Berryhill v. State

• Decision Date: 18 May 1982
• Docket Number: No. 38206,38206
• Citation: 291 S.E.2d 685,249 Ga. 442
• Parties: BERRYHILL v. The STATE.
• Court: Georgia Supreme Court

Page 685

291 S.E.2d 685

249 Ga. 442

BERRYHILL v. The STATE.

No. 38206.

Supreme Court of Georgia.

May 18, 1982.

Rehearing Denied June 2, 1982.

[249 Ga. 453] C. Stephen Cox, William Neel, Jr., Cartersville, for Michael Gene Berryhill, a/k/a Stanley.

Darrell E. Wilson, Dist. Atty., Cartersville, Michael J. Bowers, Atty. Gen., for the State.

JORDAN, Chief Justice.

Michael Gene Berryhill, a/k/a Michael Gene Stanley, was convicted of felony murder and armed robbery by a jury in Bartow County in January of 1975. He received the death sentence for the felony murder and life imprisonment for the armed robbery. His convictions and sentences were affirmed by this court on direct appeal. Berryhill v. State, 235 Ga. 549, 221 S.E.2d 185 (1975) (cert. den. 429 U.S. 1054, 97 S.Ct. 769, 50 L.Ed.2d 771 (1977)). The denial of habeas corpus as to the felony murder conviction was affirmed by this court in Berryhill v. Ricketts, 242 Ga. 447, 249 S.E.2d 197 (1978) (cert. den. 441 U.S. 967, 99 S.Ct. 2418, 60 L.Ed.2d 1073 (1979)).

A federal habeas corpus petition was granted by the United States District Court for the Northern District of Georgia on May 13, 1980, and the appellant was retried in June of 1981 in the Superior Court of Bartow County as to guilt-innocence and sentence. He again was found guilty of felony murder and armed robbery and sentenced to death.

The facts surrounding the murder of the victim, George C. Hooks, Jr., and the armed robbery of his wife are adequately set forth in Berryhill v. State, supra, and will not be repeated here.

1. In his first three enumerations of error, appellant argues the general grounds, contending that the evidence established his insanity.

Appellant introduced evidence of his long history of drug abuse and a diagnosis of a sociopathic personality. However, the jury heard evidence to the effect that although the appellant had been drinking and sniffing a glue-like substance on the day of the crime, he had driven around with an accomplice, had obtained from a friend guns which he had stolen in earlier burglaries, had purchased ammunition for the gun that he used to kill the victim, and had planned the burglary of the victim's house. The appellant then carried out the planned burglary. This evidence was elicited from the appellant himself under oath. He also admitted under oath that he broke into the victim's house, fired the fatal shot into the victim, then, having understood what he had done, that he had fled the state to avoid detection for his crime.

The victim's family also testified as to identity and the circumstances of the murder and robbery.

Appellant's own expert witness's testimony established that appellant knew right from wrong, and that appellant was not suffering under a delusional compulsion.

The evidence overwhelmingly supports a finding by a rational trier of fact of each and every essential element of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The appellant complains in his fourth enumeration of error that the trial court erred by failing to grant his motion for change of venue. He asserts that because of pretrial publicity and local knowledge of the crime and the previous trial and verdict, it was impossible to obtain an impartial jury. We do not agree. First, it must be noted that there were only two instances of pretrial publicity prior to the second trial, both of which were factual in nature, and both of which only reported that the appellant's first conviction and sentence had been reversed and that a new trial was to take place. The trial court made every effort to prevent any pretrial publicity that could taint the jury pool. In fact, the appellant concedes that there is no evidence of a "total inundation of the judicial process by the media" at this trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Dick v. State, 246 Ga. 697, 273 S.E.2d 124 (1980).

Appellant argues that the press coverage at the first trial of the appellant created such an atmosphere in the community that an impartial jury and a fair trial were impossible. However, this pretrial publicity occurred over six years prior to the time of the second trial. Remoteness of time between the trial and the adverse pretrial publicity has been held to be one of the factors in determining whether a change of venue is required. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979). While each case must be determined on an individual basis, we hold that evidence of adverse publicity occurring 6 years prior to the trial, without more, is not sufficient evidence of a trial atmosphere "utterly corrupted by press coverage." Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1974). See Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976) (four month break in publicity); Young v. State, 239 Ga. 53, 236 S.E.2d 1 (1977) (13 month break in publicity); Brooks v. State, supra, (2 2/3 month break in publicity).

