picked him up, and asked if he wanted to go back; the defendant responded that he did. The defendant knocked on the back door. When the victim, a 72 year old woman, came to answer the door, Davis entered through a front window, grabbed the victim, and opened the back door and let the defendant in. The defendant looked around the house. He then followed Davis into the woods behind the victim's house where he found Davis "having sex" with the victim. She was pleading with Davis, asking him not to hurt her. Davis and the defendant carried the victim back into her home and laid her on a bed. The defendant then "had sex" with her. While this was going on, Davis was looking through the house for money, but found only jewelry. Unable to find any money, Davis threw the victim on the floor and, according to the defendant, Davis started stomping on her, asking "Where's the money, where's the money?" The defendant testified he pulled Davis off the victim and they left the house. On the way out, the defendant picked up a butcher knife but he fell and dropped it before he got to his car. Davis took some jewelry, which he kept himself. The defendant also stated that he was 26 and weighed about 170 at the time of the crime, and Davis was 18 and weighed 120 or 130.

The doctor who performed the autopsy on the victim testified that she was 5 feet, 3 1/2 inches tall and weighed approximately 90 pounds. She had sustained a blow to the back of her head, her sternum was broken in two, several of her ribs were broken, there were several lacerations in the wall of her vagina and a tear in the vagina which penetrated the abdomen, and she had been strangled. The doctor testified that she was alive when she received all of these injuries, including the strangulation which resulted in her death. When the victim's body was discovered about 1 p. m. the next day (January 6), it was lying on the kitchen floor.

The state also showed that blood on one of the defendant's shoes and on his shirt was of the same type as the victim's, that a pubic hair found in the defendant's undershorts (state's exhibit 27) was microscopically identical to a sample of the victim's hair (state's exhibit 30), and that a diamond ring which had belonged to the victim was found under the seat in the defendant's car.

1. The defendant's first enumeration of error is that the evidence is insufficient to support the verdict as to the murder and the robbery. We disagree. The evidence is sufficient to allow a rational trier of fact to find the defendant guilty of murder and robbery, as well as rape, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Defendant's second enumeration of error is that the trial court erred in excluding three jurors, Mr. Clifford McIntosh, Mrs. Mae Sue Moon, and Mrs. Casey D. Freeman, as being conscientiously opposed to capital punishment. Having examined the transcript of the voir dire, we have concluded that Mr. McIntosh was properly excused because he stated "unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal...." Witherspoon v. Illinois, 391 U.S. 510, 516 n. 9, 88 S.Ct. 1770, 1774 n. 9, 20 L.Ed.2d 776 (1968); Blankenship v. State, 247 Ga. 590, 593, 277 S.E.2d 505 (1981).

As for Mrs. Moon, we find she was properly excused also. The U. S. Supreme Court explained in Witherspoon v. Illinois, supra, 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21: "[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." (Emphasis in original.) Thus Witherspoon does not prohibit disqualification of two categories of jurors: (1) those who make it unmistakably clear that they would automatically vote against the death penalty without regard to the evidence in the case before them, and (2) those who make it unmistakably clear that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Most decisions involve jurors possibly falling into the first category; Mrs. Moon is within the second category. Having first stated that she was conscientiously opposed to capital punishment, Mrs. Moon was asked: "Will your reservation about capital punishment prevent you from making an impartial decision on the issue of this defendant's guilt?" She responded: "No doubt." And when queried, "You say yes?", she responded, "Yes." Thus the trial court did not err in excluding her for cause. ³

The voir dire examination of Mrs. Freeman was as follows:

"THE COURT: Mrs. Freeman ... are you conscientiously opposed to capital punishment?

"JUROR: Yeah, I think I am. I tell you the way I feel about it. I could kill somebody in self-defense; but to just kill somebody, I don't believe I could.

"...

"THE COURT: All right. And is there ... any set of circumstances or facts or evidence where you could impose capital punishment on trial of a case? That is the death penalty?

"JUROR: No, I don't think so.

"THE COURT: Could you consider fairly and fully the death penalty as one of the penalties provided by the laws of Georgia as punishment for those found guilty of certain offenses and then to vote to impose it should the facts and circumstances of a case so warrant it?

"JUROR: No, I don't think so." Defense counsel asked a question, to which the state objected. The court allowed defense counsel to rephrase the question, whereupon the juror responded?

"JUROR: Well, I might consider death in some circumstances, but I don't know.

"THE COURT: But you're not certain of that?

"JUROR: No, I'm not certain of that. This is the first time I've ever been confronted with this murder business." The juror was then excused for cause. In Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), the Supreme Court found a juror not disqualified under Witherspoon where the prospective juror was asked "... do you have any conscientious scruples about capital punishment that might prevent you from returning such a verdict" and the juror answered: "I think I do."

As the above quotations from Witherspoon show, in order to be disqualified a prospective juror (in the first category) must make it "unmistakably clear" that he or she would automatically vote against the death penalty in any and all cases. Unless a venireman states "unambiguously" that he or she would automatically vote against imposition of capital punishment no matter what the trial might reveal, the juror is not disqualified. Witherspoon v. Illinois, supra, 391 U.S. at 516 n. 9, 522 n. 21, 88 S.Ct. at 1777 n. 21. Ambiguous or equivocable answers are not sufficient for disqualification for cause. Blankenship v. State, supra, 247 Ga. at 593, 277 S.E.2d 505; see also Cofield v. State, 247 Ga. 98, 101 n. 4, 274 S.E.2d 530 (1981). This record does not support the requisite finding that Mrs. Freeman made it "unmistakably clear" that she "would automatically vote against" the death penalty. Thus the trial court erred in excluding her for cause.

Since one juror was erroneously struck for cause on the basis of opposition to capital punishment, even though the state had one peremptory strike remaining when the 12th juror was seated, the defendant's death...