Bishop v. State

• Decision Date: 16 July 1997
• Docket Number: No. S97P0205,S97P0205
• Citation: 268 Ga. 286,486 S.E.2d 887
• Parties: , 97 FCDR 2605 BISHOP v. The STATE.
• Court: Georgia Supreme Court

Page 887

486 S.E.2d 887

268 Ga. 286, 97 FCDR 2605

BISHOP v. The STATE.

No. S97P0205.

Supreme Court of Georgia.

July 16, 1997.

Reconsideration Denied July 30, 1997.

Brian G. Combs and Reginald L. Bellury, Milledgeville, for Bishop.

Fredric Daniel Bright, Dist. Atty., Milledgeville, Susan V. Boleyn, Senior Asst. Atty. Gen., and Wesley Scott Horney, Asst. Atty. Gen., Department of Law, Atlanta, for the State.

Joseph L. Chambers, Sr., Prosecuting Attorneys Counsel, Smyrna.

Michael Mears, MultiCounty Public Defender, Atlanta.

Steve Bayliss, Georgia Resource Center, Atlanta.

CARLEY, Justice.

The grand jury indicted Joshua Daniel Bishop for the malice murder and armed robbery of Leverett Morrison. The State filed notice of its intent to seek the death penalty for the murder. After finding Bishop guilty of the crimes, the jury returned a verdict imposing a death sentence, finding, as the aggravating circumstance, that Bishop had murdered Morrison in the course of committing the additional capital felony of armed robbery. OCGA § 17-10-30(b)(2). The trial court entered judgments of conviction and sentences on the jury's guilty verdicts. Bishop's motion for new trial was denied and he appeals. ¹

General Grounds

1. The evidence presented at trial authorized the jury to find the following: Morrison drove Bishop and Bishop's co-indictee, Mark Braxley, to a bar. Bishop and Braxley decided to steal Morrison's car. The three left the bar around 11:00 p.m. and drove to Braxley's trailer. Bishop reached into the sleeping Morrison's pocket for the car keys, but Morrison awoke and sat up. Bishop began to beat Morrison about the head and face with a blunt object. When Morrison was unconscious, Bishop took the car keys. Eventually realizing that Morrison was dead, Bishop and Braxley wrapped and then loaded the body into the back seat of Morrison's car. They drove to a dumpster which was located a short distance from Braxley's trailer. After unsuccessfully attempting to toss Morrison's body into the dumpster, Bishop and Braxley left the body on the ground where it was discovered several hours later. They drove Morrison's car into the nearby woods, set it on fire, and then walked back to Braxley's trailer to dispose of evidence of their crimes. After his arrest, Bishop made a statement in which he admitted delivering the blows with a wooden rod until Morrison stopped breathing, and described how he and Braxley disposed of the body and burned the car. Bishop subsequently confessed that, some two weeks prior to the murder of Morrison, he participated in the murder of Ricky Lee Wills and that he buried Wills' body in the woods near Braxley's trailer. After investigators recovered Wills' body, a grand jury indicted Bishop and Braxley for that murder as well. The trial court admitted evidence regarding Bishop's participation in Wills' murder in aggravation of punishment during the penalty phase of this trial for Morrison's murder.

The evidence is sufficient to enable any rational trier of fact to find proof of Bishop's guilt of malice murder and armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence is also sufficient to authorize the jury to find Bishop's commission of armed robbery as an aggravating circumstance which supports his death sentence for the murder.

Pre-trial Rulings

2. Bishop urges that his inculpatory in-custody statement should not have been admitted because, as the result of antecedent drinking and smoking crack cocaine, he was unable to make a knowing waiver of his rights. Whether there was a knowing and voluntary waiver of rights depends upon the totality of the circumstances. Reinhardt v. State, 263 Ga. 113, 115(3)(b), 428 S.E.2d 333 (1993). The record shows that Bishop read the Miranda warnings at the beginning of his statement and signed a waiver of rights form. He affirmed that he understood his rights, that he was aware of his surroundings, that his statement was voluntary and that he was not required to respond to the officers' questions. At the Jackson-Denno hearing, the officers who arrested and interviewed Bishop testified that he was coherent, that his answers were responsive to the questions and that he did not appear to be under the influence of drugs or alcohol. Under the totality of these circumstances, the trial court was authorized to find that Bishop knowingly waived his rights, despite his purported previous consumption of alcohol and drugs. Garcia v. State, 267 Ga. 257, 258(5), 477 S.E.2d 112 (1996); Philmore v. State, 263 Ga. 67, 68(2), 428 S.E.2d 329 (1993); Blackwell v. State, 259 Ga. 810, 811(2), 388 S.E.2d 515 (1990). The trial court's finding must be upheld, since it is not clearly erroneous. Adams v. State, 264 Ga. 71, 77(10), 440 S.E.2d 639 (1994).