Appellant relies on the fact that the community had knowledge of the prior trial and had formed opinions as to his guilt or innocence based on his previous trial. Both this court and the Supreme Court of the United States have considered the "small-town syndrome" before. Cunningham v. State, 248 Ga. 558, 284 S.E.2d 390 (1981). A serious case draws public attention, and hardly any prospective juror will not have formed some impression or opinion about the case. However, the proper test is whether the prospective juror "can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Young v. State, supra. In this case, each prospective juror not removed for prejudice expressly indicated that he or she could lay aside any opinion he or she had formed and render a sentence based solely upon the evidence. Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979); Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979); Irvin v. Dowd, supra; Dick v. State, supra; Messer v. State, 247 Ga. 316, 276 S.E.2d 15 (1981).

The record in this case shows that 67 prospective jurors were examined. Of this number, 6 jurors were excused for prejudice or a fixed opinion as to guilt or innocence. Nineteen persons had opinions of guilt but expressly stated that they could lay aside any opinion and render a verdict solely based upon the evidence. This low percentage of venirepersons excused for prejudice (approximately 8%) strongly corroborates the expressions of impartiality by the other jurors who were not excused for prejudice. Messer v. State, supra (8.3% corroborates an absence of prejudicial publicity.) Murphy v. Florida, supra; Tucker v. State, supra (5% dismissal rate corroborates absence of prejudicial bias); Collier v. State, supra, (20% dismissal rate corroborates absence of prejudicial bias); Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976) (46% dismissal rate corroborates an absence of prejudicial bias); Butler v. State, 231 Ga. 276, 201 S.E.2d 448 (1973) (cert. den. 420 U.S. 907, 95 S.Ct. 825, 42 L.Ed.2d 836 (1974)) (36% dismissal rate corroborates absence of prejudicial community bias).

Appellant also assigns as error the trial court's failure to admit the results of a public opinion poll conducted by the University of Georgia through the efforts of appellant's former attorney, a law professor. Appellant cites no authority for the admissibility of the opinion poll evidence.

The trial judge gave the appellant an opportunity to authenticate the poll. However, because the trial court required a list of persons contacted in the poll for in-camera inspection, to determine whether the jurors actually called had been prejudiced, appellant's witnesses refused to appear and testify. Refusal to testify was based on an ethical consideration about revealing the source of the poll. It must be noted that the members of one juror's family had in fact been contacted.

Appellant had at his disposal the means to require the witnesses to testify, no privilege being present, but failed to avail himself of these means. He cannot now complain.

Furthermore, even if the opinion poll had been tendered in evidence, the appellant would not have met his burden as to change of venue. The results of the poll simply corroborated the fact that the community was aware of the prior trial, and that based on that trial they had an opinion as to guilt or innocence and punishment. However, 85% of those persons contacted noted that the appellant could get a fair trial in the community. Furthermore, the crucial question as to whether their opinions could be laid aside and the issues determined solely upon the evidence presented to the jury was never asked in the poll. And, while the question is not before this court, there are grave reservations about the admissibility of this type of evidence under any circumstance.

A motion for change of venue lies within the sound discretion of the trial judge. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975); Coleman v. State, supra. We find no abuse of discretion here.

3. Prior to trial, appellant challenged the arrays of the grand and traverse juries. The motion challenging the array of the grand jury was sustained, and appellant was reindicted. The trial court overruled the challenge to the array of the traverse jury, and in his fifth enumeration of error appellant contends that this ruling was erroneous because women were underrepresented on the traverse jury list.

In order to make out a prima facie case of jury discrimination, a defendant must establish (1) that a distinctive group or recognizable class in the community has been excluded from the jury list; (2) that an opportunity for discrimination against this group existed from the source of the jury list; and (3) that the use of the infected source...