Bishop further contends that his statement was the inadmissible product of an unconstitutional warrantless arrest.

"[A] 'warrantless arrest' is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense."

Crowe v. State, 265 Ga. 582, 586-587(5), 458 S.E.2d 799 (1995). Prior to Bishop's arrest, the officers had the following reasonably trustworthy information: Morrison was last seen alive leaving the bar with Bishop and Braxley around 11:00 p.m. Although Bishop and Braxley claimed Morrison left the trailer in his car about 2:00 or 2:30 a.m., they were seen driving Morrison's car after 3:00 a.m. Morrison's body was found several hours later, less than a mile away from Braxley's trailer. These facts were sufficient to give the officers a particularized and objective basis for believing that Bishop murdered Morrison. Dix v. State, 267 Ga. 429, 431-432(3), 479 S.E.2d 739 (1997).

3. Bishop argues that it was error to deny his ex parte motion for funds to hire an expert to assist him in his challenges to the arrays of the grand and traverse juries. The record indicates that the trial court did grant Bishop's request for funds to hire a "jury composition expert" and that Bishop made no further request for funds. Moreover, it does not appear that the services of an expert would have been needed to investigate a challenge to the arrays. See Spivey v. State, 253 Ga. 187, 199(7)(a), 319 S.E.2d 420 (1984). Compare Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (insanity defense). In any event, Bishop has not attempted to show that there is a reasonable probability that the assistance of a second expert to challenge the arrays was necessary to his defense and that, without such assistance, his trial was rendered unfair. Isaacs v. State, 259 Ga. 717, 725(13)(c), 386 S.E.2d 316 (1989); Roseboro v. State, 258 Ga. 39, 41, fn. 3, 365 S.E.2d 115 (1988).

4. Bishop filed an unsuccessful challenge to the array of the grand jury based upon a prior history of alleged discrimination in the selection of forepersons and, on appeal, he urges that this challenge was meritorious. The trial court's denial of Bishop's motion does not constitute error requiring reversal of his convictions and sentences, which were based upon verdicts returned by a properly constituted traverse jury. Spivey v. State, supra at 199(7)(b), 319 S.E.2d 420. See also Hobby v. U.S., 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984).

Jury Selection

5. Bishop urges that the trial court should have disqualified one of the prospective jurors, Ms. Baugh, because of her bias in favor of his guilt. Ms. Baugh initially expressed her belief that an indictee is more likely guilty than not. However, a prospective juror's expression of such a belief does not necessarily require disqualification from service. The relevant test is whether the prospective juror has formed an opinion on the guilt or innocence of the accused which is " ' "so fixed and definite that the juror will be unable to set the opinion aside and decide the case based on the evidence or the court's charge upon the evidence." ' [Cits.]" McClain v. State, 267 Ga. 378, 380(1)(a), 477 S.E.2d 814 (1996). Here, Ms. Baugh subsequently stated that she would hold the State to its burden of proof and that she would base her decision solely on the evidence adduced at trial. The trial court was not compelled to rely only upon Ms. Baugh's initial expression of a potentially disqualifying belief, rather than her subsequent qualifying answers. The trial court was authorized to resolve any equivocations and conflicts in Ms. Baugh's responses in favor of her qualification, and we must give deference to that resolution by the trial court. Burgess v. State, 264 Ga. 777, 780(6), 450 S.E.2d 680 (1994); Ledford v. State, 264 Ga. 60, 64(6), 439 S.E.2d 917 (1994).

6. Citing Pope v. State, 256 Ga. 195, 201(7)(e), 345 S.E.2d 831 (1986) as controlling authority, Bishop contends that the trial court should have disqualified Ms. Baugh and four other prospective jurors based upon their bias in favor of the death penalty. In Pope v. State, supra at 201(7)(e), 345 S.E.2d 831, the prospective juror did not equivocate, but unwaveringly maintained that, if the defendant were found guilty and the trial court authorized consideration of the death penalty, he would "listen" to the mitigating evidence, "but it would not change his opinion." Bishop submits that the five prospective jurors in this case likewise expressed such a disqualifying bias.

MS. BAUGH

Ms. Baugh stated she would probably vote for death in cases of "premeditated" murder. However, this response does not require disqualification, since "premeditated" murder is not a crime in Georgia, and premeditation is not an aggravating circumstance which would affect the jury's sentencing determination pursuant to OCGA § 17-10-30. Moreover, Ms. Baugh volunteered that s...